Carrillo, v. Hickenlooper, et al.,

Filing 421

ORDER granting 356 Motion to Dismiss, granting 358 Motion to Dismiss, granting 361 Motion to Dismiss, granting in part and denying in part 362 Motion to Dismiss for Failure to State a Claim, granting 363 Motion to Dismiss for Failure to State a Claim, adopting 381 Report and Recommendations as modified, denying 385 Motion to Strike, denying 412 Plaintiff's Brief, and denying 411 Plaintiff's Objection to Report and Recommendations. Plaintiff is denied leave to file an amended Complaint. Judgment shall enter in favor of Defendants and against Plaintiff. Entered by Judge Raymond P. Moore on 7/20/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02034-RM-MEH
ALFONSO A. CARRILLO,
Plaintiffs,
v.
JOHN W. SUTTERS, Colorado Attorney General, in his official capacity as elected Colorado
Attorney General,
RICK RAEMISCH, in his individual and official capacities,
BOBBY BONNER, in his individual and official capacities,
MITCHELL MORRISSEY, in his individual and official capacity as Second Judicial District
Attorney,
MORRIS B. HOFFMAN, Judge, in his official and representative capacities,
PHIL GEIGLE, in his individual and representative capacities,
DARRYL SHOCKLEY, in his individual and representative capacities,
DANIEL CHUN, in his individual and representative capacity as Denver D.A. detective,
BRAD UYAMURA, in his individual and representative capacity as Denver D.A. detective,
FRANK THOMAS, Sheriff, in his individual and official capacities,
GARY WILSON, in his individual and official capacities,
ELIAS DIGGINS, in his individual and official capacities,
DENVER SHERIFF DEPARTMENT, in its official capacity,
DOUGLAS K. WILSON, in his individual and official capacities,
ELIZABETH PORTER-MERRILL, in her individual and official capacities,
NICHOLAS SARWAK, in his individual and official capacities,
DOUGLAS N. DARR, in his individual and official capacities,
CAROL CHAMBERS, in her individual and official capacities as 18th Judicial District
Attorney,
GEORGE H. BRAUCHLER, in his individual and official capacities as 18th Judicial District
Attorney,
TED MINK, in his individual and official capacities as elected Jefferson County Sheriff,
Defendants.
ORDER

Plaintiff, a prisoner proceeding pro se, has sued numerous Colorado state employees,
including several state sheriffs, district attorneys and detectives, and the public defenders
assigned to represent him alleging numerous constitutional violations under the Civil Rights Act
and various other violations of law. This matter is before the Court on the December 29, 2014
Recommendation of United States Magistrate Judge Michael E. Hegarty (the
“Recommendation,” ECF No. 381), which addresses five distinct motions to dismiss filed by
various clusters of defendants. (ECF Nos. 356, 358, 361, 362, 363.) Magistrate Judge Hegarty
recommended that all Defendants in this action be dismissed and that Plaintiff be denied leave to
file a second amended complaint. Plaintiff timely filed objections to the Recommendation (ECF
Nos. 382, 383) and also filed a motion to strike the Recommendation (ECF No. 385) and another
motion seeking this Court’s review of the Recommendation under a de novo standard. (ECF No.
411, 412.) For the reasons explained below, the Court rules that the Recommendation is
ADOPTED and incorporated herein by reference, see 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b), and all of Plaintiff’s claims are dismissed as against all Defendants. Plaintiff’s Objections
to the Recommendation are OVERRULED and Plaintiff’s motion to strike the Recommendation
and motion for de novo review of the Recommendation are both DENIED.
I.

BACKGROUND
This action initially began on August 3, 2012 when Plaintiff Alfonso Carillo (“Plaintiff”)

