Maxton v. USA et al

Filing 91

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge filed October 8, 2013 (ECF No. 84) is AFFIRMED AND ADOPTED. ORDERED that Defendant United States and BO P Director's Motion to Dismiss for Lack of Jurisdiction (ECF No. 64) is GRANTED IN PART AND DENIED IN PART. ORDERED that Defendants Cozza-Rhodes, Daniel, Collins, and Anthony's Motion to Dismiss (ECF No. 77) is DENIED by Judge Wiley Y. Daniel on 11/18/13.(jjhsl, )

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 AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the following motions: (1) Defendant United
States and BOP Director’s Motion to Dismiss for Lack of Jurisdiction filed April 30, 2013,
and (2) Defendants Cozza Rhodes, Daniel, Collins, and Anthony’s Motion to Dismiss
filed June 10, 2013. These motions were referred to Magistrate Judge Boland, who
issued a Recommendation of United States Magistrate Judge (“Recommendation”) on
October 8, 2013.
By way of background, the Recommendation notes that Plaintiff is asserting an
Eighth Amendment claim for cruel and unusual punishment. (Recommendation at 4.)
Plaintiff seeks monetary damages and an order removing him from the “Smooth
Program” at USP Lewisburg. (Id. at 5.)

Magistrate Judge Boland recommends that the United States and BOP Director’s
Motion to Dismiss for Lack of Jurisdiction be granted in part and denied in part.
Specifically, he recommends that the claim against the United States be dismissed
because “Bivens creates a cause of action only against federal officials in their
individual capacities for money damages; it does not create a cause of action against
the United States.” (Recommendation at 5.) In addition, he recommends that the
United States’ motion be granted as to the claims against the BOP director (1) in his
official capacity “because ‘[t]here is no such animal as a Bivens suit against a public
official tortfeasor in his or her official capacity’” (id.) (quotation omitted), and (2) in his
individual capacity for failure to state a claim upon which relief can be granted, as
Plaintiff failed to establish personal participation. (Id. at 7.) It is recommended that the
United States’ motion be denied insofar as it seeks dismissal of the claims for injunctive
relief against the United States and the BOP Director in his official capacity. (Id. at 6-7.)
Finally, Magistrate Judge Boland recommends that Cozza Rhodes, Daniel, Collins, and
Anthony’s Motion to Dismiss be denied as Plaintiff “has alleged sufficient facts to put the
defendants on notice of plausible claims against them.” (Id. at 8.)
The Recommendation advised that specific, written objections were due within
fourteen (14) days after service of the Recommendation. (Recommendation at 9 n. 5.)
No objections were filed to the Recommendation. 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
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Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, 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. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge filed
October 8, 2013 (ECF No. 84) is AFFIRMED AND ADOPTED. In accordance
therewith, it is
ORDERED that Defendant United States and BOP Director’s Motion to Dismiss
for Lack of Jurisdiction (ECF No. 64) is GRANTED IN PART AND DENIED IN PART. It
is GRANTED as to the claims against the United States and the BOP Director in his
official capacity for monetary damages and as to the claims against the BOP Director in
his individual capacity. It is DENIED insofar as to the claims for injunctive relief against
the United States and the BOP Director in his official capacity. It is
FURTHER ORDERED that Defendants Cozza-Rhodes, Daniel, Collins, and
Anthony’s Motion to Dismiss (ECF No. 77) is DENIED.

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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Dated: November 18, 2013
BY THE COURT:

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

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