Free Order on Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:01-cv-01917-REB-MJW

Document 213

Filed 05/09/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Action No. 01-cv-01917-REB-MJW DENNIS MICHAEL BLAY, Plaintiff, v. JOHN REILLY, ET AL., Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the magistrate judge's Recommendation on Defendants' Motion for Summary Judgment (Docket No. 195) [#205], filed March 27, 2008; and (2) plaintiff's Objection to Defendants' Motion for Summary Judgment and District Courts Granting Said Motion [#208], filed April 16, 2008. I overrule the objection, adopt the recommendation, and grant defendants' summary judgment motion. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable case law. 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 Haines v. Kerner, 104 U.S. 519, 520-21 (1972), Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Case 1:01-cv-01917-REB-MJW

Document 213

Filed 05/09/2008

Page 2 of 3

The recommendation is detailed and well-reasoned.1 Plaintiff's objections are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted. THEREFORE, IT IS ORDERED as follows: 1. That the magistrate judge's Recommendation on Defendants' Motion for Summary Judgment (Docket No. 195) [#205], filed March 27, 2008, is APPROVED AND ADOPTED as an order of this court; 2. That plaintiff's Objection to Defendants' Motion for Summary Judgment and District Courts Granting Said Motion [#208], filed April 16, 2008, is OVERRULED; 3. That Defendants' Motion for Summary Judgment [#195], filed January 28, 2008, is GRANTED; 4. That plaintiff's claims against defendants are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies; 5. That judgment SHALL ENTER for defendants, John Reilly, Richard Graham, and Charlie Pellitier, against plaintiff Dennis Michael Blay, as to all claims and causes of

The magistrate judge recommends that plaintiff's complaint be dismissed for failure to exhaust administrative remedies as required by the PRLA. Under the holding of Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), exhaustion is an affirmative defense that must be raised and proved by the defendant. Although plaintiff does not object on that basis, defendants' last answer, filed nearly five years prior to this decision, which overruled then-existing Tenth Circuit precedent to the contrary, did not raise exhaustion as an affirmative defense. Nevertheless, the law of this circuit allows a party to raise an affirmative defense by way of a summary judgment motion if the purposes of Rule 8 are otherwise served and the standards for granting a motion to amend would otherwise be met. Ahmad v. Furlong, 435 F.3d 1196, 1201-03 (10th Cir. 2006). Applied here, those precedents dictate that defendants have properly raised and not waived the affirmative defense of failure to exhaust.

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Case 1:01-cv-01917-REB-MJW

Document 213

Filed 05/09/2008

Page 3 of 3

action asserted; and 6. That defendants are AWARDED their costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. Dated May 9, 2008, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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