Summary
adopting Report & Recommendation and dismissing Eighth Amendment claim based on prison officials' failure to punish inmate's alleged attacker
Summary of this case from Prettyman v. ConradOpinion
Civil Case No. 06-cv-02254-LTB-BNB.
March 24, 2008
ORDER
This case is before me upon the Recommendation of the Magistrate Judge that Defendant's Motion to Dismiss (Doc 23) be granted in part and denied in part. The Recommendation was issued and served on February 19, 2008. Specifically, the Magistrate Judge recommends as follows: (1) it be granted to the extent it seeks dismissal of all claims against the Colorado Department of Corrections (DOC) and the individual Defendants in their official capacities for retroactive monetary relief; (2) that it be granted insofar as it seeks dismissal of all claims against Defendants Johnson, Jones, and Trani for failure to allege personal participation of these Defendants; (3) it be granted to the extent it seeks dismissal of the allegations in Claim One regarding constitutional violations based on Defendants' failure to pursue criminal and disciplinary charges; (4) that it be denied insofar as it seeks dismissal of the allegations in Claim One against Defendant Samu for deliberate indifference to the Plaintiff's safety needs in violation of the Eighth Amendment; and (5) that it be denied insofar as it seeks dismissal of Claim Two.
If accepted, the following claims would remain: (1) the claims against the DOC and Defendant Samu in his official capacity for prospective injunctive relief; (2) Claim One as against Defendant Samu in his individual capacity for deliberate indifference to the Plaintiff's safety needs in violation of the Eighth Amendment; and (3) Claim Two against Defendant Bloor for deliberate indifference to the Plaintiff's medical needs in violation of the Eighth Amendment.
Defendants have filed no timely written objections to the Magistrate Judge's Recommendations. Plaintiff has filed timely written objections to the Magistrate Judge's Recommendations. Specifically, Plaintiff objects to the dismissal of Defendants Trani, Jones, and Johnson. Plaintiff also objects to dismissal with regard to his allegations of hostile prison environment and failure to pursue criminal and disciplinary charges.
Plaintiff has also filed, together with his objections, his "Plaintiff's Amended Prisoner Complaint Pursuant to Fed.R.Civ.P. 15(a)."
I have therefore reviewed the recommendations de novo not only in the light of the file and record in this case, but also in the light of the Plaintiff's Amended Complaint. On such de novo review, I conclude that the recommendations are correct. I also conclude that the Amended Complaint is futile insofar as it addresses the Magistrate Judge's recommendations. Accordingly
IT IS ORDERED that Defendants' Motion to Dismiss (Doc 23) is GRANTED IN PART AND DENIED IN PART as follows:
1. It is granted to the extent it seeks dismissal of all claims against the DOC and the individual Defendants in this official capacities for retroactive monetary relief;
2. It is granted insofar as it seeks dismissal of all claims against Defendants Johnson, Jones, and Trani for failure to allege personal participation of these Defendants;
3. It is granted to the extent it seeks dismissal of the allegations in Claim One regarding constitutional violations based on Defendants' failure to pursue criminal and disciplinary charges;
4. It is denied insofar as it seeks dismissal of the allegations in Claim One against Defendant Samu for deliberate indifference to the Plaintiff's safety needs in violation of the Eighth Amendment; and
5. It is denied insofar as it seeks dismissal of Claim Two.
IT IS FURTHER ORDERED that this Order is effective as to Plaintiff's Amended Complaint filed March 14, 2008 (Doc 61).