Custard v. Allred et al

Filing 135

ORDER ADOPTING 122 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: The 74 Motion to Dismiss is granted. The claims of the plaintiff alleging violation of the First Amendment and Fifth Amendment and asserted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics are dismissed with prejudice. All of the claims of the plaintiff asserted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics against the Federal Bureau of Prisons are dismissed with prejud ice. All of the claims of the plaintiff against the defendant named in the complaint [# 10 ] as "Cordova" are dismissed. Accordingly, the remaining claims pending in this case include: (a) the Eighth Amendment claims; (b) the claim for injunctive relief against the Federal Bureau of Prisons; and (c) the claim for declaratory relief. By Judge Robert E. Blackburn on 3/16/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02296-REB-CBS
BOB CUSTARD,
Plaintiff,
v.
DAVID ALLRED,
YVETTE BROUILLET-FETTERHOFF,
BUREAU OF PRISONS,
CHAVEZ,
CORDOVA,
ENCARANANZE,
FIEF,
ANDREW FENLON,
B. KASDON,
KOCH-COULTER,
PATRICIA RANGEL,
PAUL ZOHN, and
ZONNO,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion To Dismiss [#74]1 of
the defendants filed April 14, 2014; and (2) the corresponding Recommendation of
United States Magistrate Judge [#122] filed January 26, 2015. The plaintiff filed
objections [#123] to the recommendation, the defendants filed a response [#126], and
the plaintiff filed a reply [#130].
1

“[#74]” 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.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this case, and the applicable case
law. Because the plaintiff is proceeding pro se, 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). I overrule the objections, approve and adopt the
recommendation, and grant the motion to dismiss [#74].
The plaintiff, Bob Custard, is a prisoner incarcerated at the United States
Penitentiary, High Security, in Florence, Colorado. In this case, he asserts a variety of
claims under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The magistrate judge details the reasons that Mr.
Custard cannot pursue his First Amendment and Fifth Amendment claims as Bivens
claims, and why he cannot pursue any Bivens claim against the Federal Bureau of
Prisons. Based on my de novo review of the apposite record and law, I concur. I note,
however, that Mr. Custard also seeks injunctive relief against the Bureau of Prisons
based on his alleged First Amendment claim. This claim for injunctive relief is not
included in the dismissal of the Bivens claims against the Bureau of Prisons. The
magistrate judge details also why the claims of Mr. Custard against the defendant
named in the complaint [#10] as “Cordova” must be dismissed. Again, my de novo
review constrains concurrence. The objections [#123] and reply [#130] of Mr. Custard
do not vitiate the thorough and circumstantiated ratiocination of the magistrate judge.

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THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#122] filed
January 26, 2015, is approved and adopted as an order of this court;
2. That the objections [#123] of the defendant are overruled;
3. That the Motion To Dismiss [#74] of the defendants filed April 14, 2014, is
granted;
4. That the claims of the plaintiff alleging violation of the First Amendment and
Fifth Amendment and asserted under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics are dismissed with prejudice;
5. That all of the claims of the plaintiff asserted under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics against the Federal Bureau of Prisons
are dismissed with prejudice;
6. That all of the claims of the plaintiff against the defendant named in the
complaint [#10] as “Cordova” are dismissed; and
7. That accordingly, the remaining claims pending in this case include: (a) the
Eighth Amendment claims; (b) the claim for injunctive relief against the Federal Bureau
of Prisons; and (c) the claim for declaratory relief.
Dated March 16, 2015, at Denver, Colorado.
BY THE COURT:

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