Krebs v. Larimer County Sheriff's Office et al

Filing 61

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Defendants' Motion to Dismiss (Doc. # 34 ) is GRANTED; Plaintiff's Eighth and Fourteenth Amendment claims are hereby DISMISSED WITH PREJUDICE; Plaintiff's Fourth Amen dment claims against Defendants Williamson and Anderson are hereby DISMISSED WITHOUT PREJUDICE. Plaintiff shall have up to and including October 4, 2021, within which to file an Amended Complaint. Should Plaintiff fail to file an Amended Complaint, the Court will close this case at that time, by Judge Christine M. Arguello on 9/7/2021.(evana, )

Case 1:20-cv-01805-CMA-KLM Document 61 Filed 09/07/21 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 20-cv-01805-CMA-KLM
TIMOTHY W. KREBS,
Plaintiff,
v.
DEPUTY JUSTIN WILLIAMSON, LO1022, and
DEPUTY ZACK ANDERSON, #L17048
Defendants.
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the August 12, 2021 Recommendation of
United States Magistrate Judge (Doc. # 60), wherein United States Magistrate Judge
Kristen L. Mix recommends that this Court grant Defendants’ Motion to Dismiss (Doc. #
34). 1 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.

Judge Mix makes the following recommendations: (1) that the Court grant the Motion as to
Plaintiff’s Eighth and Fourteenth Amendment claims because neither amendment is applicable
to the facts and circumstances of this case; (2) that the Court grant Defendant Williamson
qualified immunity on Plaintiff’s Fourth Amendment claim; and (3) that the Court dismiss
Plaintiff’s Fourth Amendment claim against Defendant Anderson pursuant to the Heck doctrine.
See (Doc. # 60 at 8–9, 10–15, 17–19) (citing Heck v. Humphrey, 512 U.S. 477 (1994)).

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Case 1:20-cv-01805-CMA-KLM Document 61 Filed 09/07/21 USDC Colorado Page 2 of 3

(Doc. # 60 at 20.) Despite this advisement, no objection to Magistrate Judge Mix’s
Recommendation has been filed by any party.
“[T]he district court is accorded considerable discretion with respect to the
treatment of unchallenged magistrate reports. In the absence of timely objection, the
district court may review a magistrate [judge’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) (stating that “[i]t 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, when neither party objects to those findings.”)).
After reviewing the Recommendation of Magistrate Judge Mix, in addition to
applicable portions of the record and relevant legal authority, the Court is satisfied that
the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R.
Civ. P. 72(a). Accordingly, the Court ORDERS as follows:
•

the Recommendation of United States Magistrate Judge (Doc. # 60) is
AFFIRMED and ADOPTED as an Order of this Court;

•

Defendants’ Motion to Dismiss (Doc. # 34) is GRANTED;

•

Plaintiff’s Eighth and Fourteenth Amendment claims are hereby DISMISSED
WITH PREJUDICE; 2

Amendment of the complaint with respect to these claims would be futile because neither the
Eighth nor the Fourteenth Amendment is applicable to the facts and circumstances of this case,
as explained by Judge Mix in the Recommendation. See (Doc. # 60 at 8–9); see also Estate of
Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“[W]e have held that the Fourth
Amendment, not the Fourteenth, governs excessive force claims arising from the ‘treatment of
[an] arrestee detained without a warrant’ and ‘prior to any probable cause hearing’”) (citation
omitted)).

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Case 1:20-cv-01805-CMA-KLM Document 61 Filed 09/07/21 USDC Colorado Page 3 of 3

•

Plaintiff’s Fourth Amendment claims against Defendants Williamson and
Anderson are hereby DISMISSED WITHOUT PREJUDICE. See, e.g.,
Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when
the plaintiff is proceeding pro se, dismissal with prejudice is appropriate only
“where it is obvious that the plaintiff cannot prevail on the facts he has alleged
and it would be futile to give him an opportunity to amend”); Graham v.
Waters, 805 F. App'x 572, 579 (10th Cir. 2020) (dismissal under Heck doctrine
is without prejudice); and

•

Plaintiff shall have up to and including October 4, 2021, within which to file an
Amended Complaint. Should Plaintiff fail to file an Amended Complaint, the
Court will close this case at that time.

DATED: September 7, 2021
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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