Dauwe v. Miller et al

Filing 48

ORDER: The 38 Report and Recommendation is correct. The Defendants present meritorious arguments that Plaintiffs action is barred by preclusion principals, that equitable relief is unavailable because legal remedies were available, that there was no proper request for prospective injunctive relief, and that there were no proper requests for declaratory relief. Defendants 21 Motion to Dismiss Amended Complaint is GRANTED; Plaintiffs 29 Motion Requesting a Temporary Restraining Order is DENIED; Plaintiffs 30 Motion for Injunctive Relief is DENIED; and the action is DISMISSED IN ITS ENTIRETY with costs awarded the Defendants, by Judge Lewis T. Babcock on 06/22/09.(wjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, JUDGE Civil Case No. 08-cv-02481-LTB-KMT DANIEL W. DAUWE, Plaintiff, v. G. DAVID MILLER, individually and in his capacity as judicial officer, JOANN L. VOGT, individually and in her capacity as judicial officer, DIANA TERRY, individually and in her capacity as judicial officer, NANCY J. LICHTENSTEIN, individually and in her capacity as judicial officer, Defendants. ________________________________________________________________________ ORDER ________________________________________________________________________ THIS CASE is before me on the Recommendation of the Magistrate Judge that (1) Defendants' Motion to Dismiss Amended Complaint (Doc 21) be granted; (2) Plaintiff's Motion Requesting a Temporary Restraining Order (Doc 29) be denied; (3) Plaintiff's Motion for Injunctive Relief (Doc 30) be denied; and (4) the case be dismissed in its entirety. Plaintiff has filed timely written objections to the Magistrate Judge's

Recommendation. The recommendation was issued and served on May 13, 2009 (Doc 38). On June 1, 2009, Defendants also filed objections to the Magistrate Judge's

recommendation contending that the Magistrate Judge failed to address their arguments that Plaintiff's action is barred by preclusion principals, that equitable relief is unavailing because legal remedies were available, that there was no proper request for prospective injunctive relief, and that there was no proper request for declaratory relief (Doc 40).

Fed.R.Civ.P. 6 affords three additional days for the timely filing. Defendants duplicate objections filed June 2, 2009 (Doc 40) also appear to be timely. Plaintiff responds to Defendants objections on the basis that they were untimely. This response is without merit. Finally, Defendants have filed their response to Plaintiff's specific objections to the Magistrate Judge's recommendation. I have therefore reviewed the Recommendation de novo in light of the file, record, and objections to the Recommendation. On de novo review, I conclude that the

Recommendation is correct. I further conclude that the Defendants present meritorious arguments that Plaintiff's action is barred by preclusion principals, that equitable relief is unavailable because legal remedies were available, that there was no proper request for prospective injunctive relief, and that there were no proper requests for declaratory relief. Accordingly IT IS ORDERED that (1) (2) Defendants' Motion to Dismiss Amended Complaint (Doc 21) is GRANTED; Plaintiff's Motion Requesting a Temporary Restraining Order (Doc 29) is DENIED; (3) (4) Plaintiff's Motion for Injunctive Relief (Doc 30) is DENIED; and The above action is DISMISSED IN ITS ENTIRETY with costs awarded the Defendants. BY THE COURT: s/Lewis T. Babcock Lewis T. Babcock, Judge DATED: June 22, 2009