Tillotson v. McCeary

Filing 71

ORDER. The Recommendation of United States Magistrate Judge 58 filed 10/05/2010, is APPROVED AND ADOPTED as an order of this court. The Recommendation of United States Magistrate Judge 66 filed 11/02/2010, also is APPROVED AND ADOPTED as an ord er of this court. The objections contained in plaintiffs Motion for Relief 62 , filed 10/13/2010, are OVERRULED.Plaintiffs Objection 67 , filed 11/09/2010, is OVERRULED. The motion for leave to amend the complaint contained in plaintiffs Motion fo r Relief 62 filed 10/13/2010, is DENIED. This case is DISMISSED WITHOUT PREJUDICE for failure to effecttimely service of process and failure to prosecute. Judgment SHALL ENTER on behalf of defendant, T.J. McCoy, and against plaintiff, Chris Tillotson, as to all claims for relief and causes of action; provided,that the judgment SHALL BE without prejudice. By Judge Robert E. Blackburn on 11/19/2010.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 10-cv-00483-REB-BNB CHRIS TILLOTSON, Plaintiff, v. SGT. T. J. McCOY, Sheridan Police, Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the Recommendation of United States Magistrate Judge [#58] filed October 5, 2010; (2) the objections contained in plaintiff's Motion for Relief [#62] filed October 13, 2010; (3) the Recommendation of United States Magistrate Judge [#66], filed November 2, 2010; and (4) plaintiff's Objection [#67], filed November 9, 2010. I overrule the objections, adopt the recommendations, deny the motion to amend the complaint, and dismiss this action for failure to prosecute. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendations to which objections have been filed, and have considered carefully the recommendations, objections, and applicable caselaw. Moreover, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v.

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). The recommendation is detailed and well-reasoned. Plaintiff's objections are imponderous and without merit. In particular, plaintiff is simply mistaken in his belief that it is anyone's responsibility other than his own to locate and provide a proper address for the defendant such that service can be accomplished.1 See Patillo v. Larned State Hospital, 2010 WL 2719054 at*1 (D. Kan. July 7, 2010) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (cautioning pro se, in forma pauperis plaintiff that complaint must include addresses and any other identifying information sufficient to permit the United States Marshal to effect service on these defendants); Hill v. Ortiz, 2008 WL 2020289 at *6 (D. Colo. May 9, 2008) ("The court need not require the U.S. Marshal or the Clerk of the Court to search for Defendants . . ."). Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted. THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [#58] filed October 5, 2010, is APPROVED AND ADOPTED as an order of this court; 2. That the Recommendation of United States Magistrate Judge [#66] filed November 2, 2010, also is APPROVED AND ADOPTED as an order of this court;

Moreover, to the extent plaintiff uses his objections to request other substantive relief, such requests are not properly presented. See DC.COLO.LCivR 7.1C ("A motion shall be made in a separate paper.").

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3. That the objections contained in plaintiff's Motion for Relief [#62], filed October 13, 2010, are OVERRULED; 4. That plaintiff's Objection [#67], filed November 9, 2010, is OVERRULED; 5. That the motion for leave to amend the complaint contained in plaintiff's Motion for Relief [#62] filed October 13, 2010, is DENIED; 6. That this case is DISMISSED WITHOUT PREJUDICE for failure to effect timely service of process and failure to prosecute; and 7. That judgment SHALL ENTER on behalf of defendant, T.J. McCoy, and against plaintiff, Chris Tillotson, as to all claims for relief and causes of action; provided, that the judgment SHALL BE without prejudice. Dated November 19, 2010, at Denver, Colorado. BY THE COURT:

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