Burgess v. Daniels et al

Filing 68

ORDER. ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 60] is ACCEPTED. ORDERED that Defendant's Motion for Summary Judgment [Docket No. 40] is GRANTED. ORDERED that defendant Charles Daniels is dismissed from t his case. ORDERED that the entry of default [Docket No. 52] as to defendant Laird is VACATED. ORDERED that the Motion for Default Judgment [Docket No. 56] is DENIED without prejudice. ORDERED that, on or before October 24, 2014, plaintiff shall show cause why defendants Kastner and Laird should not be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to serve defendants Kastner and Laird and for failure to prosecute by Judge Philip A. Brimmer on 09/22/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02191-PAB-CBS
COREY BURGESS,
Plaintiff,
v.
CHARLES A. DANIELS,
PAUL A. KASTNER, and
PAUL M. LAIRD,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 60] issued on May 8, 2014. The
magistrate judge recommends that the Court grant the Motion for Summary Judgment
[Docket No. 40] filed by defendant Charles Daniels, 1 deny the Motion for Default
Judgment [Docket No. 56] filed by plaintiff Corey Burgess, and dismiss plaintiff’s
complaint without prejudice. Docket No. 60 at 15.
On June 20, 2014, plaintiff filed two documents. The first is entitled “Objections
to Magistrate’s Order Granting Defendant’s Motion for Summary Judgment and
Denying Plaintiff’s Motion for Entry of Default Judgment” (the “objection”) and is 56
pages in length. See Docket No. 67 at 1-45; Docket No. 67-1 at 1-11. T he second is

1

All references to “defendant” are to defendant Charles Daniels unless otherwise
indicated.

entitled “Reply to Defendant’s Motion for Default Judgment, Alternatively Objections to
Magistrates [sic] F/R” (the “reply”) and is 31 pages in length. See Docket No. 67-1 at
12-43. The Court will consider each filing in turn.
I. ANALYSIS2
A. Objection
Plaintiff’s objection is timely. See Docket No. 65. However, even taking into
account the fact that plaintiff’s filing is handwritten, plaintiff’s 56 page objection clearly
exceeds the page limits imposed by this Court’s Practice Standards. See Practice
Standards (Civil cases), Judge Philip A. Brimmer § III.A (“All . . . objections (including
objections to the recommendations or orders of United States Magistrate Judges) . . .
shall not exceed fifteen pages. . . . Replies shall not exceed ten pages.”). Thus, the
first issue is whether plaintiff’s objection should be stricken for failure to comply with this
Court’s Practice Standards. Plaintiff, as a pro se litigant, is not excused from complying
with the Court’s Practice Standards. Nonetheless, in light of plaintiff’s pro se status, the
Court must liberally construe his filings. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991). In this case the
Court finds that striking plaintiff’s filing in its entirety is too harsh a sanction for violating
this Court’s Practice Standards.
Given that plaintiff has filed a timely objection, the Court will “determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). However, while plaintiff’s objection was timely, “a party’s objections
2

The underlying facts are set forth in the Recommendation and will not be
restated here. Docket No. 60 at 2-6.
2

to the magistrate judge’s report and recommendation must be both timely and specific
to preserve an issue of de novo review by the district court . . . .” United States v. One
Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996) (emphasis added). To be sufficiently specific, an objection must “enable[] the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” See id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147
(1985)). In the absence of a proper objection, the Court may review a magistrate
judge’s recommendation under any standard it deems appropriate. See Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“[i]t
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings”).3
Plaintiff’s objection raises several arguments that do not concern the
Recommendation currently before the Court and do not trigger the right to de novo
review under Rule 72(b)(3). For example, plaintiff seeks to relitigate issues already
decided in the Order to Dismiss in Part and Draw Case to a District Judge and
Magistrate Judge [Docket No. 17]. See, e.g., Docket No. 67 at 1-17, 31. Plaintiff
3

