Opinion
Civil Action No. 13-cv-01146-REB-KMT
03-17-2014
JONATHAN WOODSTOCK, Plaintiff, v. KATHLEEN BOYD, MS. SPANOZI, MR. HODGE, MS. MARTIN, SHARRON PHILLIPS, PAUL LARSON, and CAROL BROWN, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following:(1) Defendant Betty Spinuzzi'sMotion to Dismiss Plaintiff's Complaint [#23] filed Aug. 9, 2013; (2) the Motion To Dismiss Plaintiff's Amended Complaint [#28] filed by defendants Boyd, Hodge, Phillips, Larson, and Brown on September 9, 2013; (3) the Recommendation of United States Magistrate Judge [#43] filed February 6, 2014; and (4) the Recommendation of United States Magistrate Judge [#49] filed February 25, 2014. I approve and adopt both recommendations, grant the motions to dismiss, and dismiss this case.
In his complaint [#15], the plaintiff refers to this defendant as "Ms. Spanozi." In the motion to dismiss [#23], this defendant clarifies that her surname is correctly spelled "Spinuzzi." The court uses the correct spelling in this order.
"[#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.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings 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 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
No objections to the recommendations were filed. Thus, I review the recommendations 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 recommendations of the magistrate judge, I find and conclude that the recommendations should be approved and adopted as an order of this court.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122.
The complaint [#15] of the plaintiff concerns the medical care provided to the plaintiff while he was incarcerated in the Colorado Department of Corrections. In each of his four claims for relief, the plaintiff, Jonathan Woodstock, alleges that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by exhibiting deliberate indifference to his serious medical needs. Based on the thorough analysis stated in the recommendation [#49], the magistrate judge recommends that the claims against defendants Boyd, Spinuzzi, Hodge, Phillips, Larson, and Brown be dismissed for failure to state a claim on which relief can be granted. After de novo review, I concur.
In a separate recommendation [#43], the magistrate judge notes the failure of Mr. Woodstock to respond to an Order to Show Cause [#41] regarding the failure of Mr. Woodstock to serve the defendant named as "Ms. Martin" in a timely fashion. As noted by the magistrate judge, under FED. R. CIV. P. 4(m), the court must dismiss the claims against Ms. Martin without prejudice based on the failure of Mr. Woodstock to timely serve this defendant and to timely respond to the Order to Show Cause [#41]. Again, after de novo review, I concur..
Therefore, I approve and adopt the recommendations of the magistrate judge. I grant both motions to dismiss. I dismiss the claims against Ms. Martin under FED. R. CIV. P. 4(m).
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#43] filed February 6, 2014, is APPROVED and ADOPTED as an order of this court;
2. That the Recommendation of United States Magistrate Judge [#49] filed February 25, 2014, is APPROVED and ADOPTED as an order of this court;
3. That under FED. R. CIV. P. 12(b)(6), Defendant Betty Spinuzzi's Motion to Dismiss Plaintiff's Complaint [#23] filed Aug. 9, 2013, is GRANTED;
4. That under FED. R. CIV. P. 12(b)(1) and (b)(6), the Motion To Dismiss Plaintiff's Amended Complaint [#28] filed by defendants Boyd, Hodge, Phillips, Larson, and Brown on September 9, 2013, is GRANTED;
5. That under FED. R. CIV. P. 12(b)(6), the claims against Kathleen Boyd, Ms. Spinuzzi (named in the complaint as Ms. Spanozi), Mr. Hodge, Sharron Phillips, Paul Larson, and Carol Brown, are DISMISSED with prejudice;
6. That under FED. R. CIV. P. 4(m), the claims against the defendant named as "Ms. Martin," are DISMISSED without prejudice;
7. That under FED. R. CIV. P. 58, judgment SHALL ENTER in favor of the defendants, Kathleen Boyd, Ms. Spinuzzi (named in the complaint as Ms. Spanozi), Mr. Hodge, Ms. Martin, Sharron Phillips, Paul Larson, and Carol Brown, against the plaintiff, Jonathan Woodstock; and
8. That the defendants are AWARDED their costs to be taxed by the clerk of the court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated March 17, 2014, at Denver, Colorado.
BY THE COURT:
__________
Robert E. Blackburn
United States District Judge