Opinion
Civil Case No.11-cv-02291-REB-MJW
08-24-2012
VERNE JAY MERRELL, Plaintiff, v. DAVID ALLRED, D.O. FCC Health Services, and PATRICIA MITCHELL, Program Mgt Officer, Health Services, in their individual and professional capacities, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the magistrate judge's Recommendation on Plaintiff's Motion for Injunctive Relief (Docket No. 3) and Defendants' Motion To Dismiss (Docket No. 34) [#55] filed July 17, 2012. I approve the unopposed recommendation.
"[#55]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
No objections have been filed to the recommendation. 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 such error in the magistrate judge's recommended disposition, I find and conclude that the recommendation should be approved and adopted.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122. 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 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. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
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THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation on Plaintiff's Motion for Injunctive Relief (Docket No. 3) and Defendants' Motion To Dismiss (Docket No. 34) [#55] filed July 17, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That plaintiff's Prisoner's Motion for Injunctive Relief [#3] filed August 31, 2011, is DENIED AS MOOT; and
3. That Defendants' Motion To Dismiss [#34] filed February 16, 2012, is GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED to the extent that the Prisoner Complaint filed August 31, 2011, can be construed to assert a cause of action arising under the Free Exercise Clause of the First Amendment and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and any such claim is DISMISSED WITHOUT PREJUDICE; and
b. That in all other respects, the motion is DENIED.
Dated August 24, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge