Opinion
Civil Action No. 19-cv-01388-CMA-KMT
08-10-2020
RON RODRIGUEZ, Plaintiff, v. MARK A. PAYLER (official capacity), JACK CHRISTENSEN (official capacity), and TERRE DAVIS (official capacity), Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the court is "Defendants' Motion for Judgment on the Pleadings." (["Motion"], Doc. No. 64.) Plaintiff has responded in opposition to the Motion, and Defendants have replied. (["Response"], Doc. No. 66; ["Reply"], Doc. No. 45.) For the following reasons, it is RECOMMENDED that the Motion be GRANTED.
STATEMENT OF THE CASE
Plaintiff Ron Rodriguez, a longstanding member of the Custer County School District ["CCSD"] Board, brings this lawsuit, pursuant to 42 U.S.C. § 1983, asserting deprivations of his federal constitutional rights, as well as violations of state statutory law, by the CCSD Board President, the CCSD Superintendent, and a CCSD Principal—respectively, Defendants Terre Davis, Mark A. Payler, and Jack Christensen. (["Complaint"], Doc. No. 65 at 1-2, 4-5 ¶¶ 17, 21.) According to the Complaint, Plaintiff has "continuously attended" nearly every CCSD Board meeting held since 2009. (Id. at 2 ¶¶ 5, 7.) Throughout that time, he has been a self-described "thorn in the side" of the CCSD Board, given that he "ask[s] hard questions" of its members, so as to "keep them accountable for wasting budgetary monies and other similar decisions." (Id. at 2 ¶ 7.) Rodriguez, who is Hispanic, claims that he "has not been very welcome at the [CCSD] Board meetings because of his race and his outspoken participation." (Id. at 3 ¶ 10.)
During the 2017-2018 academic year, Plaintiff's granddaughter, A.P., attended a CCSD school, Custer County High School ["CCHS"]. (Id. at 3 ¶ 12.) According to the Complaint, on May 1, 2018, Plaintiff received a phone call from the CCHS Principal, Defendant Jack Christensen ["Principal Christensen"], stating that A.P. "had been found with a group of students that had alcohol on their possession and that some of the students had been drinking the alcohol." (Id. at 3-4 ¶ 14.) Plaintiff complains that, even though A.P. "did not consume the alcohol," she ultimately received a three-day suspension, which was "the same punishment" given to A.C., a Caucasian student "who consumed the alcohol and brought the alcohol to school." (Id. at 4 ¶¶ 15, 17.)
After speaking with Principal Christensen, later that same day, Plaintiff went to CCHS to pick up his granddaughter. (Id. at 4 ¶¶ 16-17.) At the CCHS campus, while helping A.P. retrieve items from her locker, Rodriguez reportedly "approached [A.C.] and had words with him regarding his poor choice of bringing alcohol to school." (Id. at 4 ¶ 17.) During the encounter, Plaintiff admittedly "touched" A.C. "in the chest a couple of times with his index finger without bruising or breaking the skin." (Id.) According to the Complaint, although A.C. "was not harmed" by Plaintiff's actions, "the police were called to the school." (Id. at 4 ¶¶ 17-18.) The police, upon their arrival, reportedly "accused" Rodriguez of "seeking [A.C.] out, slamming the student into the lockers and to the floor, resisting arrest and fighting and arguing with the school staff and the Deputy." (Id. at 4 ¶ 17.) Plaintiff was subsequently "handcuffed, escorted out of the school, and arrested." (Id. at 4 ¶ 18.) Rodriguez complains that he was then "falsely charged" with third degree assault. (Id. at 3 ¶ 13.)
