Apodaca v. Lakewood Police Department et al
ORDER granting in part and denying in part 93 Report and Recommendations and ADOPTS the Order and Recommendation of United States Magistrate Judge but as MODIFIED herein; GRANTS 43 Motion to Dismiss, DISMISSES Defendant Alicia Harris without pre judice, DENIES 76 Motion to Amend, and ORDERS that the names of Defendant's City of Lakewood, Colorado, the Lakewood Police Department, Kevin Paletta, and Alicia Harris be removed from the case caption on all future filings, leaving Zbigniew Richard Kosik as the only remaining defendant. ORDERED by Judge Raymond P. Moore on 03/22/2016.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 15-cv-00007-RM-KLM
JOSE M. APODACA,
CITY OF LAKEWOOD COLORADO (Municipality),
LAKEWOOD POLICE DEPARTMENT,
KEVIN PALLETA (Chief of Police) in his official capacity,
KEVIN PALLETA, in his individual capacity,
ZBIGNIEW RICHARD KOSIK, Police Officer, in his official capacity,
ZBIGNIEW RICHARD KOSIK, in his individual capacity,
ALICIA HARRIS (Police Officer), in her official capacity, and
ALICIA HARRIS, in her individual capacity,
This matter is before the Court on the February 23, 2016 Order and Recommendation of
United States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 93) to: (1)
grant Defendants City of Lakewood, Colorado (the “City”), the Lakewood Police Department (the
“Police Department”), and Kevin Paletta’s (“Chief Paletta”) (collectively, “Defendants”) Motion
to Dismiss (the “Motion”) (ECF No. 43) filed pursuant to FED. R. CIV. P. 12(b)(6); (2) dismiss all
claims against Defendant Alicia Harris for lack of service; and (3) deny Plaintiff’s Motion for
Leave to Amend Pleadings (the “Motion to Amend”) (ECF No. 76). 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 days after being served with a copy of the Recommendation. (ECF No. 93 at pages 15,
16.) Despite this advisement, no objections to the Recommendation have to date been filed by
any party and the time to do so has expired. (See generally Dkt.)
As no objection has been filed to the Recommendation, the Court may review it for plain
or clear error. See FED. R. CIV. P. 72(b) 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 order
to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (“In the absence of timely objection, the district court may review a magistrate’s report
under any standard it deems appropriate.”).
The Failure to Effect Service and the Motion to Dismiss. The following dismissals are
recommended: (1) dismissal of Defendant Harris without prejudice for lack of service, but under
Rule 12(b)(2) for lack of personal jurisdiction; (2) dismissal of Defendant City with prejudice for
failure to state a claim under Rule 12(b)(6); (3) dismissal of Defendant Police Department with
prejudice, as the Department is not a separate suable entity, for lack of subject matter jurisdiction
under Rule 12(b)(1); and (4) dismissal of Defendant Paletta for failure to state a claim under Rule
12(b)(6). Upon review of the Recommendation, the Court finds the analysis of the
recommended bases for dismissal, and whether such dismissals should be with or without
prejudice, to be thorough and sound. However, the Court concludes the dismissal of Defendant
Harris for lack of service should be made under Rule 12(b)(5) (insufficient service of process),
and not 12(b)(2).1 In addition, as shown by the cases cited in support of the recommendation, the
Court finds the dismissal of Defendant Police Department – because it is not a separate suable
entity – should be under Rule 12(b)(6), and not Rule 12(b)(1). Accordingly, the Court accepts the
To the extent dismissal is also recommended based on the statute of limitations, the Court does not reach this issue
as it agrees dismissal is warranted for lack of service.
recommendation of dismissal, but modifies the dismissal of Defendants Harris and the Police
The Motion to Amend. The Magistrate Judge also recommends denial of Plaintiff’s
request to amend, based on a finding of futility.2 The Court agrees; but modifies the reasoning as
to Defendant Kosik only, as it rejects the basis given in the Recommendation.3
Plaintiff sought to amend the claim as to Officer Kosik to include a claim for intentional
(or negligent) infliction of emotional distress, a tort claim. The recommended basis for denial of
leave to amend is futility, for Plaintiff’s failure to allege compliance with the notice provisions
under the Colorado Governmental Immunity Act (“CGIA”). That issue, however, was not raised
by Defendants or Officer Kosik; therefore, it was not one which Plaintiff had an opportunity to
address.4 Moreover, even though his proposed Complaint did not so allege, Plaintiff’s Reply
stated he gave a Notice of Intent to sue under C.R.S. § 24-10-109 to “the Defendants.” (ECF No.
