Gabriel v. El Paso Combined Courts

          ORDER

          Daniel D. Domenico United States District Judge

         Plaintiff Vincent Gabriel, proceeding pro se, filed this action under 42 U.S.C. § 1983 seeking damages for alleged violations of his First, Fifth, Eighth, Ninth, and Fourteenth Amendment rights. Before the Court are Mr. Gabriel's objections to an order by Magistrate Judge Kathleen M. Tafoya, to whom the Court referred three non-dispositive motions. (Mot. to Appoint Counsel, Doc. 4; Mot. for Restraining Order, Doc. 17; Defs.' Mot. to Stay, Doc. 21; Order, Doc. 23; Objection, Doc. 24.^[1]) The Objection also seeks an order to prevent Defendants from engaging in certain harassing conduct and further calls for Magistrate Judge Tafoya to recuse herself. (See also Notice re Objection, Doc. 26; Exhibits in Support, Doc. 27.)

         OBJECTIONS

         Under Fed.R.Civ.P. 72(a), where objection has been made to an order of a magistrate judge on a non-dispositive motion, a district judge can modify or set aside any portion of that order found to be clearly erroneous or contrary to law. Ariza v. U.S. W. Commc'ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). District courts must affirm unless “on the entire evidence [one] is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). A document, like the one before the Court, filed pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Williams v. Klien, 20 F.Supp.3d 1171, 1173 (D. Colo. 2014) (construing “pleadings and other filings more liberally and [holding] them to a less stringent standard” than filings by lawyers).

         A. Motion to Stay

         The Complaint seeks damages arising out of Defendants' failure to expunge Mr. Gabriel's arrest and criminal records pursuant to his petition. On September 12, 2019, Defendants Prator, May, Guest, Per-cell, ^[2] Kinkin, and Bailey filed a motion to dismiss on grounds of qualified and prosecutorial immunity. Defendants El Paso Combined Courts and Judge Shakes were granted an extension of time through October 24, 2019, to answer or otherwise respond to the Complaint, but they anticipate also filing a dispositive motion and asserting immunity. Weighing the factors set forth in String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006), Magistrate Judge Tafoya found that a stay of discovery is appropriate.

         Mr. Gabriel doesn't object to the propriety of the stay. He instead opposes permitting the El Paso Combined Courts and Judge Shakes additional time to respond to the Complaint (Docs. 13, 15), which he sees as “42-days of time extension giving the Defendants a total of over 179-days without any questions whatsoever” that “inexcusably exemplifies a manifest injustice.” (Objection ¶ 1.) The Court is uncertain how Mr. Gabriel reached these figures, but these Defendants will have responded to the Complaint within seventy-six days of the filing of this case.^[3] Given the scope of the constitutional provisions that Mr. Gabriel alleges have been violated, this amount of time is reasonable; no clear mistake was made by the magistrate judge. This objection is OVERRULED.

         B. Motion to Appoint Counsel

         Mr. Gabriel's motion for the appointment of counsel said only that the Court should do so “given the complexity of this case and the fact that [he] cannot afford counsel.” (Doc. 4, at 1.) As Magistrate Judge Tafoya recognized, the determination of whether to appoint counsel in a civil case is left to the sound discretion of the district court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Relevant here, Mr. Gabriel is only eligible for pro bono counsel if he “demonstrat[es] limited financial means.” Local Atty R. 15(e)(1)(C). By affidavit, Mr. Gabriel now adds only that as “a full-time student, [he has] a very limited income.” (Doc. 24-1 ¶ 6.) This conclusion does not demonstrate financial need or supply the Court with more information than was before the magistrate judge. It is not a reason to disturb Magistrate Judge Tafoya's order. This objection is OVERRULED.

         C. Motion for Restraining Order

         Mr. Gabriel's “Motion for a Restraining Order” cites two legal provisions: Colo. Rev. Stat. § 18-3-602 (“Stalking”) and Fed.R.Civ.P. 65(b) (“Temporary Restraining Order”). Magistrate Judge Tafoya analyzed the motion under Rule 65 and found that Mr. Gabriel had not complied with the local conferral rules, had not shown that he could not be compensated by money damages, and had failed to supply an affidavit clearly showing immediate or irreparable injury or loss. She therefore denied the motion, and the Court agrees with that ruling based on the materials then available.

         Mr. Gabriel has now supplied the Court with two affidavits. The first (Doc. 24-1) generally affirms the allegations in the Complaint, that Mr. Gabriel was falsely (because of racial motivation) charged with shoplifting and prostitution, he was convinced by Defendants to enter into a deferred prosecution agreement, the case(s) against him were dismissed, he admittedly did not complete the aftercare program necessary for his record to be expunged per the terms of the deferred prosecution agreement, and the El Paso court did not expunge his record. As Magistrate Judge Tafoya correctly set out, two of the essential elements required to obtain preliminary injunctive relief are (1) irreparable harm and (2) a likelihood of success on the merits. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).

         The first affidavit undermines both necessary showings. These circumstances are in the past. Should the allegations and evidence support a viable claim, none of them demonstrate irreparable harm that cannot be cured by damages.^[4] But more detrimental to his position is his sworn admission that he did not complete the aftercare program. Each of his claims seeks damages for failure to expunge his record (and related conduct).^[5] This raises serious concerns as to the likelihood of his success on the merits.^[6] In that capacity, he has shown no entitlement to preliminary relief, and his objection is OVERRULED.

         ADDITIONAL ...