McConnell v. Cirbo et al
Filing
48
ORDER The Magistrate Judges Recommendation ECF No. 47 is ADOPTED in its entirety; Defendants Motion for Summary Judgment ECF No. 42 is GRANTED; Plaintiffs Eighth Amendment claim against Defendant is DISMISSED WITHOUT PREJUDICE; and The Clerk shall enter judgment in favor of Defendant. Each party shall bear her own costs, by Judge William J. Martinez on 3/29/2013.(ervsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-02342-WJM-KLM
FRANKIE L. MCCONNELL,
Plaintiff,
v.
DEBRA REILLY,
Defendant.
______________________________________________________________________
ORDER ADOPTING FEBRUARY 26, 2013 RECOMMENDATION OF MAGISTRATE
JUDGE,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________
This matter is before the Court on the February 26, 2013 Recommendation of
United States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 47)
that Defendant’s Motion for Summary Judgment (ECF No. 42) be granted. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were
due within fourteen days after being served with a copy of the Recommendation. (ECF
No. 47, at 10.) Despite this advisement, no objections to the Magistrate Judge’s
Recommendation have to date been filed by either party.
The Court concludes that the Magistrate Judge’s analysis was thorough and
sound, and that there is no clear error on the face of the record with respect to the issue
of administrative exhaustion under the Prison Litigation Reform Act (“PLRA”). Resolution
of that issue is dispositive of the instant matter.1 See Fed. R. Civ. P. 72(b) advisory
committee’s note (“When no timely objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation.”);
see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of
timely objection, the district court may review a magistrate’s report under any standard it
deems appropriate.”).
In accordance with the foregoing, the Court ORDERS as follows:
(1)
The Magistrate Judge’s Recommendation (ECF No. 47) is ADOPTED in its
entirety;
(2)
Defendant’s Motion for Summary Judgment (ECF No. 42) is GRANTED;
(3)
Plaintiff’s Eighth Amendment claim against Defendant is DISMISSED WITHOUT
PREJUDICE;2 and
(4)
The Clerk shall enter judgment in favor of Defendant. Each party shall bear her
own costs.
1
In addition, and for reasons stated in Defendant’s Motion for Summary Judgment,
Plaintiff’s claims are indeed “wholly contradicted by the record.” (ECF No. 43) This only
reinforces the result against Plaintiff as already provided for in the Magistrate Judge’s
Recommendation under the PLRA. Accordingly, because Plaintiff cannot demonstrate a
violation of her Eighth Amendment right to medical care, Defendant is also entitled to qualified
immunity based on the first and second prongs of the relevant test. Saucier v. Katz, 533 U.S.
194, 200 (2001) quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
2
Arocho v. Lappin, 2011 WL 2292187, at *8 (D. Colo. Apr. 21, 2011) (citing Fields v.
Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (noting that dismissal of
unexhausted claims on summary judgment should be without prejudice.)
2
Dated this 29th day of March, 2013.
BY THE COURT:
_________________________
William J. Martínez
United States District Judge
3
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