Opinion
Civil Action No. 01-cv-01315-REB-CBS.
September 20, 2006
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The matters before me are (1) the Order and Recommendation of United States Magistrate Judge [#92], filed August 1, 2006; (2) Defendants' Objection to Order and Recommendation of United States Magistrate Judge [#97], filed August 16, 2006; and (3) Plaintiff's Objections to 8/1/06 Recommendation [#98], filed August 21, 2006. I overrule the objections, approve and adopt the recommendation, and accordingly, grant defendants' motion to dismiss in part and deny it in part.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendations to which cognizable objections have been filed, and have considered carefully the recommendations, the objections, and the applicable case law. 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 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The recommendation is detailed and well-reasoned. Neither plaintiff's nor defendants' objections have merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.
Although plaintiff argues that amendment is the preferred remedy when a pro se plaintiff has failed to state a claim, I find that he is not entitled to that relief in this instance. Plaintiff tendered an am ended com plaint in response to defendants' first motion to dismiss, which the magistrate judge properly found failed to cure the deficiencies noted in his original complaint. Since leave to file that amendment was sought in Decem ber, 2001, plaintiff has neither sought further leave to amend nor tendered a proposed am ended com plaint. Plaintiff's request to am end therefore rings hollow.
THEREFORE, IT IS ORDERED as follows:
1. That the Order and Recommendation of United States Magistrate Judge [#92], filed August 1, 2006, is APPROVED AND ADOPTED as an order of this court;
2. That Defendants' Objection to Order and Recommendation of United States Magistrate Judge [#97], filed August 16, 2006, is OVERRULED and DENIED;
3. That Plaintiff's Objections to 8/1/06 Recommendation [#98], filed August 21, 2006, are OVERRULED and DENIED;
4. That Defendants' Motion to Dismiss Plaintiff's Complaint [#76], filed February 17, 2006, is GRANTED IN PART and DENIED IN PART;
5. That the motion is GRANTED as follows:
a. That plaintiff's Second Claim for Relief for conspiracy to interfere with grievances is DISMISSED WITH PREJUDICE;
b. That plaintiff's claims against defendants, Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Romero, Harlen, Carr, and Claar, are DISMISSED WITH PREJUDICE, and those defendants are DROPPED as named parties to this action;
c. That plaintiff's claims against defendants Nelson and Unnamed Property Officer are DISMISSED WITHOUT PREJUDICE for failure to effect timely service of process and failure to prosecute; and
d. That plaintiff's claims for compensatory damages and punitive damages against the remaining defendants are DISMISSED WITH PREJUDICE; and
7. That the motion in all other respects is DENIED; that is, that plaintiff's First Claim for Relief against defendants, Fahey, Hyatt, other unnamed officers, Carreras, Davis, Fulton, Maestas, Garcia, and Archleta, shall remain part of this lawsuit.