Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01205-ZLW-OES

Document 43

Filed 09/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-01205-ZLW-OES JOHN D. ALEXANDER Plaintiff, v. UNITED STATES OF AMERICA Defendant. _____________________________________________________________________ ORDER AND JUDGMENT OF DISMISSAL _____________________________________________________________________ Plaintiff John D. Alexander filed an Amended Prisoner Complaint on July 20, 2004, against Defendant United States of America, alleging loss of property due to negligence of prison officials during his transfer to a special housing unit. 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 Defendant's Motion To Dismiss Pursuant To Federal Rules Of Civil Procedure 12(b)(1) And 12(h)(3) be granted and the Complaint be dismissed without prejudice. Plaintiff filed an objection to the Magistrate Judge' Recommendation on August 24, 2005. The s Court reviews the Magistrate Judge' Recommendation de novo.1 s In a thoughtful and thorough analysis, the Magistrate Judge determined that this Court lacks subject matter jurisdiction because Plaintiff' claims fall under the s discretionary function exception to the Federal Tort Claims Act (FTCA). While Plaintiff' s

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See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C).

Case 1:04-cv-01205-ZLW-OES

Document 43

Filed 09/29/2005

Page 2 of 2

objection reiterates his claims, Plaintiff has not addressed the issue of subject matter jurisdiction or the discretionary function exception to the FTCA. The Court has carefully considered the analysis of the Magistrate Judge and agrees with his conclusion that the Court lacks subject matter jurisdiction in this case because the discretionary function exception applies to the alleged conduct of the corrections officers. Thus, the Court hereby accepts and adopts the Magistrate Judge's findings and Recommendation, and it is ORDERED that Defendant's Motion To Dismiss Pursuant To Federal Rules Of Civil Procedure 12(b)(1) And 12(h)(3) is granted. It is FURTHER ORDERED that the Amended Prisoner Complaint and cause of action are dismissed with prejudice. 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

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