Following these events, Principal Christensen informed Plaintiff, by letter dated May 1, 2018, that he was henceforth "prohibited from the school campus for a period of one year," and "restricted from all extracurricular activities, sporting events, concerts, meetings, presentations, or any other event hosted by or at the school." (Id. at 4 ¶ 19.) Plaintiff was advised that, if he did not adhere to these restrictions, "the school would contact the sheriff for [his] immediate removal." (Id. ) One week later, on May 8, 2018, the CCSD Superintendent, Defendant Mark A. Payler ["Superintendent Payler"], sent a memo to the CCSD Board members, in which he reportedly "accus[ed]" Plaintiff of "attacking a student." (Id. at 5 ¶ 21.) In the memo, Superintendent Payler stated that he "followed the recommendation of the Sheriff . . . in banning [] Rodriguez from the school property." (Id.) Rodriguez contends, however, that "no one from the Sheriff's office [ever] told [Defendants] to ban [him] from the school property," and that Defendants' actions "were done in contradiction to the truth." (Id. at 5 ¶¶ 23-24.)
On August 30, 2018, Plaintiff met with Superintendent Payler to discuss the status of his ban from CCSD property. (Id. at 6 ¶ 28.) At the meeting, Plaintiff reportedly provided the CCSD Superintendent with "documentation proving that the criminal charges against [him] were dismissed," and "requested that his ban and sanctions be removed." (Id.) Plaintiff alleges that Superintendent Payler not only denied his requests, but also "added two more conditions without any explanation or reasoning." (Id.)
On September 7, 2018, Plaintiff sent a letter to the CCSD Board President, Defendant Terre Davis ["President Davis"], in which he requested "a public hearing at any [CCSD] Board meeting or special board meeting open to the public with the intention of setting the record straight and clearing his name." (Id. at 6 ¶ 29.) Plaintiff complains that, ultimately, he "was denied his request for a special board meeting." (Id.) Six weeks later, on October 23, 2018, President Davis reportedly gave Plaintiff written authorization "to speak for a total of six (6) minutes at the General Public Comment Session of the regular Board of Education Meeting," which was to be held on November 13, 2018. (Id. at 6-7 ¶ 31.) However, President Davis warned Plaintiff that he could not distribute any written or visual documents nor mention any student names," and that he must "speak in a civil tone without abusive personal comments or threats." (Id.) Plaintiff was likewise advised that "there would be no comments/response from any of the [CCSD] Board Members." (Id.)
According to the Complaint, on November 13, 2018, Plaintiff "was allowed his six (6) minutes" at the CCSD Board meeting, during which he "share[d] his side of the story regarding the false allegations and incident from May 1, 2018." (Id. at 7 ¶ 36.) At the meeting, Plaintiff "requested that he receive a letter of apology and [that] all suspensions and stipulations be removed." (Id.) Three weeks later, on December 5, 2018, Superintendent Payler "wrote [] Rodriguez a letter of apology," and "lifted the suspensions and stipulations that had previously been placed on [his] attendance to school events, meetings and school grounds." (Id. at 7 ¶ 38.) Nevertheless, Rodriguez, reportedly "still feeling the sting of the aforementioned events," insists that he "knew," as of December 2018, that his "Constitutional rights had been violated." (Id. at 7 ¶ 39.)
Four months later, on April 5, 2019, Plaintiff commenced this lawsuit in Colorado state court. (Doc. No. 1 at 1, Ex. A-1.) On May 14, 2019, Defendants removed the case to federal court, pursuant to federal question jurisdiction. (Id. at 1-2.) Upon removal, on May 15, 2019, Plaintiff filed a Complaint, asserting § 1983 claims against Defendants, in their official capacities, for violations of his rights under the First, Fifth, and Fourteenth Amendments, as well as supplemental state law claims for violations of the Colorado Open Meetings Law, Colo. Rev. Stat. §24-6-402. (Compl. 8-13 ¶¶ 41-90.)
In the Complaint, Plaintiff attempts to plead an additional, standalone cause of action for "a violation of 42 U.S.C. § 1983 committed by Defendants Mark A. Payler, Jack Christensen, and Terre Davis." (Compl. 12 ¶¶ 77-82.) However, "[s]ection 1983 creates no substantive rights, but rather creates only a remedy against those who, acting under color of law, violate rights secured by federal statutory or constitutional law." Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238, 1243 (10th Cir. 2000) (citing Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995)). As such, the putative cause of action is without merit.
