Mahan v. Huber et al

Filing 106

ORDER accepting 84 Recommendation of United States Magistrate Judge. Granting 48 Defendant's Motion to Dismiss. The claims against the Adams County Sheriff's Department are dismissed, by Judge Philip A. Brimmer on 3/2/10.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 09-cv-00098-PAB-BNB ROBERT PAUL MAHAN, Plaintiff, v. ROXY HUBER, Executive Director, Colorado Department of Revenue, COLORADO DEPT. OF MOTOR VEHICLES, COLORADO STATE PATROL, LOGAN COUNTY SHERIFF'S DEPT., STERLING COUNTY POLICE DEPT., CITY OF THORNTON POLICE DEPT., ADAMS COUNTY SHERIFF'S DEPT., ROBERT WATSON, 13th Judicial District Attorney, MICHAEL SINGER, Logan County District Attorney, and DON QUICK, 17th Judicial District Attorney, Adams County, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter comes before the Court on the Recommendation of United States Magistrate Judge ("the Recommendation") [Docket No. 84], which recommends that the Court grant defendant Adams County Sheriff's Department's Motion to Dismiss [Docket No. 48]. On January 14, 2010, plaintiff filed timely objections [Docket No. 90] to the Recommendation. The magistrate judge construed plaintiff's complaint as seeking recovery from the Sheriff of Adams County, Colorado, in his official capacity. Plaintiff agrees with this

reading of his complaint. Pl.'s Response to Recommendation [Docket No. 90] at 3; see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The Court has conducted a de novo review of the record and has construed the plaintiff's pleadings liberally in light of his status as a pro se plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court concludes that the complaint contains no allegations of a policy or custom of Adams County that deprived plaintiff of a legally cognizable right. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1978).1 Accordingly, it is ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 84] is ACCEPTED. It is further ORDERED that defendant's motion to dismiss [Docket No. 48] is GRANTED. The claims against the Adams County Sheriff's Department are dismissed.

The Court notes that plaintiff's claims are based on a misreading of the relevant state statute, Colo. Rev. Stat. § 42-2-101(1), which he reads to apply only to "commercial drivers" and not to noncommercial recreational vehicles. In fact, the statute makes clear that a separate statutory section addresses commercial drivers, and that "no person shall drive any motor vehicle upon a highway in this state unless such person has been issued a currently valid driver's license . . . by the department under this article." Colo. Rev. Stat. § 42-2-101. Plaintiff offers no evidence nor any persuasive argument that his vehicle was not a "motor vehicle" for purposes of the licensing requirement or that the statute is constitutionally invalid. 2

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DATED March 2, 2010. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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