Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01270-ZLW-OES

Document 40

Filed 09/29/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-1270-ZLW-OES ELIZABETH GARDESANI, Plaintiff, v. BILL OWENS, Governor, State of Colorado, sued in his individual capacity; JOE ORTIZ, Director, sued in his individual capacity; ROBERT D. ANDERSON, Security Officer, sued in his individual capacity; DEP. [sic] OF CORRECTIONS, sued in his individual capacity, and JEAN SHOEMAKER, Warden, Defendants. _____________________________________________________________________ ORDER AND JUDGMENT OF DISMISSAL _____________________________________________________________________ Plaintiff Elizabeth Gardesani filed a Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 on June 21, 2004, and an Amended Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 [Doc. #7] on July 16, 2004. The Complaint alleges that Plaintiff was sexually assaulted while in the Custody of the Department of Corrections, that Defendants were deliberately indifferent to her safety, and further, that Defendants retaliated against her by transferring her to a maximum security facility. Pursuant to 28 U.S.C. § 636(b)(1) (A) and (B) and Fed. R. Civ. P. 72(a) and (b), this matter was referred to Magistrate Judge O. Edward Schlatter who filed a Recommendation For Dismissal on August 11, 2005, in which he recommended that Defendants Owens, Ortiz, Shoemaker, And Dep. [sic] Of Corrections' Motion To

Case 1:04-cv-01270-ZLW-OES

Document 40

Filed 09/29/2005

Page 2 of 2

Dismiss Plaintiff's Complaint be granted and that Defendant Robert D. Anderson be dismissed without prejudice sua sponte. Plaintiff has filed no objections. The Court after careful consideration, agrees with the Magistrate Judge' s thorough and thoughtful analysis and conclusions, and hereby accepts and adopts the Magistrate Judge's findings and Recommendation. Therefore, it is ORDERED that Defendants Owens, Ortiz, Shoemaker, And Dep. [sic] Of Corrections' Motion To Dismiss Plaintiff's Complaint is granted. It is FURTHER ORDERED that the Amended Complaint [Doc. #7] and cause of action are dismissed with prejudice as to Defendants Bill Owens, Joe Ortiz, Dep. [sic] Of Correction, and Jean Shoemaker under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. It is FURTHER ORDERED that Amended Complaint [Doc. #7] and cause of action are dismissed sua sponte without prejudice as to Defendant Robert D. Anderson for failure to exhaust administrative remedies. DATED at Denver, Colorado, this 29 day of September , 2005. BY THE COURT:

s/ Zita L. Weinshienk _________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court