Abegg v. Adams/Arapahoe School District J8/Aurora Public Schools

Filing 33

ORDER approving and adopting 32 Recommendation of United States Magistrate Judge. The Motion To Dismiss Second Amended Complaint [# 25 ] is GRANTED. The amended complaint [# 10 ] is DISMISSED. Judgment shall enter. By Judge Robert E. Blackburn on 3/21/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01084-REB-MJW
WILLIAM ABEGG,
Plaintiff,
v.
ADAMS-ARAPAHOE SCHOOL DISTRICT 28J/AURORA PUBLIC SCHOOLS,
JOHN BARRY, Superintendent, in his personal and professional capacity,
JILL LLITERAS, Principal, in her personal and professional capacity,
TUDY WICKS, School Security in her personal and professional capacity,
KATHLEEN HOSTETLER, Legal Counsel, in her personal and professional capacity,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion To Dismiss Second
Amended Complaint [#25]1 filed August 3, 2012; (2) the corresponding
Recommendation of United States Magistrate Judge [#32] filed October 9, 2012. No
objections to the recommendation have been filed. I approve and adopt the
recommendation and grant the motion to dismiss.
The plaintiff is acting pro se. Therefore, I construe his filings generously and with
the leniency due pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d

1

“[#25]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
No objections to the recommendation were filed. Thus, I review it only for plain
error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d
1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the disposition
recommended by the magistrate judge, I find and conclude that the recommendation
should be approved and adopted as an order of this court.
The plaintiff, William Abegg, is the parent of a child who attends a school
operated by the defendants. His complaint is based on an incident he observed at the
school in which Mr. Abegg’s son was being bullied by other children. The following day,
Mr. Abegg received a directive from the school principal excluding him from the school
premises. Additional facts are described in the complaint. The plaintiff asserts two due
process claims and one First Amendment claim. In the recommendation, the magistrate
judge provides a thorough analysis of the allegations in the complaint and the
defendants’ motion to dismiss. Ultimately, the magistrate judge concludes that the
allegations in the complaint are not sufficient to state claims on which relief can be
granted. On this basis, the magistrate judge recommends that the motion to dismiss be
granted. The conclusions and recommendation of the magistrate judge are correct.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#32] filed
October 9, 2012, is APPROVED and ADOPTED as an order of this court;
2. That the Motion To Dismiss Second Amended Complaint [#25] filed
August 3, 2012, is GRANTED;

2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

2

3. That under FED. R. CIV. P. 12(b)(6), the amended complaint [#10] is
DISMISSED;
4. That judgment SHALL ENTER in favor of the defendants, Adams-arapahoe
School District 28j/aurora Public Schools, John Barry, Jill Lliteras, Tudy Wicks, and
Kathleen Hostetler, against the plaintiff, William Abegg, on all claims for relief and
causes of action asserted in this case;
5. That defendants are AWARDED their costs to be taxed by the clerk of the
court in the time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1; and
6. That this case is CLOSED.
Dated March 21, 2013, at Denver, Colorado.
BY THE COURT:

3