United States District Court, D. Colorado
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
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