Caler v. Keegan et al

Filing 21

ORDER The Recommendation of the Untied States Magistrate Judge ECF No. 18 , filed December 4, 2013, is ADOPTED IN FULL; Plaintiffs Objection to the Magistrate Judges Recommendation ECF No. 19 is OVERRULED; Defendants Motion to Dismiss ECF No. 6 is GRANTED; Plaintiffs claims are DISMISSED WITH PREJUDICE; and The Clerk shall enter judgment and close the case. Each party shall bear his or her own attorneys fees and costs, by Judge William J. Martinez on 4/9/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2092-WJM-KMT
JERYD CALER,
Plaintiff,
v.
B. KEEGAN, in his individual and official capacity, and
P. GONZALEZ, in his individual and official capacity,
Defendants.

ORDER OVERRULING PLAINTIFF’S OBJECTION, ADOPTING THE DECEMBER 4,
2013 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND
GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S CLAIMS

Plaintiff Jeryd Caler brings this case pro se against Defendants B. Keegan
(“Keegan”) and P. Gonzalez (“Gonzalez”) (together, “Defendants”) in their individual and
official capacities. Plaintiff brings claims for violations of his First, Fourth, Fifth, and
Fourteenth Amendment rights under 42 U.S.C. § 1983 (“Section 1983"), as well as two
state law claims for negligence and intentional infliction of emotional distress. This
matter is before the Court on the December 4, 2013 Recommendation by U.S.
Magistrate Judge Kathleen M. Tafoya (ECF No. 18) (the “Recommendation”) that
Defendants’ Motion to Dismiss (the “Motion to Dismiss”) (ECF No. 6) be granted. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). For the reasons set forth below, the Recommendation is adopted
in its entirety and the Motion to Dismiss is granted.

I. BACKGROUND
Keegan is a Deputy Sheriff for the Archuleta County Sheriff’s Department (the
“Sheriff’s Department”). (Compl. (ECF No. 1) ¶ 4.) Gonzales is the Archuleta County
Sheriff. (Id. ¶ 5.) Keegan began working for the Sheriff’s Department on February 10,
2012, and was sworn in as a “Certified Reserve Deputy Sheriff” with the power and
authority to act as a peace officer. (ECF No. 1-1 at 20-21.) The oath of office was dated
incorrectly, so Keegan signed an amended oath of office a few days later (the “Amended
Oath”). (Id. at 20.) It was later determined that the Amended Oath contained an
incorrect template which stated “Appointment of Non-Certified Limited Power Special
Duty with Oath” instead of “Appointment of Deputy with Oath.” (Id. at 21.)
On or about 9:30 p.m., on July 8, 2012, Keegan pulled Plaintiff over while Plaintiff
was traveling to work in his automobile. (Compl. ¶¶ 6, 9.) Plaintiff’s Complaint states
that Keegan did not have “any probable cause for the stop” because Plaintiff had not
“committed a crime nor had he demonstrated any action for any reasonable person to
believe [he] was about to commit a crime.” (Id. ¶¶ 7, 10.)
Keegan approached Plaintiff’s driver side window and demanded to see Plaintiff’s
license, registration, and proof of insurance. (Compl. ¶ 10.) Plaintiff complied. (Id.)
Keegan then issued Plaintiff a traffic citation, a copy of which was attached to Plaintiff’s
Complaint. (Id.; ECF No. 1-1 p. 35.) The citation states that Plaintiff was stopped for
speeding. (ECF No. 1-1 p. 35.)
On October 11, 2012, Plaintiff appeared in Archuleta County Court for arraignment
on the charge underlying the traffic stop and “challenged the court regarding subject matter
jurisdiction.” (Compl. ¶ 12.) Plaintiff contended that there “was no affidavit from a
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competent first hand material witness attesting to the fact that [Plaintiff] had committed or
was about to commit a crime.” (Id.) Plaintiff also contended that, due to the Amended
Oath’s incorrect template, Keegan “had not been sworn in under Oath as a deputy sheriff
and had been acting as an imposter policy deputy sheriff officer[.]” (ECF No. 1-1 at 4.)
Keegan later requested that the Archuleta County Court case be dismissed. (Id. at 2.)
The Court dismissed the case on October 25, 2012. (Compl. ¶ 20.)
On August 6, 2013, Plaintiff filed this action against Defendants in their individual
and official capacities. (Compl. at 1.) Plaintiff asserts six claims for relief: (1) a Section
1983 claim for “deterring, suppressing, or breaching freedom of speech”; (2) a Section
1983 claim for “unreasonable seizure of Plaintiff’s person”; (3) a Section 1983 claim for
“unreasonable seizure of Plaintiff’s effects”; (4) a Section 1983 claim for “unreasonable
search of Plaintiff’s effects”; (5) negligence; and (6) “intentional infliction of emotional
and mental distress.” (Id. ¶¶ 23-41.)
On September 3, 2013, Defendants filed the Motion to Dismiss. (ECF No. 6.)
Plaintiff filed a Motion to Strike the Motion to Dismiss on September 26, 2013. (ECF
No. 11.) Magistrate Judge Tafoya denied the Motion to Strike, stating that the Motion to
Strike should be treated as a response in opposition to the Motion to Dismiss. (ECF No.
13.) Defendants filed their Reply on October 10, 2013. (ECF No. 14.)
On December 4, 2013, Magistrate Judge Tafoya issued her Recommendation
that Defendants’ Motion to Dismiss be granted. (ECF No. 18.) On December 16, 2013,
Plaintiff filed an Objection to the Recommendation (the “Objection”) (ECF No. 19), to
which Defendants filed a Response (ECF No. 20).

