Sgaggio v. Diaz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-02043-PAB-MDB
DELBERT SGAGGIO,
Plaintiff,
v.
MARIO DIAZ, in his personal and professional capacity, and
THE CITY OF PUEBLO, a municipal corporation,
Defendants.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 26]. Plaintiff Delbert Sgaggio objects to the
recommendation. Docket No. 27.
I. BACKGROUND
The facts are set forth in Magistrate Judge Maritza Dominguez Braswell’s
recommendation. Docket No. 26 at 2-6. Neither side has objected to the facts.
Accordingly, the Court adopts these facts for the purposes of ruling on the objections.
This case concerns an incident that occurred on August 12, 2020 involving
Detective Mario Diaz.1 Docket No. 1 at 2, 9; Docket No. 26 at 2. Mr. Sgaggio describes
himself as a “spiritual guide in Southern Colorado, and a cofounder of an indigenous
1 Mr. Sgaggio’s complaint alleges that Detective Diaz was working for the City of
Pueblo at all times relevant to the complaint. Docket No. 1 at 2.
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house of worship” and grows a “Spiritual Sacrament”—ostensibly marijuana—with his
father-in-law, Daniel Aguilera. Docket No. 26 at 2 (alteration omitted).
On August 12, 2020, Mr. Aguilera received a telephone call from his wife, Crystal
Casias. Id. Ms. Casias informed Mr. Aguilera that the Pueblo Police Department was in
Mr. Aguilera’s backyard and that Detective Diaz had instructed Ms. Casias to move the
marijuana plants that were growing there. Id. Mr. Sgaggio was with Mr. Aguilera at the
time of the telephone call. Id. Ms. Casias allowed Mr. Sgaggio to speak to Detective
Diaz directly by placing the call on speakerphone. Id. Mr. Sgaggio asked Detective
Diaz what infraction he was investigating and whether he had a warrant, insisted that
Detective Diaz had no right to take Ms. Casias’ plants even if he had a warrant, asked
Detective Diaz if he understood the Fifth and Fourteenth Amendments, and threatened
to file an action in federal court. Id. at 3-4. Detective Diaz initially engaged with Mr.
Sgaggio over the telephone. Id. Mr. Sgaggio alleges that after several exchanges with
Detective Diaz, footage from a body camera2 worn by a Code Enforcement officer who
was present then shows what Mr. Sgaggio describes as “Diaz hanging up the phone.”3
Id. at 4; Docket No. 1 at 7.
Mr. Sgaggio initiated this action on August 10, 2022. Docket No. 1. He contends
that, when Detective Diaz terminated the telephone call, he violated Mr. Sgaggio’s rights
to freedom of speech and free exercise of religion and retaliated against Mr. Sgaggio for
2 Judge Domiguez Braswell’s recommendation states that she reviewed the body
camera footage of Code Enforcement Supervisor Karen Wilson and that the footage
“largely aligns with [Mr. Sgaggio’s] allegations.” Docket No. 26 at 2-3 n.2.
3 The recommendation interprets Mr. Sgaggio’s allegation that Detective Diaz
“[hung] up the phone” as an allegation that he terminated the telephone call. See, e.g.,
Docket No. 26 at 9. Mr. Sgaggio does not object to this interpretation. Docket Nos. 27,
29.
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exercising his freedom of speech. Docket No. 1 at 11-17. The complaint alleges four
claims against Detective Diaz and the City of Pueblo: (1) violation of Mr. Sgaggio’s First
Amendment right to free speech; (2) retaliation against Mr. Sgaggio in response to
speech protected by the First Amendment; (3) violation of Mr. Sgaggio’s First
Amendment right to free exercise of his religion; and (4) violation of Mr. Sgaggio’s right
to freedom of speech under the Colorado Constitution. Id. at 11-17. Defendants filed a
motion to dismiss Mr. Sgaggio’s claims on November 21, 2022. Docket No. 12. Judge
Dominguez Braswell entered a recommendation that the Court grant the motion to
dismiss on May 19, 2023. Docket No. 26 at 20. Mr. Sgaggio filed an objection to the
recommendation on May 24, 2023. Docket No. 27. The defendants responded to the
objection and Mr. Sgaggio replied. Docket Nos. 28, 29.
