Jordan v. Sloan et al

Filing 25

ORDER adopting 21 Recommendation of United States Magistrate Judge. The objections stated in the plaintiff's objection [# 22 ] are OVERRULED. The plaintiff's Amended Complaint [# 5 ] is DISMISSED WITHOUT PREJUDICE. Judgment shall enter. By Judge Robert E. Blackburn on 5/29/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12–cv–01634–REB–KMT
AARON JORDAN,
Plaintiff,
v.
CHRISTOPHER SLOAN,
Defendant.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the plaintiff’s Amended Complaint
filed July 05, 2012 [#5]1; and (2) the corresponding Recommendation of United States
Magistrate Judge [#21] filed March 7, 2013. The plaintiff filed objections [#22] on
March 21, 2013. I overrule the objections, approve and adopt the recommendation, and
dismiss the complaint without prejudice.
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
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the

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[#5]” 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.

March 07, 2013, recommendation [#21] to which the plaintiff objects. I have considered
carefully the recommendation, the objections, and the applicable law.
In his amended complaint [#5], the plaintiff, Aaron Jordan, alleges he was
improperly arrested and injured by police officer Christopher Sloan. After being granted
leave to proceed in forma pauperis [#4], the United States Marshals Service attempted
to serve Mr. Sloan on behalf of Mr. Jordan, but could not locate Mr. Sloan at the
Arapahoe County Sheriff’s Office. When the marshals attempted service, Mr. Sloan no
longer was employed by the sheriff.
In her recommendation, the magistrate judge concluded that Mr. Jordan has not
properly served Mr. Sloan and that under Fed. Rule of Civ. Pro. 4(m), has not shown
good cause for an extension of time to serve Mr. Sloan. I agree. In his objection to the
recommendation [#22], Mr. Jordan fails to show good cause for not serving Mr. Sloan in
a timely fashion. If a plaintiff fails to show good cause, “the Court should consider
several factors in determining whether to grant a permissive extension, including
whether the applicable statue of limitations would bar the re-filed action, whether plaintiff
is proceeding pro se, and whether the defendant is evading service.” Martinez-Jones
v. Dulce Indep. Schs, 2008 U.S. Dist. LEXIS 42321, 9 (D.N.M. Mar. 14, 2008) (citing
Espinoza v. United States, 52 F.3d 838, 842 (10th Cir. 1995)); FED. R. CIV. P. 4(m)
advisory committee notes to the 1993 amendments to subdivision (m). There is no
evidence that Mr. Sloan is evading service. The two year statute of limitations provided
in §13-80-103, C.R.S. is applicable to §1983 claims filed in the District of Colorado.
Wilson v. Garcia, 471 U.S. 261, 280 (1985); Blake v. Dickason, 997 F.2d 749, 750751 (10th Cir. 1993); Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). Mr.
Jordan’s alleged injury took place on May 22nd, 2012. See Amended Complaint [#5].
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The statute of limitations expires on May 22, 2014. This gives Mr. Jordan almost a year
to find Mr. Sloan and re-file his claim. Mr. Jordan is a pro se plaintiff. On balance, these
factors do not weigh in favor of granting a permissive extension to Mr. Sloan.
THEREFORE, IT IS ORDERED as follows:
1. That the objections stated in the plaintiff’s objection [#22] filed March 21,
2013, are OVERRULED;
2. That the Recommendation of United States Magistrate Judge [#21] filed
March 7, 2013, is APPROVED and ADOPTED as an order of this court;
3. That the plaintiff’s Amended Complaint [#5] filed February 7, 2013, is
DISMISSED WITHOUT PREJUDICE; and
4. That JUDGMENT SHALL ENTER in favor of the defendant, Christopher
Sloan, and against the plaintiff, Aaron Jordan, dismissing the plaintiff’s Amended
Complaint [#5] filed February 7, 2013, without prejudice.
Dated May 29, 2013, at Denver, Colorado.
BY THE COURT:

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