Opinion
Civil Action No. 07-cv-00137-ZLW-BNB.
October 29, 2008
ORDER
The matters before the Court are (1) The CDOC Defendants' Motion To Dismiss (Doc. No. 37), (2) Plaintiff's Motion To Amend And Restate Claim (Doc. No. 105), and (3) "The Restatment [sic] Of Claims" (Doc. No. 134). These matters were referred to Magistrate Judge Boyd N. Boland, who issued a Recommendation on March 14, 2008, recommending that the motion to dismiss be granted; a Recommendation on April 18, 2008, recommending that the motion to amend be denied; and a Recommendation on October 15, 2008, recommending that "The Restatment [sic] Of Claims," treated as a further motion to amend Plaintiff's claims, be denied. Plaintiff filed timely objections to the March 14, 2008, and April 18, 2008, Recommendations, and the Court reviews de novo those portions of the Recommendations to which Plaintiff has properly objected. No party has filed an objection to the Magistrate Judge's October 15, 2008, Recommendation.
The March 14, 2008, Recommendation was in fact an Amended Recommendation amending an earlier Recommendation of March 7, 2008, to indicate that the Magistrate Judge recommended that this case be dismissed only as to Defendants the Colorado Department Of Corrections, Ortiz, and Jordan.
On July 30, 2007, Defendants the Colorado Department Of Corrections (CDOC), Joe Ortiz, and Tom Jordan (collectively, the CDOC Defendants) filed the CDOC Defendants' Motion To Dismiss, which moved for dismissal of the claims against them in Plaintiff's Amended Complaint. In his March 14, 2008, Recommendation on the CDOC Defendants' Motion To Dismiss, the Magistrate Judge determined that the CDOC Defendants should be dismissed from this action in their official capacities based on Eleventh Amendment immunity. Plaintiff has not objected to that aspect of the Recommendation, and the Court agrees with the Magistrate Judge's conclusion. The Magistrate Judge also recommended that Defendants Ortiz and Jordan be dismissed in their individual capacities because the Complaint fails to allege any facts constituting a constitutional violation by these Defendants. Plaintiff's sole objection to the March 14, 2008, Recommendation is that the relevant law was "clearly established" for purposes of the doctrine of qualified immunity. However, the Magistrate Judge determined that because Plaintiff had failed to state a constitutional claim against these Defendants, "I need not address qualified immunity." Thus, qualified immunity was not the basis for the Magistrate Judge's recommendation of dismissal, and Plaintiff's objection lacks merit. The Court agrees with the Magistrate Judge that Defendants Ortiz and Jordan properly are dismissed from this action based upon the lack of any cognizable constitutional claim against them. The CDOC, and Ortiz and Jordan in their official capacities, properly are dismissed based upon Eleventh Amendment immunity.
Doc. No. 97 at 8, 9.
After the Magistrate Judge issued his Recommendation on the CDOC Defendants' Motion To Dismiss, Plaintiff filed his Motion To Amend And Restate Claim on April 7, 2008. On April 18, 2008, the Magistrate Judge recommended that the Motion To Amend And Restate Claim be denied because (1) the proposed amended complaint was not submitted on the Court's form, and (2) the proposed amended claims are vague and conclusory and do not state claims for constitutional violations. Plaintiff's objection to the Recommendation repeats the allegations in Plaintiff's proposed amended pleading, namely, that some or all of the Defendants tortured and illegally incarcerated him by transferring him to a detention facility in Oklahoma and refusing to segregate him. The Court agrees with the Magistrate Judge that the proposed new claims are vague and conclusory, and thus are insufficient to state claims for constitutional violations.
After the Magistrate Judge issued his Recommendation on Plaintiff's Motion To Amend And Restate Claim, on June 16, 2008, Plaintiff filed "The Restatment [sic] Of Claims," which the Magistrate Judge properly construed as a further motion to amend Plaintiff's claims. The Magistrate Judge issued a Recommendation on October 15, 2008, recommending that the motion be denied. None of the parties have objected to this Recommendation, and the Court, having considered carefully the analysis and Recommendation of the Magistrate Judge, hereby approves and adopts the October 15, 2008, Recommendation.
Accordingly, the Court approves and adopts the Magistrate Judge's Recommendations of March 14, 2007; April 18, 2008; and October 15, 2008. It is
ORDERED that Plaintiff [sic] Objection To The Court [sic] Recommendation (Doc. No. 107) is overruled. It is
FURTHER ORDERED that The CDOC Defendants' Motion To Dismiss (Doc. No. 37) is granted, and the Amended Complaint and cause of action (Doc. No. 15) are dismissed with prejudice against Defendant the Colorado Department Of Corrections and against Defendants Joe Ortiz and Tom Jordan in both their official and individual capacities. It is
FURTHER ORDERED that the case shall proceed against Defendants Fred Figuera, Corrections Corporation of America, David Nellis, and Lt. Williams only, and the case caption shall be amended accordingly. It is
FURTHER ORDERED that Plaintiff [sic] Objection To Recommendation Of United States Magistrate Judge (Doc. No. 115) is overruled. It is
FURTHER ORDERED that Plaintiff's Motion To Amend And Restate Claim (Doc. No. 105) is denied. It is
FURTHER ORDERED that "The Restatment [sic] Of Claims" (Doc. No. 134), treated as a further motion to amend Plaintiff's claims, is denied.