and 60 other plaintiffs, proceeding pro se, filed a Complaint (ECF No. 1) alleging generally that:
“(1) changes were made to Colorado laws governing foreclosure proceedings, (2) the changes
made it easier to foreclose on properties, [3] the changes were made both illegally and
improperly, (4) Plaintiffs have sought to challenge foreclosures affecting them under the new
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law, and (5) Defendants have attempted to intimidate Plaintiffs or retaliate against them for
resisting foreclosure by a wide range of conduct, including having one or more Plaintiffs arrested
and charged in criminal court with violations of law.” (ECF No. 324, at 3.) After U.S. District
Court Judge Martinez dismissed 27 of the original plaintiffs for failing to appear and prosecute
the action (see ECF Nos. 45, 72, 160) and after various defendants filed motions to dismiss (ECF
Nos. 85, 102, 109, 135, 142, 144, 145, 156) this Court issued an order on May 14, 2014 adopting
Magistrate Judge Hegarty’s recommendation (ECF No. 218), dismissing all of Plaintiffs’ claims
and granting leave to file an amended complaint. (ECF No. 324.)
After receiving several extensions, Plaintiff filed the First Amended Verified Complaint
on August 20, 2014 on behalf of only himself. (ECF No. 342, the “Amended Complaint.”) As
with the initial Complaint, the Amended Complaint is difficult to summarize with precision due
to its vague and meandering nature. Essentially, Plaintiff alleges that various state actors worked
in conjunction with one another to retaliate against and prohibit Plaintiff from operating his
business, America’s Home Retention Services, Inc., in violation of his Constitutional rights.
Plaintiff alleges that he operated this business to provide services as real estate consultant, civil
rights advocate and fair housing coordinator to mainly Hispanic customers to retain, defend,
protect and acquire real property and to oppose allegedly fraudulent and discriminatory mortgage
loans. Plaintiff alleges that the following actions were taken by the Defendants and others to
interrupt this business: James Wilder, an attorney who represented many of Plaintiff’s customers
in defending against foreclosure actions was allegedly pressured by “State” Defendants to stop
taking cases from Plaintiff’s clients; various banks, and the attorneys who represented those
banks in foreclosure actions, persuaded the State Defendants to prosecute and stop Plaintiff from
3

challenging allegedly “false, robo-signed ownership papers”; several state sheriffs seized various
properties throughout the state including those of Plaintiff’s clients; various criminal actions and
one civil action was commenced against Plaintiff where evidence was withheld; Plaintiff was
“savagely” beaten by a “hit man” for refusing to accept a plea bargain; and Plaintiff was
provided with ineffective assistance of his defense counsel, resulting in civil penalties and
Plaintiff’s improper incarceration. The Amended Complaint alleges claims for violations of the
First, Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments to the U.S. Constitution.
Plaintiff also challenges the constitutionality of Colo. Rev. Stat. § 38-38-101, et seq. on the
grounds that this statute, by allowing banks to foreclose on properties without producing original
evidence of a note, allegedly prohibits homeowners from raising constitutional claims or other
defenses against foreclosure. Plaintiff also asserts a claim for a violation of the Fair Housing Act
(FHA), 42 U.S.C. §3617, against all “State” Defendants. Plaintiff also purports to challenge “the
unconstitutional application and enforcement of multiple state rules, civil and criminal statutes,”
the list of which is “too long to list or explain.”
In response to the Amended Complaint, five separate motions to dismiss were filed by
various clusters of Defendants arguing generally that Plaintiff’s claims should all be dismissed
pursuant to Rules 8, 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Judge Hegarty’s Recommendation found that all of the motions to dismiss should be
granted and that Plaintiff’s Amended Complaint should be dismissed as to all Defendants. First,
the Magistrate Judge found that Defendants Suthers, Brauchler, Chambers, Geigle and Morrissey
could invoke Eleventh Amendment immunity to the extent they are sued in their official
capacities. Kailey v. Ritter, 500 F. App’x 766, 660 (10th Cir. 2012) (“[T]he Eleventh
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amendment precludes a federal court from assessing damages against state officials sued in their
official capacities because such suits are in essence suits against the state.”) (quoting Hunt v.
Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994)). Judge Hegarty thus recommended that all
official-capacity claims against these defendants be dismissed, with the exception of one claim
against Suthers regarding Plaintiff’s constitutional challenge of Colo. Rev. Stat. § 38-38-101, et
seq. as that claim sought prospective enforcement of Plaintiff’s federal rights. Ex parte Young,
209 U.S. 123, 159-60 (1908); Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495
(10th Cir. 1998). As to that claim, the Magistrate Judge recommended that it be dismissed on the
grounds that Plaintiff lacked standing to challenge the statute, as he did not allege to have been
criminally prosecuted under the statute, nor does Plaintiff allege that any of his properties were
foreclosed upon by use of this statute.
The Magistrate Judge also found that District Attorneys Brauchler, Chambers, Geigle and
Morrissey (collectively, the “D.A. Defendants”) 1 could assert the defense of prosecutorial
immunity to certain of Plaintiff’s claims brought against them in their individual capacities, thus
recommending that those claims be dismissed. However, the Magistrate Judge found that the
D.A. Defendants could not assert prosecutorial immunity with respect to Plaintiff’s claim that
these Defendants had pressured attorney James Wilder to stop representing Plaintiff’s clients in
2010 because this action would not occur in the normal course of their role as an advocate for the
State. Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993). Instead, the Magistrate Judge
recommended that this claim be dismissed as against the D.A. Defendants on the grounds that it
1

When recommending the dismissal of the D.A. Defendants, the Magistrate Judge appears to have listed Suthers’
name twice and omitted Morrissey’s name. (ECF No. 381 at 16.) The Court notes that this was in error and
includes the claims against Morrissey as also being dismissed on the grounds listed by the Recommendation for the
other D.A. Defendants.

