Handy v. Cummings et al
Filing
182
ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Tafoya 180 is AFFIRMED and ADOPTED. FURTHER ORDERED that the Defendant County of Arapahoe's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) 121 is GRANTED. FURTHER ORDERED that the Defendant County of Arapahoe is DISMISSED WITHOUT PREJUDICE from this action, by Chief Judge Wiley Y. Daniel on 9/26/12.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.
11-cv-00581-WYD-KMT
WYATT T. HANDY JR.,
Plaintiff,
v.
SGT. CUMMINGS, individual & official capacity,
DEP. WENDELBURG, individually,
DEP. THAO, individually,
DEP. LIGON, individually,
DEP. ELLEDGE, individually,
DEP. GIRARD, individual,
GRETCHEN SETTAMBRINGO, individual & official capacity,
TERRI WOOD, individual
MELINDA MOLLENDOR, individual,
DEP. LITWILER, individual & official capacity,
NANCY SIVAK, individual,
DEP. KRAUSE, individual,
DEP GALLEGOS, individual,
DEP. HUNT, individual,
SGT. CLARK, individual & official capacity,
SGT. DOIZAKI, individual & official capacity,
DEP. EMERSON, individual,
DEP KLEINHEKSEL, individual,
SHERIFF GRAYSON ROBINSON, individual & official capacity,
CAPT. SAUTER, individual & official capacity,
LT. WHITIKER, individual & official capacity,
SGT. RANKIN, individual & official capacity,
DEP. FREEMAN, individual,
DEP. LONGFELLOW, individual,
DEP. HAMM, individual,
LT. WICKSTROM, individual & official,
LT. VIENOT, individual & official,
DEP. TERRY, individual,
DEP. C JONES, individual,
COUNTY OF APARAHOE,
DEP. VIGIL, individual,
SGT. NORDI, individual & official,
APARAHOE COUNTY SHERIFF DEPARTMENT, and
DEP. VINCENT, individual,
Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on Defendant County of Arapahoe’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b) (ECF No. 121). The motion was referred to
Magistrate Judge Kathleen M. Tafoya for a Recommendation by Order of Reference
dated January 19, 2012. On August 8, 2012, Magistrate Judge Tafoya issued a
Recommendation. Specifically, Magistrate Judge Tafoya recommends that the pending
motion be granted and that the Defendant County of Arapahoe be dismissed from this
case without prejudice. (ECF No. 180, Recommendation at 6). The Recommendation
is incorporated herein by reference. See 28 U.S.C. ' 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 6-7). I note that on August 27, 2012, Plaintiff filed a pleading
entitled “Response and Objections to the Magistrate Judge’s Findings and
Recommendations,” but having carefully reviewed that document, I find that the Plaintiff
asserts no valid objections and, in fact, urges me to adopt the Magistrate Judge’s
recommendation. (ECF No. 181, Resp.).
In Magistrate Judge Tafoya’s Recommendation, she properly found that pursuant
to Colo. Rev. Stat. § 30-11-105, in all lawsuits or actions brought by or against a county,
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“the name in which the county shall sue or be sued shall be, ‘The board of county
commissioners of the county of ………..’.” (Recommendation at 4). Magistrate Judge
Tafoya further noted that the Tenth Circuit has held that Colo. Rev. Stat. § 30-11-105
provides “the exclusive method by which jurisdiction over a county can be obtained.”
(Recommendation at 4). Thus, she concluded that since Plaintiff named the “County of
Arapahoe” as a defendant, rather than the “Board of County Commissioners of Arapahoe
County,” the County of Arapahoe is properly dismissed on this ground alone.
(Recommendation at 5). Alternatively, while a “simple amendment to Plaintiff’s Third
Amendment Complaint would easily cure this technical defect, … Plaintiff has also named
a number of defendants in their official capacities. Official-capacity suits are generally
treated as a suit against the government entity of which the officer is an agent. … As
such, while it is sufficient to name as a defendant either the municipality itself or a
municipal official in his or her official capacity, naming both is redundant.”
(Recommendation at 5). Accordingly, Magistrate Judge Tafoya concluded that it would
be “unnecessary to allow Plaintiff to amend his Third Amended Complaint to properly
name the Board of County Commissioners of the County of Arapahoe as any claims
against the Board would be redundant of his official-capacity claims.” (Recommendation
at 6).
I now turn to Plaintiff’s “Response and Objections to the Magistrate Judge’s
Findings and Recommendations,” filed August 27, 2012. Echoing Magistrate Judge
Tafoya’s recommendation, Plaintiff requests that even if “this court agrees that the
‘County of Arapahoe’ should be stricken from the caption, that it allows Plaintiff’s suit to
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proceed against the municipality, because Plaintiff has named a number of defendants in
their official capacities ….” (Resp. at 3). According to the Recommendation, Plaintiff’s
lawsuit against individual defendants in their official capacities will proceed. Thus, I find
no valid objection to the Recommendation. Thus, no objections having been filed, I am
vested with discretion to review the Recommendation Aunder any standard [I] deem[]
appropriate.@ Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas
v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended
to require district court review of a magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings"). Nonetheless,
though not required to do so, I review the Recommendation to "satisfy [my]self that there
is no clear error on the face of the record."1 See Fed. R. Civ. P. 72(b) Advisory
Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error on
the face of the record. I find that Magistrate Judge Tafoya=s Recommendation is
thorough, well reasoned and sound. I agree with Magistrate Judge Tafoya that the
pending motion to dismiss should be granted and that the Defendant County of Arapahoe
should be dismissed from this case without prejudice for the reasons stated in both the
Recommendation and this Order.
Based on the foregoing, it is
1
Note, this standard of review is something less than a "clearly erroneous or contrary to
law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R.
Civ. P. 72(b).
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ORDERED that the Recommendation of United States Magistrate Judge Tafoya
(ECF No. 180) is AFFIRMED and ADOPTED. It is
FURTHER ORDERED that the Defendant County of Arapahoe’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b) (ECF No. 121) is GRANTED. In accordance
therewith, it is
FURTHER ORDERED that the Defendant County of Arapahoe is DISMISSED
WITHOUT PREJUDICE from this action. The Clerk of the Court shall amend the case
caption to reflect this dismissal.
Dated: September 26, 2012
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge
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