After the pleadings closed, on December 13, 2019, Defendants moved to dismiss this case, in its entirety, by way of a judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). (Mot. 1-2.) In their Motion, Defendants argue, specifically, that Plaintiff "has not pled any facts identifying an unconstitutional custom or policy promulgated by the school district," and thus, "has failed to allege a cognizable constitutional case against Defendants in their official capacities." (Id. at 2.) In addition, Defendants contend that the state law claims must be dismissed, because Plaintiff has "failed to assert that any school board meetings were closed to the public in violation of state statute." (Id.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "[J]udgment on the pleadings under Rule 12(c) is a drastic remedy that courts should [] use sparingly." Aberkains v. Blake, 633 F. Supp. 2d 1231, 1233 (D. Colo. 2009) (citing Power Motive Corp. v. Mannesmann Demag Corp., 617 F. Supp. 1048, 1049 (D. Colo. 1985)). Indeed, a motion for judgment on the pleadings "only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court." Ciber, Inc. v. ACE Am. Ins. Co., 261 F. Supp. 3d 1119, 1125 (D. Colo. 2017) (quoting 5C Charles Alan Wright et al., Federal Practice & Procedure § 1367 (3d ed., Apr. 2019 update)). A Rule 12(c) motion should be granted, only if "the moving party clearly establishes that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006), abrogated on other grounds by Magnus, Inc. v. Diamond State Ins. Co., 545 F. App'x 750, 753 (10th Cir. 2013).
A motion for judgment on the pleadings pursuant to Rule 12(c) is evaluated under the same standard applicable to a Rule 12(b)(6) motion to dismiss. Leiser v. Moore, 903 F.3d 1137, 1139 (10th Cir. 2018) (quoting Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012)). In other words, to survive a motion for judgment on the pleadings, "[a] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this standard, the court must "accept as true all well-pleaded factual allegations in the complaint, resolve all reasonable inferences in the plaintiff's favor, and ask whether it is plausible that the plaintiff is entitled to relief." Woodie v. Berkshire Hathaway Homestate Ins. Co., 806 F. App'x 658, 666 (10th Cir. 2020) (quoting Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013)) (internal quotations omitted); accord Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
In evaluating a Rule 12(c) motion for judgment on the pleadings, the court may consider the complaint, any material that is attached to the complaint, and the answer. Escobar v. Reid, 668 F. Supp. 2d 1260, 1285 (D. Colo. 2009) (citing Park, 442 F.3d at 1244). Publicly filed court records are subject to judicial notice. Denver Health & Hosp. Auth. v. Beverage Distrib. Co., LLC, 546 F. App'x 742, 747 n.3 (10th Cir. 2013).
ANALYSIS
A. The Section 1983 Claims
1. Individual Capacity Claims
As a preliminary matter, the Complaint appears to name Defendants in their official capacities only. However, in his Response, Plaintiff argues that he has sued Defendants in their individual capacities, as well. (Resp. 7-9.) In making that argument, Plaintiff concedes that his pleading "technically" states claims against Defendants "in their official capacity and not as individuals." (Id. at 7.) Plaintiff contends, however, that "the complaint as whole and the course of proceedings," when construed together, "sufficiently alleges that the individual defendants acted in their personal capacities to withstand a motion to dismiss." (Id. at 8.)
Having carefully reviewed the pleadings, the court finds that Plaintiff has clearly sued Defendants in their official capacities only. In the caption of the Complaint, Defendants are listed as "Mark A. Payler (official capacity), Jack Christensen (official capacity), and Terre Davis (official capacity)." (Compl. 1.) The "Parties" section of Plaintiff's pleading likewise identifies each Defendant "in [his or her] official capacity." (Id. at 1-2.) The Complaint is devoid of any allegations from which to infer that Defendants are sued in their individual capacities. See Johnson v. Okla. Dep't of Transp., 645 F. App'x 765, 768 (10th Cir. 2016) (construing a complaint to allege official capacity claims only, where the pleading alleged that each defendant "was at all times acting within the purpose and scope of such agency and employment"). Because the Complaint expressly and unambiguously designates the nature of the suit, there is no need to look to the "course of the proceedings." Therefore, in ruling on the present Motion, the court construes the claims as against Defendants, exclusively in their official capacities.
