Faircloth v. Timme et al

Filing 76

ORDER Overruling 69 Objections to and Adopting 65 Recommendation of the United States Magistrate Judge. Plaintiff's Petition for Leave To File Amended Complaint [# 60 ], filed December 13, 2103, is DENIED. By Judge Robert E. Blackburn on 3/25/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03317-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
WARDEN: RAE TIMME, et al., in their individual and official capacities,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#65],1 filed February 21, 2014; and (2) Petitioner’s Objection to
Magistrate’s Order on February 21, 2014, and Petition for Reconsideration [#69],
filed March 10, 2014. I overrule the objection, adopt the recommendation, and deny the
apposite motion to amend the complaint.
Plaintiff is proceeding pro se. Thus, 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
1

“[#65]” 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.

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. Contrastingly, plaintiff’s
objections are imponderous and without merit. The magistrate judge recommends
denial of leave to amend the complaint because amendment would be futile insofar as
the facts alleged in the complaint are insufficient to state plausible claims for relief. I
concur. See Perkins v. Kansas Department of Corrections, 165 F.3d 803, 806 (10th
Cir. 1999).
Plaintiff well may be, as he suggests, unschooled in the law, but he is no doubt
aware of the facts that underlie this lawsuit and the basis for his claims. The court
presumes that plaintiff has set forth in his proposed amended complaint all those facts
of which he is aware that he believes give rise to a legal cause of action against
defendants. That such facts, in fact, are insufficient to make out viable claims is
attributable not to plaintiff’s lack of legal training, but to the lack of underlying merit of his
claims. See Hall, 935 F.2d at 1110 (pro se plaintiff still bears “the burden of alleging
sufficient facts on which a recognized legal claim could be based”).2

2

Nor does the fact that no discovery has yet occurred in this matter alter the calculus in this
regard. Plaintiff’s signature on the proposed amended complaint constitutes a certification, inter alia, that
his factual contentions have or are likely to have evidentiary support. See FED. R. CIV. P. 11(b)(3). It is
inappropriate – indeed, sanctionable – to file first and substantiate later, especially in a case implicating
the qualified immunity of government officials. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct.
2806, 2815, 86 L.Ed.2d 411 (1985) (qualified immunity not only protects government officials from the
liability, but also from “the other burdens of litigation” which include “the burdens of broad reaching
discovery”) (citation and internal quotation marks omitted).

2

Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#65], filed
February 21, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That the objections stated in Petitioner’s Objection to Magistrate’s Order
on February 21, 2014, and Petition for Reconsideration [#69], filed March 10, 2014,
are OVERRULED; and
3. That plaintiff’s Petition for Leave To File Amended Complaint [#60], filed
December 13, 2103, is DENIED.
Dated March 25, 2014, at Denver, Colorado.
BY THE COURT:

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