Free Order on Motion to Dismiss - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

Document 103

Filed 09/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff, v. JOHN HYATT, et al., Defendants

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the Order and Recommendation of United States Magistrate Judge [#92], filed August 1, 2006; (2) Defendants' Objection to Order and Recommendation of United States Magistrate Judge [#97], filed August 16, 2006; and (3) Plaintiff's Objections to 8/1/06 Recommendation [#98], filed August 21, 2006. I overrule the objections, approve and adopt the recommendation, and accordingly, grant defendants' motion to dismiss in part and deny it in part. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendations to which cognizable objections have been filed, and have considered carefully the recommendations, the objections, and the 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 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The

Case 1:01-cv-01315-REB-CBS

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Filed 09/21/2006

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recommendation is detailed and well-reasoned. Neither plaintiff's nor defendants' objections have merit.1 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 Order and Recommendation of United States Magistrate Judge [#92], filed August 1, 2006, is APPROVED AND ADOPTED as an order of this court; 2. That Defendants' Objection to Order and Recommendation of United States Magistrate Judge [#97], filed August 16, 2006, is OVERRULED and DENIED; 3. That Plaintiff's Objections to 8/1/06 Recommendation [#98], filed August 21, 2006, are OVERRULED and DENIED; 4. That Defendants' Motion to Dismiss Plaintiff's Complaint [#76], filed February 17, 2006, is GRANTED IN PART and DENIED IN PART; 5. That the motion is GRANTED as follows: a. That plaintiff's Second Claim for Relief for conspiracy to interfere with grievances is DISMISSED WITH PREJUDICE; b. That plaintiff's claims against defendants, Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Romero, Harlen, Carr, and Claar, are DISMISSED WITH

Although plaintiff argues that am endm ent is the preferred rem edy when a pro se plaintiff has failed to state a claim , I find that he is not entitled to that relief in this instance. Plaintiff tendered an am ended com plaint in response to defendants' first m otion to dism iss, which the m agistrate judge properly found failed to cure the deficiencies noted in his original com plaint. Since leave to file that am endm ent was sought in Decem ber, 2001, plaintiff has neither sought further leave to am end nor tendered a proposed am ended com plaint. Plaintiff's request to am end therefore rings hollow.

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Case 1:01-cv-01315-REB-CBS

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Filed 09/21/2006

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PREJUDICE, and those defendants are DROPPED as named parties to this action; c. That plaintiff's claims against defendants Nelson and Unnamed Property Officer are DISMISSED WITHOUT PREJUDICE for failure to effect timely service of process and failure to prosecute; and d. That plaintiff's claims for compensatory damages and punitive damages against the remaining defendants are DISMISSED WITH PREJUDICE; and 7. That the motion in all other respects is DENIED; that is, that plaintiff's First Claim for Relief against defendants, Fahey, Hyatt, other unnamed officers, Carreras, Davis, Fulton, Maestas, Garcia, and Archleta, shall remain part of this lawsuit. Dated September 20, 2006, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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