Toevs v. Milyard et al

Filing 59

ORDER Overruling Objections to and Adopting Recommendations of the United States Magistrate Judge. The objections stated in plaintiff's Objection to Magistrate's Recommendation [# 49 ] are OVERRULED. The Recommendation of United States Magi strate Judge [# 44 ] is APPROVED and ADOPTED as an order of this court. The objections stated in plaintiff's Objection to Magistrate's Recommendation [# 58 ] are OVERRULED. The Recommendation of United States Magistrate Judge [# 57 ] is APP ROVED and ADOPTED as an order of this court. Defendants' Motion To Dismiss or Motion for Summary Judgment [# 21 ] is GRANTED. Defendant Rick Raemisch's Motion To Dismiss or Motion for SummaryJudgment [# 53 ] is GRANTED. Plaintiff's claims are DISMISSED. By Judge Robert E. Blackburn on 10/30/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02532-REB-MEH
JANOS TOEVS,
Plaintiff,
v.
KEVIN MILYARD, in his official and individual capacities,
RICK RAEMISCH, CDOC Executive Director, in his official capacity,
ARISTEDES ZAVARES, in his official and individual capacities,
CAPTAIN WHITNEY, in his official and individual capacities,
C.O. MERRILL, in his official and individual capacities,
C.O. RALSTON, in his official and individual capacities,
BERNADETTE SCOTT, in her official and individual capacities,
SGT. CHRISTIANS, in his official and individual capacities,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#44],1 filed August 1, 2013; (2) plaintiff’s Objection to Magistrate’s
Recommendation [#49], filed August 8, 2013; (3) the Recommendation of United
States Magistrate Judge [#57], filed October 10, 2013; and (4) plaintiff’s Objection to
Magistrate’s Recommendation [#58], filed October 22, 2013. I overrule the objections,
approve and adopt the recommendations, and dismiss plaintiff’s claims.
Plaintiff is proceeding pro se. Thus, I have construed his pleadings more liberally
1

“[#44]” 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.

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)).
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. Plaintiff’s only objection
worthy of more than cursory consideration is the conclusory allegation that the
magistrate judge did not afford his pleadings the liberal reading required by applicable
precedents. I disagree. The magistrate judge recognized and applied the appropriate
standard, but nevertheless concluded that plaintiff had failed to allege facts adequate to
demonstrate that he had sufficiently exhausted his administrative remedies.2 The
liberality required to be afforded to pro se pleadings implicates the legal theories that
may be derived from the facts pled; it does not absolve the pro se litigant from the
burden of properly alleging facts that support a legal cause of action. Hall, 935 F.2d at
1110 (“The broad reading of the plaintiff's complaint does not relieve the plaintiff of the
burden of alleging sufficient facts on which a recognized legal claim could be based. . . .
[A] pro se plaintiff requires no special legal training to recount the facts surrounding his
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I recognize that it may have been the better course for the magistrate judge to consider plaintiff’s
unverified statements suggesting, with respect to his claim of First Amendment retaliation, that the prison’s
grievance procedure was unavailable for purposes of the PLRA. Nevertheless, the magistrate judge also
found that the appeal plaintiff did submit was insufficient to put defendants on notice that plaintiff was
alleging that his relocation was retaliatory. This claim therefore is properly dismissed in any event.

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alleged injury, and he must provide such facts if the court is to determine whether he
makes out a claim on which relief can be granted.”). As plaintiff here failed to plead facts
adequate to support a legal cause of action, the magistrate judge properly concluded that
plaintiff’s claims should be dismissed.3
THEREFORE, IT IS ORDERED as follows:
1. That the objections stated in plaintiff’s Objection to Magistrate’s
Recommendation [#49], filed August 8, 2013, are OVERRULED;
2. That the Recommendation of United States Magistrate Judge [#44], filed
August 1, 2013, is APPROVED and ADOPTED as an order of this court;
3. That the objections stated in plaintiff’s Objection to Magistrate’s
Recommendation [#58], filed October 22, 2013, are OVERRULED;
4. That the Recommendation of United States Magistrate Judge [#57], filed
October 10, 2013, is APPROVED and ADOPTED as an order of this court
5. That defendants’ Motion To Dismiss or Motion for Summary
Judgment [#21], filed May 24, 2013, is GRANTED;
6. That defendant Rick Raemisch’s Motion To Dismiss or Motion for Summary
Judgment [#53], filed August 26, 2013, is GRANTED;
7. That plaintiff’s claims are DISMISSED as follows:
a. That plaintiff’s claims for money damages against all defendants in their
official capacities are DISMISSED WITH PREJUDICE;

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Moreover, given the bases on which plaintiff’s claims are subject to dismissal, I find and conclude
that it is proper to dismiss the claims against defendant Aristedes Zavares, who did not join in the
underlying motion to dismiss because he has not been served in this action.

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b. That plaintiff’s remaining claims against all defendants in their official
and individual capacities are DISMISSED WITHOUT PREJUDICE;
8. That judgment SHALL ENTER on behalf of defendants, Kevin Milyard, in his
official and individual capacities; Rick Raemisch, CDOC Executive Director, in his official
capacity; Aristedes Zavares, in his official and individual capacities; Captain Whitney, in
his official and individual capacities; C.O. Merrill, in his official and individual capacities;
C.O. Ralston, in his official and individual capacities, Bernadette Scott, in her official and
individual capacities; and Sgt. Christians, in his official and individual capacities, against
plaintiff, Janos Toevs, as to all claims for relief and causes of action asserted by plaintiff;
provided, as follows:
a. That the judgment as to plaintiff’s claims against defendants in their
official capacities for monetary damages shall be with prejudice; and
b. That the judgment as to all plaintiff’s remaining claims against
defendants in their official and individual capacities shall be without
prejudice; and
9. That defendants 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.
Dated October 30, 2013, at Denver, Colorado.
BY THE COURT:

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