This rule, however, does not apply when (1) a pro se litigant has not been
informed of the time period for objecting or when (2) the “interests of justice” require
review. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (citation
omitted). Neither exception applies here. The Recommendation advised plaintiff of the
deadline to respond and the need to f ile “specific” objections. Docket No. 60 at 15-16.
To the extent plaintiff fails to clearly challenge specific aspects of the Recommendation,
he is not entitled to an interests of justice exception. See 2121 East 30th St., 73 F.3d
at 1060 (“only an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the
policies” underlying the firm waiver rule).
3

asserts that the magistrate judge improperly granted defendant leave to file a motion for
summary judgment on the issue of failure to exhaust administrative remedies [Docket
No. 39] and that the magistrate judge erred in resolving other matters that do not bear
any relation to the Recommendation. See, e.g., Docket No. 67 at 24-27, 31. Plaintiff
argues that the magistrate judge, during a February 20, 2014 status conference, and
the district court were biased against plaintiff, but fails to cite specific examples relating
to the Recommendation. Id. at 23-26, ¶¶ 35, 39. Plaintiff makes several arguments
related to the merits of his claims, which are not currently at issue. See, e.g., id. at 23,
29.4 Other objections are too general so as to identify specific issues for de novo
review. See, e.g., Docket No. 67 at 30, ¶ 45 (“Defendants failed to properly support its
assertion of fact and fails to properly address Plaintiff’s assertion(s) of facts, as required
by Rule 56(c).”). To the extent plaintiff fails to properly object to issues raised by the
Recommendation, plaintiff’s objection is overruled.
Plaintiff argues that he was not given an opportunity to file a response to
defendant’s motion for summary judgment. Docket No. 67 at 26-28. However, plaintiff
fails to take into account the fact that his response to defendant’s motion for leave to
file a summary judgment motion incorporated substantive responses to defendant’s
motion for summary judgment, which was attached to defendant’s motion for leave to
file, and also the fact that plaintiff filed an affidavit in support of his opposition to
defendant’s summary judgment motion that same day. See Docket Nos. 35, 36.
4

Although plaintiff appears to claim that defendant failed to raise the exhaustion
defense in a responsive pleading, defendant has yet to file a responsive pleading,
instead requesting leave to file a motion for summary judgment on the issue of
administrative exhaustion. Docket No. 30.
4

Moreover, plaintiff does not indicate what additional arguments he was precluded from
raising. The Court does not find that plaintiff was prohibited from meaningfully
responding to defendant’s motion for summary judgment and will overrule that aspect of
plaintiff’s objection.
Ultimately, however, the Court need not parse plaintiff’s voluminous objection to
determine whether it is sufficient to preserve de novo review. Even under that
standard, the Court finds no error in the Recommendation’s conclusion that plaintiff
failed to exhaust his administrative remedies.
The Prison Litigation Reform Act (“PLRA”) directs that “[n]o action shall be
brought with respect to prison conditions . . . until such adm inistrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532
(2002). The exhaustion requirement is an affirmative defense, which defendant bears
the burden of proving. Jones v. Bock, 549 U.S. 199, 216 (2007); Roberts v. Barreras,
484 F.3d 1236, 1240-41 (10th Cir. 2007). A rem edy is not exhausted if the prisoner
fails to follow prison procedures for pursuing administrative remedies. Woodford v.
Ngo, 548 U.S. 81, 95 (2006). The Supreme Court has interpreted the PLRA as
requiring prisoners “to exhaust prison grievance procedures before filing suit.” Jones v.
Bock, 549 U.S. 199, 202 (2007) (emphasis added). “There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Id. at 211. This requirement is consistent with the purpose of the
PLRA to “eliminate unwarranted federal-court interference with the administration of
prisons” and “‘affor[d] corrections officials time and opportunity to address complaints