83, page 5.) And, even a cursory review of the prior complaints – including the operative
Complaint which Plaintiff sought to amend – shows support for the contention that some notice
under the CGIA was given, the sufficiency of which the Court need not address at this time as it
was not challenged by Officer Kosik. See ECF No. 1, pages 14-17 (“Notice of Action” under
“CRSA 24-10-109,” dated June 15, 2013); No. 7, page 4 (“(Immunity partial waiver) C.R.S.A
As no scheduling order has been entered, the Recommendation properly analyzes the request to amend under Rule
15. If, however, the request had been made after a scheduling order was entered, an analysis under Rules 15 and 16
would have been required. Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240-41 (10th Cir.
2014); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015).
Although not specifically addressed in the Recommendation (as it appears no claim is pled), to the extent Plaintiff
sought to amend his complaint as against Defendant Police Department, the Court’s de novo review of the proposed
amendment shows any amendment would have been futile. First, because Plaintiff failed to state any claim against
this defendant. Secondly, as the Recommendation found in the first instance, because this defendant is not an entity
capable of being sued.
This issue may be raised by a court sua sponte, but the parties should generally be afforded an opportunity to
address the issue. See Aspen Ortho. & Sports Med., LLC v. Aspen Valley, 353 F.3d 832, 838, 842 (10th Cir. 2003).
§ 24-10-106”, page 11 “C.R.S. 24 10 109 (Partial Waiver)”); and No. 35, pages 18-22 (“Notice of
Action” under “CRSA 24-10-109”).5
Officer Kosik (and Defendants) opposed the amendment on a different basis. These
parties argued that, in the proposed Prisoner Complaint, Officer Kosik is sued in his official
capacity (rather than individually, or both) and, accordingly, sovereign immunity under the CGIA
applied for which no statutorily waiver has been alleged, citing C.R.S. § 24-10-106(1)((a)-(h).
Carothers v. Archuleta County Sheriff, 159 P.3d 647, 652 (Colo. App. 2006) (“If the action is
determined to be against the [officer] in his official capacity, it is effectively an action against his
office, and the immunity principles applicable to suits against the state or against public entities
apply.”). In response, Plaintiff did not argue to the contrary, even though his proposed amended
Prisoner Complaint alleged Officer Kosik is sued in his individual and official capacity. On this
record, the Court agrees that Plaintiff’s proposed tort claim against Officer Kosik would be barred
by the CGIA, but on the basis as argued by Officer Kosik and Defendants.6 Therefore, any
amendment to add such a claim would be futile.
In accordance with the foregoing, the Court:
(1) ACCEPTS IN PART and REJECTS IN PART the Order and Recommendation of
United States Magistrate Judge (ECF No. 93), and ADOPTS the Order and
Recommendation of United States Magistrate Judge but as MODIFIED herein;
(2) GRANTS Defendants City of Lakewood, Colorado, the Lakewood Police Department,
and Kevin Paletta’s Motion to Dismiss (ECF No. 43), and dismisses these Defendants
Plaintiff did not file any objections to the Recommendation, and the Court does not – and should not – act as
Plaintiff’s advocate, even though he proceeds pro se. Nonetheless, in conducting its plain or clear error review on
some issues, the Court does not wear blinders to matters which are plainly evident as it relates to other issues.
The Court also notes that ECF No. 7, the second complaint filed in this case, specifically referenced § 24-10-106,
covering immunity of public entities, as opposed to public employees.
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