Bey v. Clark

          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 DISMISS.

          William J. Martínez United States District Judge.

         This 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.

         I. LEGAL STANDARD

         When a 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.”).

         An 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.

         Because 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).

         II. BACKGROUND

         Plaintiff 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.

         Briefly, 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.”^[1] (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.

         Plaintiff 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.

         III. ANALYSIS

         The 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 Plaintiff's objections.

         A. Defendant D. Swift

         The 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 after ...