Opinion
Civil Action No. 12-cv-02317-REB-KLM
07-08-2013
BERNARD KENNETH MYERS, Plaintiff, v. CITY OF LOVELAND, COLORADO, Defendant.
Judge Robert E. Blackburn
ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States Magistrate Judge [#72], filed June 10, 2013; (2) plaintiff's Status Update and Reaffirmation of Motion To Withdraw Complaint [#77], filed June 19, 2013, which I construe as his objection to the magistrate judge's recommendation; (3) Defendant's Objection to Magistrate Judge's Order Filed June 18, 2013 [#75] [#76], filed June 18, 2013; and (4) plaintiff's Motion To Voluntary [sic] Dismiss Case Without Prejudice Pursuant to Fed. R. Civ. P. 41(a) [#79], filed June 24, 2013. I overrule plaintiff's objections, approve and adopt the recommendation, deny plaintiff's motion for leave to amend the complaint, deny plaintiff's motion to dismiss the complaint without prejudice, overrule defendant's objection as moot, and grant defendant's motion to dismiss with prejudice.
"[#72]" 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.
With the consent of the magistrate judge, the prior Order of Reference [#80], filed June 25, 2013, of this motion is withdrawn.
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Plaintiff is proceeding pro se. Thus, 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)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.
The recommendation is detailed and well-reasoned. Contrastingly, plaintiff's objections are imponderous and without merit. Indeed, plaintiff frankly acknowledges that the majority of his claims are barred by limitations. Although plaintiff claims that his cause of action against the city for failure to train and/or supervise notaries public is still viable, such claim is based on the same facts and circumstances that were known to plaintiff well before limitations ran in 2010.
Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted. Moreover, because plaintiff's claims are barred by limitations, dismissal without prejudice is not appropriate. Accordingly, plaintiff's motion to voluntarily withdraw his complaint without prejudice must be denied.
THEREFORE, IT IS ORDERED as follows:
1. That Recommendation of United States Magistrate Judge [#72], filed June 10, 2013, is APPROVED and ADOPTED as an order of this court;
2. That the objections stated in plaintiff's Status Update and Reaffirmation of Motion To Withdraw Complaint [#77], filed June 19, 2013, are OVERRULED;
3. That the objections stated in Defendant's Objection to Magistrate Judge's Order Filed June 18, 2013 [#75] [#76], filed June 18, 2013, are OVERRULED AS MOOT;
4. That the Order of Reference [#80], filed June 25, 2013, is WITHDRAWN;
5. That plaintiff's Motion To Voluntary [sic] Dismiss Case Without Prejudice Pursuant to Fed. R. Civ. P. 41(a) [#79], filed June 24, 2013, is DENIED;
6. That Defendant City of Loveland, Colorado's Motion To Dismiss [#23], filed October 5, 2012, is GRANTED;
7. That plaintiff's Motion To Request Leave of Court To Amend Plaintiffs [sic] Complaint [#68], filed May 16, 2013, is DENIED;
8. That plaintiff's claims against defendant are DISMISSED WITH PREJUDICE;
9. That judgment with prejudice SHALL ENTER in favor of defendant, The City of Loveland, Colorado, against plaintiff, Bernard Kenneth Myers, on all claims for relief and causes of action asserted in this action;
10. That pursuant to my Order of Dismissal as to Defendant The Colorado County of Larimer, Only [#16], filed October 2, 2012, judgment with prejudice SHALL ENTER in favor the prior defendant, The Colorado County of Larimer, against plaintiff, Bernard Kenneth Myers, on all claims for relief and causes of action asserted in this action; and
11. That defendant, The City of Loveland, Colorado, is AWARDED its costs, to be taxed by the clerk of the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated July 8, 2013, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge