Summary
distinguishing between screening civil complaints under § 1915(e) and considering dismissal under Rule 12(b) and concluding, "Plaintiff's ability to pass the initial screening process under § 1915 does not preclude Defendants from challenging the legal sufficiency of the Second Amended Complaint under Rule 12(b)"
Summary of this case from Johnson v. OK-DOC Bd. of Corr.Opinion
Civil Action No. 11-cv-02384-WYD-CBS
12-20-2013
KEVIN FRANCIS JONES, Plaintiff, v. MARCUS LEHMKUHL; CITY OF COLORADO SPRINGS, COLORADO; R.A. YOHN; AL HARMON; BRET POOLE; and, ONE TO TEN UNKNOWN DEFENDANTS TO BE IDENTIFIED THROUGH DISCOVERY AND TRIAL, sued individually and in their official capacities, Defendants.
Senior Judge Wiley Y. Daniel
ORDER
THIS MATTER is before the Court on pro se plaintiff, Kevin Francis Jones's: (1) Motion To Enter Into Evidence Receipt By United States Post Office Showing Evidence Of Timely Filing Of Objections To Magistrate Judge CBS Recommendation To Dismiss (Doc. 96) Also To Be Considered As Newly Discovered Evidence Of Timely Filing And An Amendment To Reconsideration Motion (Doc. 97) [ECF No. 99]; and, (2) Motion To Strike From The Record Defendants (Doc. 98) [ECF No. 100]. For the reasons stated below, the motions are DENIED.
BACKGROUND
This suit arises out of law enforcement officers' search of plaintiff, Kevin Francis Jones's, residence on February 19, 2010, in which they found two marijuana "grow rooms" and seized inter alia, over 444.6 grams of marijuana. Jones alleges that he owns and operates "Nature's Remedy," a business that provides medical marijuana products and services. In short, Jones alleges that his Colorado Medical Marijuana Card authorized him to grow marijuana in his residence and law enforcement's search of his residence and seizure of marijuana violates the Constitution of the United States and Colorado state law.
On April 26, 2013, Magistrate Judge Shaffer issued a Recommendation [ECF No. 89] regarding the defendants' Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) And 12(b)(6) [ECF No. 40]. In that Recommendation [ECF No. 89], Magistrate Judge Shaffer recommended that the majority of Jones's claims be dismissed with prejudice, while a select few claims be dismissed without prejudice. On May 9, 2013, Jones filed a Notice Of Appeal [ECF No. 90] in which he requested an extension of time to file his objections to Magistrate Judge Shaffer's Recommendation [ECF No. 89]. I treated Jones's Notice Of Appeal [ECF No. 90] as a Motion For Extension Of Time To File Objections To Magistrate Judge Shaffer's Recommendation [ECF No. 89]. On May 16, 2013, I issued a Minute Order [ECF No. 91] granting the motion and I ordered Jones to file any and all objections on or before Monday, June 17, 2013. ECF No. 91, p. 2. I further stated that "[i]f Jones does not file objections on or before this date [Monday, June 17, 2013], I will proceed to review Magistrate Judge Shaffer's Recommendation [ECF No. 89] as though it is free of objections." Id. Jones filed his Objections To The Recommendation Of The Magistrate Judge CBS [ECF No. 92] on June 18, 2013. Thus, I struck Jones's Objections To The Recommendation Of The Magistrate Judge CBS [ECF No. 92] from record because he did not comply with the absolute deadline set forth in my May 16, 2013, Minute Order [ECF No. 91]. ECF No. 96. Jones filed a Motion For Reconsideration [ECF No. 97] regarding that ruling and I denied the motion. ECF No. 104, pp. 3-4.
Both of Jones's motions [ECF Nos. 99 & 100] that are presently before me relate to my rulings that his objections to Magistrate Judge Shaffer's Recommendation [ECF No. 89] were untimely. Neither motion has merit.
ANALYSIS
A. Jones's Motion to Enter Into Evidence Receipt By United States Post Office Showing Evidence Of Timely Filing Of Objections To Magistrate Judge CBS Recommendation To Dismiss (Doc. 96) Also To Be Considered As Newly Discovered Evidence Of Timely Filing And An Amendment To Reconsideration Motion (Doc. 97) [ECF No. 99]
Jones moves to enter into evidence a receipt [ECF No. 99, p. 3] from a postal store located in Colorado Springs, Colorado, which allegedly indicates that he tendered his objections to be mailed on June 17, 2013, and that the objections were expected to be delivered to the this Court on June 18, 2013.
I addressed Jones's objections to Magistrate Judge Shaffer's Recommendation [ECF No. 89] on two prior occasions. I first addressed Jones's objections in my July 1, 2013, Minute Order [ECF No. 96] where I struck the objections from the record as untimely. Jones subsequently moved for reconsideration of that ruling and I denied his Motion For Reconsideration [ECF No. 97] in my September 27, 2013, Order [ECF No. 104, pp. 3-4]. The receipt does not provide any legal basis to amend or vacate my rulings regarding Jones's objections. Thus, the motion is DENIED.
B. Jones's Motion To Strike From The Record Defendants (Doc. 98) [ECF No. 100]
Jones moves to strike the defendants' Response To (Doc. 97) Plaintiff's Motion For Reconsideration Of Order To Strike Plaintiff's Objections To The Magistrate Judge's Recommendation [ECF No. 98] because "[i]t is nothing more than slanderous contempt and petty groveling over the fact that [he] had an extension of time and that [he] is a pro se prisoner . . . " ECF No. 100, p. 1, ¶ 1. The motion does nothing more than attack the tone of the defendants' response [ECF No. 98]. The motion is void of any legal basis to strike the response and therefore it is DENIED.
CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that Jones's Motion to Enter Into Evidence Receipt By United States Post Office Showing Evidence Of Timely Filing Of Objections To Magistrate Judge CBS Recommendation To Dismiss (Doc. 96) Also To Be Considered As Newly Discovered Evidence Of Timely Filing And An Amendment To Reconsideration Motion (Doc. 97) [ECF No. 99] and Motion To Strike From The Record Defendants (Doc. 98) [ECF No. 100] are DENIED.
BY THE COURT:
__________________________
Wiley Y. Daniel
Senior U. S. District Judge