United States District Court, D. Colorado
HAZHAR A. SAYED, Plaintiff,
KAUTZ, Sgt., Colorado State Penitentiary individual capacity, MUELLER, Sgt., Colorado State Penitentiary individual capacity, RAMPONE, Sgt., Colorado State Penitentiary individual capacity, and UNKNOWN JOHN/JANE DOE, Corr. Officers, individual capacity, Defendants.
ORDER ADOPTING AS MODIFIED NOVEMBER 8, 2018
RECOMMENDATION OF MAGISTRATE JUDGE DISMISSING WITHOUT
PREJUDICE PLAINTIFF'S SOLE CLAIM AGAINST DEFENDANT KAUTZ
AND THE DOE DEFENDANTS
William J. Martínez United States District Judge
matter is before the Court on United States Magistrate Judge
N. Reid Neureiter's Recommendation dated November 8, 2018
(the “Recommendation”; ECF No. 48), which
recommended that this Court dismiss without prejudice
Plaintiff Hazhar A. Sayed's (“Plaintiff”)
sole claim against Defendants “Sgt. Kautz”
(“Kautz”) and “Unknown John/Jane Doe, Corr.
Officers” (“Doe Defendants”) based on
Plaintiff's failure to prosecute and comply with court
orders. (Id. at 3.) The Recommendation is
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a
timely Objection to the Recommendation
(“Objection”; ECF No. 53).
the Recommendation was pending before this Court, Plaintiff
filed a “Request for Ruling and/or Hearing on
Plaintiff's Objection to Magistrate Judge's
Recommendation” (“Request for Ruling”; ECF
reasons set forth below, the Recommendation is adopted as
modified, Plaintiff's Objection is overruled,
Plaintiff's Request for Ruling is granted, and
Plaintiff's sole claim against Kautz and the Doe
Defendants is dismissed without prejudice.
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any
part of the magistrate judge's [recommendation] that has
been properly objected to.” An objection to a
recommendation is properly made if it is both timely and
specific. United States v. 2121 East 30th St., 73
F.3d 1057, 1059 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge
to focus attention on those issues-factual and legal-that are
at the heart of the parties' dispute.” Id.
In conducting its review, “[t]he district court judge
may accept, reject, or modify the recommendation; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3). Here,
Plaintiff filed a timely objection to the Recommendation.
(See ECF No. 53.) Therefore, this Court reviews the
issues before it de novo.
considering the Recommendation, the Court is also mindful of
Plaintiff's pro se status, and accordingly,
reads his pleadings and filings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v.
United States, 472 F.3d 1242, 1243 (10th Cir. 2007). The
Court, however, cannot act as advocate for Plaintiff, who
must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see
also Ledbetter v. City of Topeka, 318 F.3d 1183, 1188
(10th Cir. 2003).
is a state prisoner in the custody of the Colorado Department
of Corrections (CDOC) and is currently incarcerated at the
Buena Vista Correctional Facility. (ECF No. 46.) The events
that gave rise to this lawsuit, however, occurred while
Plaintiff was incarcerated at the Colorado State Penitentiary
(“CSP”). (ECF No. 18.) According to Plaintiff,
Defendants Kautz, “Sgt. Muller”
(“Mueller”), “Sgt. Rampon”
(“Rampone”), and the Doe Defendants
(collectively, “Defendants”) were correctional
officers at the CSP at the time of the alleged misconduct.
asserts that Defendants violated his First Amendment right of
access to the courts by retaliating against him for filing
grievances and lawsuits. (Id. at 5-8.) Plaintiff
specifically alleges that on January 4, 2018, he went into
the “attorney-client visiting-room” at the CSP to
discuss with his attorney “grievances and pending
lawsuits” that he had filed against various CSP
correctional officers. (Id. at 6.) Upon entering the
room, Plaintiff claims that Defendants “screamed”
at him, saying that Plaintiff “was snitching on
[certain CSP correctional officers] by filing grievances and
lawsuits, and if [he] didn't stop, this is what would
happen every time [Defendants] saw [him].”
(Id. at 6-7.)
asserts that Defendants then “used the intercom system
in visiting-room at [CSP]” to call Plaintiff a
“snitch, rat and sex-offender.” (Id. at
7.) Plaintiff alleges that Defendants did this “in
retaliation for [Plaintiff] having filed grievances and
lawsuits against [various CSP correctional officers].”
(Id. at 7-8.) Moreover, Plaintiff claims that as a
result of Defendants “falsely label[ing Plaintiff] as a
snitch, rat, and sex-offender, ” the Defendants have
caused him to be “approached and subjected to physical
confrontation by [the Doe Defendants], staff member(s) and
the other inmates, and possibly could lead to staff and
inmates assaults and criminal charges against
[Plaintiff].” (Id. at 7.) This lawsuit
followed. (ECF No. 1.)
acting pro se, initiated this action on April 20,
2018, by filing a Prisoner Complaint pursuant to 42 U.S.C.
§ 1983. (Id.) Plaintiff's currently
operative complaint is his Third Amended Complaint. (ECF No.
August 22, 2018, the CDOC filed a Waiver of Service on behalf
of Mueller and Rampone. (ECF No. 26.) The CDOC, however, did
not waive service on behalf of Kautz or the Doe Defendants
because Kautz was no longer a CDOC employee and the Doe
Defendants had not been identified as current CDOC employees.
(Id.) The next day, the Court ordered the United
States Marshals to effect service on Kautz at his last known
address (ECF No. 28), which was filed with the Court under
restriction (ECF No. 29). The Return of Service filed by the
United States Marshals on October 12, 2018, however,
indicates that Kautz does not reside at the address provided.
(ECF No. 39.) As of the date of this Order, neither Kautz or
the Doe Defendants have been served with process.
October 22, 2018, the Magistrate Judge entered an Order to
Show Cause. (ECF No. 43.) Specifically, the Magistrate Judge
ordered that on or before November 21, 2018, Plaintiff must
“(1) provide to the Court an updated address for
Defendant Kautz so that the United States Marshall
[sic] can effect service of process; (2) identify by
name the John/Jane Doe Defendants; and/or (3) show cause why
this case should not be dismissed without prejudice pursuant
to Fed.R.Civ.P. 4(m), 16(f), and/or 41(b) as against these
Defendants.” (Id. at 3.)
October 29, 2018, Plaintiff filed a Response to the Order to
Show Cause (“Response”; ECF No. 45). The
Magistrate Judge reviewed Plaintiff's Response and issued
his Recommendation on November 8, 2018. (ECF No. 48.) On
March 15, 2019, Plaintiff filed a “Motion for
Permission to file an Amended Complaint” ...