Woodstock v. Bergondo et al

Filing 50

ORDER adopting Recommendation of United States Magistrate Judge. Recommendation of United States Magistrate Judge [# 43 ] filed February 6, 2014, is APPROVED and ADOPTED as an order of this court. The Recommendation of United States Magistrate Judge [# 49 ] filed February 25, 2014, is APPROVED and ADOPTED as an order of this court. Defendant Betty Spinuzzi's Motion to Dismiss Plaintiff's Complaint [# 23 ] filed Aug. 9, 2013, is GRANTED. The Motion To DismissPlaintiff's Amended Complaint [# 28 ] filed by defendants Boyd, Hodge, Phillips,Larson, and Brown on September 9, 2013, is GRANTED. By Judge Robert E. Blackburn on 3/17/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01146-REB-KMT
JONATHAN WOODSTOCK,
Plaintiff,
v.
KATHLEEN BOYD,
MS. SPANOZI,
MR. HODGE,
MS. MARTIN,
SHARRON PHILLIPS,
PAUL LARSON, and
CAROL BROWN,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following:(1) Defendant Betty Spinuzzi’s1
Motion to Dismiss Plaintiff’s Complaint [#23]2 filed Aug. 9, 2013; (2) the Motion To
Dismiss Plaintiff’s Amended Complaint [#28] filed by defendants Boyd, Hodge,
Phillips, Larson, and Brown on September 9, 2013; (3) the Recommendation of
United States Magistrate Judge [#43] filed February 6, 2014; and (4) the

1

In his complaint [#15], the plaintiff refers to this defendant as “Ms. Spanozi.” In the motion to
dismiss [#23], this defendant clarifies that her surname is correctly spelled “Spinuzzi.” The court uses the
correct spelling in this order.
2

“[#23]” 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.

Recommendation of United States Magistrate Judge [#49] filed February 25, 2014. I
approve and adopt both recommendations, grant the motions to dismiss, and dismiss
this case.
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).
No objections to the recommendations were filed. Thus, I review the
recommendations only for plain error. See Morales-Fernandez v. Immigration &
Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).3 Finding no error, much
less plain error, in the recommendations of the magistrate judge, I find and conclude
that the recommendations should be approved and adopted as an order of this court.
The complaint [#15] of the plaintiff concerns the medical care provided to the
plaintiff while he was incarcerated in the Colorado Department of Corrections. In each
of his four claims for relief, the plaintiff, Jonathan Woodstock, alleges that the
defendants violated his Eighth Amendment right to be free from cruel and unusual
punishment by exhibiting deliberate indifference to his serious medical needs. Based
on the thorough analysis stated in the recommendation [#49], the magistrate judge
recommends that the claims against defendants Boyd, Spinuzzi, Hodge, Phillips,
Larson, and Brown be dismissed for failure to state a claim on which relief can be
granted. After de novo review, I concur.

3

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

2

In a separate recommendation [#43], the magistrate judge notes the failure of Mr.
Woodstock to respond to an Order to Show Cause [#41] regarding the failure of Mr.
Woodstock to serve the defendant named as “Ms. Martin” in a timely fashion. As noted
by the magistrate judge, under FED. R. CIV. P. 4(m), the court must dismiss the claims
against Ms. Martin without prejudice based on the failure of Mr. Woodstock to timely
serve this defendant and to timely respond to the Order to Show Cause [#41]. Again,
after de novo review, I concur..
Therefore, I approve and adopt the recommendations of the magistrate judge. I
grant both motions to dismiss. I dismiss the claims against Ms. Martin under FED. R.
CIV. P. 4(m).
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#43] filed
February 6, 2014, is APPROVED and ADOPTED as an order of this court;
2. That the Recommendation of United States Magistrate Judge [#49] filed
February 25, 2014, is APPROVED and ADOPTED as an order of this court;
3. That under FED. R. CIV. P. 12(b)(6), Defendant Betty Spinuzzi’s Motion to
Dismiss Plaintiff’s Complaint [#23] filed Aug. 9, 2013, is GRANTED;
4. That under FED. R. CIV. P. 12(b)(1) and (b)(6), the Motion To Dismiss
Plaintiff’s Amended Complaint [#28] filed by defendants Boyd, Hodge, Phillips,
Larson, and Brown on September 9, 2013, is GRANTED;
5. That under FED. R. CIV. P. 12(b)(6), the claims against Kathleen Boyd, Ms.
Spinuzzi (named in the complaint as Ms. Spanozi), Mr. Hodge, Sharron Phillips, Paul
Larson, and Carol Brown, are DISMISSED with prejudice;
6. That under FED. R. CIV. P. 4(m), the claims against the defendant named as
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“Ms. Martin,” are DISMISSED without prejudice;
7. That under FED. R. CIV. P. 58, judgment SHALL ENTER in favor of the
defendants, Kathleen Boyd, Ms. Spinuzzi (named in the complaint as Ms. Spanozi), Mr.
Hodge, Ms. Martin, Sharron Phillips, Paul Larson, and Carol Brown, against the plaintiff,
Jonathan Woodstock; and
8. 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 March 17, 2014, at Denver, Colorado.
BY THE COURT:

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