Haskett v. Flanders et al

Filing 68

ORDER adopting 66 Report and Recommendations, granting 37 Motion to Dismiss. by Judge R. Brooke Jackson on 1/8/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-03392-RBJ-KLM
PHILLIP DAVID HASKETT,
Plaintiff,
v.
GARY WOODROW FLANDERS,
COLORADO SPRINGS POLICE DEPARTMENT OFFICER DOMINICK LUNA,
both personally and in his official capacity, and,
THE COLORADO SPRINGS POLICE DEPARTMENT, A DEPARTMENT OF THE CITY OF
COLORADO SPRINGS, COLORADO,
Defendants.

ORDER

This matter is before the Court on the December 12, 2014 Recommendation of
Magistrate Judge Kristen L. Mix [ECF No. 66]. The Recommendation addresses defendants
Colorado Springs Police Department’s and Officer Dominick Luna’s (the “City Defendants”)
Motion to Dismiss Amended Complaint [ECF No. 37]. The Recommendation is incorporated
herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were due within
fourteen (14) days after being served with a copy of the Recommendation. “In the absence of
timely 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) (citing Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,

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when neither party objects to those findings.”)).
On December 16, 2014 the plaintiff, Mr. Haskett, filed a response wherein he declined to
object to the Recommendation and explicitly waived his right to de novo review of it. [ECF No.
67 at 1]. He limited his waiver to the claims against the City Defendants, requesting that the
Court issue a scheduling order with respect to his remaining claims against Defendant Flanders.
However, Judge Mix did not limit her recommendation to only those claims against the City
Defendants. She also recommended that two of the claims against Mr. Flanders be dismissed
pursuant to the Court’s power under 28 U.S.C. § 1915(e)(2). In particular, she recommended
that Claims Four and Five, which were pled against all defendants, be dismissed for failure to
state a claim upon which relief can be granted. Because the basis for dismissing those claims is
their insufficient pleading – as opposed to the identity of the respective defendants – Mr.
Haskett’s waiver of de novo review applies equally to all defendants.
The Court has reviewed the motion as well as all relevant filings in the docket. Based on
this review, the Court concludes that Judge Mix’s analyses and recommendations are correct,
and that “there is no clear error on the face of the record.” Fed. R. Civ. P. 72 advisory
committee’s note. Therefore, the Court ADOPTS the Recommendation as the findings and
conclusions of this Court.
Accordingly, it is ORDERED that the Recommendation of United States Magistrate
Judge [ECF No. 66] is AFFIRMED and ADOPTED. The City Defendants’ Motion to Dismiss
[ECF No. 37] is GRANTED. Claims Four, Five, and Six are hereby DISMISSED WITH
PREJUDICE as against all defendants. 1 Claim Three is DISMISSED WITH PREJUDICE as
against Officer Luna.
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Judge Mix recommended that Mr. Haskett’s claim of civil conspiracy under 42 U.S.C. § 1985(3) be
dismissed with prejudice as against the City of Colorado Springs and Mr. Flanders, but without prejudice
2

Claims One, Two, and Three remain against Defendant Flanders. If the plaintiff intends
to continue to pursue those claims, the parties should jointly contact Chambers by conference
call (303 -844-4694) no later than January 30, 2015 to set a scheduling conference.
DATED this 8th day of January, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

as against Officer Luna. However, because the Court adopts the recommendation that this claim be
dismissed with prejudice against all but one defendant, it must likewise dismiss the claim with prejudice
against the remaining defendant. At a minimum, a civil conspiracy claim requires the plaintiff to allege
that two or more defendants came to an agreement and acted in concert. See Tilton v. Richardson, 6 F.3d
683, 685–86 (10th Cir. 1993) (quoting 42 U.S.C. § 1985(3)). Such a claim cannot move forward against
only one defendant.
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