5

internally before allowing the initiation of a federal case.’” Woodford, 548 U.S. at 93
(quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). Exhaustion of administrative
remedies under the PLRA is a question of law for the Court to decide. Drippe v.
Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). 5
Plaintiff’s sole remaining claim (claim three) in this case is that defendants
violated his Fifth Amendment right to due process by interfering with plaintiff’s ability to
access the administrative grievance process related to an alleged assault that took
place on November 8, 2012 while he was at the Federal Transfer Center in Oklahoma
City, Oklahoma. Docket No. 17 at 6. After the alleged assault, the Bureau of Prisons
transported plaintiff to the United States Penitentiary in Florence, Colorado (“USPFlorence”). Id. On November 16, 2012, plaintiff arrived at USP Florence from
Oklahoma. Docket No. 40-1 at 5. Plaintiff claims that defendant, after plaintiff arrived
at USP-Florence, was aware that plaintiff did not have access to the documents
necessary for him to initiate the administrative grievance process while he was in transit
to USP-Florence, yet defendant nevertheless denied AR 715831, plaintiff’s

5

The United States Department of Justice, Federal Bureau of Prisons (“BOP”)
administrative process to redress inmate grievances is codified at 28 C.F.R. §§ 542.10
et seq. and sets out a four-level process. The first level is informal resolution with
prison staff. 28 C.F.R. § 542.13(a). Requests for Informal Resolution Forms are not
assigned a remedy identification number and are not tracked. If unable to resolve the
complaint informally, the inmate may then submit an administrative remedy request to
the Warden (a BP-9 request). 28 C.F.R. § 542.14. At this second level, the requests
are assigned a remedy identification number and an F-1 extension. The third level of
the administrative process involves filing an appeal at the regional level (a BP-10
request), which is assigned an R-1 extension. See 28 C.F.R. § 542.15(a). The fourth
and final level of appeal is to the Director of National Inmate Appeals in the Office of the
General Counsel in Washington, D.C. (a BP-11 request) and is assigned an A-1
extension. See 28 C.F.R. § 542.15(a).
6

administrative remedy request (“AR”), as untimely. Docket No. 17 at 6; Docket No. 1 at
25; see also Docket No. 67 at 33 (“Plaintiff’s Bivens action is pursuant to his attempts to
exhaust administrative remedies from incident of assault/battery/denial of medical
treatment [at USP Florence], which arose at FTC Oklahoma.”).
In order to determine whether plaintiff has exhausted his administrative remedies
as to his third claim, the Court will first identify plaintiff’s administrative remedy requests
that are both (1) exhausted and (2) were initiated after arriving at USP Florence, but
exhausted before this suit was filed on August 14, 2013. See Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir. 2002) (“inmate who begins the grievance process but does
not complete it is barred from pursuing a . . . claim under [the] PLRA for failure to
exhaust his administrative remedies.”).
Defendant submits a declaration from Kara Lundy, senior attorney at the BOP,
who states that she is familiar with the four levels of the administrative grievance
procedure and has access to records of administrative remedy requests submitted by
inmates and maintained in the BOP’s national database. Docket No. 40-1 at 1. Ms.
Lundy attaches to her declaration a list of the 186 administrative remedy requests that
plaintiff has filed while an inmate in the BOP. See id. at 15-109. Her declaration
includes a table of those administrative remedy requests that plaintiff has filed since his
arrival at USP-Florence in November 2012 and Ms. Lundy’s opinion as to whether such
requests are exhausted. Id. at 5-8.
Plaintiff generally challenges Ms. Lundy’s declaration. Plaintiff first argues that
Ms. Lundy does not have personal knowledge of events alleged in the complaint and
that her statements are immaterial to his claims. Docket No. 67 at 18. However, Ms.
7

