United States District Court, D. Colorado
December 11, 2014
JAMES ROGER DUNCAN, Plaintiff,
JOHN W. HICKENLOOPER, governor, RICK RAEMISCH, executive director, WARDEN MILYARD, WARDEN FALK, and CASE MANAGER LUECK, Defendants.
ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matter before me is the Recommendation of United States Magistrate Judge [#66],  filed November 17, 2014. No timely objection having been filed to the recommendation, I review it for plain error only. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005)..
I perceive no error, much less plain error, in the magistrate judge's recommended disposition of defendants' motion to dismiss. To the extent defendants are sued in their official capacities, the Eleventh Amendment plainly bars any claim for monetary damages against them; thus, these claims must be dismissed with prejudice. With respect to plaintiff's remaining claims, and as set forth and analyzed in detail in the recommendation, the complaint patently fails to set forth adequate facts (as opposed to mere conclusions) to assert plausible claims for relief.
Thus, I find and conclude that the magistrate judge's recommendation should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#66], filed November 17, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That defendants' Motion To Dismiss Complaint [#32], filed May 12, 2014, is GRANTED;
3. That plaintiff's claims are DISMISSED as follows:
a. That plaintiff's claims for monetary relief against defendants in their official capacities are DISMISSED WITH PREJUDICE; and
b. That all remaining claims against defendants in both their official and individual capacities are DISMISSED WITHOUT PREJUDICE;
4. That judgment SHALL ENTER as follows:
a. That judgment with prejudice shall enter on behalf of defendants John W. Hickenlooper, governor; Rick Raemisch, executive director; Warden [Kevin] Milyard; Warden [James] Falk; and Case Manager [Jim] Lueck, and against plaintiff, James Roger Duncan, on the claims for monetary damages against them in their official capacities;
b. That judgment without prejudice shall enter on behalf of defendants John W. Hickenlooper, Governor; Rick Raemisch, Executive Director; Warden [Kevin] Milyard; Warden [James] Falk; and Case Manager [Jim] Lueck, and against plaintiff, James Roger Duncan, on all other claims against them in their official and individual capacities; and
c. That in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#59], filed September 8, 2014, on behalf of former defendant Bill Ritter, Jr., Ex-Governor; and
5. That this case is CLOSED.