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would be barred by the statute of limitations. Judge Hegarty also recommended dismissal of
certain claims against the D.A. Defendants on the grounds that they would imply the invalidity
of his criminal conviction. See Skinner v. Switzer, 562 U.S. 521 (2011) (holding that Brady
claims call into question the validity of a plaintiff’s convictions and thus, pursuant to Heck, are
outside the province of § 1983); Heck v. Humphrey, 512 U.S. 477, 478 (1994).
As to Plaintiff’s claims against the Denver Sheriff Department and against the three
“Sherriff Defendants” in their official capacities—Darr, Frank 2 and Mink—the Magistrate Judge
found that claims against these Defendants failed, and recommended their dismissal, on the
grounds that Plaintiff had not alleged any practice or conduct by these Defendants that could be
construed as a municipal policy or custom. Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
Cir. 1993) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)).
The Magistrate Judge also recommended that claims against the Sheriff Defendants and
Detective Daniel Chun in their individual capacities should be dismissed based on their assertion
of qualified immunity. Analyzing the first factor in the qualified immunity analysis—whether
the defendant had violated a plaintiff’s constitutional right—the Magistrate Judge determined
that Plaintiff had not sufficiently alleged any Constitutional violations. Specifically, as to
Plaintiff’s First Amendment claim, the Magistrate Judge found the Amended Complaint failed to
state sufficient allegations under Federal Rule of Civil Procedure 8 to support a claim for
violations of the right to freedom of religion and right to assemble; that the Amended Complaint
failed to state a claim for a violation of Plaintiff’s right to free speech or expression; and that the
Amended Complaint failed to state a claim for violation of Plaintiff’s right to petition the
2

Thomas Frank is named as Frank Thomas in the Amended Complaint, however, he does not dispute that he was
properly served in this action.

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government. The Magistrate Judge found that Plaintiff’s Fourth Amendment claim—based on
allegations that he was improperly incarcerated by the Sherriff Defendants—would be barred by
Heck, 512 U.S. at 478, as an impermissible collateral attack on his conviction. As to Plaintiff’s
Fourteenth Amendment claims (and Fifth Amendment claims, which apply by application of the
Fourteenth Amendment), the Magistrate Judge found this claim insufficient under Federal Rule
of Civil Procedure 8 and also that it would be barred by Heck.
With respect to Plaintiff’s challenge of “state statutes for prosecution” the “list” of which
is “too long to list or explain,” the Magistrate Judge recommended that this claim be dismissed
on the grounds that it was not sufficiently pleaded under Federal Rule of Civil Procedure 8
because it fails to identify a single statute under which Plaintiff was prosecuted and thus fails to
give Defendants proper notice.
Judge Hegarty recommended dismissing Plaintiff’s FHA claim on the grounds that
Plaintiff had not sufficiently alleged the elements of an action under that Act, specifically that he
failed to allege that any Defendants’ conduct was motivated by Plaintiff’s or his clients’ race or
that any Defendants’ conduct “constituted coercion, intimidation, a threat, or interference on
account of” Plaintiff having “aided or encouraged others in exercising” a protected right. Zhu v.
Countrywide Realty Co., Inc., 165 F. Supp. 2d 1181, 1196 (D. Kan. 2001) (citations omitted).
The following Defendants were not served with the Amended Complaint: Raemisch,
Bonner, Hoffman, Shockley, Uyamura, Gary Wilson, Diggins, Douglas Wilson, Porter-Merrill
and Sarwak. Noting that Plaintiff had not been granted permission to proceed in forma pauperis,
the Magistrate Judge found that Plaintiff was responsible for serving his amended pleading

7

pursuant to Federal Rule of Civil Procedure 4(m) and recommended dismissing these Defendants
without prejudice.
Having dismissed all of Plaintiff’s claims against all Defendants for the reasons described
above, the Magistrate Judge further recommended that Plaintiff be denied leave to file a second
amended complaint, reasoning that the Court had already granted Plaintiff leave to amend his
complaint once, that Plaintiff appears to be familiar with the applicable legal concepts, has a firm
grasp of the facts and issues in this case and mentions nothing in his opposition papers that
would indicate that he may be able to cure the deficiencies in his current pleadings.
II.

