United States District Court, D. Colorado
ORDER OVERRULING PLAINTIFF'S OB JECTION, ADOPTING
FEBRUARY 21, 2018 RECOMMENDATION OF MAGISTRATE JUDGE,
GRANTING DEFENDANT CLARK'S MOTION TO DISMISS, AND
GRANTING IN PART DEFENDANT 1ST CLASS TOWING'S MOTION TO
William J. Martínez United States District Judge.
matter is before the Court on the February 21, 2018
Recommendation by U.S. Magistrate Judge Michael E. Hegarty
(ECF No. 37) (the “Recommendation”) that
Defendant Judge Colleen Clark's Motion to Dismiss (ECF
No. 17) be granted and that Defendant 1st Class Towing's
Motion to Dismiss (ECF No. 28) be granted to the extent that
it seeks to quash service and otherwise denied. The
Recommendation also recommends that the Court sua
sponte order proper service on Defendant D. Swift or
dismiss any claim against Defendant D. Swift. Plaintiff
Zacharias Aaron Bey filed objections to the Recommendation
styled as “Plaintiff's Response to Recommendation
of Michael E. Hegarty.” (ECF No. 38.) For the following
reasons, Plaintiff's objections to Judge Hegarty's
Recommendation are overruled, and Judge Hegarty's
Recommendation is affirmed and adopted in its entirety.
magistrate judge issues a recommended outcome on a
dispositive matter, Federal Rule of Civil Procedure 72(b)(3)
requires that the district judge “determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3); see
also Summers v. State of Utah, 927 F.2d 1165, 1167 (10th
Cir. 1991) (“De novo review is statutorily and
constitutionally required when written objections to a
magistrate's report are timely filed with the district
court.”). In the absence of a timely and specific
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)); see also Fed. R. Civ. P.
72(b) advisory committee's note (“When no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.”).
objection to a recommendation is properly made if it is
timely and specific. United States v. One Parcel of Real
Property Known as 2121 East 30th St., 73 F.3d 1057, 1059
(10th Cir. 1996). An objection is sufficiently specific if it
“enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” Id. (quoting Thomas
v. Arn, 474 U.S. 140, 147 (1985)); Strepka v.
Sailors, 494 F.Supp.2d 1209, 1230 (D. Colo. 2007)
(“A general objection that does not put the district
court on notice of the basis for the objection will not
preserve the objection for de novo review.”).
In conducting its review, “[t]he district court judge
may accept, reject, or modify the recommendation; receive
further evidence; or return the matter to the magistrate
judge with instructions.” 2121 East 30th St.,
73 F.3d at 1059.
Plaintiff is proceeding pro se, the Court must
liberally construe his pleadings. Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Trackwell v. United States
Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The
Court, however, cannot act as advocate for Plaintiff, who
must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
does not object to the recitation of facts set forth by the
Judge Hegarty in the Recommendation. (ECF No. 37 at 2.)
Accordingly, the Court adopts and incorporates the Statement
of Facts as if set forth herein.
Plaintiff alleges that on March 25, 2017, he was driving to
work when he was pulled over by an Arapahoe County deputy
sheriff. Plaintiff presented his “national
identification card, [ ] travel card, [ ] rights card, and [
] proclamation.” (ECF No. 4 at 4.) Deputies handcuffed
Plaintiff for a time, then removed his handcuffs, and
searched his vehicle. 1st Towing then towed Plaintiff's
vehicle, which he recovered on March 31, 2017. In the
meantime, Plaintiff was unable to attend work.
appeared before Arapahoe County Court Judge Colleen Clark (a
Defendant in this matter) on the traffic citation he received
and “challenged her jurisdiction.” (Id.
at 6.) Bey alleges that he lost his job due to making special
appearances in court. He also seeks that the traffic citation
from the stop be discharged.
Recommendation advised the parties that specific written
objections were due within fourteen days after being served
with a copy of the Recommendation. (ECF No. 37 at 16 n.4.)
When service is made by mail, three days are added after the
period would otherwise expire. Fed.R.Civ.P. 6(d). Plaintiff
served his objections by mail, and the Court received the
objections on March 8, 2018, within the time period as
extended by Rule 6(d). The Court will review Plaintiff's
objections for each Defendant to determine if they are
sufficiently specific to merit de novo review, and
then apply the appropriate standard of review to
Defendant D. Swift
Recommendation recommends dismissing D. Swift as a Defendant
for failure to demonstrate service of process on D. Swift or,
alternatively, allowing Plaintiff to re-serve D. Swift. (ECF
No. 37 at 15.) See Fed R. Civ. P. 4. Pursuant to
Rule 4(m), a plaintiff must serve a defendant within 90 days
of filing a complaint or the court may, “on its own