Esquibel v. Raemisch et al

Filing 68

ORDER Denying as Moot 28 Motion for Hearing/Conference; Denying 31 Motion for Sanctions; Denying as Moot 37 Motion to Appoint Counsel; Granting 39 Motion to Strike; Denying 44 Motion for Partial Summary Judgment; Denying as Moot 46 Motion to Stay; Denying 54 Motion for Judgment; Denying as Moot 65 Motion for Ruling; Overruling 19 APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Robert E. Blackburn on 3/15/2016.(cmira). Modified on 3/16/2016 to correct filing date(cmira).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00408-REB-KLM
MARK A. ESQUIBEL,
Plaintiff,
v.
RICK RAEMISCH, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
ROGER WERHOLTZ, individually and in his official capacity as Executive Director of
the
Colorado Department of Corrections,
TONY CAROCHI, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
TOM CLEMENTS, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
JOE ORTIZ, individually and in his official capacity as Executive Director of the
Colorado
Department of Corrections,
JOHN SUTHERS, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
MARY CARLSON, individually and in her official capacity as Time Computation
Manager
of Colorado Department of Corrections, and
JOHN DOE, individually and in his/her official capacity as Executive Director of the
Colorado Department of Corrections,
Defendants.

ORDER
Blackburn, J.
This matter is before the court on the following: (1) the Objection to Magistrate
Judges Ruling [#19]1 filed May 21, 2015; (2) the Plaintiffs Motion for a Settlement
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“[#19]” 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.

Conference, or Another Alternative Dispute Resolution Proceeding [#28] filed June
29, 2015; (3) the Motion for Sanctions [#31] filed July 14, 2015; (4) the Motion for
appointment of Counsel [#37] filed August 3, 2015; (5) Defendants Rick Raemisch
and Mary Carlson’s Motion To Strike Unauthorized Pleading [#39] filed August 6,
2015; (6) The Plaintiff Motion for Partial Summary Judgment [#44] filed October 5,
2015; (7) Motion to Stay Pending Resolution of the Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(1) and (6) (Doc. 21) [#46] filed October 7, 2015; (8) the Plaintiff
Motion To Grant Judgment [#54] filed November 23, 2015; and (9) the Plaintiff
Motion To Rule on Defendants Motion To Dismiss [#65] filed January 27, 2015.
Some of these motions were referred to the assigned magistrate judge. Having
gained the consent of the magistrate judge, I withdraw the reference of those motions to
the magistrate judge and resolve those motions in this order.
The plaintiff is proceeding pro se. Thus, I continue to construe his pleadings and
other filings 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 (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 (1972)).
Concurrently with this order, I am entering an order adopting two
recommendations [#43 & #67] of the magistrate judge. The effect of that order is to
resolve all claims in this case. The entry of that order renders moot the motions
docketed as [#28], [#37], [#46], and [#65]. Thus, each of those motions is denied as
moot.
In his objection [#19], the plaintiff, Mark Esquibel, challenges an order [#17]
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entered by the magistrate judge. In the order [#17], the magistrate judge granted the
defendants a seven day extension of time to file a response to the complaint. Under 28
U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), I may modify or set aside any portion of an
order of a magistrate judge which I find to be clearly erroneous or contrary to law. The
order [#17] is not clearly erroneous or contrary to law. Therefore, the objection [#19] is
overruled.
In his motion for sanctions [#31], Mr. Esquibel seeks sanctions against defense
counsel under Fed. R. Civ. P. 11. In essence, Mr. Esquibel claims defense counsel
knowingly misrepresented facts to the court. The defendants filed a response [#33]. In
the response [#33], the defendants detail why no misrepresentation of fact was made to
the court. The motion for sanctions [#31] is baseless and is denied.
In the motion to strike unauthorized pleading [#39], the defendants ask the court
to strike Plaintiff Anthony Tafoya Response To Defendants Rick Raemich (sic) and
Mary Carlson’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(B)(1) and (6)
[#36] filed August 3, 2015. As the defendants note, Anthony Tafoya is not a party to this
case. Thus, the response of Mr. Tafoya is not properly before the court in this case.
The motion to strike is granted.
Finally, Mr. Esquibel filed two motions for summary judgment [#44 & #54]. Mr.
Esquibel is a prisoner incarcerated by the Colorado Department of Corrections (DOC).
The claims of Mr. Esquibel in this case are based on his contention that his mandatory
release date has not been calculated correctly by the DOC. For the reasons detailed by
the magistrate judge in her recommendations [#43 & #67], the claims of Mr. Esquibel
are not legally viable. Mr. Esquibel is not entitled to summary judgment in his favor on

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his invalid claims. The motions for summary judgment are denied.
THEREFORE, IT IS ORDERED as follows:
1. That the objections stated in the Objection to Magistrate Judges Ruling
[#19] filed May 21, 2015, are overruled;
2. That the Plaintiffs Motion for a Settlement Conference, or Another
Alternative Dispute Resolution Proceeding [#28] filed June 29, 2015, is denied as
moot;
3. That the Motion for Sanctions [#31] filed July 14, 2015, is denied;
4. That the Motion for appointment of Counsel [#37] filed August 3, 2015, is
denied as moot;
5. That Defendants Rick Raemisch and Mary Carlson’s Motion To Strike
Unauthorized Pleading [#39] filed August 6, 2015, is granted;
6. That Plaintiff Anthony Tafoya Response To Defendants Rick Raemich
(sic) and Mary Carlson’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(B)(1)
and (6) [#36] filed August 3, 2015, is stricken;
7. That the Plaintiff Motion for Partial Summary Judgment [#44] filed October
5, 2015, is denied;
8. That the Motion to Stay Pending Resolution of the Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) (Doc. 21) [#46] filed October 7, 2015, is
denied as moot;
9. That the Plaintiff Motion To Grant Judgment [#54] filed November 23,
2015, is denied; and
10. That the Plaintiff Motion To Rule on Defendants Motion To Dismiss [#65]
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filed January 27, 2015, is denied as moot.
Dated March 15, 2016, at Denver, Colorado.
BY THE COURT:

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