STANDARD
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule

of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of
the magistrate judge’s [recommendation] that has been properly objected to.” In conducting his
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the
Federal Rules of Civil Procedure and specific enough to enable the “district judge to focus
attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” United
States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). In the absence of a timely and specific objection, “the district court may
review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory

8

Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”).
Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for
Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III.

DISCUSSION
A.

The Recommendation

The Court concludes that the Magistrate Judge’s analysis was painstakingly thorough and
sound, and that there is no clear error of law or abuse of discretion. The Court therefore adopts
the Recommendation in full and incorporates its contents into this Order, with the following
modifications described below.
First, the Court would modify the Recommendations’ finding that Plaintiff’s pleadings
pass muster under Federal Rule of Civil Procedure 8 (ECF No. 381 at 12). While the Amended
Complaint may be of sufficient specificity to be comprehensible, the Court is not prepared to
find that this is sufficient to elude dismissal pursuant to Rule 8. Indeed, as described above, the
Recommendation finds several of Plaintiff’s claims inadequate under Rule 8 and recommends
dismissal on that basis. (See Id. at 25, 32.)
Second, Defendants Morrissey, Chun, Geigle, Brauchler and Chambers titled their
response to the Amended Complaint as a “Motion to Dismiss and for Sanctions,” although their
brief only appears to request attorney’s fees and costs. (ECF No. 362 at 19.) While the
Recommendation did not address these Defendants’ motion for an award of fees and costs under
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42 U.S.C. § 1988, the Court finds that this request should be denied, as these Defendants have
failed to demonstrate that “the plaintiff’s action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith” or “that the plaintiff continued to
litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22
(1978). In any event, this request is improperly put to the court and should have been brought as
a separate motion. D.C. Colo. L. Civ. R. 7.1(d) (“A motion shall not be included in a response or
reply to the original motion. A motion shall be made in a separate document.”).
Finally, in addition to the numerous claims addressed by the Recommendation, Plaintiff
peppered his Amended Complaint with numerous additional citations to various Constitutional
provisions, legal doctrines and federal and state statutes that Plaintiff alleges have been violated
but did not include as specific counts in his “Claims for Relief.” (See ECF No. 342 at 41-46.)
Because these claims were not included as specific counts against any specific Defendants, they
are waived. In any event, these various additional claims are too vaguely alleged to satisfy the
pleading requirements of Federal Rule of Civil Procedure 8(a)(2) and the Court need not take the
tremendous steps required to invent Plaintiff’s claims for him, nor could it based on the facts
alleged. To the extent that Plaintiff listed additional claims in the Amended Complaint that are
not specifically addressed in this Order or the Recommendation, the Court finds that those claims
lack merit and are dismissed.
B.

