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C.G. v. City of Fort Lupton

United States District Court, D. Colorado

June 10, 2014

C.G., a minor child, by his parents and next friends, JASON GALLEGOS, for himself and C.G., and JENNIFER YARBROUGH, for herself and C.G., Plaintiffs,
v.
THE CITY OF FORT LUPTON, COLORADO, KEVIN HALLORAN, individually and in his official capacity as a Fort Lupton Police Officer, CRYSTAL SCHWARTZ, individually and in her official capacity as a Fort Lupton Police Officer, PAUL STIPE, individually and in his official capacity as a Fort Lupton Police Officer, JOHN DOE, individually and his official capacity as a Fort Lupton Police Officer, WELD COUNTY RE-8 SCHOOL DISTRICT, MARK PAYLER, individually and in his official capacity as Superintendent, Weld County RE-8 School District, NATIVITY MILLER, individually and in her official capacity as Principal of Butler Elementary School, STEPHANIE ANDERSON, individually and in her official capacity as Vice-Principal of Butler Elementary School, and CANDACE KENSINGER, individually and in her official capacity as Principal of Fort Lupton Middle School, Defendants.

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

The matter before me is the magistrate judge's Recommendation on Pending Motions To Dismiss [#76], [1] filed May 19, 2014. No objection having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). I perceive no error, much less plain error, in the magistrate judge's recommended disposition. The recommendation is exceptionally detailed and well-reasoned. Any attempt to further expound on the issues already so thoroughly and cogently addressed by the magistrate judge would merely be a festooned reiteration of his impressive work, and therefore prodigal.[2] I therefore find and conclude that the recommendation should be approved and adopted.

I note that the magistrate judge recommends that all claims addressed by the motions be dismissed with prejudice. Although dismissals pursuant to Fed.R.Civ.P. 12(b)(6) are commonly without prejudice, this case presents a unique circumstance in which dismissal with prejudice is indicated. This lawsuit represents plaintiffs' second attempt to bring viable claims based on the underlying facts. In their prior lawsuit asserting these same claims, plaintiffs were afforded three opportunities to amend their complaint before they voluntarily dismissed their claims. Plaintiffs were given yet another chance to amend their pleadings after this lawsuit was filed. Moreover, at the hearing before the magistrate judge, plaintiffs acknowledged that they had no further facts to assert in support of these claims. Under these circumstances, allowing yet further amendment would be futile, and therefore dismissal with prejudice is proper. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the magistrate judge's Recommendation on Pending Motions To Dismiss [#76], filed May 19, 2014., is APPROVED and ADOPTED as an order of this court

2. That Defendants City of Fort Lupton, Schwartz and Halloran's Motion To Dismiss Second, Third, Fourth, Sixth and Eighth Claims [#53], filed is October 1, 2013, is GRANTED;

3. That the School District Defendants' Fed.R.Civ.P. 12(b)(6) and 12(b)(1) Motion To Dismiss Counts VII, XI and XIII of the Amended Complaint [#56], filed October 1, 2013, is GRANTED IN PART and DENIED IN PART as follows:

a. That the motion is DENIED with respect to Count XI as against defendant, Stephanie Anderson, in her individual capacity; and
b. That in all other respects, the motion is GRANTED;

4. That the following claims in the Amended Complaint are DISMISSED WITH PREJUDICE:

a. Count II;
b. Count III as against defendants Kevin Halloran and Crystal Schwartz in their individual ...

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