Free Order on Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cv-00791-WDM-BNB

Document 79

Filed 07/25/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER Civil Action No. 04-cv-00791-WDM-BNB STEPHEN H. ADAMS, Plaintiff, v. LANCE DYER, et al., Defendants.

ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE Miller, J. This matter is before me on the recommendation of Magistrate Judge Boyd N. Boland, issued January 3, 2005, that defendant David Ord' motion to dismiss be granted s and that Ord be dismissed from the case. Plaintiff Stephen Adams has not objected to the recommendation and is therefore not entitled to de novo review.1 28 U.S.C. § 636(b). I will also address Adams' objections on the issues of appointment of counsel and s of substitution of defense counsel. 1. Recommendation on Ord' Motion to Dismiss s I have reviewed the pertinent portions of the record, including Adams' pro se s complaint, the parties' filings on motion to dismiss,2 and the recommendation. I agree that Adams did file a " Motion of Objections"following issuance of the recommendation. His objections focus only on Magistrate Judge Boland' January 3, s 2005 minute order denying Adams' Motion to Reconsider Appointment of Counsel and s do not address the recommendation that I grant Ord' motion to dismiss. s As noted in the recommendation, Adams did not file a response to the motion to dismiss. Instead, he filed a motion to strike the motion to dismiss, which
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Case 1:04-cv-00791-WDM-BNB

Document 79

Filed 07/25/2005

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Adams has not alleged personal participation on the part of Ord in the constitutional violations alleged in the complaint. Therefore, I accept the recommendation that he be dismissed from this case. 2. Appointment of Counsel Issue On September 21, 2004, Adams filed a motion requested appointment of counsel pursuant of 28 U.S.C. § 1915. Magistrate Judge Boland denied the motion in an order issued September 23, 2004. In his order, Magistrate Judge Boland considered the factors set forth in Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). On December 15, 2004, Adams requested reconsideration of his motion for counsel. This was denied by minute order on January 3, 2005. On January 18, 2005, Adams filed a " Motion of Objections"arguing Magistrate Judge Boland applied an improper standard in denying his motion for reconsideration. Because this is a non-dispositive issue, I may modify the January 3 minute order or set it aside only if it is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). Adams is correct that the January 3 minute order does not address any factors regarding appointment of counsel. It appears, however, the Magistrate Judge Boland interpreted the motion to reconsider as asking him to revisit his September 23, 2004 order denying the motion for appointment of counsel rather than as a renewed motion for appointment of counsel. Adams' objections do not reflect that, given this interpretation, s the minute order was clearly erroneous or contrary to law. I will overrule the objection to the denial of the motion for reconsideration. Magistrate Judge Boland denied. Ord filed a reply to his motion to dismiss, as well as a response to the motion to strike. 2

Case 1:04-cv-00791-WDM-BNB

Document 79

Filed 07/25/2005

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3.

Substitution of Counsel Issue On June 1, 2005, Adams filed a " Motion Appealing and Objecting to the Defendant' s

Motion for Entry of Appearance and Substitution of Counsel." He complains that defendants did not serve a copy of their April 29, 2005 Entry of Appearance and Substitution of Counsel on him and that he learned of the filing only when he received the May 5, 2005 minute order approving the substitution. The certificate of service for the defendants' filing bears a different address for Adams than the address used by the court. Although Adams' objection is untimely to the extent it challenges the May 5, 2005 minute s order, Rule 72(a) (objections must be filed within ten days of service of order), I will direct that defense counsel verify the correct address for Adams and use it on all future communications with him. Accordingly, it is ordered: 1. 2. 3. 4. Magistrate Judge Boland' January 3, 2005 recommendation is accepted. s Defendant David Ord' motion to dismiss, filed August 3, 2005, is granted. s David Ord is dismissed as a defendant in this case. Adams' January 18, 2005 objection to the minute order denying his motion for s reconsideration is overruled. 5. Adams' June 1, 2005 objection regarding the entry of appearance is overruled. s DATED at Denver, Colorado, on July 22, 2005. BY THE COURT:

/s/ Walker D. Miller United States District Judge 3

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