Opinion
Civil Case No. 06-cv-02148-LTB-BNB.
February 12, 2008
ORDER
This case is before me on the Recommendation of the Magistrate Judge (Doc 116) that the "County Defendants' Motion to Dismiss Plaintiffs' Second Amended Verified Complaint or in the Alternative Motion for More Definite Statement" (Doc 61) be granted in part and denied in part as follows: (1) denied without prejudice insofar as it seeks dismissal of the Plaintiffs' state law tort claims based on sovereign immunity; (2) granted insofar as it seeks dismissal of the constitutional claims against the County Defendants in this official capacities; (3) granted to the extent it seeks dismissal of the Fourth Amendment Claims against Maketa and Choate in their individual capacities; (4) denied insofar as it seeks dismissal of the due process claims against Maketa and Choate in their individual capacities; (5) granted to the extent it seeks dismissal of the Plaintiffs' claims for violation of 42 U.S.C. §§ 1985 and 1986; and (6) denied insofar as it seeks dismissal of the complaint for failure to comply with Rule 8. The Magistrate Judge further recommends that Defendants "County of El Paso Hound 4 5" be dismissed and that Plaintiffs' claims for violation of 18 U.S.C. §§ 241 and 242 be dismissed with prejudice against all defendants. The motion is filed on behalf of Defendants County of El Paso, Colorado, the employees of El Paso County, Colorado (including "County of El Paso Hound 4 5), Sergeant James A. Choate, and Sheriff Terry Maketa (collectively County Defendants). The recommendation was issued and served on January 8, 2008.
The County Defendants filed objections to the Magistrate Judge's recommendation on January 23, 2008 (Doc 121). Plaintiffs filed their Motion to Strike the objections (Doc 123) asserting that the objections were untimely. The County Defendants responded to the Motion to Strike on February 5, 2008 (Doc 125). In calculating the mandatory ten (10) day period for filing objections to the recommendation, the Court excludes weekends and holidays. In so doing, I conclude that the objections are timely.
The County Defendants do not object to any of the recommendations except the recommendation to deny without prejudice the County Defendants' motion to dismiss Plaintiffs' state law tort claims based on sovereign immunity. The County Defendants attach two affidavits to the objections to establish Plaintiffs' failure to comply with the written notice requirements of the Colorado Governmental Immunity Act as a jurisdictional bar to Plaintiffs' state law tort claims. C.R.S. § 24-10-109(1) Having done so, I would have to consider matters outside the pleadings pursuant to Fed.R.Civ.P. 56. I decline to do so. Because denial in this respect is without prejudice, County Defendants can submit the question pursuant to a proper Fed.R.Civ.P. 56 motion. Accordingly, on de novo review, I conclude that the Magistrate Judge's recommendation to deny without prejudice the County Defendants' motion to dismiss Plaintiffs' state law tort claims based on sovereign immunity without prejudice is correct.
Plaintiffs have filed timely written objections to the Magistrate Judge's recommendations. Alternatively, Plaintiffs argue that should the motion be granted in any respect, dismissal should be without prejudice and/or Plaintiffs should be ordered to file a more definite statement. Accordingly, I have reviewed the recommendations de novo in light of the objections, the file, and the record in this case. On de novo review, I conclude that the recommendations are correct. Accordingly
IT IS ORDERED that the "County Defendants' Motion to Dismiss Second Amended Verified Complaint or in the Alternative Motion for More Definite Statement" (Doc 61) is GRANTED IN PART AND DENIED IN PART as follows:
(1) It is DENIED WITHOUT PREJUDICE insofar as it seeks dismissal of the Plaintiffs' state law tort claims based on sovereign immunity;
(2) It is GRANTED insofar as it seeks dismissal of the constitutional claims against the County Defendants in their official capacities;
(3) It is GRANTED to the extent it seeks dismissal of the Fourth Amendment claims against Maketa and Choate in their individual capacities;
(4) It is DENIED insofar as it seeks dismissal of the due process claims against Maketa and Choate in their individual capacities;
(5) It is GRANTED to the extent it seeks dismissal of the Plaintiffs' claims for violations of 42 U.S.C. §§ 1985 and 1986; and
(6) It is DENIED insofar as it seeks dismissal of the complaint for failure to comply with Rule 8.
IT IS FURTHER ORDERED that Defendants "County of El Paso Hound 4 5" are DISMISSED from this action.
IT IS FURTHER ORDERED that Plaintiffs' claims for violation of 18 U.S.C. §§ 241 and 242 are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs' motion to strike the County Defendants' objections to the recommendation (Doc 123) is DENIED.