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Janny v. Palmer

United States District Court, D. Colorado

April 25, 2019

MARK JANNY, Plaintiff,
v.
TIM PALMER, Captain, Larimer County Jail, in his individual capacity, MR. RAMIREZ, Lieutenant, Larimer County Jail, in his individual capacity, JOSH BELINDER, Lieutenant, Larimer County Jail, in his individual capacity, MR. BERGLUND, Sergeant, Larimer County Jail, in his individual capacity, MS. PALORANTA, Sergeant, Larimer County Jail, in her individual capacity, MR. HARTEKER, Sergeant, Larimer County Jail, in his individual capacity, MR. SMOYER, Sergeant, Larimer County Jail, in his individual capacity, MR. SAULTS, Sergeant, Larimer County Jail, in his individual capacity, MR. LALICKER, Sergeant, Larimer County Jail, in his individual capacity, MR. PERANTEAUX, Sergeant, Larimer County Jail, in his individual capacity, MR. MEEKS, Corporal, Larimer County Jail, in his individual capacity, MR. BURCH, Corporal, Larimer County Jail, in his individual capacity, TINO MARTINEZ, Corporal, Larimer County Jail, in his individual capacity, MS. WULFERT, Corporal, Larimer County Jail, in his individual capacity, MR. VILLARREAL, Corporal, Larimer County Jail, in his individual capacity, MS. MAHONEY, Corporal, Larimer County Jail, in her individual capacity, MR. BROWN, Corporal logistics, Larimer County Jail, in his individual capacity, MS. GEE, Deputy, Larimer County Jail, in her individual capacity, JAMIE SMITH, K-9 handler, Larimer County Sheriff's Office, in his individual capacity, JUSTIN SMITH, Larimer County Sheriff, in his individual and official capacity, ATTORNEY DOE, Larimer County Attorney Office, in their individual capacity, THE MUNICIPALITY OF LARIMER COUNTY, LARIMER COUNTY DEPUTIES 1-100, in their individual capacities, and JAIL SUPERVISORS 1-20, in their individual capacities, Defendants.

          ORDER ADOPTING DECEMBER 10, 2018 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the December 10, 2018 Recommendation (Doc. # 110) by United States Magistrate Judge Kristen L. Mix that this Court deny Plaintiff Mark Janny's Motion to Re-evaluate Whether Magistrate Consent Jurisdiction was Voluntarily and Properly Consented to by the Plaintiff and Allow the Plaintiff to Withdraw Consent (Doc. # 100). Plaintiff filed an Objection (Doc. # 113) to the Recommendation on January 2, 2019, and Defendants filed a Response (Doc. # 116) on January 16, 2019. For the reasons that follow, the Court affirms and adopts the Recommendation and denies Plaintiff's Motion.

         I. BACKGROUND

         The Magistrate Judge's Recommendation provides a recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order will reiterate only what is necessary to address Defendant's objections.

         Plaintiff, proceeding pro se, initiated this prisoner civil rights action on September 11, 2017. (Doc. # 1.) The case was initially assigned to Magistrate Judge Gordon P. Gallagher. (Doc. # 2.) On September 19, 2017, the case was reassigned to Magistrate Judge Craig B. Shaffer. (Doc. # 6.) Subsequently, on October 27, 2017, the case was reassigned to this Court and drawn to Magistrate Judge Kristen L. Mix. (Doc. # 26.)

         On October 30, 2017, this Court issued an order referring the case to Magistrate Judge Mix, who was designated to conduct all motion proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). (Doc. # 27.) Thereafter, Plaintiff returned a Magistrate Judge Consent Form in which he indicated that he consented “to have a United States magistrate judge conduct all proceedings in this civil action, including trial, and to order the entry of a final judgment . . . .” (Doc. # 36 at 1.) Accordingly, because all Defendants also consented to have a magistrate judge try this case, this Court issued an Order of Reference Pursuant to 28 U.S.C. § 636(c) on December 18, 2017. (Doc. ## 41, 42, 56.) The Court ordered the case to be referred for disposition to Magistrate Judge Mix, and the case was, therefore, reassigned to Magistrate Judge Mix. (Doc. # 42 at 1.)

         Ten months later, Plaintiff filed the Motion at issue in which he asserts that he “never consented to Magistrate Consent Jurisdiction while Judge Mix was hearing the case . . . .” (Doc. # 100.)

         II. LEGAL STANDARDS

         A. REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE'S RECOMMENDATION

         When a magistrate judge issues a recommendation 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 [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific.[1] United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         B. PRO SE STATUS

         When a party proceeds pro se, as Plaintiff does here, the court “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); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant is still bound by the rules of federal and appellate procedure. Abdelsamed v. United States, 13 Fed.Appx. 883, 884 (10th Cir. 2001).

         III. ...


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