Opinion
Civil Action No. 05-cv-02665-WYD-PAC.
June 20, 2006
ORDER
THIS MATTER is before the Court on Defendants' Partial Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), filed May 22, 2006. This case involves allegations that Defendant Shawn Kurian, a police officer for the City of Aurora, used excessive force in effecting the arrest of Plaintiff on January 1, 2004. Plaintiff brings claims against Defendant Kurian, in both his individual and official capacity, pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's constitutional rights. Plaintiff brings claims against Defendant City of Aurora pursuant to 42 U.S.C. § 1983, and a third claim for relief for "Respondent [sic] Superior." In the motion to dismiss, the Defendants seek dismissal of the claims brought against Defendant Kurian in his official capacity, as well as dismissal of the third claim for relief against Defendant City of Aurora.
On June 16, 2006, Plaintiff filed a Response to Defendant's motion to dismiss, stating that Plaintiff voluntarily dismisses the third claim for relief as set forth in his Amended Complaint, dated April 4, 2006. Plaintiff's response does not address Defendants' request that the claims brought against Defendant Kurian in his official capacity be dismissed. To the extent Plaintiff asserts claims against Defendant Kurian in his official capacity, these are really claims against the City of Aurora. As Plaintiff has already named the City of Aurora as a Defendant, any claims against Defendant Kurian in his official capacity are redundant and should be dismissed. See Stump v. Gates, 777 F.Supp. 808, 816, n. 3 (D. Colo. 1991); see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Monell v. Dep't of Social Services, 436 U.S. 658 at 690 n. 55 (1978).
In conclusion, for the reasons stated above, it is hereby
ORDERED that Defendants' Partial Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), filed May 22, 2006, is GRANTED. Plaintiff's third claim for relief is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that any claims asserted against Defendant Shawn Kurian in his official capacity are DISMISSED WITH PREJUDICE.