Opinion
Civil Action No. 13-cv-01342-REB-KMT
09-19-2014
ERIC BROWN #48834, Plaintiff, v. IDAHO DEPARTMENT OF CORRECTIONS, IDAHO ATTORNEY GENERAL'S OFFICE, VIRTUAL WARDEN TIM HIGGINS, WARDEN TIMOTHY WENGLER, ASSISTANT WARDEN TOM KESSLER, H.S.A. ACEL K. THACKER, CCHP, DR. KIRK STANDER, DR. DAVID AGLER, KIT CARSON CORRECTIONAL CENTER, WARDEN VANCE EVERETT, ASSISTANT WARDEN GREG WILKINSON, DR. SUSAN TIONA, H.S.A. JODI GRAY, CORRECTIONS CORPORATION OF AMERICA, Defendants.
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following:(1) the Idaho State Defendants' Motion To Dismiss [#66] filed February 18, 2014; and (2) the Recommendation of United States Magistrate Judge [#86] filed August 27, 2014. Because no objection to the recommendation was filed, I review the recommendation 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 recommendation of the magistrate judge, I find and conclude that the recommendation should be approved and adopted as an order of this court.
"[#66]" 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, Eric Brown, is serving a prison sentence imposed by a court in the state of Idaho. Although he still is serving his Idaho prison sentence, Mr. Brown currently is housed at the Kit Carson Correctional Center (KCCC) in Burlington, Colorado. In his complaint [#25], Mr. Brown alleges that the defendants have refused to provide effective treatment for his migraine headaches. In their motion to dismiss [#66], the Idaho defendants, the Idaho Department of Corrections, the Idaho Attorney General's Office, and Virtual Warden Tim Higgins, seek dismissal of the claims asserted against them based on a lack of subject matter jurisdiction, lack of personal jurisdiction, Eleventh Amendment immunity, and for failure to state a claim on which relief can be granted. In the recommendation [#86], the magistrate judge provides a thorough and accurate analysis of these issues. Based on that analysis, I agree with the magistrate judge that the motion to dismiss [#66] must be granted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#86] filed August 27, 2014, is APPROVED and ADOPTED as an order of this court; and
2. That the Idaho State Defendants' Motion To Dismiss [#66] filed February 18, 2014, is GRANTED;
3. That under FED. R. CIV. P. 12(b)(1), (2), and (6), all claims alleged against defendants, the Idaho Department of Corrections, the Idaho Attorney General's Office, and Virtual Warden Tim Higgins, are DISMISSED; and
4. That defendants, the Idaho Department of Corrections, the Idaho Attorney General's Office, and Virtual Warden Tim Higgins, are DROPPED as named defendants in this case and the caption shall be AMENDED accordingly.
Dated September 19, 2014, at Denver, Colorado.
BY THE COURT:
/s/_________
Robert E. Blackburn
United States District Judge