Smith v. Krieger
| Citation | 643 F.Supp.2d 1274 |
| Decision Date | 03 August 2009 |
| Docket Number | Civil Action No. 08-cv-00251-CMA-KMT. |
| Parties | Kenneth L. SMITH, Plaintiff, v. Hon. Marcia S. KRIEGER, in her official capacity as Judge of the United States District Court for the District of Colorado; the United States District Court for the District of Colorado; the Tenth Circuit Court of Appeals; the Colorado Court of Appeals; the Supreme Court of Colorado; and John Does 1-99, Defendants. |
| Court | U.S. District Court — District of Colorado |
Kenneth L. Smith, Golden, CO, pro se.
Terry Fox, U.S. Attorney's Office, Dianne E. Eret, Colorado Attorney General's Office-Department of Law, Denver, CO, Maggie H. Abuhaidar, U.S. Attorney's Office, Salt Lake City, UT, for Defendants.
This matter is before the Court on the April 30, 2009 recommendation by Magistrate Judge Kathleen M. Tafoya (Doc. # 83) that the defendants' motions to dismiss (Docs. # 30, 40, 75) be granted, that Plaintiff's Emergency Motion for Preliminary Injunction and Other Injunctive and/or Declaratory Relief (Doc. # 9) be denied, and that Plaintiff's case be dismissed. Both Plaintiff and Defendants Colorado Supreme Court and Colorado Court of Appeals filed objections to this recommendation (Docs. # 84, 86). Various responses and replies to those objections have been submitted (Docs. # 87, 91, 92, 93, 95, 96, 101).
Plaintiff also filed a Motion for Taking of Judicial Notice (Doc. # 85) that relates to the Magistrate Judge's recommendation. That motion was denied by the Magistrate Judge on May 21, 2009 (Doc. # 89). Plaintiff objected to that denial in the form of an "Emergency Motion for Reassignment of Magistrate and Plaintiff's Objection to Magistrate's Order" (Doc. # 90). Both Defendant Hon. Marcia S. Krieger and Defendants Colorado Supreme Court and Colorado Court of Appeals have filed responses to Plaintiff's objection (Docs. # 97, 98).
These objections and motions are ripe for decision.
A detailed recitation of the factual and procedural background is set out in the Magistrate Judge's recommendation. Briefly, Plaintiff, who is proceeding pro se, filed a complaint alleging numerous violations of his federal constitutional rights. (See Doc. # 22). The complaint is the latest in a series of lawsuits against various state and federal courts and judges, all of which stem from the denial of Plaintiff's application for admission to the Colorado Bar.1 In the present case, Plaintiff challenges his treatment by the state and federal courts in his earlier lawsuits, and brings claims for violation of his Fifth and Fourteenth Amendment rights to due process, his Fifth and Fourteenth Amendment rights to equal protection, and his First Amendment right of access to the courts. (Id. at 19-20.) He seeks declaratory and injunctive relief aimed at requiring the Defendants to stop issuing unpublished opinions, so-called "designer" opinions (which Plaintiff characterizes as "opinions applicable to one and only one set of litigants"), and opinions that, in Plaintiff's words, "fabricate and/or elide key facts" and fail to address all legal arguments raised. (Id. at 21-22.) Shortly after filing this lawsuit, Plaintiff filed an Emergency Motion for Preliminary Injunction and Other Injunctive and/or Declaratory Relief (Doc. # 9).
Three separate motions to dismiss were filed: by Defendants Colorado Supreme Court and Colorado Court of Appeals ("State Defendants") (Doc. # 30); by Defendants The United States District Court for the District of Colorado and The Tenth Circuit Court of Appeals ("Federal Defendants") (Doc. # 40); and by Defendant Hon. Marcia S. Krieger ("Krieger") (Doc. # 75). These motions rested primarily on alleged procedural deficiencies with Plaintiff's complaint and his theory of the case. The motions were referred to the Magistrate Judge for recommendation (Doc. # 81).
