Madison v. Volunteers Of America et al

Filing 58

ORDER approving and adopting 50 Report and Recommendations; Plaintiff Madison's Response to Recommendations [sic] of the Magistrate 57 are OVERRULED; Defendants' Sunset Park Apartments, Dianna Kunz, Roya Rosado, and Linda Fulks Motion T o Dismiss Pursuant to FRCO 12(b)(6) 24 is GRANTED; Defendant Volunteers of America, Inc.'s Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) 27 is DENIED. Defendants, Sunset Park Apartments, Dianna Kunz, Roya Rosado, and Linda Fulks, are DISMISSED as named parties to this action, and the case caption is AMENDED. By Judge Robert E. Blackburn on 3/21/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-00333-REB-KMT
HENRY LEON MADISON,
Plaintiff,
v.
VOLUNTEERS OF AMERICA,
SUNSET PARK APARTMENTS,
DIANN KUNZ,
ROYA ROSADO, and
LINDA FULKA,
Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#50]1 filed February 5, 2013; and (2) the objections contained within
Plaintiff Madison’s Response to Recommendations [sic] of the Magistrate [#57]
filed March 15, 2013. I overrule plaintiff’s objections, approve and adopt the
recommendation, deny defendant Volunteers of America’s motion to dismiss, and grant
the other defendants’ motion to dismiss.
Because plaintiff was proceeding pro se at the time he responded to defendants’
motion to dismiss, I have construed his pleadings more liberally and held them to a less

1

“[#50]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

stringent standard than formal pleadings or papers drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96,
30 L.Ed.2d 652 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
and well-reasoned. Contrastingly, plaintiff’s objections are imponderous and without
merit. Plaintiff’s objections deal with issues that were not presented by the motions to
dismiss, and, in fact, deal with claims previously dismissed before the case was even
drawn to a district judge. (See Order To Dismiss in Part and To Draw Case to a
District Judge and a Magistrate Judge [#7], filed April 5, 2012.)
Nor will I entertain plaintiff’s request that the court dismiss these claims without
prejudice in case he later discovers that some or all of these defendants breached the
settlement agreement that operates as res judicata in this action by allegedly failing to
dismiss the eviction action. The time to prove up those arguments was now, in the
context of this case, not at some later date when plaintiff may be able to substantiate his
inchoate suspicions.
Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.

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THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#50] filed
February 5, 2013, is APPROVED and ADOPTED as an order of this court;
2. That the objections stated in Plaintiff Madison’s Response to
Recommendations [sic] of the Magistrate [#57] filed March 15, 2013, are
OVERRULED;
3. That the Defendants’ Sunset Park Apartments, Dianna Kunz, Roya
Rosado, and Linda Fulks Motion To Dismiss Pursuant to FRCO 12(b)(6) [#24] filed
May 18, 2012, is GRANTED;
4. That Defendant Volunteers of America, Inc.’s Motion To Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) [#27] filed June 5, 2012, is DENIED;
5. That at the time judgment enters, judgment SHALL ENTER on behalf of
defendants, Sunset Park Apartments, Dianna Kunz, Roya Rosado, and Linda Fulks,
against plaintiff, Henry Leon Madison, as to all claims for relief and causes of action
asserted against them in this action; provided, that the judgment as to these claims shall
be with prejudice;
6. That defendants, Sunset Park Apartments, Dianna Kunz, Roya Rosado, and
Linda Fulks, are DISMISSED as named parties to this action, and the case caption is
AMENDED accordingly;
7. That defendants, Sunset Park Apartments, Dianna Kunz, Roya Rosado, and
Linda Fulks are AWARDED their costs to be taxed by the clerk of the court pursuant to
Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

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8. That under 28 U.S.C. § 1915(a)(3), I certify that any appeal from the
recommendation [#50] and this order would not be taken in good faith and, therefore,
any appeal from the recommendation and this order may not be taken in forma
pauperis.
Dated March 21, 2013, at Denver, Colorado.
BY THE COURT:

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