Ross v. Gallegos

Filing 27

ORDER Adopting 25 Recommendation of United States Magistrate Judge. Defendant's Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [# 20 ] is GRANTED. Plaintiff's claims against defendant are DISMISSED WITH PREJUDICE. Judgment SHALL ENTER on behalf of defendant, David Gallegos, Aurora P.O., against plaintiff, Delaree Ross, a/k/a Delise Ross, on all claims for reliefand causes of action. Defendant is AWARDED his costs. By Judge Robert E. Blackburn on 12/3/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00831-REB-KLM
DELAREE ROSS, a/k/a Delise Ross,
Plaintiff,
v.
DAVID GALLEGOS, Aurora P.O.,
Defendant.

ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#25],1 filed November 14, 2013. No objection having been filed to the
recommendation, I review it only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2
Finding no such error in the magistrate judge’s recommended disposition, I find and
conclude that the recommendation should be approved and adopted in relevant,
substantive part.

1

“[#35]” 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.
2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed her
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 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).

The recommendation is detailed and well-reasoned. Moreover, plaintiff has
conceded that the case should be dismissed. (See Letter [#26], filed November 20,
2013.) Indeed, plaintiff concedes that she has sued the wrong defendant and agrees
that the case should be dismissed. (See id.) In light of these representations and
admissions, I agree with the magistrate judge that the case should be dismissed, but
find and conclude (contrary to the recommendation) that the claims against defendant
should be dismissed with prejudice. (See Recommendation at 8 n.5 [#25], filed
November 14, 2013 (recommending that dismissal be without prejudice because
plaintiff is proceeding pro se, but noting that dismissal for failure to state a claim
pursuant to Rule 12(b)(6) should be with prejudice “where a plaintiff is unable to allege
any fact sufficient to support its claim”) (citation omitted).)
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, except that plaintiff’s claims should
be dismissed with prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That Recommendation of United States Magistrate Judge [#25], filed
November 14, 2013, is APPROVED and ADOPTED as an order of this court in relevant
part as follows;
a. That the recommendation is APPROVED and ADOPTED on the
substantive grounds suggested for its recommendation that defendant’s
motion to dismiss be granted; and

2

b. That the recommendation is, respectfully, REJECTED to the extent it
recommends that plaintiff’s claims be dismissed without prejudice, based
on plaintiff’s more recent concession that she has sued the wrong
defendant;
2. That Defendant’s Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
[#20], filed is August 21, 2013, is GRANTED;
3. That plaintiff’s claims against defendant are DISMISSED WITH PREJUDICE;
4. That judgment SHALL ENTER on behalf of defendant, David Gallegos,
Aurora P.O., against plaintiff, Delaree Ross, a/k/a Delise Ross, on all claims for relief
and causes of action; and
5. That defendant is AWARDED his 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 December 3, 2013, at Denver, Colorado.
BY THE COURT:

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