Solazzo v. Davis

Filing 76

ORDER denying 52 Motion to Amend the Complaint to Add as Defendants. Granting 61 Amended Recommendation of United States Magistrate Judge. Withdrawing 67 Plaintiffs Motion for Summary Judgment Pursuant To Rule 56. Denying 75 Plaintiffs [sic] Motion for a Settlement Conference, Or Another Alternative Dispute Resolution Proceeding. Granting 35 Motion to Dismiss Amended Complaint. That this case is closed. by Judge Robert E. Blackburn on 7/23/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00040-REB-CBS
ANDREW SOLAZZO,
Plaintiff,
v.
KERRY BYNES, in his individual capacity, and
DOUGLAS SPENCE, in his individual capacity,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion to Dismiss Amended
Complaint [#35]1 filed October 6, 2014; (2) the Motion to Amend the Complaint to
Add as Defendants [sic] [#52] filed December 23, 2014; (3) the corresponding
Amended Recommendation of United States Magistrate Judge [#61] filed January
27, 2015; and (4) the Plaintiff’s Motion for Summary Judgment Pursuant To Rule
56 [#67] filed March 19, 2015.2 The plaintiff filed objections [#66] to the
recommendation. I overrule the objections, approve and adopt the recommendation,
grant the motion to dismiss, deny the motion to amend, and deny the motion for

1

“[#35]” 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.
2

The motion for summary judgment [#67] was referred to the magistrate judge. Because this
case is resolved fully on the bases addressed in the recommendation [#61] of the magistrate judge, I
withdraw the reference of the motion for summary judgment and resolve that motion in this order.

summary judgment.
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).
The plaintiff, Andrew Solazzo, is incarcerated by the Colorado Department of
Corrections. The plaintiff names as defendants Sergeant Binds,3 the “head of
recreation,” and Douglas Spence, the “John Doe of Security.” The plaintiff sues the
defendants in their individual capacities. In his claim for relief, Mr. Solazzo alleges that
the defendants knew or should have known that the razor wire hanging four-feet from
the ground in the recreation yard created a substantial risk of serious harm to him.
The razor wire injured Mr. Solazzo. The injury required hospitalization and five
staples to repair the cut on his head. He states that the razor wire had previously
injured three other individuals including the GED teacher, a guard (defendant Bynes),
and another Inmate. He contends these facts demonstrate violations of his Eighth
Amendment right against cruel and unusual punishment.
The defendants moved for dismissal of the claim of Mr. Solarazzo, arguing that
his claim was deficient because the allegations in the complaint are vague and

3

The defendant’s name is Kerry Bynes, not Binds.

2

rambling, and do not include details about the knowledge of the defendants about the
razor wire. Addressing the issues raised in the motion to dismiss from the bench, the
magistrate judge concluded that the defendants are entitled to qualified immunity and
recommended that the motion to dismiss be granted. The magistrate judge correctly
applied the proper standards in analyzing the motion to dismiss. The magistrate judge
concluded that the amended complaint [#12] does not include sufficient factual
allegations which might show that the defendants acted with deliberate indifference to
the danger presented by the razor wire. The magistrate judge noted that the allegations
in the amended complaint [#12] are vague and conclusory. The amended complaint
[#12] does not specify the nature of the knowledge or involvement of the individual
defendants with the razor wire in question. The allegations in the complaint [#12] are
insufficient to state a claim for violation of the Eighth Amendment right against cruel and
unusual punishment of Mr. Solazzo and to overcome the defense of qualified immunity.
Addressing the motion to amend the complaint, the magistrate judge found that
the motion to amend should be denied. The magistrate correctly applied the proper
standards and concluded that the proposed amendment is untimely and would be futile.
He noted that the plaintiff could have added the proposed new defendants when the
plaintiff was directed to file an amended complaint over one year ago. However, the
plaintiff did not add these defendants, and he did not give a explanation for waiting
almost a full year to attempt add them.
After de novo review, I concur with the analysis and conclusions of the
magistrate judge. The objections [#66] do not contain valid criticism of the analysis and
conclusions of the magistrate judge. Thus, I overrule the objections and approve and
adopt the recommendation.

3

Summary judgment is proper when there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A movant who bears the burden
of proof, as does Mr. Solazzo, must submit evidence to establish every essential
element of his claim or affirmative defense. See In re Ribozyme Pharmaceuticals,
Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). In his motion for
summary judgment [#67], Mr. Solazzo provides no evidence and makes highly
generalized statements of fact and conclusions of law. Mr. Solazzo has not satisfied the
standards applicable to a motion for summary judgment under FED. R. CIV. P. 56.

THEREFORE, IT IS ORDERED as follows:
1. That the Amended Recommendation of United States Magistrate Judge
[#61] filed January 27, 2015, is approved and adopted as an order of this court;
2. That the objections [#66] of the plaintiff are overruled;
3. That under FED. R. CIV. P. 12(b)(6), the Motion to Dismiss Amended
Complaint [#35] filed October 6, 2014, is granted;
4. That the Motion to Amend the Complaint to Add as Defendants [sic] [#52]
filed December 23, 2014, is denied;
5. That the reference [#68] of the Plaintiff’s Motion for Summary Judgment
Pursuant To Rule 56 [#67] filed March 19, 2015, to the magistrate judge respectfully is
withdrawn;
6. That the Plaintiff’s Motion for Summary Judgment Pursuant To Rule 56
[#67] filed March 19, 2015, is denied;
7. That judgment shall enter in favor the defendants, Kerry Bynes and
4

Douglas Spence, against the plaintiff, Andrew Solazzo;
8. That the defendant are awarded their costs to be taxed by the clerk of the
court in the time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1;
9. That the Plaintiffs [sic] Motion for a Settlement Conference, Or Another
Alternative Dispute Resolution Proceeding [#75] filed July 1, 2015, is denied as
moot; and
10. That this case is closed.
Dated July 23, 2015, at Denver, Colorado.
BY THE COURT:

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