II. LEGAL STANDARD
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); Gordanier v. Montezuma
Water Co., No. 08-cv-01849-PAB-MJW, 2010 WL 935665, at *1 (D. Colo. Mar. 11,
2010) (“Timely objections to magistrate judge recommendations are reviewed de novo
pursuant to Rule 72(b), rather than under the clearly erroneous/contrary to law standard
applied to magistrate judge orders by Rule 72(a).”). An objection is “proper” if it is both
timely and specific. United States v. One Parcel of Real Prop. Known as 2121 E. 30th
St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection “enables the district judge
to focus attention on those issues – factual and legal – that are at the heart of the
parties’ dispute.” Id.
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There is no dispute that Judge Dominguez Braswell’s recommendation to
dismiss Mr. Sgaggio’s claims is dispositive. The Court, therefore, reviews the
recommendation de novo. See Gordanier, 2010 WL 935665, at *1. Because Mr.
Sgaggio is proceeding pro se, the Court will construe his objections and pleadings
liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The Court will evaluate Mr. Sgaggio’s arguments to the extent that
they are responsive to the recommendation and sufficiently developed for the Court to
understand them.
III. ANALYSIS
A. Freedom of Speech
The First Amendment forbids government actors from “abridging the freedom of
speech.” U.S. Const. Amend. I; see Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d
961, 979 (10th Cir. 2020) (holding that the First Amendment “applies to states and their
political subdivisions”). Mr. Sgaggio’s complaint alleges that Detective Diaz violated Mr.
Sgaggio’s First Amendment right to freedom of speech when the officer ended a
telephone call that Ms. Casias had made to Mr. Aguilera, but which Mr. Sgaggio used to
talk to Detective Diaz. Docket No. 1 at 12. Judge Dominguez Braswell found that this
action did not violate Mr. Sgaggio’s right to free speech because Detective Diaz was not
required to listen to Mr. Sgaggio indefinitely under the First Amendment.4 Docket No.
26 at 11.
4 Judge Dominguez Braswell also considered whether Detective Diaz’s
termination of the phone call infringed on Mr. Sgaggio’s First Amendment right to speak
to Ms. Casias, and concluded that it did not because terminating the call had no
practical impact on Mr. Sgaggio’s ability to convey his message to her. Docket No. 26
at 11. However, Mr. Sgaggio’s complaint does not appear to allege that his First
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Mr. Sgaggio appears to object on the basis that he has a First Amendment right
to verbally challenge a police investigation that was abridged when Detective Diaz
ended the telephone call. Docket No. 27 at 3. The Supreme Court has held that “the
First Amendment protects a significant amount of verbal criticism and challenge directed
at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). However,
“the First Amendment does not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.” Heffron v. Int’l Soc. For
Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).
Judge Dominguez Braswell’s recommendation cites two cases establishing that
the government may limit a citizen’s ability to force a government audience to listen to
his or her speech. Docket No. 26 at 11. In Minnesota State Bd. for Cmty. Colleges v.
Knight, 465 U.S. 271, 275-77 (1984), the Supreme Court considered policy by the
Minnesota State Board for Community Colleges that allowed only certain employee
representatives to participate in “meet and confer” sessions where employees could
weigh in on policy decisions by school administrations and the state board. The
Supreme Court upheld the policy, stating that “[n]othing in the First Amendment or in
this Court's case law interpreting it suggests that the rights to speak, associate, and
petition require government policymakers to listen or respond to individuals'
communications on public issues.” Id. at 285. Similarly, in Griffin v. Bryant, 677 F.
Amendment rights were violated because he was prevented from speaking to Ms.
Casias, as opposed to him being “prevented from speaking on a matter of public
concern.” Docket No. 1 at 12-13. He also appears to characterize his speech as
“expressing viewpoints critical of [the] City of Pueblo and it’s [sic] Police” and “exercising
[his] rights of free speech and dissent.” Id. at 12-14. Accordingly, the Court will
consider Mr. Sgaggio’s free speech and retaliation claims only insofar as they invoke a
First Amendment right to criticize a police officer during the course of an investigation.