In support of his contention that the court should consider "the complaint as a whole and the course of the proceedings," Plaintiff relies on a Colorado Supreme Court decision, State v. Nieto, 993 P.2d 493 (Colo. 2000). (Resp. 7-8.) In Nieto, the plaintiff brought § 1983 claims against a state official, but "the complaint d[id] not clearly indicate the capacity" in which the official was sued. 993 P.2d at 509. The Colorado Supreme Court held that, under such circumstances, the court should look to "the complaint as a whole and the course of the proceedings" to determine whether an official is sued personally, in his official capacity, or both. Id. at 509; accord Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991). In this case, by contrast, the Complaint clearly indicates the capacity in which Defendants are sued. As such, the holding in Nieto is inapposite.
2. Official Capacity Claims
"An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works." Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). However, "local government officials sued under § 1983 in their official capacities are one and the same as the governmental entity they represent only if the local government would be suable in its own name." Houston v. Reich, 932 F.2d 883, 887 (10th Cir. 1991) (citing Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)). Here, at the time of the alleged incidents, Defendants all worked for CCSD. Therefore, the court must consider whether Plaintiff has demonstrated any basis for holding CCSD liable under § 1983. Because CCSD is a public-school district, principles of municipal liability apply. See Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010).
"A municipality may not be held liable under 42 U.S.C. § 1983 simply because it employs a person who violated a plaintiff's federally protected rights." Jenkins v. Woods, 81 F.3d 988, 993 (10th Cir. 1996) (citing Monell, 436 U.S. at 694). Rather, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013) (quoting Monell, 436 U.S. at 694).
To establish municipal liability under § 1983, a plaintiff must show: (1) "the existence of a municipal policy or custom;" and (2) "that there is a direct causal link between the policy or custom and the injury alleged." Jenkins, 81 F.3d at 993 (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249 (10th Cir. 1999) (applying this rule in the context of school district liability). A "policy or custom" can take the form of "(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused." Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)) (internal quotation marks omitted). Causation is established, if the challenged policy or practice is shown to be "closely related to the violation of the plaintiff's federally protected right." Schneider, 717 F.3d at 770. "This requirement is satisfied if the plaintiff shows that the municipality was the 'moving force' behind the injury alleged." Id. (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)).
Here, the pleadings fail to identify any custom, policy, or practice that was the "moving force" behind the alleged deprivation of Plaintiff's constitutional rights. Rather, the sole theory of § 1983 liability advanced by Rodriguez is that "each Defendant acted as a policymaker and applied policy to the detriment of Plaintiff." (Resp. 9 n.2.)
The Tenth Circuit has made clear that "if an official, who possesses final policymaking authority in a certain area, makes a decision—even if it is specific to a particular situation—that decision constitutes municipal policy for § 1983 purposes." Randle v. City of Aurora, 69 F.3d 441, 447 (10th Cir. 1995); see Ireland v. Jefferson Cty. Sheriff's Dep't, 193 F. Supp. 2d 1201, 1226 (D. Colo. 2002) ("A single act of an employee may be imposed on a local governmental entity if the employee possesses final authority to establish policy with respect to the challenged action."). To determine whether an official is a "final policymaker," the court considers three factors: "(1) whether the official is meaningfully constrained by policies not of that official's own making; (2) whether the official's decision[s] are final—i.e., are they subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official's grant of authority." Randle, 69 F.3d at 448 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)) (quotation marks omitted). Whether an individual "possessed such 'final authority' is a question of state law." Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992) (quoting Ware v. Unified Sch. Dist. No. 492, 902 F.2d 815, 817 (10th Cir. 1990)).