Lundy’s declaration is not directed at the merits of plaintiff’s claims, but instead
addresses only the issue of administrative exhaustion, which is the subject of
defendant’s motion. Plaintiff also claims that Ms. Lundy is not qualified to convey
information related to administrative exhaustion because she is not the “Administrative
Remedy Coordinator.” Ms. Lundy states that she has access to the relevant
administrative records and that her declaration is based on her personal know ledge of
such records, which establishes sufficient foundation for the statements contained in
her declaration regardless of whether she holds the title of “Administrative Remedy
Coordinator.” Moreover, Ms. Lundy’s declaration establishes sufficient foundation
under Fed. R. Evid. 803(6) for the Court to conclude that the attached adm inistrative
records are admissible under Rule 803(6). See Docket No. 40-1 at 1-2, 4, ¶¶ 2, 8;
United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999) (“Rule 803(6)
requires that the custodian or other qualified witness testify that (1) the records were
made contemporaneously with the events and ‘kept in the course of a regularly
conducted business activity,’ and (2) ‘it was the regular practice of that business activity
to make the [record].’” (quoting Fed. R. Evid. 803(6)).6 Plaintiff’s objections to Ms.
Lundy’s declaration are overruled.
According to the summary submitted by defendant, and the underlying records
themselves, five administrative remedies meet the criteria identified above:

6

Because the attached records are admissible under Rule 803(6) and were
provided to plaintiff for review, see generally Docket No. 40-1, the Court finds that Ms.
Lundy’s summary chart is admissible pursuant to Fed. R. Evid. 1006 (“The proponent
may use a summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs . . . .”).
8

Administrative Remedies 717106, 719701, 732046, 732122, and 736057. Docket No.
40-1 at 5-8.7 Plaintiff’s objection does not appear to dispute this. Having identified five
administrative remedies that meet the aforementioned criteria, the Court turns to the
question of whether any of the identified remedies have satisfied § 1997e(a)’s
exhaustion requirement for plaintiff’s remaining claim. In the Tenth Circuit, a prisoner
satisfies § 1997e(a)’s exhaustion requirement so long as the administrative grievance
provides prison officials with enough information to investigate and resolve his or her
complaint. Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006), overruled in part
on other grounds by Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242,
1246-47 (10th Cir. 2008). A prisoner’s duty to exhaust administrative remedies,
therefore, is fulfilled when prison officials are given adequate notice of the nature of his
complaint. Id. For plaintiff to have exhausted his administrative remedies as to his
remaining claim, his administrative grievances must have “provide[d] prison officials a
fair opportunity to investigate and resolve the complaint internally even [if plaintiff did
not] specifically identify[] [defendants].” Kikumura, 461 F.3d at 1284. Defendant
asserts that none of the exhausted administrative remedies raise issues related to
interference with the administrative process. Docket No. 40 at 8 (citing Docket No. 40-1
at 9, ¶¶ 14-15. On this point, plaintiff fails to make a colorable argument or identify any

7

Although plaintiff appears to rely on AR 727723 in his objection, see Docket No.
67 at 39, AR 727723 was not exhausted. Docket No. 40-1 at 6. Plaintiff’s initial AR
727723 filing appears to have been rejected for failure to properly file it through the “unit
team,” a finding with which subsequent levels of appeal concurred. Docket No. 40-1 at
63, 69, 75; see also Woodford, 548 U.S. at 95.
9

evidence to create a genuine dispute of material fact.8 The Court therefore concludes
that plaintiff failed to exhaust administrative remedies with respect to his Fifth
Amendment claim.
Plaintiff’s primary argument concerns AR 715831, which contained allegations
concerning the alleged assault at the Federal Transit Center in Oklahoma. Docket No.
36 at 15. Plaintiff argues that, because he was hindered in exhausting AR 715831, he
should be excused from exhausting remedies related to his Fifth Amendment claim.
Docket No. 67 at 37. In Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011), the
Tenth Circuit found that prisoners were exempt from the PLRA’s exhaustion
requirements so long as an administrative remedy is not “available.” The Tenth Circuit
explained that an administrative remedy is not available under the PLRA if “prison
officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of [the]
administrative remedy.” Id. (citation omitted). Based on this principle, the Tenth Circuit
stated that, before finding that a prisoner failed to exhaust administrative remedies,
courts must ensure that a failure to exhaust was not the result of “action or inaction of
prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007);
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (holding that a prison
official’s failure to respond to a grievance within the prescribed time limit renders an
administrative remedy unavailable). Whatever hindrance plaintiff encountered in
exhausting AR 715831 cannot properly be considered a hindrance in exhausting