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App’x 458, 461-62 (10th Cir. 2017) (unpublished), the Tenth Circuit found that a village
council did not violate the plaintiff’s First Amendment rights when it did not make time
for his remarks during the agenda portion of a council meeting, but instead allowed him
to speak during the “public input” portion of the meeting, subject to a five-minute time
limit. Although the decision did constrain the plaintiff’s ability to speak during the
meeting, the Tenth Circuit noted that “the Supreme Court has explained, ‘the First
Amendment does not guarantee the right to communicate one’s views at all times and
places or in any [manner] that may be desired.’” Id. at 462 (quoting Heffron, 452 U.S. at
647).
Mr. Sgaggio argues that these cases are irrelevant because he was verbally
challenging a police officer during an investigation, not participating in a meet and
confer process or a city council meeting. Docket No. 27 at 3-4. However, Mr. Sgaggio
cites no authority indicating that the principles established by Knight and Griffin—that
the First Amendment does not require government actors to listen to citizens’ speech or
guarantee the right to communicate one’s views to a government audience for any
length of time that the speaker desires—do not apply when the audience is a police
officer and do not apply with greater force when the police officer is in the middle of an
investigation.5 He likewise cites no authority supporting the position that speech to
5 Mr. Sgaggio’s objection appears to argue that Hill is more relevant to his claim
than Knight or Griffin because that case concerned a police encounter. Docket No. 27
at 3-4. Although Hill upheld a citizen’s right to challenge police officers, it did not
discuss whether and to what extent police officers are required to listen to those
challenges. See Hill, 482 U.S. at 458-67. Therefore, Hill is irrelevant to the question of
whether the First Amendment forbade Detective Diaz from terminating the telephone
call while Mr. Sgaggio was speaking to him.
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police officers is an exception to the principle that “the First Amendment does not
guarantee the right to communicate one’s views at all times and places or in any
manner that may be desired.” Heffron, 452 U.S. at 647. Accordingly, Mr. Sgaggio has
failed to plausibly allege that Detective Diaz’s decision to terminate the telephone call
and stop listening to Mr. Sgaggio’s speech violated Mr. Sgaggio’s First Amendment
rights. The Court will overrule Mr. Sgaggio’s objection and dismiss his claim for
violation of his First Amendment freedom of speech.
B. First Amendment Retaliation
Generally, “the First Amendment prohibits government officials from subjecting
an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett,
139 S. Ct. 1715, 1722 (2019) (internal quotation marks and citation omitted). To
establish a First Amendment retaliation claim, plaintiff must demonstrate (1) that he was
engaged in a constitutionally protected activity; (2) that the defendant’s action caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the defendant’s actions were substantially motivated
as a response to plaintiff’s exercise of his First Amendment speech rights. Becker v.
Kroll, 494 F.3d 904, 925 (10th Cir. 2007).
Mr. Sgaggio claims that Detective Diaz’s termination of the telephone call
constituted First Amendment retaliation. Docket No. 1 at 13-15. The complaint states
that Detective Diaz “responded to [Mr. Sgaggio’s] First Amendment activity with
retaliation, by hanging up [Ms. Casias’] phone and stopping [his] constitutionally
protected activity.” Id. at 13. Judge Dominguez Braswell found that Mr. Sgaggio failed
to state a claim for First Amendment retaliation because he did not plausibly allege that
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he had suffered an injury sufficient to chill a person of ordinary firmness from continuing
to engage in protected speech. Docket No. 26 at 13-15. Although she acknowledges
that “a police officer’s actions are inherently more likely to be chilling than those of other
government officials,” Judge Dominguez Braswell concluded that “the act of hanging up
the phone, in and of itself,” was not “sufficiently severe so as to chill the speech of an
ordinary person.” Id. at 14. Because she found that Mr. Sgaggio failed to satisfy the
second prong required to establish a First Amendment retaliation claim, Judge
Dominguez Braswell recommends dismissing this claim. Id. at 15.
