Moudy v. Raemisch et al

Filing 30

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 7/10/18 re 17 Request for Ruling on Judgment of Pleadings. The Court respectfully RECOMMENDS that the Motion 17 be DENIED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02402-RBJ-KLM
TAYLOR MOUDY,
Plaintiff,
v.
RICK RAEMISCH, Executive Director,
SHAWNA NYGAARD, Chapel Lt., and
DONALD O’DELL, Regional Volunteer Coord.,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Request for Ruling on Judgment of
Pleadings (the “Motion”) [#17]1. Defendant did not file a response. Pursuant to 28 U.S.C.
§ 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#17] has been referred to the
undersigned for a recommendation regarding disposition. See [#18]. The Court has
reviewed the Motion [#17], the entire case file, and the applicable law, and is sufficiently
advised in the premises.

For the reasons set forth below, the Court respectfully

RECOMMENDS that the Motion [#17] be DENIED.

1

[#17] is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s electronic case filing and management system
(CM/ECF). This convention is used throughout this Recommendation.

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I. Summary of the Case
Plaintiff, who is proceeding pro se,2 alleges that Defendants—all state employees
working at the Colorado Department of Corrections and represented by the Attorney
General (“AG”)—have imposed unreasonable burdens on Plaintiff’s religious practices.
Compl. [#1] at 4. On February 26, 2018, Plaintiff moved to disqualify the AG from
representing Defendants. Defendants filed a Response [#15] on March 20, 2018. Plaintiff
then filed the present Motion [#17] for a “Ruling on Judgment of Pleadings,” arguing that
Defendants conceded that the AG is disqualified from representing them by filing an
untimely Response [#15] and therefore that a “decla[r]ation of [j]udgment” in Plaintiff’s favor
is warranted. Motion [#17] at 2. This Recommendation assesses the merits of the Motion
[#17].3
II. Standard of Review
Put most simply, Plaintiff’s request for “a declaration of judgment in [his] favor” due
to Defendants’ untimely Response [#15] to his Motion to Disqualify Attorney General
appears to be nothing more than a misguided request by a pro se litigant who does not
understand the effect of the late Response [#15] on his case. Or perhaps it is simply a
wrong-headed attempt to take advantage of a relatively benign mis-step by his

2

The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
3

The merits of the Motion to Disqualify [the] Attorney General [#12] are addressed in a
separate order.

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opponent—the well-known litigation “Gotcha!” Nevertheless, giving Plaintiff every benefit
of the doubt, Plaintiff’s Motion [#11] is most similar to a request for entry of judgment on the
pleadings under Fed. R. Civ. P. 12(c), so the Court turns to the Rule.
The purpose of a Rule 12(c) motion is “to provide a means of disposing of cases
when the material facts are not in dispute between the parties and a judgment on the merits
can be achieved by focusing on the content of the competing pleadings.” Kellar v. U .S.
Dep’t of Veteran’s Affairs, No. 08-cv-00761-WYD-KLM, 2009 WL 1706719, at *1 (D. Colo.
June 17, 2009) (citing 5C ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. § 1367
(3d ed.)). However, “[a] motion for judgment on the pleadings only has utility when all
material allegations of fact are admitted or not controverted in the pleadings and only
questions of law remain to be decided by the district court.” Id. at *1 (internal citation
omitted). “Judgment on the pleadings should not be granted unless the moving party
clearly established that no material issue of fact remains to be resolved and the party is
entitled to judgment as a matter of law.” Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d
1239, 1244 (10th Cir. 2006) (citations omitted).
III. Analysis
Plaintiff argues that “Defendants exceeded time for a response to lapse [sic] for
opposing the” Motion to Disqualify [#12], which “constitutes [an] admission [that] the [AG’s]
office should be disqualified as counsel.” Motion [#17] at 2. Plaintiff also asks the Court
to take judicial notice of a variety of factual and legal allegations presented in the Motion
to Disqualify [#12]. Motion [#17]. Defendants did not file a Response.
Regardless of whether Plaintiff is correct that Defendants filed their response late,
the Court need not address that issue when ruling on the Motion [#17]. First, there is no
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requirement that Defendants file a Response to the Motion to Disqualify [#12] at all, so
doing so allegedly late has no bearing on the underlying claims in this case. It goes without
saying that a failure to timely respond to such a motion is not an admission of the merits
of the motion, despite Plaintiff’s insistence to the contrary. Second, the Court is aware of
no authority holding that judgment on the pleadings is appropriate under the circumstances
presented in this matter. Plaintiff’s Motion [#17] is most accurately interpreted as an
attempt to achieve judgment in his favor by asking the Court to accept his allegations as
true and indisputable. Unsurprisingly, doing so would be completely contrary to the
American adversarial system of justice, and frankly, would be a dream come true for many
(if not all) plaintiffs.
It is clear in this case that both parties still dispute material factual issues. Compare
generally Compl. [#1] with Answer [#11]. The parties have not stipulated to any facts after
filing the Complaint [#1] and Answer [#11]. Because material factual disputes remain, the
Court may not rule on the merits of the case at this time. Accordingly, because there
remain disputed and material issues of fact, the Court recommends that the Motion [#17]
be denied.
IV. Conclusion
IT IS HEREBY RECOMMENDED that the Motion [#17] be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo

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review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-148 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-1413 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).

Dated: July 10, 2018

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