Lee v. Banuelos et al

Filing 70

ORDER ADOPTING AND AFFIRMING 68 MAY 30, 2014 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Defendants' 63 Motion for Summary Judgment is granted. Plaintiff's claims are dismissed without prejudice. By Judge Christine M. Arguello on 06/17/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-01895-CMA-MJW
MARIO ANTON LEE,
Plaintiff,
v.
BENUELOS, LIEUTENANT,
BERRY, LIEUTENANT,
M. EBENHART, OFFICER,
ERPS, OFFICER,
HUDDLESTON, NURSE (EMT),
LENGREN, NURSE,
LEE, OFFICER,
LITVAN, LIEUTENANT,
MARTINEZ, LIEUTENANT,
MOHLER, OFFICER,
ROY, OFFICER,
SHORT, OFFICER,
THOMPSON, P.A.,
J. WISEMAN, OFFICER,
McDERMOTT, MEDICAL DIRECTOR,
all of the above in their individual and official capacities,
Defendants.

ORDER ADOPTING AND AFFIRMING MAY 30, 2014
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the May 30, 2014 Recommendation by United
States Magistrate Judge Michael J. Watanabe that Defendants’ Motion for Summary
Judgment re: Second Amended Complaint (Doc. # 63) be granted. (Doc. # 68.)
The Recommendation is incorporated herein by reference. See 28 U.S.C.

§ 636(b)(1)(B); Fed. R. Civ. P. 72(b). On June 12, 2014, Plaintiff filed an objection to
the Recommendation. (Doc. # 69.)
“When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
In his recommendation, Magistrate Judge Watanabe found that Plaintiff failed
to exhaust his administrative remedies. Plaintiff argues that Magistrate Judge
Watanabe improperly determined that the memos written by BOP Correctional
Counselor A. Church were irrelevant. The Court disagrees. Although the Church
memos ask that BOP reconsider its determination that Plaintiff’s complaints were
untimely, Plaintiff was repeatedly informed by BOP that he needed to provide an
explanation as to why they were untimely. Instead of providing that explanation, Plaintiff
stubbornly ignored the request and merely proceeded to submit his grievance to the
next level. The Court agrees with Judge Watanabe that the undisputed facts show that
Plaintiff did not exhaust his administrative remedies. Moreover, Plaintiff has not met
his burden in demonstrating that the Court should grant his other requests, including
his demand for an evidentiary hearing. However, to the extent Plaintiff points out that

2

his claims should be dismissed without prejudice, 1 the Court agrees. See Price v.
Shinn, 178 F. App’x 803, 806 (10th Cir. 2006). The Court, however, declines to grant
any extension of time as requested by Plaintiff.
The Court has conducted a de novo review of this matter, including reviewing
all relevant pleadings, the Recommendation, and Plaintiff’s objection thereto. Based
on this de novo review, the Court concludes that Judge Watanabe’s Recommendation
is correct and is not called into question by Plaintiff’s objection. Accordingly, it is hereby
ORDERED that Plaintiff’s objection (Doc. # 69) is OVERRULED. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Michael J. Watanabe (Doc. # 68) is AFFIRMED and ADOPTED as an Order of
this Court. Pursuant to the Recommendation, it is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment re:
Second Amended Complaint (Doc. # 63) is GRANTED. It is
FURTHER ORDERED that Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.
DATED: June

17 , 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

1

Judge Watanabe’s order did not say whether the claims were dismissed with or without
prejudice.

3