Mr. Sgaggio does not appear to object to Judge Dominguez Braswell’s
conclusion that terminating the telephone call, alone, is not so chilling that it constitutes
retaliation. Instead, Mr. Sgaggio’s objection attempts to introduce additional factual
allegations about his perception of what was happening in Ms. Casias’ yard at the time
of the telephone call based on what he could hear over the telephone. Docket No. 27 at
6. According to Mr. Sgaggio, he “[knew] the interaction has got [sic] physical[ ] because
Ms. Casias[ ] is [sic] asking for her phone back[ ] [and] she is [sic] also very distraught
when she calls back,” and he believed that Detective Diaz had “escalated the situation.”
Id. He argues that “[t]hese actions would be more than sufficient to chill a person of
ordinary firmness from continuing to verbally challenge the police.” Id.
This objection fails for three reasons. First, courts may only consider the
allegations made within the operative complaint when ruling on a motion to dismiss.
See Stratton v. United Launch All., L.L.C., No. 13-cv-01756-RBJ-KLM, 2014 WL
3644565, at *4 (D. Colo. July 23, 2014) (“On a 12(b)(6) motion to dismiss, the Court
looks to the factual allegations made within the pleadings and not in other filings with
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the Court.”) (citing Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (“The nature
of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners
of the complaint after taking those allegations as true.”)). Mr. Sgaggio’s allegations
about his perception of events at the time of the telephone call are nowhere in his
complaint. Docket No. 1. Although the complaint references the officer’s “retaliatory
actions,” it alleges only a single action by Detective Diaz: terminating the telephone call.
Id. at 14. Thus, only Mr. Sgaggio’s allegation that Detective Diaz terminated the
telephone call may be considered for purposes of ruling on the defendants’ motion to
dismiss because it is the only allegation contained in the complaint. Second, Mr.
Sgaggio does not claim in his complaint or his response to the defendants’ motion to
dismiss that his speech was chilled because of his perception that Detective Diaz had
“escalated the situation.” Docket Nos. 1, 20. This argument is therefore waived. See
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time
in objections to the magistrate judge's recommendation are deemed waived.”). Third,
even if he had included the allegation in his complaint, Mr. Sgaggio cites no caselaw to
support his theory that a person’s unsubstantiated belief that a third party might have
become distraught due to the actions of the defendant would chill the speech of a
person of ordinary firmness, which is a required element of a First Amendment
retaliation claim. See Becker, 494 F.3d at 925. The Court rejects this theory.
Accordingly, the Court will overrule Mr. Sgaggio’s objection and find that he has failed to
plausibly allege a claim for First Amendment retaliation.
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C. Free Exercise
Under the First Amendment, government actors may not prohibit the free
exercise of religion. U.S. Const. Amend. I; Cantwell v. Connecticut, 310 U.S. 296, 303
(1940) (holding that states and their political subdivisions are bound by the Free
Exercise Clause). “To establish a free-exercise claim, [a plaintiff] must show that the
government has placed a burden on the exercise of his religious beliefs or practices”
through a compulsory or coercive act. Fields v. City of Tulsa, 753 F.3d 1000, 1009
(10th Cir. 2014) (citing Bauchman v. W. High Sch., 132 F.3d 542, 557 (10th Cir. 1997)).
Even if a government action incidentally burdens a plaintiff’s exercise of religion, it will
survive a constitutional challenge so long as the goal of the action “is something other
than the infringement or restriction of religious practices,” and it is rationally related to a
legitimate government interest. Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643, 649-50 (10th Cir. 2006).
Mr. Sgaggio claims that Detective Diaz infringed on Mr. Sgaggio’s right to free
exercise of his religion when he terminated the telephone call because it prevented Mr.
Sgaggio from engaging in the religious practice of “defending members of [his] flock.”
Docket No. 1 at 9. The complaint explains that “speech is one of [Mr. Sgaggio’s] most
powerful tools” by which he practices his religion and that “[d]efending my father-in-law
Daniel Aguilera and his property, is a sincerely held, spiritual belief.” Id. at 3, 15.
