Duncan v. Ritter Jr. et al

Filing 67

ORDER ADOPTING 66 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Defendants' 32 Motion to Dismiss is GRANTED. Plaintiff's claims for monetary relief against defendants in their official capacities are DISMISSED WITH PREJUDICE; and all remaining claims against defendants in both their official and individual capacities are DISMISSED WITHOUT PREJUDICE. By Judge Robert E. Blackburn on 12/11/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00301-REB-BNB
JAMES ROGER DUNCAN,
Plaintiff,
v.
JOHN W. HICKENLOOPER, governor,
RICK RAEMISCH, executive director,
WARDEN MILYARD,
WARDEN FALK, and
CASE MANAGER LUECK,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#66],1 filed November 17, 2014. No timely objection having been filed to the
recommendation, I review it for plain error only. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2

1

“[#66]” 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

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his
pleadings 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, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).

I perceive no error, much less plain error, in the magistrate judge’s
recommended disposition of defendants’ motion to dismiss. To the extent defendants
are sued in their official capacities, the Eleventh Amendment plainly bars any claim for
monetary damages against them; thus, these claims must be dismissed with prejudice.
With respect to plaintiff’s remaining claims, and as set forth and analyzed in detail in the
recommendation, the complaint patently fails to set forth adequate facts (as opposed to
mere conclusions) to assert plausible claims for relief.
Thus, I find and conclude that the magistrate judge’s recommendation should be
approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#66], filed
November 17, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That defendants’ Motion To Dismiss Complaint [#32], filed May 12, 2014, is
GRANTED;
3. That plaintiff’s claims are DISMISSED as follows:
a. That plaintiff’s claims for monetary relief against defendants in their
official capacities are DISMISSED WITH PREJUDICE; and
b. That all remaining claims against defendants in both their official and
individual capacities are DISMISSED WITHOUT PREJUDICE;
4. That judgment SHALL ENTER as follows:
a. That judgment with prejudice shall enter on behalf of defendants John
W. Hickenlooper, governor; Rick Raemisch, executive director; Warden

2

[Kevin] Milyard; Warden [James] Falk; and Case Manager [Jim] Lueck,
and against plaintiff, James Roger Duncan, on the claims for monetary
damages against them in their official capacities;
b. That judgment without prejudice shall enter on behalf of defendants
John W. Hickenlooper, Governor; Rick Raemisch, Executive Director;
Warden [Kevin] Milyard; Warden [James] Falk; and Case Manager [Jim]
Lueck, and against plaintiff, James Roger Duncan, on all other claims
against them in their official and individual capacities; and
c. That in accordance with my Order Adopting Recommendation of
United States Magistrate Judge [#59], filed September 8, 2014, on
behalf of former defendant Bill Ritter, Jr., Ex-Governor; and
5. That this case is CLOSED.
Dated December 11, 2014, at Denver, Colorado.
BY THE COURT:

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