United States District Court, District of Colorado
ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Robert E. Blackburn, United States Distnct Judge.
This matter is before me on the following: (1) the Recommendation of United States Magistrate Judge [#39] filed April 25, 2013; (2) the Defendants’ Motion To Dismiss [#42] filed May 10, 2013;and (3) the Recommendation of United States Magistrate Judge [#46] filed November 7, 2013. No objections were filed concerning the first recommendation [#39]. Both the plaintiff and one defendant, Captain Klien, filed objections [#54 & #56] to the second recommendation [#46]. I approve and adopt the first recommendation [#39]. I approve and adopt the second recommendation [#46] in part and respectfully reject it in part.
I. STANDARD OF REVIEW
Because no objections were filed concerning the first recommendation [#39], I review that recommendation only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the magistrate judge’s recommended disposition, I approve and adopt the first recommendation.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the second recommendation [#46] to which any party objects. I have considered carefully the recommendation, the objections, and the applicable case law.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The plaintiff, Kevin Williams, is an inmate at the Federal Correctional Institution in Florence, Colorado. In his complaint, Mr. Williams alleges that from March 2011 to March 2012, and possibly at other times, he was awakened each night while he was sleeping. As the guards were conducting count, they would beat on his cell door. Mr. Williams contends these actions were taken to deprive him of adequate sleep.
Mr. Williams filed grievances concerning this conduct. On May 16, 2011, the defendant, Captain Klien, met with the plaintiff. Allegedly, Captain Klien used “racial epithets and . . . a tone of voice that was threatening and intimidating.” Recommendation [#46], p. 5. According to Mr. Williams, Captain Klien threatened that he would take Mr. William’s job if Mr. Williams did not stop filing grievances. Captain Klien asked Mr. Williams how many grievances he had filed “and said I bet your kind can’t even count that high.” Id. According to Mr. Williams, Captain Klien placed Mr. Williams in the extremely restricted Special Housing Unit (SHU) to keep him from filing grievances. Id., p. 12. While Mr. Williams was in the SHU, Captain Klien allegedly tolerated and encouraged efforts undertaken by guards under Captain Klien’s supervision to deprive Mr. Williams of sleep. Amended Prisoner Complaint [#21], p. 12.
In the first recommendation [#39], the magistrate judge recommends that the complaint be dismissed as to defendant, C.O. Royal, based on Mr. William’s failure to prosecute those claims. After noting that the defendant named as C.O. Royal had not been served with a summons and complaint, the magistrate judge ordered Mr. Williams to show cause why the complaint should not be dismissed as to C.O. Royal based on the plaintiff’s failure to prosecute. The plaintiff did not respond. Under Fed.R.Civ.P. 41 and D.C.COLO.LCivR 41.1, dismissal for failure to prosecute is proper in these circumstances. Thus, I approve and adopt the first recommendation [#39].
In the second recommendation [#46], The magistrate judge recommends that the motion to dismiss be denied as to the due process and retaliation claims asserted against Captain Klien. As to all other claims and defendants, the magistrate judge recommends that the motion to dismiss be granted. In his objection [#54], Mr. Williams contends the claims against defendants other than Captain Klien should not be dismissed. After careful consideration of the relevant record, I overrule the objections and approve and adopt the recommendation concerning the claims against defendants other than Captain Klien.
Addressing the claims against Captain Klien, the magistrate judge concludes that the allegations of Mr. Williams are sufficient to allege a retaliation claim against Captain Klien, based on the right of Mr. Williams to be free from retaliation for filing grievances, an exercise of First Amendment rights by Mr. Williams. The magistrate judge notes also that Captain Klien does not move to dismiss the due process claim asserted against him.
In his objection [#56], Captain Klien contends that Mr. Williams may not assert a claim for damages based on an alleged violation of the First Amendment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In addition, Captain Klien argues that the allegations of Mr. Williams do not state a claim for First Amendment ...