Faircloth v. Schwartz, et al

Filing 143

ORDER ADOPTING 131 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Defendants' 115 Motion to Dismiss Amended complaint is DENIED as to the First Amendment claim of the plaintiff alleging denial of access to the courts and the First Ame ndment claim of the plaintiff alleging retaliation as alleged against defendant, Celia Schwartz in her individual capacity, to the extent the plaintiff seeks monetary damages, injunctive relief, and declaratory relief, and as alleged against defen dant, Celia Schwartz in her official capacity, to the extent the plaintiff seeks injunctive relief; otherwise, Defendants' 115 Motion to Dismiss Amended Complaint is GRANTED. Defendant, Gerry Bland, is DROPPED as a party to this action, and the caption of this case shall be AMENDED accordingly. By Judge Robert E. Blackburn on 9/10/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02764-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ, legal Assistant for BVCF, in her official and individual
capacities, and
GERRY BLAND, Hearings Officer for BVMC/BVCF, in his official and individual
capacities,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Defendants’ Motion To
Dismiss Amended Complaint (Doc. 107) [#115]1 filed November 20, 2013; and (2) the
Recommendation of United States Magistrate Judge [#131] filed July 24, 2014. The
plaintiff and the defendants both filed objections [#132 & #139] to the recommendation.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other
filings 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 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
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“[#115]” 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.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the parties object. I have considered carefully the
recommendation, the objections, and the applicable case law.
As detailed in the recommendation [#131], the plaintiff, James Faircloth, asserts
claims under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12102 12213, and the First, Fourth, Fifth, Sixth, Eight, and Fourteenth Amendments to the
Constitution of the United States. Mr. Faircloth, a prison inmate, alleges that the
defendants, employees at the Buena Vista Correctional Facility, took certain actions in
violation of his rights. The magistrate judge recommends that the motion to dismiss be
granted as to all claims asserted by Mr. Faircloth, except for his First Amendment
access to the courts and retaliation claims as asserted against defendant, Celia
Schwartz. The magistrate judge recommends that the motion be denied as to these two
claims to the extent they are asserted against Ms. Schwwartz in her individual capacity
for monetary damages, injunctive relief, and declaratory relief, and against her in her
official capacity for injunctive relief. The recommendation is detailed, well reasoned,
and correct. Therefore, I overrule the objections and approve and adopt the
recommendation.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#131] filed
July 24, 2014, is APPROVED and ADOPTED as an order of this court;
2. That the objections [#132 & #139] of the parties are OVERRULED;
3. That the Defendants’ Motion To Dismiss Amended Complaint (Doc. 107)
[#115] filed November 20, 2013, is DENIED as to the First Amendment claim of the
plaintiff alleging denial of access to the courts and the First Amendment claim of the
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plaintiff alleging retaliation as alleged against defendant, Celia Schwartz in her individual
capacity, to the extent the plaintiff seeks monetary damages, injunctive relief, and
declaratory relief, and as alleged against defendant, Celia Schwartz in her official
capacity, to the extent the plaintiff seeks injunctive relief;
4. That otherwise, the Defendants’ Motion To Dismiss Amended Complaint
(Doc. 107) [#115] filed November 20, 2013, is GRANTED;
5. That consistent with the recommendation [#131], the following claims are
DISMISSED WITH PREJUDICE:
(a) the claim of the plaintiff under the ADA for monetary relief against the
defendants in their individual capacities;
(b) the claims of the plaintiff against the defendants in their official
capacities seeking declaratory relief;
(c) the claims of the plaintiff for monetary damages based on alleged
violations of the Constitution of the State of Colorado; and
(d) the claims of the plaintiff alleging violations of the administrative
regulations of the Colorado Department of Corrections;
6. That excluding the claims listed in paragraphs three (3) and five (5), above, all
other claims of the plaintiff are DISMISSED WITHOUT PREJUDICE; and
7. That defendant, Gerry Bland, is DROPPED as a party to this action, and the
caption of this case shall be AMENDED accordingly.
Dated September 10, 2014, at Denver, Colorado.
BY THE COURT:

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