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II. LEGAL 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.” Fed. R. Civ. P. 72(b)(3). In the absence of a timely and specific objection,
“the district court may review a magistrate . . . [judge’s] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory
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 conducting its review, “[t]he
district court judge may accept, reject, or modify the [recommendation]; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
In addition, 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. ANALYSIS
The Magistrate Judge’s Recommendation contains the following findings and
conclusions: (1) Plaintiff’s claims against Gonzales in his individual capacity should be
dismissed because Plaintiff has not alleged that Gonzales personally participated in the
alleged constitutional violations; (2) Plaintiff’s cause of action under the First
Amendment should be dismissed because the Complaint does not allege that Plaintiff
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was engaged in constitutionally protected speech; (3) Plaintiff’s causes of action under
the Fourth Amendment should be dismissed because Keegan is entitled to qualified
immunity; (4) Plaintiff’s official capacity claims should be dismissed because Plaintiff
has failed to state a claim for violations of his constitutional rights; and (5) the Court
should decline to exercise supplemental jurisdiction over Plaintiff’s state law claims.
(ECF No. 6 at 9-17.)1 Of these findings and conclusions, Plaintiff objects only to the
third, which recommends dismissing Plaintiff’s Fourth Amendment causes of action
because Keegan is entitled to qualified immunity.2 (See ECF No. 19 at 2.)
As to the third Recommendation, Plaintiff does not object to the Magistrate
Judge’s findings that Plaintiff has not sufficiently alleged a violation of his Fourth
Amendment rights. (Rec. at 13-16.) Instead, Plaintiff’s Objection is based on his
argument that Keegan was not acting under the color of law and cannot claim qualified
immunity because he had not been properly sworn in as Deputy Sheriff at the time of
the July 8, 2012 traffic stop. (ECF No. 19 at 2.) Plaintiff’s Objection reiterates the same
arguments contained in his response to the Motion to Dismiss, which Magistrate Judge
Tafoya explicitly considered and rejected in the Recommendation.
In the Recommendation, Magistrate Judge Tafoya found that even if Keegan’s
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The Recommendation notes that Plaintiff’s Complaint references Fifth Amendment
violations. (Rec. at 5.) The Recommendation correctly states that “because Defendants are
state actors, the Fifth Amendment is inapplicable.” (Id. (citing Parsini v. Colo. State. Hosp.,
1993 WL 118860, at *1 (10th Cir. Apr. 15, 1993) (“State actors are subject to the due process
clause of the Fourteenth Amendment, not the Fifth Amendment.”).)
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The Objection also states that “Gonzales[,] who oversaw and allowed Keegan to act
as an imposter Deputy Sheriff, has breached his oath of office” and because of his negligent
supervision “all other defenses become moot.” (ECF No. 19 at 3.) This statement, however, is
not responsive to any of the findings in the Recommendation and, therefore, need not be
addressed by this Court.

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oath of office was deficient, “that fact does not abrogate or otherwise impact Defendant
Keegan’s entitlement to qualified immunity.” (Rec. at 12.) The Court has reviewed this
issue de novo and agrees. “[A] public official’s failure to take a required oath of office
does not abrogate immunity to which the official is otherwise entitled.” Jurich v.
Campbell, 2014 WL 109489, at *2 (E.D. Mich. Jan. 13, 2014); see also Conklin v.
Anthou, 495 F. App’x 257, 264 (3d Cir. 2012) (failure to take a prerequisite oath of office
does not abrogate claims of immunity). Therefore, Plaintiff’s objection is overruled.
The Court has reviewed the record and agrees with the Magistrate Judge’s
analysis as to the first, second, fourth, and fifth findings in the Recommendation
regarding Plaintiff’s claims. The Court also agrees with the Magistrate Judge’s findings
that Plaintiff has failed to sufficiently allege a violation of his Fourth Amendment rights.
Neither party objects to these findings and conclusions, and the Court finds no clear
error. See Summers, 927 F.2d at 1167; Fed. R. Civ. P. 72 Advisory Committee’s Note.
Accordingly, the Court finds that the Recommendation is well-reasoned and thorough,
and the Court agrees with the findings and conclusions made therein.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation of the Untied States Magistrate Judge (ECF No.
18), filed December 4, 2013, is ADOPTED IN FULL;

2.

Plaintiff’s Objection to the Magistrate Judge’s Recommendation (ECF No.
19) is OVERRULED;

3.

Defendants’ Motion to Dismiss (ECF No. 6) is GRANTED;

4.

Plaintiff’s claims are DISMISSED WITH PREJUDICE; and
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5.

The Clerk shall enter judgment and close the case. Each party shall bear
his or her own attorney’s fees and costs.

Dated this 9th day of April, 2014.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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