Plaintiff’s Objections

Plaintiff filed objections to the Magistrate Judge’s recommendation (ECF Nos. 382, 383)
arguing that certain Defendants who did not receive service of the Amended Complaint should
not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff also objected to the
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Magistrate Judge’s characterization of his response to the various Defendants’ motions to
dismiss as a “responsive operative pleading” that was submitted in one brief, arguing that his
opposition brief was merely a means to preserve his right to later move for summary judgment.
No Defendant filed objections to the Recommendation, although several responses were
filed responding to Plaintiff’s Objections. (ECF Nos. 389, 390, 391, 392.) In their responses,
the Defendants generally argue that Plaintiff failed to specifically object to the Magistrate
Judge’s Recommendation that the individual claims against them be dismissed and, as such, the
Court would only need to review the Recommendation as to their dismissal under a clear error
standard as opposed to conducting a de novo review. These Defendants also argue that the
Magistrate Judge’s Recommendation correctly found that Plaintiff’s claims should be dismissed
as against them and provide further briefing in support thereof. The Court agrees that Plaintiff’s
objections do not address the Recommendation’s dismissal of any Defendant with the degree of
specificity required to warrant de novo review, and so the Court reviews the Recommendation
only for clear error. However, regardless of the standard of review employed, the Court finds
that Plaintiff’s Objections lack merit and are overruled.
As to Plaintiff’s first objection, the Magistrate Judge was correct in his assertion that
there is nothing in the record of any of the following Defendants being served with Plaintiff’s
Amended Complaint: Raemisch, Bonner, Hoffman, Shockley, Uyamura, Gary Wilson, Diggins,
Douglas Wilson, Porter-Merrill and Sarwak. (See ECF No. 2, at 2 n.1.) Rule 4(m) provides that
“[i]f a defendant is not served within 120 days after the complaint is filed, the court—on motion
or on its own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m); see also
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Fed. R. Civ. P. 4(l) (requiring proof of service be shown to the court). The application of this
rule is mechanical and does not account for the nuances contained in Plaintiff’s Objections.
Specifically, Plaintiff’s argument that these Defendants have not proven that they were never
served is without merit, as it is Plaintiff’s obligation to provide proof of service. Fed. R. Civ. P.
4(l). Similarly, Plaintiff’s argument that requiring each individual defendant be served would
elevate form over substance ignores the plain language of the rules – each individual Defendant
must be served with a summons and complaint unless service is waived. Fed. R. Civ. P. 4(e); see
also Fed. R. Civ. P. 12(b)(4), 12(b)(5) (allowing a party to defend upon the grounds of
insufficient process). This objection is overruled.
As to Plaintiff’s second objection, the Court infers that Plaintiff is trying to say that his
Amended Complaint, as well as the Response filed to the various motions to dismiss, should not
be considered his dispositive pleadings, but rather that the summary judgment motion he
ultimately intends to file in this case should be considered the ultimate dispositive pleading and
his previous submissions were made merely to preserve his right to move for summary
judgment. However, Plaintiff’s assertion reveals a misunderstanding of the Federal Rules of
Civil Procedure. While Plaintiff may fully intend to file future, purportedly more responsive
pleadings, including a motion for summary judgment, these intentions are foreclosed by the fact
that his claims are being fully adjudicated on the merits and dismissed by this Order. See, e.g.,
State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 518 n.8 (10th Cir. 1994) (“A ruling that a
party has failed to state a claim on which relief may be granted is a decision on the merits with
full res judicata effect.”) (citations omitted); In re Johnson Elec. N. Amer., Inc., 979 F.2d 215,
1992 WL 276680, at *2 (Fed.Cir. Aug. 6, 1992) (dismissal for failure to state a claim “is on the
12

merits and is accorded res judicata effect”). Plaintiff may not inadequately and improperly plead
his claims and resist dismissal because he has not yet had an opportunity to file for summary
judgment. Pleading requirements are not mere weigh stations on the road to summary judgment.
This objection is overruled.
C.

Plaintiff’s Motion to Strike

On January 23, 2015, more than fourteen days following the issuance of the Magistrate
Judge’s Recommendation, Plaintiff filed a motion to strike the Recommendation primarily on the
grounds that he did not have access to sufficient legal materials while he was incarcerated and
also did not receive the papers filed by the various Defendants in a timely manner, thus making it
difficult for him to respond adequately. (ECF No. 385.) This motion improperly seeks to
sidestep the procedural process for objecting to a magistrate judge’s recommendation, as Federal
Rule of Civil Procedure 72(b) provides parties with the sole mechanism to object. Under Rule
72(b), Plaintiff had fourteen days from the filing of the Recommendation in which to file
objections to that filing, and indeed Plaintiff did file objections to the Recommendation on
January 14, 2015 and refiled those same objections in a separate document the next day. (ECF
Nos. 382, 383.) Plaintiff’s attempt to assert additional objections after the fourteen day time to
respond had expired contravenes the limitations of Rule 72(b). Further, Rule 12(f) specifies that
a court is only permitted to “strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added.) The
term “pleading” is defined in that section, and does not include the type of document—the
Recommendation—that Plaintiff seeks to have stricken pursuant to his motion. Id.

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In any event, even if the Court were to entertain Plaintiff’s motion, treating it as timely
submitted objections, the Court would find that those objections are without merit. Plaintiff was
given two extensions of time with which to reply to the various Defendants’ motions to dismiss
(ECF Nos. 368, 374) and did not file any motions for further extensions that were denied.
Further, in the Minute Order granting Plaintiff’s second motion for an extension of time, the
Magistrate Judge noted that Plaintiff had recently filed an unsolicited 19-page “Notice of
Adjudicative Facts,” indicating that Plaintiff had not been prevented from completing legal work.
(See ECF No. 374.) Thus, Plaintiff’s motion to strike is denied.
D.

