Adams v. Hines

Filing 46

ORDER adopting 44 Report and Recommendations. Granting 24 Motion to Dismiss as stated in the attached order. By Judge Raymond P. Moore on 3/25/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-01445-RM-KLM
CYRIL ADAMS,
Plaintiff,
v.
OFFICER HINES,
COLORADO DEPARTMENT OF CORRECTIONS, and
BVCF STAFF,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the February 23, 2015 Recommendation of United
States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 44) to grant
Defendant Officer Hines’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
(“Motion to Dismiss”) (ECF No. 24). Defendant Hines seeks dismissal of Plaintiff’s action
brought under 42 U.S.C. § 1983 alleging Defendant Hines used excessive force. Plaintiff seeks
monetary damages only. Upon consideration of the Motion to Dismiss, the Magistrate Judge
recommended:
(1)

dismissal with prejudice based on Eleventh Amendment immunity as to any claim

against Defendant Hines and BVCF1 Staff in their official capacities for money damages;

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Defendants Colorado Department of Corrections (“CDOC”) and BVCF (Buena Vista Correctional Facility) have
apparently not yet been served. The Magistrate Judge nonetheless addressed the possible claims against them as
well in her Recommendation.

(2)

dismissal with prejudice based on Eleventh Amendment immunity to the extent

any claim is pled against Defendant CDOC;
(3)

dismissal without prejudice as to Plaintiff’s Eighth Amendment claim against

Defendant Hines in his individual capacity, but with leave to amend this claim; and
(4)

declination of the exercise of supplemental jurisdiction over any remaining state

law claim, such as assault, against Defendant Hines, and, therefore, the dismissal without
prejudice of any such claim.
The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R.
Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were due within
fourteen days after being served with a copy of the Recommendation. (ECF No. 44, at 23-24.)
Despite this advisement, no objections to the Recommendation have to date been filed by any
party and the time to do so has expired.2 (See generally Dkt.)
The Court concludes that the Magistrate Judge’s analysis was thorough and sound, and
that there is no clear error on the face of the record as to the substance of the analysis. See Fed.
R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the
absence of timely objection, the district court may review a magistrate’s report under any

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The Court is mindful that Plaintiff appears pro se. The Court also recognizes that one of the court’s Minute Orders
(ECF No. 40) has been returned as undeliverable, with a handwritten notation of “parole” written on the envelope
(ECF No. 41). Nonetheless, it is Plaintiff’s responsibility to notify the court of his change of address,
D.C.COLO.LAttyR 5(c), and he has not done so.

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standard it deems appropriate.”). The Court, however, finds that the dismissal based on Eleventh
Amendment immunity should be without prejudice, Rural Water Sewer & Solid Waste Mgmt.,
Dist. No. 1, Logan Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011), and
modifies the Recommendation accordingly. See Fed. R. Civ. P. 72(b). The Recommendation,
as modified, is adopted as an order of this Court.
In accordance with the foregoing, the Court ORDERS:
1.

That the Magistrate Judge’s Recommendation (ECF No. 44), as modified herein,

is ADOPTED and made an order of this Court; and
2.

That Defendant Hines’ Motion to Dismiss (ECF No. 24) is GRANTED as stated

herein, namely:
a. That Plaintiff’s claims against CDOC, BVCF Staff in their official capacities
for monetary damages, and Defendant Hines in his official capacity for
monetary damages are dismissed without prejudice based on Eleventh
Amendment immunity;
b. That Plaintiff’s Eighth Amendment claim against Defendant Hines in his
individual capacity is dismissed without prejudice. However, Plaintiff is
granted until April 8, 2015, in which to file an amended complaint under the
Eighth Amendment against Defendant Hines in his individual capacity.
Failure to do so will result in the closure of this case; and

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c. That this Court declines to exercise supplemental jurisdiction over any
remaining state law claim against Defendant Hines, and, therefore, any
remaining state law claim is dismissed without prejudice.
DATED this 25th day of March, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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