Judge Dominguez Braswell found that Mr. Sgaggio has not established a free
exercise claim based on Detective Diaz’s decision to terminate the telephone call
because the complaint indicates that the action was facially neutral and rationally
related to government objectives. Docket No. 26 at 16-18. Judge Dominguez Braswell
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found that terminating the telephone call was facially neutral because, “[e]ven taking as
true—as the Court must at this stage—that Plaintiff was praying or otherwise practicing
his religious beliefs as he argued with Defendant Diaz about the nature of the City’s
investigation, there is no indication that Defendant Diaz had any understanding Plaintiff
was engaged in religious practice. To this end, the Complaint offers no allegation that
would suggest Defendant Diaz intended to burden Plaintiff’s religious practice.” Id. at
16. Judge Dominguez Braswell found that the decision to terminate the phone call was
rationally related to three government interests: (1) conveying necessary information to
citizens without disruption or obstruction; (2) defusing encounters liable to become
hostile or volatile; and (3) conducting its affairs reasonably efficiently. Id. at 17. Based
on her findings, Judge Dominguez Braswell concludes that Mr. Sgaggio’s claim does
not survive the rational basis test, and recommends dismissing it.
Mr. Sgaggio does not object to these findings or to Judge Dominguez Braswell’s
conclusion that his claim fails the rational basis test. Instead, he appears to object to
the recommendation because he believes that his claim should not have been
evaluated using the rational basis test, which he calls a “balancing test.” Docket No. 27
at 6-8. He bases his argument on two Supreme Court decisions finding firearm
regulations unconstitutional under the Second Amendment: D.C. v. Heller, 554 U.S. 570
(2008) and New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
Mr. Sgaggio claims that the rational basis test may not be applied to his free exercise
claim in light of these decisions, arguing, “[i]f Government interest balancing test [sic]
cannot apply to the Second Amendment[,] [t]hen Government interest balancing test
[sic] cannot apply to the First Amendment.” Docket No. 29 at 4. However, the Supreme
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Court was not presented with a First Amendment challenge in either Heller or Bruen,
and neither case’s holding applies to the First Amendment.6 See generally Heller, 554
U.S. 570; Bruen, 142 S. Ct. 2111. These cases are therefore irrelevant to Mr.
Sgaggio’s free exercise claim. Mr. Sgaggio cites no other authority indicating that the
rational basis test should not be applied to his free exercise claim, and the Court is
aware of none. Accordingly, the Court will overrule Mr. Sgaggio’s objection and find
that Mr. Sgaggio has failed to state a claim for violation of his right to freely exercise his
religion.
D. Monell Liability
Under Monell v. Dep’t of Soc. Servs. of City of N.Y, 436 U.S. 658, 694 (1978), a
plaintiff bringing a constitutional claim against a municipality must allege (1) a
constitutional violation by a municipal employee; (2) the existence of a municipal custom
or policy; and (3) a direct causal link between the custom or policy and the alleged
violation. Judge Dominguez Braswell found that Mr. Sgaggio failed to plausibly state a
Monell claim because he had not alleged a constitutional violation and his allegations
6 Mr. Sgaggio identifies instances in the Heller and Bruen opinions where the
Supreme Court references the First Amendment. Docket No. 29 at 3-4 (quoting Bruen,
142 S. Ct. at 2132, 2156 (quoting Heller, 554 U.S. at 582)). However, none of the
quotations that Mr. Sgaggio cites indicate that the holdings from these cases apply to
the First Amendment. Rather, they are instances where the Supreme Court offers a
comparison between protections of the Second Amendment and those of other
amendments. See Bruen, 142 S. Ct. at 2132, 2156; Heller, 554 U.S. at 582. In other
instances, Mr. Sgaggio uses brackets when quoting Bruen to replace references to the
Second Amendment with references to the First Amendment. Docket No. 27 at 7;
Docket No. 29 at 4. These alterations misconstrue the holding in Bruen and the use of
brackets in this way runs contrary to Federal Rule of Civil Procedure 11. See Fed. R.
Civ. P. 11(b)(2) (“By presenting to the court a pleading . . . an attorney or unrepresented
party certifies that to the best of the person’s knowledge . . . the claims, defenses, and
other legal contentions are warranted by existing law.”).
