Opinion
Civil Action No. 11-cv-1677-RBJ-KMT
01-29-2013
MICHAEL BRACKEEN, Plaintiff, v. STEVEN BROWN, SR (BCCF), JAN BRYANT (BCCF), TOM CLEMENTS (CDOC), MARSHALL GRIFFITH (CDOC), JOSIE LOPEZ (BCCF), MELINDA MARTON (BCCF), TERESA REYNOLDS (CDOC), BRIGHAM SLOAN, (BCCF), MARLENE YBARRA, (BCCF), ARI ZAVARAS (CDOC), STEVE BROWN, JR. (BCCF), and JASON SANCHEZ, (CDOC), Defendants.
Honorable R. Brooke Jackson
ORDER
This matter is before the Court on the January 8, 2013 Order and Recommendation of Magistrate Judge Kathleen M. Tafoya [docket #78]. The Recommendation addresses defendants' Motions to Dismiss [#55 and #60]. 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 (14) days after being served with a copy of the Recommendation. Despite this advisement, no objection to Magistrate Judge Tafoya's Recommendation was filed by either party. "In the absence of timely objection, the district court may review a magistrate . . . [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings").
The Court has reviewed the relevant pleadings concerning the Recommendation. Based on this review, the Court concludes that the Magistrate Judge's analyses and recommendations are correct, and that "there is no clear error on the face of the record." Fed. R. Civ. P. 72 advisory committee's note. Therefore, the Court ADOPTS the Recommendation of The United States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate Judge [#78] is AFFIRMED and ADOPTED. Defendants' Motions to Dismiss [#55 and #60] are GRANTED IN PART and DENIED IN PART.
1. Plaintiff's official-capacity claims for monetary relief against the CDOC Defendants are dismissed for lack of subject matter jurisdiction;
2. Plaintiff's claims against Defendants Clements and Zavaras are dismissed for failure to allege personal participation;
3. Plaintiff's claims for recovery of compensatory damages for mental and emotional injury are dismissed as barred under the PLRA;
4. Plaintiff's First Amendment "on its face claim," First Amendment retaliation claim, and Fourteenth Amendment due process and equal process claims are dismissed for failure to state a claim upon which relief can be granted;
5. The CDOC Defendants are granted qualified immunity as to Plaintiff's First Amendment "on its face claim," First Amendment retaliation claim, and Fourteenth Amendment due process and equal process claims; and
6. Plaintiff's First Amendment "as applied" claim for injunctive relief can proceed against all defendants except Defendants Clements and Zavaras;
7. Plaintiff is limited to injunctive relief against the CDOC Defendants in their official capacities and to nominal relief against the CDOC Defendants in their individual capacities.
BY THE COURT:
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R. Brooke Jackson
United States District Judge