Faircloth v. Timme et al
ORDER Overruling 78 Objections to Recommendation of the United States Magistrate Judge. By Judge Robert E. Blackburn on 4/2/2014. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03317-REB-KLM
MARQUEZ, Correctional Officer, in his individual capacity, and
TOM BENEZE, Lt., in his individual capacity,
ORDER OVERRULING OBJECTIONS TO
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The matter before me is Petitioner’s Response to Magistrat [sic] Mix’s Order
– Doc. # 66 and Exhibits Specific to this Response/Exhibits #1 Through #4 [#78],1
filed March 31, 2014. I construe this document as plaintiff’s objection to the
Recommendation of United States Magistrate Judge [#66], filed February 28, 2014.
I granted plaintiff an extension of time until March 25, 2014, by which to file his
objections. (See Minute Order [#75], filed March 19, 2014.) The court entered its
order adopting in part and rejecting in part the apposite recommendation on February
28 [#77]. However, because the certificate of mailing avers that plaintiff’s objection was
put in the prison mail system on the date set by the court, I conclude, without deciding,
that the objection is timely and must be considered.
“[#78]” 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.
Nevertheless, I find nothing in plaintiff’s paper that convinces me that my prior
order regarding the magistrate judge’s recommendation was erroneous in any respect.
Thus, I overrule the objections.
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, and have considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
and well-reasoned. Plaintiff’s objections are imponderous and without merit.
Plaintiff devotes a substantial portion of his objection to explaining why he
believes he cannot adequately proceed without a lawyer, complaining about the access
afforded him to legal materials at the prison, and setting forth facts admittedly not
contained in his Amended Complaint which he claims provide context for his claims and
establish his putative entitlement to relief. To the extent plaintiff intends by these
arguments to request affirmative relief in the form of legal counsel, an order impelling
CDOC to grant him access to legal materials, or leave to amend his complaint, his
objection to the magistrate judge’s recommendation is not the proper vehicle for
presenting such matters to the court for resolution. See FED. R. CIV. P. 7(b)(1) (“A
request for a court order must be made by motion.”); D.C.COLO.LCivR 7.1(d) (“A
motion shall not be included in a response or reply to the original motion. A motion shall
be made in a separate document.”); Health Grades, Inc. v. MDX Medical, Inc., 2012
WL 4351601 at *1 (D. Colo. Sept. 24, 2012) (in regard to party’s request for relief made
in objections to recommendation of magistrate judge, “[t]he merits of any such request
was [sic] not before the Court, as plaintiff had not filed a motion requesting any court
action.”). Thus, I do not consider the substantive merit, vel non, of these matters.
Plaintiff’s sole, cognizable objection is that the magistrate judge erred in finding
that his Eighth Amendment claims should be dismissed against all defendants
implicated therein, except Officer Marquez. Plaintiff insists that he has pled adequately
facts to plausibly aver that all defendants named in this claim were deliberately
indifferent. His objection, however, is as conclusory as his Second Amended
Complaint. As with the complaint, plaintiff’s alleged “facts” are instead bare conclusions
based on his own subjective belief about what these defendants knew and how they
were involved in the decision to place him the cell.2 Regardless how adamantly plaintiff
himself believes that defendants must have known that he had been placed in a
administrative segregation cell and that such placement was inappropriate given his
mental condition, he still has not alleged any actual facts showing personal participation
on the part of any of the Eighth Amendment defendants other than Mr. Marquez. (See
Recommendation at 16-17 [#66], filed February 28, 2014.)3
I also reject plaintiff’s suggestion that the statement attributed to Officer Marquez – that plaintiff
“was placed in [the cell] to finish the job of killing himself, thus giving them some type of plausable [sic]
deniability, etc, supposedly” (Am. Compl. at 14) – sufficiently alleges that all the Eighth Amendment
defendants conspired regarding the placement and thus are all liable. The allegation is far too vague to
support such an inference. Similarly, plaintiff’s representation in his objection that Ms. Bernes later
admitted to him “that it was obvious that [he] should not have been [placed in the cell]” (Obj. at 5), not only
is not included in the Amended Complaint, but also does not establish her – or any other defendant’s –
prior or contemporaneous knowledge of the conditions of the cell or the dangers it purportedly posed to
As the magistrate judge explained, to satisfy the subjective component of an Eighth Amendment
claim, the complaint must allege facts establishing not only that the defendant was “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,” but also that he actually
drew that inference. (Recommendation at 13 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 1979, 128 L.Ed.2d 811 (1994).) Thus, “an official's failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, may not under our cases be
condemned as the infliction of punishment.” Farmer, 114 S.Ct. at 1970.
THEREFORE, IT IS ORDERED that the objections stated in Petitioner’s
Response to Magistrat [sic] Mix’s Order – Doc. # 66 and Exhibits Specific to this
Response/Exhibits #1 Through #4 [#78], filed March 31, 2014, are OVERRULED.
Dated April 2, 2014, at Denver, Colorado.
BY THE COURT:
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