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concerning municipal policy “are entirely conclusory, referencing City ‘policies,
practices, and customs,’ only generally and without any further detail.” Docket No. 26 at
19. Mr. Sgaggio objects to both conclusions. Docket No. 27 at 9.
As discussed above, the Court finds that Mr. Sgaggio has failed to plausibly
allege a constitutional violation by Detective Diaz. Therefore, Mr. Sgaggio has also
failed to plausibly allege a claim against the City of Pueblo under Monell. See Monell,
436 U.S. at 694. The Court will overrule his objection and dismiss his claims against
the City of Pueblo.
E. Colorado Constitutional Claim
Article II, Section 10 of the Colorado Constitution states, “[n]o law shall be
passed impairing the freedom of speech; every person shall be free to speak, write or
publish whatever he will on any subject.” Colo. Const. Art. II, § 10. This protection is
broader than the protection offered by the United States Constitution, but the Colorado
Supreme Court will analyze a case based “solely on the federal Constitution” if it “falls
squarely within its protections.” See, e.g., CF&I Steel, L.P. v. United Steel Workers of
America, 23 P.3d 1197, 1200 (Colo. 2001) (citing Lewis v. Colo. Rockies Baseball Club,
941 P.2d 266, 271-72 (Colo. 1997)).
Judge Dominguez Braswell recommends the dismissal of Mr. Sgaggio’s claim
under the Colorado Constitution because “the Court has not identified, nor has [Mr.
Sgaggio] provided, any reason why the Court’s analysis of [the] claim should differ from
[Mr. Sgaggio’s] Count I First Amendment claim.” Docket No. 26 at 19. Mr. Sgaggio’s
objection to this recommendation merely states that “[his] First Amendment was
violated, [his] speech was stopped.” Docket No. 27 at 11.
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In a case where a plaintiff brings both federal and state law claims, “if the federal
claims are dismissed before trial, even though not insubstantial in a jurisdictional sense,
the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966); see also Smith v. City of Enid ex rel. Enid City Comm’n, 149
F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the
court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.”); 28 U.S.C. § 1367(c)(3) (permitting a district court to decline supplemental
jurisdiction over a state law claim if “the district court has dismissed all claims over
which it has original jurisdiction”).
In the Tenth Circuit, when “the district court has dismissed all claims over which it
has original jurisdiction,” 28 U.S.C. § 1367(c)(3), courts must dismiss pendent state law
claims without prejudice “absent compelling reasons to the contrary.” Brooks v.
Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d 664,
669 (10th Cir. 1995) (reversing the district court’s grant of summary judgment on state
law claims), abrogated on other grounds by Torres v. Madrid, 141. S. Ct. 989
(2021)); Endris v. Sheridan Cnty. Police Dep’t, 415 F. App’x 34, 36 (10th Cir. 2011)
(unpublished) (“any state-law claims for assault and battery or mental and emotional
injury were inappropriate subjects for the exercise of pendent jurisdiction where all
federal claims had been dismissed.”) (footnote omitted). Accordingly, the Court will
decline to exercise supplemental jurisdiction over Mr. Sgaggio’s fourth claim and
dismiss it without prejudice.
IV. CONCLUSION
Therefore it is
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ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 26] is ACCEPTED in part. It is further
ORDERED that Mr. Sgaggio’s Objection to Recommendation of Unted States
Magistrate Judge [Docket No. 27] is OVERRULED. It is further
ORDERED that defendants’ Motion to Dismiss [Docket No. 12] is GRANTED. It
is further
ORDERED that Mr. Sgaggio’s first, second, and third claims are DISMISSED
with prejudice. It is further
ORDERED that Mr. Sgaggio’s fourth claim is DISMISSED without prejudice. 7
It is further
ORDERED that this case is closed.
DATED September 18, 2023.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
7 Under Colo. Rev. Stat. § 13-80-111, if claims are properly commenced within
the statute of limitations and involuntarily dismissed because of lack of jurisdiction, the
plaintiff “may commence a new action upon the same cause of action within ninety days
after the termination of the original action or within the period otherwise allowed by this
article, whichever is later.” See also Artis v. Dist. of Columbia, 138 S. Ct. 594, 598
(2018) (holding that 28 U.S.C. § 1367(d) tolls the statute of limitations for state law
claims asserted under § 1367(a) during the pendency of the federal litigation in which
such claims are brought and for thirty days following involuntary dismissal of those
claims on jurisdictional grounds).
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