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Anderson v. Shutters

United States District Court, D. Colorado

June 13, 2018

CHAYCE AARON ANDERSON, Plaintiff,
v.
JASON SHUTTERS, in his individual capacity, Defendants.

          ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE SCOTT T. VARHOLAK

          CHRISTINE M. ARGUELLO United States District Judge

         This matter is before the Court on review of the Recommendation by United States Magistrate Judge Scott T. Varholak (Recommendation) (Doc. # 85), wherein he recommends that this Court grant in part and deny in part Defendant Jason Shutters' Motion to Dismiss (Doc. # 63) Plaintiff Chayce Aaron Anderson's Claims One, Two, and Five against him. For the following reasons, the Court adopts the Recommendation in its entirety and dismisses Claims One and Five against Defendant Shutters.

         I. BACKGROUND AND STANDARD OF REVIEW

         Magistrate Judge Varholak provided a thorough recitation of the factual and procedural background in this case. The Recommendation is incorporated herein by reference, see 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b), and the facts will be repeated only to the extent necessary to address Plaintiff's objections.

         Plaintiff initiated this lawsuit following his arrest and eventual conviction of sexual assault on a helpless victim in Larimer County District Court, criminal case number 15-CR-1466. (Doc. # 85 at 2.) (Id.) As pertinent here, Plaintiff brings a Fourth Amendment claim (Claim One), an excessive force claim (Claim Two), and an intentional infliction of emotional distress claim (Claim Five) against Defendant based on events that occurred during the course of his criminal arrest and prosecution. (Doc. # 61.) Defendant moved to dismiss all three claims. (Doc. # 63.)

         Magistrate Judge Varholak recommends that this Court

• grant Defendant's request to dismiss Claim One under Federal Rule of Civil Procedure 12(b)(6) based on the doctrine of qualified immunity;
• grant Defendant's request to dismiss Claim Five under Federal Rule of Civil Procedure 12(b)(1) pursuant to the Colorado Governmental Immunity Act (CGIA); and
• deny Defendant's request to dismiss Claim Two under Rule 12(b)(6) because Plaintiff adequately plead that he was subject to excessive force when being handcuffed.

         The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 85 at 14, n.4.) Plaintiff filed an Objection (Doc. # 86) to the Recommendation; Defendant did not.

         Plaintiff does not object to Magistrate Judge Varholak's recommended disposition of Claim Two. “[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). After thoroughly reviewing the Recommendation, in addition to applicable portions of the record and relevant legal authority, particularly the Court is satisfied that, with respect to the unchallenged recommended disposition of Claim Two, the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). The Court therefore adopts Magistrate Judge Varholak's Recommendation with respect to Claim Two and denies Defendant's request that the Court dismiss that claim.

         Plaintiff however objects to Magistrate Judge Varholak's recommended dismissal of Claims One and Five. Federal Rule of Civil Procedure 72(b)(3) thus requires that this Court conduct a de novo review of the issues underlying these claims. In so doing, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         Plaintiff appears pro se in this matter. The Court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff's pro se status does not, however, entitle him to the application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Moreover, the Court may not “construct arguments or theories for [Plaintiff] in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).

         II. ...


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