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Bomprezzi v. Kaprivnikar

United States District Court, Tenth Circuit

January 22, 2014

MEL BOMPREZZI, Plaintiff,
v.
DR. JOAN KAPRIVNIKAR, Defendant.

ORDER AMENDING ORDER ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

This matter is before the court sua sponte. On March 18, 2013, I entered an order [#73][1] approving and adopting two recommendations of the magistrate judge. One of those recommendations [#60] included a recommendation that the motion to dismiss [#44] of the defendant, Dr. Kaprivnikar, be granted as to some claims, but denied as to the substantive due process claim of the plaintiff.

Addressing the recommendation [#60] and the motion to dismiss [#44] in the concluding paragraphs of my order [#73], I conflated the substantive due process and procedural due process claims of Mr. Bomprezzi. As a result, I inadvertently and unintentionally ordered that the motion to dismiss [#44] was granted as to the substantive due process claim and denied as to the procedural due process claim. Reviewing the recommendation [#60], my order [#73], and the other pertinent parts of the record, it is clear that I intended to grant the motion to dismiss as to any remaining procedural due process claim and deny the motion to dismiss as to the possible substantive due process claim of the plaintiff.[2] Under FED. R. CIV. P. 60(a), I enter this order to amend and correct my previous order [#73].

THEREFORE, IT IS ORDERED as follows:

1. That under FED. R. CIV. P. 60(a), the Order Adopting Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, is AMENDED as stated in this order;

2. That paragraph six (6) on pages three and four of the Order Adopting Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, is AMENDED to read: "That the defendant's Motion To Dismiss [#44] filed May 14, 2012, is DENIED as to the plaintiff's Fourteenth Amendment substantive due process claim;"

3. That paragraph seven (7) on page four of the Order Adopting Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, is AMENDED to read: "That under FED. R. CIV. P. 12(b)(6), the defendant's Motion To Dismiss [#44] filed May 14, 2012, is GRANTED as to the plaintiff's Thirteenth Amendment claim, the plaintiff's Eighth Amendment claim, and any remaining portion of the plaintiff's procedural due process claim, and those claims are DISMISSED;"

4. That otherwise, the Order Adopting Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, SHALL REMAIN in full force and effect.


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