Alward v. Milyard et al

Filing 33

ORDER Adopting 25 Recommendation of the United States Magistrate Judge. Defendants' Motion To Dismiss # 14 is granted as to the plaintiff's Fourth Amendment claim against defendants Christopher Gassaway, Patrick White, and John Chapdel ain and is otherwise Denied. Plaintiff's Fourth Amendment claim against defendants Christopher Gassaway, Patrick White, and John Chapdelain is DISMISSED without prejudice. Defendant John Chapdelain is DROPPED as a defendant in this case, and the caption shall be AMENDED accordingly. By Judge Robert E. Blackburn on 3/12/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-00878-REB-KLM
DOUGLAS JAMES ALWARD,
Plaintiff,
v.
KEVIN MILYARD,
RAYMOND HIGGINS,
CHRISTOPHER FLECKENSTEIN,
CHRISTOPHER GASSAWAY,
PATRICK WHITE,
JOHN WALRAVEN,
JEFFERY ERPS, and
JOHN CHAPDELAIN,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the defendants’ Motion To
Dismiss [#14]1 filed June 11, 2012; and (2) the corresponding Recommendation of
United States Magistrate Judge [#25] filed October 1, 2012. No objections to the
recommendation have been filed.
The plaintiff is acting pro se. Therefore, I construe his filings generously and with
the leniency due pro se litigants, 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
1

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

Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
No objections to the recommendation were filed. Thus, I review it only for plain
error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d
1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the disposition
recommended by the magistrate judge, I find and conclude that the recommendation
should be approved and adopted as an order of this court.
The plaintiff’s complaint concerns an alleged strip search of the plaintiff. The
plaintiff alleges that the strip search violated his rights under the Fourth and Eighth
Amendments. The magistrate judge concluded correctly that the allegations in the
plaintiff’s complaint do not state a Fourth Amendment claim against defendants
Christopher Gassaway, Patrick White, and John Chapdelain. Defendant John
Chapdelain is not named as a defendant in the plaintiff’s Eight Amendment claim.
Therefore, John Chapdelain is dropped as a defendant in this case. Otherwise, the
magistrate judge concluded correctly that the allegations in the plaintiff’s complaint are
sufficient to state claims under the Fourth and Eighth Amendments.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#25] filed
October 1, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That the defendants’ Motion To Dismiss [#14] filed June 11, 2012, is
GRANTED as to the plaintiff’s Fourth Amendment claim against defendants Christopher
Gassaway, Patrick White, and John Chapdelain;

2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

2

3. That the plaintiff’s Fourth Amendment claim against defendants Christopher
Gassaway, Patrick White, and John Chapdelain is DISMISSED without prejudice;
4. That defendant John Chapdelain is DROPPED as a defendant in this case,
and the caption shall be AMENDED accordingly;
5. That otherwise, the defendants’ Motion To Dismiss [#14] filed June 11,
2012, is DENIED.
Dated March 12, 2013, at Denver, Colorado.
BY THE COURT:

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