Opinion
Civil Action No. 12-cv-00878-REB-KLM
03-12-2013
DOUGLAS JAMES ALWARD, Plaintiff, v. KEVIN MILYARD, RAYMOND HIGGINS, CHRISTOPHER FLECKENSTEIN, CHRISTOPHER GASSAWAY, PATRICK WHITE, JOHN WALRAVEN, JEFFERY ERPS, and JOHN CHAPDELAIN, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the defendants' Motion To Dismiss [#14] filed June 11, 2012; and (2) the corresponding Recommendation of United States Magistrate Judge [#25] filed October 1, 2012. No objections to the recommendation have been filed.
"[#14]" 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.
The plaintiff is acting pro se. Therefore, I construe his filings generously and with the leniency due pro se litigants, 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. Belmon ,935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner ,404 U.S. 519, 520-21 (1972)).
No objections to the recommendation were filed. Thus, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service ,418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the disposition recommended by the magistrate judge, I find and conclude that the recommendation should be approved and adopted as an order of this court.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez ,418 F.3d at 1122.
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The plaintiff's complaint concerns an alleged strip search of the plaintiff. The plaintiff alleges that the strip search violated his rights under the Fourth and Eighth Amendments. The magistrate judge concluded correctly that the allegations in the plaintiff's complaint do not state a Fourth Amendment claim against defendants Christopher Gassaway, Patrick White, and John Chapdelain. Defendant John Chapdelain is not named as a defendant in the plaintiff's Eight Amendment claim. Therefore, John Chapdelain is dropped as a defendant in this case. Otherwise, the magistrate judge concluded correctly that the allegations in the plaintiff's complaint are sufficient to state claims under the Fourth and Eighth Amendments.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#25] filed October 1, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That the defendants' Motion To Dismiss [#14] filed June 11, 2012, is GRANTED as to the plaintiff's Fourth Amendment claim against defendants Christopher Gassaway, Patrick White, and John Chapdelain;
3. That the plaintiff's Fourth Amendment claim against defendants Christopher Gassaway, Patrick White, and John Chapdelain is DISMISSED without prejudice;
4. That defendant John Chapdelain is DROPPED as a defendant in this case, and the caption shall be AMENDED accordingly;
5. That otherwise, the defendants' Motion To Dismiss [#14] filed June 11, 2012, is DENIED.
Dated March 12, 2013, at Denver, Colorado.
BY THE COURT:
_________________
Robert E. Blackburn
United States District Judge