Opinion
Civil Action No. 20-cv-03472-PAB-MEH
04-08-2021
WILLIAM MONTGOMERY, Plaintiff, v. DAVID WELLS, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant's Motion to Dismiss. ECF 17. The Motion was referred to this Court for recommendation. ECF 18.
Rather than respond to the Motion to Dismiss, Plaintiff amended his Complaint. As Plaintiff explains in his Response (ECF 32) to this Court's Order to Show Cause (ECF 28), he agreed that his original Complaint left "murky" whether he had requested Defendant to issue him a citation or whether Defendant involuntarily detained him for that purpose. The circumstances under which Defendant cited him for panhandling are central to the lawsuit. He submitted the Amended Complaint to cure that ambiguity and to clarify the relevant points.
At ECF 27, this Court granted Plaintiff's request to change the Amended Complaint's filing date to March 19, 2021 (when he had emailed it to the Clerk of the Court) from March 22, 2021 (when it was docketed). That change caused the Amended Complaint to come within the Rule 15(a)(1)(B) time period for amending as a matter of course. The Amended Complaint in turn caused Defendant's initially filed motion to dismiss to become moot.
Defendant is proceeding on the basis of the new pleading. He already has moved to dismiss the Amended Complaint. ECF 30.
Accordingly, the Court respectfully RECOMMENDS that the Motion to Dismiss [filed February 26, 2021; ECF 17] be denied as moot.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); In re Garcia, 347 F. App'x 381, 382-83 (10th Cir. 2009). --------
Entered and dated this 8th day of April, 2021, in Denver, Colorado.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge