Benton v. Town of South Fork et al

Filing 98

ORDER denying 94 Response To Joint Status Report And Motion For Both The Court And The Defendant's Legal Representation To Show Proof Of Service..., by Magistrate Judge Kathleen M. Tafoya on 2/12/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–00336–CMA–KMT

DENNY BENTON,
Plaintiff,
v.
TOWN OF SOUTH FORK AND POLICE DEPARTMENT,
FORMER POLICE CHIEF RANDY HERRERA,
CURRENT POLICE CHIEF JAMES CHAVEZ,
AT TIMES ACTING TOWN MANAGER AND CLERK SHARON FAIRCHILD,
FORMER TOWN MANAGER TODD WRIGHT,
FORMER MAYOR LARRY HEERSINK,
TOWN MANAGER BILL MATTHEWS,
TRUSTEE GROVER HAWETHORNE,
COLORADO STATE PATROL DISPATCH ALAMOSA, COLORADO, and
POLICE OFFICER PAM STEWART,
Defendants.

ORDER

This matter is before the court on Plaintiff’s
Response to Defendant’s Joint Status Report and Motion for Both the Court and
the Defendant’s Legal Representation to Show Proof of Service of All Legal
Documents that Have Been Sent to the Court and Were By Law Supposed to
Have Been Sent to the Plaintiff. Along with Stewart and Colorado State Patrol to
Get Indepedent Legal Help Since the Colorado Attorney General has Stated They
Have No Jurisdiction Over the 12th Judicial District and Refuse to Even
Investigate the Criminal Allegations and Proof Sent to Them and this Court.
Thus, This Brings Up the Standing Motion to Have a Grand Jury Investigation
Ruled On.

(Doc. No. 94, filed Feb. 7, 2013 [Pltf.. Mot.].)
Plaintiff first maintains that he did not receive any of the Defendants’ Motions to
Dismiss.1 (Doc. No. 16 [Town Defs. Mot.]; Doc No. 31 [State Defs. Mot.]; Doc. No. 72 [Hererra
Mot. Dismiss].) However, the Town Defendants’2 Motion to Dismiss and the State Defendants’3
Motion to Dismiss both indicate that they were served on Plaintiff at the address featured in his
Amended Title VII Complaint (Doc. No. 9). (Town Defs. Mot. at 16; State Defs. Mot. at 10.)
The court also notes that Plaintiff did not contact any of the defendants’ attorneys to notify them
that he had not received their Motions to Dismiss, even after the Motions to Dismiss were
referred to in a number of court-filings—including, but not limited to, this court’s order on
Defendants’ motions to stay. (See Doc. No. 60).
Further, Plaintiff’s position that he did not receive these Motions to Dismiss is belied by
the fact that Plaintiff’s “Motion for Admended [sic] Response to Oppose Defendants [sic]
Motion to Vacate this Case” states that it is an “amended response to defendant’s motions to
stay, dismiss, vacate, or any other lame motions that the defendants have used.” (Doc. No. 78 at
65 [hereinafter “Amended Response”]; see also id. at 50-51 (stating that Defendants have filed
“every motion that they can think of to stop this case from proceeding with motions to stay, to

1

It is unclear, however, what specific relief Plaintiff seeks in order to remedy this
situation.
2

The “Town Defendants” include the Town of South Fork, Town of South Fork Police
Department, James Chavez, Sharon Fairchild, Todd Wright, Larry Heersink, and Grover
Hawethorne.
3

The “State Defendants” include Colorado State Patrol Dispatch and Pam Stewart.
2

dismiss and vacate.”). Furthermore, Plaintiff’s Amended Response specifically discusses at least
one of the dismissal arguments raised by the Town Defendants in their Motion to Dismiss—to
wit, that Plaintiff’s Title VII and ADEA claims are time barred. (Id. at 9-11, 23.)
Nevertheless, it appears that Defendant Herrera’s Motion to Dismiss may not have been
properly served on Plaintiff. More specifically, Defendant Herrera’s Motion to Dismiss
indicates that it was served on Plaintiff at the address featured in his Amended Complaint
(Herrera Mot. at 6), even though Plaintiff subsequently filed a Notice of Change of Address on
July 25, 2012 (See Doc. No. 36)—three months before Defendant Herrera’s Motion was filed.
Nevertheless, the court finds that this shortcoming did not prejudice Plaintiff because Defendant
Herrera’s Motion to Dismiss relies entirely on the arguments asserted in the Town Defendants’
Motion to Dismiss. (See Herrera Mot. at 5.) Any prejudice is further minimized by the fact that
Plaintiff’s present Motion indicates that he opposes Defendants’ Motions to Dismiss for the
reasons stated in his Amended Response. (Mot. at 4.) Lastly, the court finds that any further
briefing filed by Plaintiff would and could not impact the court’s Recommendation, filed
contemporaneously with this Order, that Defendants’ Motions to Dismiss be granted.
Plaintiff’s Motion also appears to argue that the State Defendants’ counsel has a conflict
of interest in this case. Having reviewed his Motion, the court finds that Plaintiff has failed to
established that the State Defendants’ counsel has any actual conflict of interest. See Johnson v.
Bd. of Cnty. Comm’rs, 85 F.3d 489, 494 (10th Cir. 1996).
Finally, Plaintiff appears to seek a grand jury investigate Defendants’ alleged conduct.

3

This court cannot, as part of a civil case, initiate a grand jury complaint. See, e.g., Maus v.
Greening, No. 09-cv-0042, 2010 WL 4103003, at *2 (E.D. Wisc. Oct. 18, 2010).
Therefore, for the foregoing reasons, it is
ORDERED that Plaintiff’s Motion (Doc. No. 94) is DENIED.
Dated this 12th day of February, 2013.

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