The Magistrate Judge recommended that the motions be granted on a variety of grounds: the Federal Defendants and Defendant Krieger are shielded from suit by the doctrine of sovereign immunity (Recommendation at 9-14); Defendant Krieger is similarly shielded by the doctrine of judicial immunity from Plaintiff's claims for money damages, injunctive relief, and attorney's fees (id. at 14-16, 17-18); Plaintiff lacks standing to pursue his claims for declaratory relief against Defendant Krieger (id. at 18-19); 42 U.S.C. § 1983 and Bivens2 claims cannot be brought against the Federal Defendants as entities (id. at 16-17); constitutional tort claims are not proper under the Federal Tort Claims Act and thus any such claims against the Federal Defendants should be dismissed (id. at 17); and Plaintiff's claims against the State Defendants are barred by the Eleventh Amendment and the Rooker-Feldman doctrine (id. at 19-21). Given these conclusions, the Magistrate Judge further recommended that Plaintiff's Emergency Motion for Preliminary Injunction and Other Injunctive and/or Declaratory Relief be denied on the ground that Plaintiff could not show the requisite substantial likelihood that he would prevail on the merits. (Id. at 21-22.)
The primary matter before the Court is the Magistrate Judge's recommendation that Plaintiff's case be dismissed. Pursuant to Fed.R.Civ.P. 72(b)(3), the district court must "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." A proper objection is both timely—filed by a party "[w]ithin 10 days after being served with a copy of the recommended disposition," Fed.R.Civ.P. 72(b)(2)—and specific. See United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir.1996) (). For an objection to be sufficiently specific, it must "`enable[ ] the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute.'" One Parcel of Real Property, 73 F.3d at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). Where an objection is not made or is made improperly, the Court has discretion to review the recommendation under whatever standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991). In conducting its review, "[t]he district judge may accept, reject, or modify the [recommendation]; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
The Court is mindful of Plaintiff's pro se status and, accordingly, reads his pleadings and filings liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiff's use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). "[T]he court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005). Further, pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).
As a threshold matter, the Federal Defendants argue that Plaintiff's objections, which were filed on May 18, 2009, were not timely. (See Doc. # 91 at 2.) The Magistrate Judge's recommendation is dated April 30, 2009. Objections are due "[w]ithin 10 days after being served with a copy of the" recommendation. Fed.R.Civ.P. 72(b)(2). Where, as here, the time period at issue is less than 11 days, intermediate weekend days are to be excluded from the calculation. Fed.R.Civ.P. 6(a)(2). Moreover, because Plaintiff was served by mail, an additional three days are added to the end of the period. Fed.R.Civ.P. 6(d); see also Fed.R.Civ.P. 72 advisory committee's notes, 1983 addition ( that the 10-day period for filing objections is subject to the additional three-day period under Rule 6). In calculating the three-day addition, "[i]ntermediate Saturdays, Sundays, and legal holidays are included." Fed. R.Civ.P. 6 advisory committee's notes, 2005 Amendments. However, "[i]f the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday." Id. Under these rules, Plaintiff's ten-day period (exclusive of weekends) expired on Thursday, May 14. Adding three days (and counting the weekend days), the objections came due on Sunday, May 17. But because the last day to act cannot fall on a Sunday, that due date rolled over to Monday, May 18. As such, the objections were timely.
However, Plaintiff's objections present another problem—lack of specificity. Much of Plaintiff's brief is devoted either to rearguing his substantive claims of improper conduct by the courts in his earlier cases or to broad attacks on the character and integrity of courts and judges. The Magistrate Judge's recommendation rests on procedural and jurisdictional grounds; whatever the merits of Plaintiff's substantive arguments and criticisms, the Court's role at this stage is to review de novo the specific objections to that recommendation. See Fed.R.Civ.P. 72(b).
Having carefully reviewed Plaintiff's filings, the Court discerns the following objections...
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