United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on the Recommendation (# 50) by the Magistrate Judge that the Motion to Dismiss (# 40) filed by Defendants Blake Davis, Louis Milusnic, Mark Munson, Mark Collins, Russ Krist, Dan Sproul, and Jeff George, be granted. The Plaintiff, Elrader Browning, Jr., filed objections (# 51) to the Recommendation, to which the Defendants responded (# 52).
The Court summarizes factual allegations contained in the Amended Complaint (# 16). Elrader Browning Jr. is a federal inmate at the United States Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado. On September 14, 2010, Mr. Browning was in the "step-down program" at ADX. He refused to accept a cellmate, received an incident report, and was moved to the special housing unit ("SHU") at ADX.
Two other inmates, one white and one "Spanish, " also refused to accept cellmates and were moved to the SHU. Both left the SHU in November 2010. Mr. Browning, however, remained in the SHU. He submitted a Request for Administrative Remedy regarding his confinement in the SHU, which ADX received on April 13, 2011. In a response dated May 12, 2011, the warden denied the Request. Mr. Browning was held in the SHU until September 29, 2011.
In May 2013, Mr. Browning filed suit against Defendants, various individuals he alleges were involved in, or otherwise responsible for, his detention in the SHU. His amended complaint contains three claims seeking money damages. Defendants subsequently filed a motion to dismiss, which was referred to the Magistrate Judge.
The Magistrate Judge recommended that the motion to dismiss be granted. The Recommendation concludes that the statute of limitation bars Mr. Browning's first two claims, made pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Recommendation analyzed the third claim pursuant to the Federal Tort Claims Act ("FTCA"), and determined that the Court lacks jurisdiction over the claim. Mr. Browning filed a Motion for Reconsideration (# 51), which the Court construes as objections to the Magistrate Judge's recommendation. The Defendants filed a response (# 52).
II. Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court must make a de novo determination of those portions of the recommendation to which timely and specific objection is made. United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.1996).
The Court is mindful of Mr. Browning's pro se status and, accordingly, construes his filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Such liberal construction, however, is intended merely to overlook technical formatting errors and other defects in the use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Pro se status does not relieve Mr. Browning of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court will treat him according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).
The Court has carefully reviewed the Recommendation and Mr. Browning's objections to the recommended resolution of his claims. Upon de novo review, the Court reaches the same conclusion as the Magistrate Judge, and finds the objections to be without merit.
a. Statute of Limitation
Mr. Browning contends that the Magistrate Judge erred in determining the dates upon which his Bivens claims accrued. The statute of limitations on a Bivens claim begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury that forms the basis for the lawsuit. Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004). "A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d ...