Opinion
Civil Case No. 12-cv-00929-REB-MJW
08-23-2012
DARRELL GASH, Plaintiff, v. THE CITY AND COUNTY OF DENVER, DENVER FIRE DEPARTMENT, DENVER POLICE DEPARTMENT, and DENVER HEALTH MEDICAL CENTER, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the magistrate judge's Recommendation on (1) Motion To Dismiss By Defendant "Denver Health Medical Center" (Docket No. 11) and (2) Amended Motion To Dismiss (Docket No. 22) Filed By The City and County of Denver, Denver Fire Department, and Denver Police Department [#37] filed July 27, 2012.
"[#37]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
This action was reassigned to me following the recusal of Judge Martinez. ( See Order of Recusal [#39] filed August 22, 2012.) At the time of the reassignment, the deadline for the filing of objections had already expired.
No objections have been filed to the recommendation. Thus, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service , 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no such error in the magistrate judge's recommended disposition, I find and conclude that recommendation should be approved and adopted.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez , 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus , 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton , 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner , 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
--------
Although the recommendation does not specify whether the claims should be dismissed with or without prejudice, I find that plaintiff cannot state viable claims against the Denver Fire Department or Denver Police Department as they are not juridical entities subject to suit. See §§30-11-101(1)(a)-(b) & 31-15-101(a)-(b); Stump v. Gates , 777 F.Supp. 808, 816 (D. Colo. 1991). These claims therefore will be dismissed with prejudice. Contrastingly, the claims against the remaining defendants will be dismissed without prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation on (1) Motion To Dismiss By Defendant "Denver Health Medical Center" (Docket No. 11) and (2) Amended Motion To Dismiss (Docket No. 22) Filed By The City and County of Denver, Denver Fire Department, and Denver Police Department [#37] filed July 27, 2012, is APPROVED and ADOPTED as an order of this court;
2. That the Motion To Dismiss by Defendant "Denver Health Medical Center" [#11] filed May 2, 2012, is GRANTED;
3. That the Amended Motion To Dismiss [#22] filed May 23, 2012, is GRANTED;
4. That plaintiff's claims are DISMISSED as follows:
a. That any and all claims asserted against Denver Fire Department and/or Denver Police Department are DISMISSED WITH PREJUDICE;
b. That the claims asserted against the City and County of Denver and Denver Health and Hospital Authority (misnamed in the caption as "Denver Health Medical Center") are DISMISSED WITHOUT PREJUDICE;
5. That judgment SHALL ENTER on behalf of defendants Denver Fire Department and Denver Police Department against plaintiff, Darrell Gash on all claims for relief and causes of action; provided, that the judgment as to these claims shall be with prejudice; and
6. That judgment SHALL ENTER on behalf of defendants City and County of Denver and Denver Health and Hospital Authority (misnamed in the caption as "Denver Health Medical Center") against plaintiff Darrell Gash on all claims for relief and causes of action; provided, that the judgment as to these claims shall be without prejudice.
Dated August 23, 2012, at Denver, Colorado.
BY THE COURT:
_________________
Robert E. Blackburn
United States District Judge