McLain v. Dassart
ORDER ADOPTING 63 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The 55 Motion to Dismiss Amended Complaint is GRANTED. The 54 Amended Complaint of the plaintiff is DISMISSED WITH PREJUDICE. Judgment shall enter in favor of the defendant, Michael Dussart, against the plaintiff, Michele Dorene McClain. By Judge Robert E. Blackburn on 3/2/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02504-REB-MEH
MICHELE DORENE MCLAIN,
MICHAEL DUSSART, Correctional Officer La Vista Correctional Facility,
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The matters before me are (1) the Motion To Dismiss Amended Complaint
[#55]1 filed April 9, 2014; and (2) the Recommendation of United States Magistrate
Judge [#63] filed May 27, 2014. No objection to the recommendation has been filed.
Therefore, I review it for plain error only. See Morales-Fernandez v. Immigration &
Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2
The plaintiff is acting pro se. Therefore, I construe her filings generously and
with the leniency due pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.
Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall
“[#55]” 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.
This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his
pleadings more liberally and held them to a less stringent standard than formal pleadings 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)).
v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S.
519, 520-21 (1972)).
I perceive no error, much less plain error, in the recommendation of the
magistrate judge. As detailed by the magistrate judge, the allegations in the fourth
Amended Complaint [#54] of the plaintiff are not sufficiently specific to state a claim on
which relief can be granted.
At this point, I must determine if the Amended Complaint [#54] should be
dismissed with prejudice or without prejudice. “Refusing leave to amend is generally
only justified upon a showing of undue delay, undue prejudice to the opposing party,
bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” Castleglen, Inc. v. Resolution Trust Corp., 984
F.2d 1571, 1585 (10th Cir.1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
The plaintiff has made no formal motion to amend her complaint. A district court need
not grant leave to amend when a plaintiff fails to make formal motion, and an informal
request to amend in response to motion to dismiss is insufficient if it fails to give
grounds for proposed amendment. Calderon v. Kan. Dep't of Soc. & Rehab. Servs.,
181 F.3d 1180, 1186-87 (10th Cir.1999).
Nothing in the record indicates that an attempt to amend the complaint yet again
would permit the plaintiff to plead her claims adequately when she has not been able to
do so in the past. I find and conclude that another attempted amendment of the
complaint would be futile. Permitting such an amendment would cause undue prejudice
to the defendant and would impose undue delay on everyone involved in this case.
Therefore, I conclude that this case must be dismissed with prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#63] filed
May 27, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That under Fed. R. Civ. P. 12(b)(6), the corresponding Motion To Dismiss
Amended Complaint [#55] filed April 9, 2014, is GRANTED;
3. That the Amended Complaint [#54] of the plaintiff is DISMISSED WITH
4. That JUDGMENT SHALL ENTER in favor of the defendant, Michael Dussart,
against the plaintiff, Michele Dorene McClain;
5. That the defendant is AWARDED his costs, to be taxed by the clerk of
the court in the time and manner specified by Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1; and
6. That this case is CLOSED.
Dated March 2, 2015, at Denver, Colorado.
BY THE COURT:
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