Bland v. Allan et al

Filing 71

MINUTE ORDER. It is hereby ORDERED that plaintiffs 60 Motion, Filing Out of Time and 63 Motion for Leave to File an Amended Complaint are both denied for the reasons stated in the defendants Response 68 . By Magistrate Judge Michael J. Watanabe on 06/10/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03000-CMA-MJW
AMIR BLAND,
Plaintiff(s),
v.
OFF. MICHAEL ALLAN, Official & Individual,
CITY OF AURORA, and
OFF. EWERT, Official & Individual,
Defendant(s).

MINUTE ORDER

Entered by U. S. Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that plaintiff’s Motion, Filing Out of Time (Docket No. 60)
and Motion for Leave to File an Amended Complaint (Docket No. 63) are both denied
for the reasons stated in the defendants’ Response (Docket No. 68).
In both motions, plaintiff seeks to amend his complaint to add a fourth defendant,
Sgt. Lonnie Eddie or Sgt. Eddy Lonnie. Pursuant to Fed. R. Civ. P. 15(a)(2), “[t]he court
should freely give leave [to amend] when justice so requires.” “Refusing leave to
amend is generally only justified upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th
Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)), cert.
denied, 130 S. Ct. 1506 (2010).
Here, defendants correctly assert that plaintiff’s claims stem from his arrest on
January 15, 2012. Plaintiff’s two motions, in which he seeks to add Sgt. Eddy as a
defendant, however, were filed well past the two-year statute of limitations. See § 1380-102, C.R.S.; Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994); Merrigan v.
Affiliated Bankshares of Colo., Inc., 775 F. Supp. 1408, 1411-12 (D. Colo. 1991). Thus,
absent tolling of the statute of limitations, plaintiff’s proposed amendments would be
futile.
Under Colorado law, “an equitable tolling of a statute of limitations is limited to
situations in which either the defendant has wrongfully impeded the plaintiff’s ability to

2
bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his
or her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d
1094, 1099 (Colo. 1996). “The Colorado Supreme Court has yet to find a case that
qualifies as an ‘extraordinary circumstance’ that would justify tolling.” Braxton v.
Zavaras, 614 F.3d 1156, 1160 (10th Cir. 2010). Here, in his Reply (Docket No. 69),
plaintiff seems to argue that there should be equitable tolling. The court finds, however,
that the plaintiff has not shown that he was diligent in ascertaining the identify of the
defendant he now seeks to add. Plaintiff complains that voluminous records
concerning the circumstances of his arrest were provided to him only one month before
his criminal trial, and it was “completly [sic] overwhelming to cram all the information
given in such little time.” (Docket No. 69 at 2). Furthermore, he claims that he was
unable to keep his discovery within Arapahoe’s detention facility. He does, however,
admit that he did observe police officers testifying at his criminal trial. Moreover, he
admits that he was able to obtain his arrest records and narrations of each officer. This
court finds that the plaintiff has not shown any extraordinary circumstances that
prevented him from timely filing his claims against the new defendant despite diligent
efforts.
Date: June 10, 2014