Maxton v. USA et al

Filing 122

ORDER that the Recommendation of United States Magistrate Judge filed December 3, 2013 ECF No. 96 is AFFIRMED AND ADOPTED. In accordance therewith, it is ORDERED that Plaintiffs Motion for Injunction and Restraining Order ECF No. 92 is DENIED. It is FURTHER ORDERED that Plaintiffs Objection/Appeal of Magistrate Judge Bolands Order of February 18, 2014 ECF No. 121 is OVERRULED, by Judge Wiley Y. Daniel on 4/14/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-00383-WYD-KMT
THERON JOHNNY MAXTON, # 85599-071,
Plaintiff,
v.
UNITED STATES OF AMERICA;
BOP DIRECTOR, Washington, D.C.;
T.K COZZA-RHODES, Warden F.C.I.;
CHARLES DANIEL, Warden F.C.I.;
S. COLLINS, Health Service, U.S.P.;
LT. ANTHONY, U.S.P. Florence,
Defendants.

ORDER

This matter is before the Court on Plaintiff’s Motion for Injunction and Restraining
Order filed November 25, 2013. This motion was referred to Magistrate Judge Boland,
who issued a Recommendation of United States Magistrate Judge (“Recommendation”)
and Order on December 3, 2013. Also pending is a document entitled “Plaintiff
Appealing Magistrate Judge Boland Granting the Defendant a Stay” filed February 28,
2014. I construe this document as an objection to and appeal of Magistrate Judge
Boland’s Order of February 18, 2014. I first address the Recommendation.
By way of background, the Amended Complaint seeks relief for alleged violations
of the Eighth Amendment by officials at prison facilities in Florence, Colorado.
(Recommendation at 1.) At the time the motion was filed, Plaintiff was incarcerated at

USP Lewisburg. His Motion for Injunction and Restraining Order seeks an order
preventing officials at USP Lewisburg from harming him. (Id.)
Magistrate Judge Boland recommends that Plaintiff’s Motion for Injunction and
Restraining Order be denied. He finds that Plaintiff did not discuss the factors
necessary to obtain injunctive relief, despite the fact that previous recommendations
discussed in detail the showing required to establish the right to injunctive relief.
(Recommendation at 1-2.) He further finds as a basis to deny Plaintiff’s motion that it
seeks an order directing non-parties to cease their behavior, and that he previously
informed Plaintiff “that he ‘may not use this action to seek an injunction concerning
events and defendants that are unrelated to those asserted in the Amended
Complaint.’” (Id. at 2.)
The Recommendation advised that specific, written objections were due within
fourteen (14) days after service thereof. (Recommendation at 2 n. 1.) No objections
were filed to the Recommendation within that time frame. When the Recommendation
was returned to the Court as undeliverable, I ordered that the Recommendation be sent
to Plaintiff at his new address. This was done on February 3, 2014. (See ECF Nos.
111-112.) Again, no objections were filed.
No objections having been filed, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate's factual or legal conclusions, under a de novo or any other standard,
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when neither party objects to those findings”). Nonetheless, though not required to do
so, I review the Recommendation to “satisfy [my]self that there is no clear error on the
face of the record.”1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes. Having
reviewed the Recommendation, I am satisfied that there is no clear error on the face of
the record. I agree with Magistrate Judge Boland’s analysis and adopt it in its entirety.
I now turn to Plaintiff’s objection to and appeal of Magistrate Judge Boland’s
Order of February 18, 2014, which granted Defendants’ Motion for Stay of Discovery
Pending Plaintiff’s Pending Criminal Proceedings. The Order stayed discovery until
June 1, 2014, and directed Defendants by that date to file a report concerning the status
of the criminal proceedings.
Since Plaintiff’s objection relates to a ruling on a nondispositive matter, I review
the February 18, 2014 Order to determine whether it is “clearly erroneous or contrary to
law”. Fed. R. Civ. P. 72(a). The clearly erroneous standard . . . requires that the
reviewing court affirm unless it ‘on the entire evidence is left with the firm and definite
conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Industries,
847 F.2d 1458, 1464 (10th Cir. 1996) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).
Plaintiff argues in his objection that Defendants’ motion to stay the proceedings is
another delay tactic, and that a stay cannot help Defendants. Further, he points out that
the civil action was filed well before the criminal charges were filed. I find that the

1

Note, this standard of review is something less than a “clearly erroneous or contrary to law”
standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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objection should be overruled. Magistrate Judge Boland conducted a thorough analysis
in his Order of whether the case should be stayed, and considered the appropriate
factors. He noted Plaintiff’s allegations in this case that Defendants Cozza-Rhodes,
Daniels, and Anthony harmed him in violation of his Eighth Amendment rights. In the
criminal case, he was indicted for threats “related to” these Defendants. Thus,
Magistrate Judge Boland correctly found that the facts of the two cases overlap.
Plaintiff acknowledges this in his objection, stating that the criminal charges were filed
due to what Defendants were doing to Plaintiff as alleged in this case. Another factor
favoring stay as noted in Magistrate Judge Boland’s Order was a concern about
Plaintiff’s ability to protect his Fifth Amendment rights. I find the analysis well-reasoned,
and conclude that the February 18, 2014 Order granting a stay of discovery is not
clearly erroneous or contrary to law. According, Plaintiff’s objection is overruled.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge filed
December 3, 2013 (ECF No. 96) is AFFIRMED AND ADOPTED. In accordance
therewith, it is
ORDERED that Plaintiff’s Motion for Injunction and Restraining Order (ECF No.
92) is DENIED. It is
FURTHER ORDERED that Plaintiff’s Objection/Appeal of Magistrate Judge
Boland’s Order of February 18, 2014 (ECF No. 121) is OVERRULED.

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Dated: April 14, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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