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Custard v. Armijo

United States District Court, D. Colorado

March 15, 2016

BOB ALLEN CUSTARD, Plaintiff,
v.
ARMIJO, Mr., ATAUVICH, Mr. D. BERKABILE, Mr., CAMACHO, Mr., J. CEDENO, Mr., FRANK CORDOVA, Mr., FRANCIA, Ms., FITZGERALD, Mr., GACONI, Mr., HENRY, Mr., HEUETT, Mr., HOLMAN, Mr., HUDDLESTON, Mr., HUMPHRIES, Mr., KASDON, Ms., LUNGREN, Ms., McMULLEN, Mr., OSAGIE, Mr., OWENS, Mr., PADILLA, Mr., RANGEL, Mr., ROBINSON, Mr., SANTINI, Mr., UNKNOWN NAMED DEFENDANTS 1-14, and THE UNITED STATES OF AMERICA, Defendants.

ORDER OVERRULING OBJECTIONS AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, UNITED STATES DISTRICT JUDGE.

The matters before me are (1) the Motion To Dismiss [#40][1] filed August 10, 2015; (2) the plaintiff’s motion [#34 - filed under Level 3 Restriction] filed July 27, 2015, concerning a return address; and (3) the related Recommendation of United States Magistrate Judge [#72], filed February 10, 2016. The plaintiff filed objections [#73] to the recommendation and the defendants filed a response [#74] to the objections. I overrule the objections and approve and adopt the recommendation. As recommended by the magistrate judge, I grant the motion to dismiss.

The plaintiff is proceeding pro se. Thus, I continue to construe his pleadings 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) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which the plaintiff objects. I have considered carefully the recommendation, objections, and applicable case law, as well as the arguments raised and authorities cited by the parties.

The plaintiff, Bob Custard, is an inmate incarcerated by the Federal Bureau of Prisons. In his complaint [#8], Mr. Custard asserts several claims. He asserts an Eighth Amendment claim based on the slippery floor in his cell, the fact that the floor of his shower is about one foot higher than the floor of his cell, and the problems these conditions create because of mobility impairments suffered by Mr. Custard. He asserts an Eighth Amendment claim based on sharp barbs which he says exist on metal edges in a cell he occupied for some time. Mr. Custard says he was cut and injured by these barbs. Mr. Custard asserts a claim about prison staff using pepper spray in a neighboring cell and the deleterious health effects this had on Mr. Custard due to his asthma. He asserts a claim in which he alleges that he has been denied adequate medical care for his shoulder and a skin graft on his hand. He asserts a claim in which he alleges certain defendants improperly labeled him as a “snitch, ” and causing him to suffer adverse consequences as a result. He also asserts claims for injunctive relief and claims under the Federal Tort Claims Act.

In a thorough and detailed recommendation [#72], the magistrate judge analyzed every issue raised in the motion to dismiss and the allegations of the complaint [#8]. The magistrate judge recommends that the motion be granted in part and denied in part.

In his objections [#73], Mr. Custard does not raise any issues which vitiate the analysis of the magistrate judge. The response [#74] to the objections filed by the defendants provides a clear description of the reasons the objections of Mr. Custard do not undermine the analysis and conclusions of the magistrate judge. Based on my de novo review, I concur with the analysis and conclusions detailed by the magistrate judge. Therefore, I overrule the objections and approve and adopt the recommendation.

The plaintiff’s motion [#34 - filed under Level 3 Restriction] concerning a return address seeks information about a return address included erroneously on a piece of mail sent to Mr. Custard by the court. Apparently, the return address was included in error, and there is no reason for the court to provide any additional information on this issue. Thus, this motion is denied.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#72], filed February 10, 2016, is approved and adopted as an order of this court;

2. That the related objections [#73] are overruled;

3. That the Motion To Dismiss [#40] filed August 10, 2015, is granted in part;

4. That under Fed.R.Civ.P. 12(b)(6), Claim One of the complaint [#8] is dismissed;

5. That under Fed.R.Civ.P. 12(b)(6), Claim Four of the complaint ...


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