In this case, the factors do not support a finding that any Defendant was a final policymaker for purposes of liability under § 1983. First, it is clear that President Davis, Superintendent Payler, and Principal Christensen were each at least somewhat constrained, with respect to their policymaking authority, by CCSD Board Policy. Specifically, the CCSD Board Policy unequivocally states that "[t]he Board is responsible for the development of policy," and that "[a]ll powers of the board lie in its action as a group." CCSD Board Policy, BBA, https://drive.google.com/drive/folders/0Bx9z2q8_Ewgkb2k5Z19xbGx5YlU (last visited August 6, 2020). The Policy likewise makes clear that the Superintendent "shall . . . administer the policies of the Board[,]" and that "[i]n cases when action must be taken and the Board has provided no guides in policy for such action, the superintendent shall have the power to act[,] . . . subject to review by the Board at its next regular meeting." Id. at CBA/CBC, https://drive.google.com/drive/folders/0Bx9z2q8_EwgkeEh2YTZaYVd2aHc (last visited August 6, 2020); CHD, https://drive.google.com/drive/folders/0Bx9z2q8_EwgkeEh2YTZaYVd2aHc, (last visited August 6, 2020). Therefore, given that all policymaking powers ultimately lie with the CCSD Board, the individual Defendants, in their respective roles as Board President, Superintendent, and Principal, cannot be final policymakers. See Jantz, 976 F.2d at 631 ("If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur."); Singer v. Denver Sch. Dist. No. 1, 959 F. Supp. 1325, 1330 (D. Colo. 1997) (finding a principal did not have final policymaking authority, because the board of education retained the ability to change the principal's decision); Brooks v. Denver Pub. Sch., No. 17-cv-01968-REB-MEH, 2017 WL 5495793, at *5 n.7 (D. Colo. Nov. 16, 2017) (granting a motion to dismiss, where the school board policy clearly did not give the defendants non-reviewable authority over the decision at issue).
The court takes judicial notice of the CCSD Board's Policy, given that it is a publicly available document. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) ("Facts subject to judicial notice," including "matter[s] of public record," may be considered on a motion to dismiss "without converting the motion to dismiss into a motion for summary judgment."); Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 388 n.5 (10th Cir. 2016) (holding that a district court did not err by taking judicial notice of publicly available budget information at the motion to dismiss stage); see also Brooks v. Denver Pub. Sch., No. 17-cv-01968-REB-MEH, 2017 WL 5495793, at *5 n.7 (D. Colo. Nov. 16, 2017) (taking judicial notice of publicly available school board policy).
Even more importantly, in this case, the pleadings fail to show any final policy decision which was rendered by, or attributable to, either President Davis, Superintendent Payler, or Principal Christensen. Specifically, the § 1983 claims against Defendants are predicated upon the following factual allegations: (1) that President Davis gave "special treatment" to Caucasian individuals who spoke at CCSD Board meetings; (2) that Superintendent Payler and Principal Christensen "banned Mr. Rodriguez from the school property and from School Board meetings;" (3) that Superintendent Payler later "added two more conditions without any explanation or reasoning;" (4) that President Davis "denied" Plaintiff's "request for a special board meeting;" and (5) that President Davis imposed certain "unreasonabl[e]" restrictions on Plaintiff's ability to speak at the November 13, 2018 board meeting. (Compl. 3-7 ¶¶ 11, 19, 21, 24-25, 28-32.) To the extent these allegations even concern policy decisions, there are no facts from which to infer that Defendants held final policymaking authority as to the decisions purportedly rendered. For instance, the Complaint does not allege that Superintendent Payler was vested with the exclusive, non-reviewable power to ban individuals from school property, or to promulgate policies germane to that issue. Cf. Ruiz v. City of Bethany, No. CIV-14-156-F, 2015 WL 13753213, at *2 (W.D. Okla. Sept. 3, 2015) (denying a motion to dismiss, where the complaint alleged that the defendant "had the authority from the City Council to make final decisions related to police department policies on investigations and otherwise," and that the same defendant "sign[ed] and issue[d] the police department's policies and procedures"). Nor does the Complaint allege that the CCSD Board delegated its final policymaking authority to any Defendant. See Rubio v. Turner Unified Sch. Dist. No. 202, 453 F. Supp. 2d 1295, 1303 & n.7 (D. Kan. 2006) (dismissing official capacity claims against a school principal, where the complaint failed to allege that the principal had "final authority" under state law to establish policy with respect to the challenged action, or that the school district delegated such authority to the principal).
