United States District Court, D. Colorado
DEREK W. COLE, Plaintiff,
CITY OF AURORA, COLORADO, a Colorado Municipal Corporation, STEVE HOGAN, Mayor, City of Aurora, Colorado, AURORA CITY COUNCIL, City of Aurora, Colorado, GEORGE “SKIP” NOE, City Manager, City of Aurora, Colorado, NICHOLAS “NICK” METZ, Chief of Police, City of Aurora, Colorado, AURORA POLICE DEPARTMENT, City of Aurora, Colorado, SGT. TIM E. GENARO, Aurora Police Department, City of Aurora, Colorado, individually and in his official capacity, and UNKNOWN CITY OF AURORA, POLICE OFFICERS, DETECTIVES, SERGEANTS, AND EMPLOYEES, JOHN AND JANE DOES 1-50, in their official and individual capacities, Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on the Recommendation of United
States Magistrate Judge [Docket No. 55] filed on September
30, 2016. Plaintiff brings claims against defendants relating
to his interactions at the Aurora Police Department on March
11, 2014, when he went to report that documents and various
other items had been improperly removed from his office. The
magistrate judge recommends that the Court grant the
defendants' motion to dismiss [Docket No. 33] as to all
claims against all defendants except plaintiff's claim
against defendant Sgt. Tim E. Genaro. Docket No. 55 at 6. Mr.
Cole, appearing pro se,  submitted a timely objection
to the magistrate judge's report and recommendation
[Docket No. 65] on October 21, 2016, pursuant to the minute
order extending his time to file an objection. Docket No. 59.
filed his complaint [Docket No.1] on March 10, 2016.
Plaintiff's claims arise from his visit to the Aurora
Police Department on March 11, 2014, when he attempted to
report that property from his office was improperly removed
and disposed of. Id. at 3. Plaintiff states that
Sergeant Tim E. Genaro would not allow him to file a criminal
report and informed him that a liquidating company handled
“everything regarding” plaintiff's property.
Id. Sergeant Genaro informed Mr. Cole that the
dispute was a civil matter and that the Aurora Police
Department would not investigate the incident as a crime.
Id. As a result, plaintiff brings claims that
defendants violated his Fourteenth Amendment rights and seeks
relief under 42 U.S.C. §§ 1983, 1985, 1986, and
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir.2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not shown - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted). Thus, even though modern rules of pleading are
somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).
state a claim in federal court, a complaint must explain what
each defendant did to him or her; when the defendant did it;
how the defendant's action harmed him or her; and what
specific legal right the plaintiff believes the defendant
violated. Nasious v. Two Unknown B.I.C.E. Agents, at
Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th
Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). In order to
preserve de novo review, “a party's objections to
the magistrate judge's report and recommendation must be
both timely and specific.” United States v. One
Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa,
Okla., 73 F.3d 1057, 1060 (10th Cir. 1996).
the court must construe the filings of a pro se litigant
liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir.1991). However, a plaintiff's “status as
a licensed attorney reduces the deference to which he is
entitled as a pro se litigant.” Baldwin v. United
States, No. 11-cv-02033-MSK-KLM, 2012 WL 7051296, at *1
n.1 (D. Colo. Sept. 17, 2012) (citing Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001)).
magistrate judge recommends that all claims against all
defendants be dismissed, except plaintiff's claim against
defendant Genaro relating to the completion of an incident
report instead of a criminal report. Docket No. 55 at 6. The
recommendation is based on the fact that “[p]laintiff
does not allege any facts against any named [d]efendant other
than Sergeant Genaro.” Id. at 4. Mr.
Cole's objection does not address this deficiency and
instead focuses on his repeated attempts to provide
“fair notice” to the defendants. See
Docket No. 65 at 2-5, ¶¶ 5, 8, 10, 13, 14, 15
(enumerating his six attempts to provide “fair
notice” to defendants). Moreover, Mr. Cole does not
specifically object to the magistrate judge's statement
of the law or interpretation of his complaint.
absence of a proper objection, the district court may review
a magistrate judge's recommendation under any standard it
deems appropriate. See Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“[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”). In this matter, the Court has
reviewed the recommendation to satisfy itself that there is
“no clear error on the face of the record.”
Fed.R.Civ.P. 72(b), Advisory Committee Notes. Based on this
review, the Court has concluded that the recommendation is a
correct application of the facts and the law.
foregoing reasons, it is
that plaintiff's Objection to Magistrate Judge's
Recommendation [Docket No. ...