Plaintiff’s Motion for De Novo Review

On June 30, 2015, Plaintiff filed yet another motion with the Court regarding the
Recommendation, this time asking that the Court to review the Recommendation under a de
novo standard, strike the Recommendation and grant Plaintiff leave to file a second amended
complaint. (ECF Nos. 411, 412.) Generally, Plaintiff argues that because the Defendants have
continued to deny his Constitutionally protected rights, he has been unable to effectively litigate
this case, and therefore should be granted de novo review of the Recommendation as well as an
opportunity to file a new complaint. This motion, as with Plaintiff’s motion to strike the
Recommendation, improperly seeks to sidestep the procedural process for objecting to a
magistrate judge’s recommendation and is not timely.
Even assuming arguendo that Plaintiff’s motion was properly made, Plaintiff’s claim that
Defendants are continuing to interfere with his ability to litigate his case is without merit. As
described above regarding Plaintiff’s motion to strike the Recommendation, Plaintiff has not
been prohibited from performing legal work for this case. After being granted several extensions
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following the dismissal of the Complaint, Plaintiff filed a 47 page Amended Complaint with the
Court. After motions to dismiss were filed in response to the Amended Complaint, Plaintiff was
given two extensions to file his opposition to those motions and further submitted an unsolicited
19-page “Notice of Adjudicative Facts.” Following the Magistrate Judge’s submission of the
Recommendation, Plaintiff filed Objections, a motion to strike the Recommendation and the
current motion for de novo review. Clearly, Plaintiff has had time to create a substantial wealth
of legal work product which has been submitted to this Court for its review. Further, presently
this matter has already been fully briefed and submitted to the Court. Plaintiff has no further
legal work to do in order to litigate this case as of now and need only wait for this Court to issue
its Order. The relief requested by Plaintiff also contradicts the Federal Rules of Civil Procedure.
If Plaintiff wanted de novo review of any aspect of the Recommendation, he could have provided
specific objections to each part of the Recommendation that he disagreed with. Fed. R. Civ. P.
72(b). Finally, Plaintiff’s request to file an amended pleading is rejected for the Reasons stated
in the Recommendation. (ECF No. 381 at 35-36.) Thus, Plaintiff’s motion is denied.
IV.

CONCLUSION
Based on the foregoing, it is hereby ORDERED:
1. Plaintiff’s Objections (ECF Nos. 382, 383) are OVERRULED;
2. The Recommendation of United States Magistrate Judge Hegarty (ECF No. 381) is
APPROVED and ADOPTED with the modifications described above;
3. Defendant Adams County Sheriff Douglas N. Darr’s Motion to Dismiss (ECF No. 356),
Defendants’ Thomas Frank and Denver Sheriff Department’s Motion to Dismiss (ECF
No. 358), Jefferson County Sheriff Ted Mink’s Motion to Dismiss (ECF No. 361), and
15

Defendant John Suthers’ Motion to Dismiss Plaintiff’s First Verified Amended
Complaint (ECF No. 363) are GRANTED;
4. Defendants Mitchell R. Morrissey, Dan Chun, Phillip Geigle, George Brauchler and
Carol Chambers’ Motion to Dismiss and for Sanctions (ECF No. 362) are GRANTED, in
part, DENIED in part, to wit, all claims against these Defendants are DISMISSED and
these Defendants’ request for fees and costs is DENIED;
5. All claims against Defendants Raemisch, Bonner, Hoffman, Shockley, Uyamura, Gary
Wilson, Diggins, Douglas Wilson, Diggins, Porter-Merrill and Sarwak are DISMISSED
without prejudice pursuant to Fed. R. Civ. P. 4(m);
6. “Plaintiff’s Oppossed [sic] Motion to Strike Recommendation of United States
Magistrates Judge Pursuant to F. R. Civ. P. 12(e) (f) [and] (h)” (ECF No. 385) is
DENIED;
7. “Plaintiff’s Motion for De Novo Review of U.S. Magistrate Judge Recommendation by
U.S. District Judge Pursuant [to:] 28 U.S.C. §636(b); Fed. R. Civ. P. Rule [sic] 9 and Fed.
R. Civ. P. 72(b)(3)” (ECF Nos. 411, 412) is DENIED.
Plaintiff is DENIED leave to file a second amended complaint. The Clerk of the Court is
directed to enter JUDGMENT in Defendants’ favor.

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DATED this 20th day of July, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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