On this record, then, Plaintiff has failed to plausibly allege that any Defendant was a final policymaker whose decisions could be attributed to CCSD. As such, Plaintiff has failed to state any official capacity claim for relief under § 1983. See Rodriguez v. Chavez, No. 12-cv-01071-PAB-MJW, 2014 WL 4627274 (D. Colo. Sept. 16, 2014) (granting a Rule 12(c) motion to dismiss official capacity claims under § 1983, based on the failure to adequately allege that the defendants had final policymaking authority); Asten v. City of Boulder, 652 F. Supp. 2d 1188, 1207 (D. Colo. 2009) (dismissing official capacity claims, where the plaintiff failed to meet the federal pleading standard to show municipal liability). B. Colorado Open Meetings Law Claims
The Complaint also alleges that Defendants violated Plaintiff's "rights under" the Colorado Open Meetings Law ["OML"], Colo. Rev. § 24-6-402, "by restricting [his] ability and right to assemble and speak at the School Board meetings." (Compl. 12-13 ¶¶ 83-90.)
The OML states that "the formation of public policy is public business and may not be conducted in secret." Colo. Rev. Stat. § 24-6-401. Section 24-6-402 of the OML provides that "[a]ll meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times." Colo. Rev. Stat. § 24-6-402(2)(b). "Local public body" is defined to include "school boards." Id. at § 24-6-402(2)(c)(IV). The statute's requirements apply only to meetings that concern "a matter related to the policy-making function of the local public body holding or attending the meeting." Bd. of Cty. Comm'rs, Costilla Cty. v. Costilla Cty. Conservancy Dist., 88 P.3d 1188, 1194 (Colo. 2004).
Here, Plaintiff has failed to state any cognizable claim for relief under the OML. In particular, the pleadings do not reveal any policymaking event, which was inaccessible to Plaintiff, or to the general public. Although Plaintiff complains that he was "banned" from CCSD Board meetings, he fails to identify any specific meeting that he was ultimately prevented from attending. Further, to the extent Plaintiff predicates his claims upon alleged restrictions of his speech, the OML "does not give members of the public the right to participate directly or indirectly in policy-making discussions, only to attend and observe." See Martinez v. Quinn, No. 13-cv-00400-PAB-MEH, 2014 WL 1016042, at *5 (D. Colo. Mar. 17, 2014) (citing Colo. Rev. Stat. § 24-6-402). Given that the pleadings do not allege any local public body meeting held away from the public's view, Plaintiff has failed to plausibly state a violation of the OML. C. Request to Amend
Finally, in his Response, Plaintiff requests permission to amend his Complaint, "[i]f the court agrees with Defendants and feels compelled to grant Defendants' Motion." (Resp. 2 n.1.) However, Plaintiff's request was not made in a separate document, as required by the Local Rules. See D.C.COLO.LCivR 7.1(d) ("A motion shall not be included in a response or reply to the original motion. A motion shall be filed in a separate document."). Further, Plaintiff provides no explanation as to the basis for the request, which was made over five months beyond the Scheduling Order deadline for amended pleadings. (See Doc. No. 26 at 8.); see also Gorsuch, Ltd., B.C. v. WellsFargo Nat'l Bank Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014) ("After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Federal Rule of Civil Procedure 16(b)(4) and (2) satisfaction of the Rule 15(a) standard."). For those reasons, Plaintiff's request to amend should be denied.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendants' Motion for Judgment on the Pleadings" (Doc. No. 30) be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 10th day of August, 2020.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge