Jordan v. Smith et al

Filing 56

ORDER Overruling 54 Objections to and Adopting 53 Recommendation of United States Magistrate Judge. Aurora Defendants' Motion To Dismiss Officer Hawkins and To Recaption Case [# 27 ], filed January 8, 2014, is GRANTED. Aurora Defendants' ; Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure To State a Claim Upon Which Relief May Be Granted [# 38 ], filed February 18, 2014, is GRANTED. Plaintiff's claims against defendant, Officer Hawkins #49252 (official capacity suit), are DISMISSED WITH PREJUDICE. Plaintiff's claims against defendant, the City of Aurora, are DISMISSED WITHOUT PREJUDICE. This case is CLOSED. By Judge Robert E. Blackburn on 6/9/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-03063-REB-MJW
AARON JORDAN,
Plaintiff,
v.
OFFICER HAWKINS #49252 (official capacity suit), and
CITY OF AURORA,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the magistrate judge's Recommendation on
Aurora Defendants’ Motion To Dismiss Officer Hawkins (Docket No. 27) and
Aurora Defendants’ Motion To Dismiss Pursuant to Fed. R. Civ. P. Rule 12(b)(6)
for Failure To State a Claim Upon Which Relief May Be Granted (Docket No. 38)
[#53],1 filed April 8, 2014; and (2) plaintiff's Objection to Failure To State a Claim
Upon Which Relief May Be Granted 12(b)(6) [#54], filed April 23, 2014, which I
construe as an objection to the recommendation.2 Thus construed, I overrule the

1

“[#53]” 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.
2

Plaintiff introduces his objection by stating that it “is presented in opposition to the state’s failure
to state a claims for relief motion (Docket No. 38 filed 2/18/2014].” As the magistrate judge detailed in his
recommendation, although plaintiff was afforded ample time to respond to the motions to dismiss, he failed
to file responses to either motion within event the extended deadlines established by the magistrate judge.

objection, adopt the recommendation, and grant the apposite motions to dismiss.
Plaintiff is proceeding pro se. Thus, I have construed his pleadings more liberally
and held them to a less stringent standard than formal pleadings drafted by lawyers.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92
S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the
recommendation, objections, and applicable caselaw.
Nevertheless, plaintiff has failed to state cognizable claims against either of the
two remaining defendants in this lawsuit. As the magistrate judge noted, plaintiff's suit
against Officer Hawkins, who is expressly sued only in his official capacity, is essentially
a suit against the City of Aurora. See Kentucky v. Graham, 473 U.S. 159, 166, 105
S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Therefore, Officer Hawkins is properly
dismissed as a party defendant to this lawsuit.
Moreover, with respect to plaintiff’s claims against the City, the complaint fails to
allege an unconstitutional custom or policy that might subject the City to liability for the
alleged actions of Officer Hawkins. Monell v. Department of Social Services of the
City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978).
Although plaintiff objects that the complaint “details illegal customs and policies of a
local decisionmaker,” he fails to specify how this essential element of his section 1983

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claim against the City is adequately alleged.3
I thus find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendation proposed by the magistrate
judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That magistrate judge's Recommendation on Aurora Defendants’ Motion
To Dismiss Officer Hawkins (Docket No. 27) and Aurora Defendants’ Motion To
Dismiss Pursuant to Fed. R. Civ. P. Rule 12(b)(6) for Failure To State a Claim
Upon Which Relief May Be Granted (Docket No. 38) [#53], filed April 8, 2014, is
APPROVED AND ADOPTED as an order of this court;
2. That the objections stated in plaintiff's Objection to Failure To State a Claim
Upon Which Relief May Be Granted 12(b)(6) [#54], filed April 23, 2014, construed as
an objection to the recommendation, are OVERRULED;
3. That the Aurora Defendants’ Motion To Dismiss Officer Hawkins and To
Recaption Case [#27], filed January 8, 2014, is GRANTED;
4. That the Aurora Defendants’ Motion To Dismiss Pursuant to Fed. R. Civ.
P. 12(b0(6) for Failure To State a Claim Upon Which Relief May Be Granted [#38],
filed February 18, 2014, is GRANTED;

3

Plaintiff appears to misunderstand the nature of his claim and its attendant pleading burden. He
asserts that he was illegally seized and searched “in violation of both government customs,” citing to Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although Terry establishes the parameters of
a Fourth Amendment claim for stop and frisk, to te a claim for violation of that right against the City,
plaintiff must properly allege that the seizure and or search were accomplished pursuant to an official
policy or custom. This he has failed to do.

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5. That plaintiff’s claims against defendant, Officer Hawkins #49252 (official
capacity suit), are DISMISSED WITH PREJUDICE;
6. That plaintiff’s claims against defendant, the City of Aurora, are DISMISSED
WITHOUT PREJUDICE;
7. That judgment SHALL ENTER as follows:
a. That judgment with prejudice shall enter on behalf of defendant, Officer
Hawkins #49252 (official capacity suit), and against plaintiff, Aaron Jordan,
as to all claims and causes of action asserted herein;
b. That judgment without prejudice shall enter on behalf of defendant, City
of Aurora, and against plaintiff, Aaron Jordan, as to all claims and causes
of action asserted herein; and
c. That judgment without prejudice shall enter on behalf of defendants,
Ryan M. Smith and Movie Tavern, and against plaintiff, Aaron Jordan, in
accordance with my Order Adopting Recommendation of United
States Magistrate Judge [#55], filed June 9, 2014; and
8. That this case is CLOSED.
Dated June 9, 2014, at Denver, Colorado.
BY THE COURT:

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