8

Moreover, as the Recommendation correctly pointed out, plaintiff’s complaint
alleges that his Fifth Amendment claim is a separate and subsequent violation from the
events giving rise to AR 715831. Docket No. 60 at 12.
10

remedies related to his Fifth Amendment claim. First, plaintiff does not indicate, or
even clearly assert, that he attempted to file an administrative remedy that would have
given prison officials notice of the events underlying his Fifth Amendment claim. Thus,
the Court cannot conclude that plaintiff suffered a hindrance similar to that alleged with
respect to AR 715831.
Second, even if plaintiff was hindered in completing AR 715831, plaintiff fails to
show that AR 715831 provided prison officials with notice of the basis for his Fifth
Amendment claim. Plaintiff argues that his inability to exhaust remedies with respect to
AR 715831 should not be separated f rom his Fifth Amendment claim in this case.
Docket No. 67 at 34. However, plaintiff’s AR 715831 BP-9, received by the BOP on
December 17, 2012, states in its entirety:
Staff assault/misconduct. On November 8, 2012, I was assaulted with the
use of excessive force by R/D Officer Exina and Medical (X-Ray) Thompson
@ the Federal Transit Center in Oklahoma, when Thompson charged me
and grabbed me by the neck for relieving myself of the aggressive hold and
pull he administered against me because I refused an X-ray, which
Thompson tried to force me to take.
Docket No. 36 at 15. 9 Thus, plaintiff’s BP-9 contains nothing that would put prison
officials on notice of the events underlying his Fifth Amendment claim. Moreover,
plaintiff’s third claim is premised on the allegation that defendant violated plaintiff’s
rights by determining that the BP-9 was untimely. Docket No. 1 at 25. Plaintiff argues
that he asserted a valid reason for an extension of time, but that defendant’s denial of
9

It appears that plaintiff’s BP-9 may have included an additional page of
handwritten explanation, but the copy attached to plaintiff’s complaint is illegible. See
Docket No. 36 at 16. In any event, for the reasons discussed below, plaintiff’s objection
does not identify what in his BP-9 submission would have placed prison officials on
notice of the conduct underlying his Fifth Amendment claim.
11

plaintiff’s request for an extension was, among other things, an abuse of discretion,
failure to obtain facts, erroneous application of law or policy, and motivated by personal
bias. Id. at 26.10 Thus, according to plaintiff’s own complaint, plaintiff was not denied
the right to pursue AR 715831 until defendant judged his BP-9 untimely. Plaintiff
therefore could not have included sufficient allegations in the December 17, 2012 BP-9
request to put prison officials on notice of the actions underlying his Fifth Amendment
claim because he had not yet experienced the denial of administrative recourse alleged
in the complaint.
Plaintiff appears to argue that he raised issues related to his Fifth Amendment
claim in appealing AR 715831. Docket No. 67 at 28. However, inmates are prohibited
from raising new issues at subsequent levels of appeal. 28 C.F.R. § 542.15(b)(2) (“An
inmate may not raise in an Appeal issues not raised in the lower level filings.”).11 Thus,
there is no evidence in the record that prison officials thwarted or otherwise hindered
plaintiff’s ability to exhaust his BOP administrative remedies with respect to the conduct
forming the basis of his Fifth Amendment claim. The Court therefore concludes that
defendant is entitled to summary judgment on plaintiff’s Fifth Amendment claim for

10

As the magistrate judge noted, these arguments may be relevant to the issue of
whether plaintiff exhausted those claims, now dismissed in this case, that relate to the
alleged assault at the Federal Transit Center in Oklahoma. However, these allegations,
which constitute the substance of his due process claim, are insufficient to demonstrate
exhaustion.
11

