Sarno v. Reilly et al
Filing
33
ORDER adopting 27 Recommendation of United States Magistrate Judge. Motion To Dismiss First Amended Complaint [# 19 ] is GRANTED in part and denied in part. Defendants Donald Brightwell and Dino Williams are DROPPED as defendants in this case, and the caption shall be AMENDED accordingly. By Judge Robert E. Blackburn on 3/20/2013. (klyon, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 12-cv-00280-REB-KLM
GEORGE D. SARNO,
Plaintiff,
v.
JOHN REILLY,
DONALD BRIGHTWELL, and
DINO WILLIAMS,
Defendants.
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion To Dismiss First
Amended Complaint [#19]1 filed April 30, 2012; (2) the corresponding
Recommendation of United States Magistrate Judge [#27] filed January 17, 2013.
The plaintiff was granted an extension of time to March 15, 2013, to file objections to the
recommendation. However, no objections to the recommendation have been filed. I
approve and adopt the recommendation, grant the motion to dismiss in part, and deny it
in part.
The plaintiff is acting pro se. Therefore, I construe his filings generously and with
the leniency due pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d
1
“[#19]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
No objections to the recommendation were filed. Thus, I review it only for plain
error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d
1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the disposition
recommended by the magistrate judge, I find and conclude that the recommendation
should be approved and adopted as an order of this court.
The plaintiff, George Sarno, is incarcerated at the Limon Correctional Facility
(LCF), a part of the Colorado Department of Corrections. According to Mr. Sarno, he
has been employed for many years and in various capacities at LCF. In his complaint,
he alleges a series of events involving a disciplinary charge against him, the loss of his
job, and his removal from a living unit known as the incentive living unit. Based on
these and other factual allegations, Mr. Sarno asserts a procedural due process claim
under the Fourteenth Amendment, an equal protection claim under the Fourteenth
Amendment, and a retaliation claim, apparently asserting a violation of the First
Amendment. Mr. Sarno seeks a declaratory judgment and injunctive relief against
defendants in their official capacities as well as nominal, compensatory, and punitive
damages against each defendant in his individual capacity.
In the recommendation, the magistrate judge analyzes thoroughly the allegations
of the complaint and the standard applicable to a motion to dismiss. Ultimately, the
magistrate judge recommends that all of Mr. Sarno’s claims against defendants Donald
Brightwell and Dino Williams be dismissed under FED. R. CIV. P. 12(b)(1) & (6). In
addition, the magistrate judge recommends that the defendants’ motion to dismiss be
2
This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.
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granted as to Mr. Sarno’s claims for compensatory damages against all three
defendants, and as to Mr. Sarno’s procedural due process claim against defendant
John Reilly.
The magistrate judge recommends that the motion to dismiss be denied as to the
plaintiff’s equal protection and retaliation claims against Mr. Reilly, in his individual
capacity, in which the plaintiff seeks nominal and punitive damages against Mr. Reilly.
The magistrate judge recommends also that the motion to dismiss be denied to the
extent Mr. Sarno seeks prospective injunctive relief against Mr. Reilly, in his official
capacity, based on Mr. Sarno’s equal protection and retaliation claims.
I agree with the analysis, conclusions, and recommendations of the magistrate
judge. Thus, this order is entered to approve and adopt the recommendation.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#27] filed
January 17, 2013, is APPROVED and ADOPTED as an order of this court;
2. That the Motion To Dismiss First Amended Complaint [#19] filed April 30,
2012, is GRANTED in part:
A. That under FED. R. CIV. P. 12(b)(1) & (6), all claims against defendants
Donald Brightwell and Dino Williams are DISMISSED;
B. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s procedural due
process claim against defendant John Reilly is DISMISSED; and
C. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s claims for
compensatory damages against defendant John Reilly are DISMISSED; and
3. That otherwise, the Motion To Dismiss First Amended Complaint [#19]
filed April 30, 2012, is DENIED;
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4. That defendants Donald Brightwell and Dino Williams are DROPPED as
defendants in this case, and the caption shall be AMENDED accordingly;
5. That the remaining claims include:
A. The plaintiff’s equal protection and retaliation claims against defendant
John Reilly, in his individual capacity, in which the plaintiff seeks nominal and punitive
damages against Mr. Reilly; and
B. The plaintiff’s claims against John Reilly, in his official capacity, in which
the plaintiff seeks prospective injunctive relief.
Dated March 20, 2013, at Denver, Colorado.
BY THE COURT:
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