Thomas v. State of Colorado et al

Filing 56

ORDER Adopting 54 Recommendation of United States Magistrate Judge. The Motion to Dismiss [# 32 ] filed May 13, 2013, is GRANTED. This case is DISMISSED. By Judge Robert E. Blackburn on 2/20/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03078-REB-CBS
DEMETRIUS THOMAS,
Plaintiff,
v.
STATE OF COLORADO,
CDOC,
TOM CLEMENTS,
SUSAN JONES,
SGT. JOHNSON, and
MR. K,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following:(1) the Motion to Dismiss [#32]1 filed
May 13, 2013; and (2) the Recommendation of United States Magistrate Judge
[#54] filed January 27, 2014. I approve and adopt the recommendation and grant the
motion to dismiss.
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). Finding no error, much less plain error, in the
recommendation of the magistrate judge, I find and conclude that the recommendation
1

“[#32]” 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.

should be approved and adopted as an order of this court.
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).
The plaintiff, Demetrius Thomas, is an inmate in the custody of the Colorado
Department of Corrections. In Claim One, Mr. Thomas alleges that the defendants
failed to protect him and denied him equal protection of the law while Mr. Thomas was
housed at the Colorado Territorial Correctional Facility. Based on these allegations, he
asserts claims under the Eighth and Fourteenth Amendments. Complaint [#13].
In Claim Two, Mr. Thomas asserts that defendant Sgt. Johnson retaliated against Mr.
Thomas, in violation of his First, Eighth, and Fourteenth Amendments, by labeling Mr.
Thomas a “rat.” Id.
Based on a thorough analysis of the complaint and the issues raised in the
motion to dismiss, the magistrate judge recommends that the motion to dismiss be
granted and that this case be dismissed. I concur. Therefore, I approve and adopt the
recommendation and grant the motion to dismiss.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#54] filed
January 27, 2014, is APPROVED and ADOPTED as an order of this court;
2. That under FED. R. CIV. P. 12(b)(6), the Motion to Dismiss [#32] filed May

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13, 2013, is GRANTED;
3. That this case is DISMISSED;
4. That JUDGMENT SHALL ENTER in favor of the defendants, State of
Colorado, CDOC, Tom Clements, Susan Jones, Sgt. Johnson, and Mr. K, against the
plaintiff, Demetrius Thomas; and
5. That the defendants are AWARDED their costs, to be taxed by the clerk of
the court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated February 20, 2014, at Denver, Colorado.
BY THE COURT:

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