Even considering the possibility that defendants Kastner’s and Laird’s allegedly
wrongful conduct took place before plaintiff filed the subject BP-9 request, plaintiff’s
original BP-9 contains no such allegations.
12

failure to exhaust administrative remedies.12
B. Reply
To the extent that Docket No. 67-1 is construed as a reply brief in support of
plaintiff’s motion for default judgment, it is untimely and will be stricken. See
D.C.COLO.LCivR 7.1(d) (“The moving party may file a reply within 14 days after the
date of service of the response, or such lesser or greater time as the court may
allow.”).13
In the alternative, even if the Court considers the reply, the Court overrules the
objections to the magistrate judge’s recommendation to set aside default against
defendant Laird. Although styled, in part, as an objection to the Recommendation,
plaintiff’s reply fails to identify, or even mention, the Recommendation’s conclusions
with respect to plaintiff’s motion for default judgment. Plaintiff again attempts to
relitigate claims that have already been dismissed and primarily responds to arguments
advanced in defendants’ response brief. See Docket No. 67-1 at 23-24, 32-33. As
such, the Court concludes that plaintiff has failed to preserve de novo review with
respect to the Recommendation’s conclusion that plaintiff’s motion for default judgment
should be denied. See Thomas, 474 U.S. at 147. The Court has reviewed this aspect
of the recommendation and is otherwise satisfied that no clear error exists on the face

12

As such, the Court need not address the Recommendation’s conclusion that
plaintiff failed to state a claim for violation of the Fifth Amendment. See Docket No. 60
at 13.
13

Whether construed as a reply brief or an objection, plaintiff’s 31-page reply
[Docket No. 67-1 at 12-43] clearly exceeds the page limits imposed by this Court’s
Practice Standards, but, for the above-stated reasons, the Court will not strike plaintiff’s
filing in its entirety for failure to comply with the Court’s practice standards.
13

of the record. See Summers, 927 F.2d at 1167. The Court will vacate the entry of
default as to defendant Laird. To the extent plaintiff asserts a claim against defendant
Laird in his official capacity, the Court lacks subject matter jurisdiction for the reasons
stated in the Recommendation and will dismiss such claim sua sponte. See United
States v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (“a court may raise the issue of
Eleventh-Amendment immunity sua sponte”).
The Court turns to the claims against defendants Kastner and Laird in their
individual capacity. Counsel has entered an appearance on behalf of defendants
Kastner and Laird. Docket No. 59. However, defendants Kastner and Laird did not join
in defendant Daniels’ motion for summary judgment on the issue of exhaustion. Thus,
it is not clear that the Court can sua sponte dism iss the claims against defendants
Kastner and Laird on that basis. To the extent defendants Kastner and Laird argue that
they should be dismissed as defendants for failure to serve or a lack of personal
jurisdiction, id. at 4, 8, defendants improperly seek affirmative relief in a response brief.
See D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a response or reply to
the original motion.”). To the extent plaintiff has failed to personally serve defendants
Kastner and Laird, the Court is obligated under Fed. R. Civ. P. 4(m) to give plaintiff “an
opportunity to show why his action should not be dismissed for failure to prosecute.”
See Self v. Autoliv, ASP, 61 F. App’x 583, 584 (10th Cir. 2003). Thus, before
dismissing defendants Kastner and Laird pursuant to Fed. R. Civ. P. 4(m), plaintiff will
be afforded an opportunity to show good cause for his failure to properly serve the
remaining defendants.

14

II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 60] is ACCEPTED in part. It is further
ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 40] is
GRANTED. It is further
ORDERED that defendant Charles Daniels is dismissed from this case. It is
further
ORDERED that the entry of default [Docket No. 52] as to defendant Laird is
VACATED. It is further
ORDERED that the Motion for Default Judgment [Docket No. 56] is DENIED
without prejudice. It is further
ORDERED that, on or before October 24, 2014, plaintiff shall show cause why
defendants Kastner and Laird should not be dismissed pursuant to Fed. R. Civ. P. 4(m)
for failure to serve defendants Kastner and Laird and for failure to prosecute.

DATED September 22, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

15