United States District Court, D. Colorado
ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE SCOTT T. VARHOLAK
CHRISTINE M. ARGUELLO United States District Judge
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.
BACKGROUND AND STANDARD OF REVIEW
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
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.)
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.
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.
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.
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
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).