Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00093-ZLW-BNB

Document 182

Filed 02/02/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Senior Judge Zita L. Weinshienk

Civil Action No. 04-cv-0093-ZLW-BNB JOSÉ D. RAMIREZ, Plaintiff, v. SERGEANT NEVINS, Defendant. __________________________________________________________________ ORDER OF DISMISSAL AND JUDGMENT __________________________________________________________________ Plaintiff José D. Ramirez filed this Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 on January 7, 2004. Thereafter, pursuant to D.C.COLO.LCivR 72.1, this matter was referred to Magistrate Judge Boyd N. Boland. Defendant Nevins' Motion For Summary Judgment was filed on July 22, 2005, and the Magistrate Judge then issued a Minute Order stating that Plaintiff must respond to the summary judgment motion on or before August 22, 2005. Although the Amended Complaint names " Sergeant Nevine" as the Defendant, both parties identify Defendant as " Sergeant Nevins"in their motion papers. Therefore, the caption is amended to change Defendant' name to Nevins. s Plaintiff filed no response to the summary judgment motion, and on September 26, 2005, the Magistrate Judge issued a Recommendation Of United States Magistrate Judge in which he recommended that Defendant' motion for summary judgment be s granted. On October 14, 2005, Plaintiff filed objections to the Magistrate Judge' s Recommendation, along with an untimely response to Defendant' summary judgment s motion.

Case 1:04-cv-00093-ZLW-BNB

Document 182

Filed 02/02/2006

Page 2 of 3

Plaintiff states in his objection and attached affidavit that the Court should accept his late-filed response to Defendant' summary judgment motion because, s immediately after Plaintiff received the summary judgment motion, he was transferred to a new facility at which he had no access to a law library. Plaintiff also states in his affidavit that the discovery that he received from Defendant was lost during his transfer and has not been returned to him. Plaintiff now has been returned to his original facility. However, Plaintiff fails to offer any explanation as to why he never filed a motion requesting an extension to respond to the summary judgment motion at any time during the month between July 22, 2005 and August 22, 2005, based on his alleged lack of access to a law library at the new facility. Plaintiff is well aware of how to file papers with the Court, as demonstrated by the numerous motions and letters he has filed previously in this case. Further, the alleged loss of discovery materials does not explain why a late response brief should be allowed. The Court finds no good cause to allow the late filing of Plaintiff' response to Defendant' summary judgment motion. s s Plaintiff has stated no other specific objection to the Magistrate Judge' s Recommendation. The Court has considered carefully the findings and Recommendation of the Magistrate Judge, and hereby adopts and approves that Recommendation. Accordingly, it is ORDERED that the caption in this matter is amended to reflect that the Defendant' name is " s Sergeant Nevins." It is 2

Case 1:04-cv-00093-ZLW-BNB

Document 182

Filed 02/02/2006

Page 3 of 3

FURTHER ORDERED that Plaintiff' Objections To The Magistrate Judge' s s Recommendations (Doc. # 174) are overruled. It is FURTHER ORDERED that Defendant Nevins' Motion For Summary Judgment (Doc. # 138) is granted. It is FURTHER ORDERED that the Amended Prisoner Complaint and cause of action are dismissed with prejudice. It is FURTHER ORDERED that judgment is entered in favor of Defendant Sergeant Nevins, and against Plaintiff José D. Ramirez, the parties to pay their own costs and attorney' fees. s DATED at Denver, Colorado, this 1 day of February, 2006.

BY THE COURT:

ZITA L. WEINSHIENK, Senior Judge United States District Court

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