Opinion
Civil Action No. 11-cv-01044-REB-CBS
02-28-2012
DEMETRIUS THOMAS, Plaintiff, v. SGT. JOHNSON, SGT. SCHWARTZ, OFFICER SHRINER, OFFICER WIKEUM, NURSE PRACTITIONER BOYD, JANE DOE, JOHN DOE #1, and JOHN DOE #2, 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 plaintiff's Unopposed Motion Pursuant to 18 U.S.C.A. § 3626(2) [#23] filed August 1, 2011; (2) the defendants' Motion To Dismiss [#34] filed September 2, 2011; and (3) the Recommendation of United States Magistrate Judge [#48] filed January 20, 2012. No objections to the recommendation have been filed by the parties. Therefore, 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 magistrate judge's recommended disposition, I find and conclude that recommendation should be approved and adopted.
"[#23]" 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.
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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Addressing the motion to dismiss, the magistrate judge concludes correctly that the allegations in the plaintiff's Claim Three are sufficient to state a claim against defendant Nurse Practitioner Boyd. As to all other claims and all other defendants, the magistrate judge concludes, again correctly, that the allegations in the plaintiff's complaint are not sufficient to state a claim on which relief can be granted. Finally, analyzing the plaintiff's Unopposed Motion Pursuant to 18 U.S.C.A. § 3626(2) [#23] as a motion for preliminary injunction, the magistrate judge concludes that the plaintiff has not demonstrated an entitlement to injunctive relief of any kind. I agree.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#48] filed January 20, 2012, is APPROVED and ADOPTED as an order of this court;
2. That the plaintiff's Unopposed Motion Pursuant to 18 U.S.C.A. § 3626(2) [#23] filed August 1, 2011, read as a motion for preliminary injunction, is DENIED;
3. That the defendants' Motion To Dismiss [#34] filed September 2, 2011, is DENIED as to the Eighth Amendment claim alleged against defendant, Nurse Practitioner Boyd, in Claim Three of the plaintiff's complaint [#9];
4. That otherwise, the defendants' Motion To Dismiss [#34] filed September 2, 2011, is GRANTED;
5. That all of the claims asserted against all named defendants are DISMISSED, except for the Eighth Amendment claim alleged against defendant, Nurse Practitioner Boyd, in Claim Three of the plaintiff's complaint [#9];
6. That defendants, Sgt. Johnson, Sgt. Schwartz, Officer Shriner, Officer Wikeum, Jane Doe, John Doe #1, and John Doe #2, are DROPPED from this case, and the caption shall be AMENDED accordingly.
Dated February 28, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge