Reed v. Elder

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Nina Y. Wang

Civil Action No. 22-cv-02067-NYW-MDB

ANDRE D. REED, SR.,

Plaintiff,

v.

BILL ELDER, JUDGE MICHAEL MCHENRY, ELIZABETH O’NEIL, DEPUTY DRAPER, DEPUTY RAVENKAMP, SHAWN WITKUS, NICOLE FRAHM, MARK STEVENS, MICHAEL J. ALLEN, MICHELLE REED, EL PASO SHERIFF’S OFFICE SWAT TEAM/DEPUTIES ESPO, KAREN CASEY PARROT, ZACHARY MARGURITE, BRIAN NULK, MACKENZIE N. BOYNE, KATIE GASSETT, SCOTT ROBBLEE, BRANDON HALL, KYLE SHELHAMER, CAMERON KOMROFSKE, STEVEN J. PADDACK, ANDREW PEERY, MATTHEW P. GAW, OWEN MCCORMACK, PAUL MYNATT, MARCUS MILLER, SPENCER STRINGHAM, SCOTT S. BRETTELL, KATHRYN J. OTTO, JONATHAN PENNINGTON, CHRISTOPHER DONATELL, TRAVIS MUNDT, RONNIE HANCOCK, BRENDEN KOEHLINGER, RYAN M. GONZALES, SETH T. FRITSCHE, JASON T. GARRETT, SHARON TRIVETTE, WILLIAM H. PROCTOR, MICHAEL ST. CHARLES, CHRISTOPHER GONZALEZ, EVELYN R. PEAK, HENRY CRIST, MICHAEL BAIER, C. EVANS, PSWAT L2, PSWAT, PSWAT 17, PSWAT 1, PSWAT 3, PSWAT Z6, PSWAT 5, PSWAT 8, PSWAT 14, PSWAT 4, PSWAT ??, PSWAT Z7, PSWAT Z2, PSWAT Z21, PSWAT Z4, PSWAT Z18, and PSWAT Z5,

Defendants.

ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION

This matter is before the Court on the Recommendation of United States Magistrate Judge Maritza Dominguez Braswell issued on August 19, 2024. [Doc. 81]. On November 28, 2023, the County Defendants—Bill Elder, Elizabeth O’Neal, Jeremy Draper, Andrew Ravenkamp, Nicole Frahm, Mark Stevens, Michael J. Allen, Michelle Reed, the El Paso Sheriff’s Office SWAT TEAM/Deputies, Zachary Margurite, Brian Nulk, MacKenzie N. Boyne, Scott Robblee, Brandon Hall, Kyle Shelhamer, Cameron Komrofske, Steven J. Paddack, Matthew P. Gaw, Owen McCormack, Paul Mynatt, Marcus Miller, Spencer Stringham, Scott S. Brettell, Kathryn J. Otto, Jonathan Pennington, Christopher Donatell, Travis Mundt, Ronnie Hancock, Brenden Koehlinger, Ryan M. Gonzales, Seth T. Fritsche, Jason T. Garrett, Sharon Trivette, William H. Proctor,

Michael St. Charles, Christopher Gonzalez, Evelyn R. Peak, Henry Crist, Michael Baier, and Casey Evans—filed Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion to Dismiss”). [Doc. 64]. Judge Dominguez Braswell recommends that the County Defendants’ Motion to Dismiss be granted, that Plaintiff’s first, second, fifth, eighth, and ninth claims be dismissed without prejudice insofar as Plaintiff seeks equitable or injunctive relief and stayed insofar as Plaintiff seeks monetary damages; that Plaintiff’s sixth claim be dismissed without prejudice; that Plaintiff’s third claim be dismissed without prejudice; and that Plaintiff’s fourth, seventh, and tenth claims be dismissed with prejudice. [Doc. 81 at 26]. The Recommendation states that objections to the Recommendation must be filed

within fourteen days after its service on the Parties. [Id. at 27]; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on August 19, 2024. See [Doc. 81]. No Party has objected to the Recommendation and the time to do so has elapsed. In the absence of an objection, the district court may review a magistrate judge’s recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a [magistrate judge’s] factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment. Based on this review, the Court has concluded that the Recommendation is thorough, well-reasoned, and a correct application of the facts and the law.

Accordingly, it is ORDERED that: (1) The Recommendation of United States Magistrate Judge Maritza Dominguez Braswell [Doc. 81] is ADOPTED; (2) Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint [Doc. 64] is GRANTED; (3) Plaintiff’s first, second, fifth, eighth, and nine claims, to the extent they seek equitable or injunctive relief against the County Defendants, are DISMISSED without prejudice; (4) Plaintiff’s first, second, fifth, eighth, and nine claims, to the extent they seek monetary damages against the County Defendants, are STAYED pending

resolution of the related state criminal proceedings; (5) Plaintiff’s third claim, against the County Defendants in both their individual and official capacities, is DISMISSED without prejudice; (6) Plaintiff’s sixth claim, against the County Defendants in their individual and official capacities, is DISMISSED without prejudice; (7) Plaintiff’s fourth, seventh, and tenth claims, against the County Defendants in their individual and official capacities, are DISMISSED with prejudice; and

1 This standard of review is something less than a “clearly erroneous or . . . contrary to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b). (8) | The Clerk of Court shall mail a copy of this Order to: Andre’ Dwayne Reed, Sr. #A0337523 E!] Paso County Criminal Justice Center 2739 East Las Vegas Street Colorado Springs, CO 80906

DATED: September 11, 2024 BY THE COURT: yh ry Y. Wang ) United States District Judge