Herrington v. El Paso County Sheriff Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-01533-NYW-MDB
JACOB ANDREW HERRINGTON,
Plaintiff,
v.
EL PASO COUNTY SHERIFF’S OFFICE,
LT. SEITER,
SARGRENT PALM,
JOHN DOE #1,
JOHN DOE #2,
JOHN DOE #3, and
DAVID GRIFFITH,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Order and Recommendation of United States
Magistrate Judge, which was issued by the Honorable Maritza Dominguez Braswell on
February 3, 2025. [Doc. 126]. Judge Dominguez Braswell recommends that the El Paso
County Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant
to Fed. R. Civ. P. 12(b)(6) (the “Motion to Dismiss”), [Doc. 61], be denied without prejudice
to permit Plaintiff additional time to file a motion to amend, and she further recommends
that Plaintiff be granted 60 days to file a motion to amend, [Doc. 126 at 4–5].
The El Paso County Defendants—the El Paso County Sheriff’s Office, Lieutenant
Joshua Seiter, Lieutenant Aaron Palm, and Deputy David Griffith (“Defendants”)—have
filed a limited objection to Judge Dominguez Braswell’s Recommendation. 	Plaintiff has
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 1 of 7

2
not objected to the Recommendation,1 and the Court concludes that it can rule on
Defendants’ objection without awaiting a response from Plaintiff. 	Cf. D.C.COLO.LCivR
7.1(d). 	For the reasons set forth in this Order, Defendants’ objection is respectfully
OVERRULED and the Recommendation is ADOPTED as modified.
LEGAL STANDARDS
I. 	Rule 72(b)
A 	district 	court 	may 	refer 	a 	dispositive 	motion 	to 	a 	magistrate 	judge 	for
recommendation. 28 U.S.C. § 636(b)(1)(B). The district 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). 	“[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.,
73 F.3d 1057, 1060 (10th Cir. 1996). 	Such specific objections permit “the district judge
to focus attention on those issues—factual and legal—that are at the heart of the parties’
dispute.” Id. at 1059 (quotation omitted).
1 In Plaintiff’s Objection to Defendant’s Motion for Extension of Time, [Doc. 137, filed
February 27, 2025], Plaintiff states that his deadline to file written objections to Judge
Dominguez Braswell’s Recommendation was not until February 25, 2025 because he did
not receive the Recommendation until February 11, 2025. 	See [Doc.137 at 4–5]. 	The
Court respectfully finds Plaintiff’s position to be mistaken. Under Rule 5, service through
mail is considered “complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C); see also Kriegman
v. Mirrow, No. 15-cv-01542-PAB-NRN, 2021 WL 5957417, at *3 (D. Colo. Dec. 16, 2021)
(explaining that the 14-day objection period begins to run when the court order is mailed)].
Accordingly, the deadline to object was originally February 18, 2025—14 days after the
Clerk of Court mailed the Recommendation, plus one extra day to account for the federal
holiday on February 17, 2025, see Fed. R. Civ. P. 6(a)(1)(C)—until the Court extended
the deadline to February 21, 2025, see [Doc. 133].
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 2 of 7

3
II. 	Pro Se Filings
Because 	Plaintiff 	proceeds 	pro 	se, 	the 	Court 	affords 	his 	filings 	a 	liberal
construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court
cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991), and applies the same procedural rules and substantive law to Plaintiff as to
represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.
2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1235–36 (D. Colo. 2012).
BACKGROUND
Judge Dominguez Braswell recites in detail the relevant factual and procedural
history of this case, see [Doc. 126 at 2–4], and the Court repeats it here only as necessary
to resolve Defendants’ objection. 	Plaintiff Jacob Andrew Herrington (“Plaintiff” or “Mr.
Herrington”) initiated this civil action on June 16, 2023, asserting claims arising out of his
pretrial detention. 	[Doc. 2 at 7–23]. 	Plaintiff filed his Second Amended Complaint, the
operative pleading in this action, on April 23, 2024. 	[Doc. 38]. 	As explained by Judge
Dominguez Braswell, “[s]ince drawn from initial review in February 2024, this case has
been beset by delays, extension requests, and difficulties communicating with Plaintiff
due to frequent facility transfers by CDOC.” [Doc. 126 at 2 (citation omitted)].
Relevant here, Defendants filed their Motion to Dismiss on August 5, 2024. [Doc.
61]. 	Mr. Herrington requested, and was granted, several extensions of time to respond
to the Motion to Dismiss due to his transfers between different prison facilities. See [Doc.
64; Doc. 67; Doc. 69; Doc. 74; Doc. 76; Doc. 78; Doc. 81; Doc. 86; Doc. 88; Doc. 92].
Judge Dominguez Braswell held a telephonic Status Conference on December 18, 2024,
at which time Plaintiff expressed his desire to amend his Second Amended Complaint to
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 3 of 7

4
identify the Doe Defendants. 	See [Doc. 108]. 	Judge Dominguez Braswell ordered
Defendants to provide Plaintiff certain jail shift logs to permit Plaintiff to identify the Doe
Defendants. [Id.]. Additional delays and facility transfers resulted in Plaintiff not receiving
the shift logs produced by Defendants. See generally [Doc. 120]. In addition, in Plaintiff’s
Response to the Motion to Dismiss, he maintains his request to amend his Second
Amended Complaint. [Doc. 123 at 1].
Given 	these 	procedural 	difficulties, 	Judge 	Dominguez 	Braswell 	issued 	a
Recommendation on February 3, 2025, recommending that this Court deny the Motion to
Dismiss without prejudice and that the Court permit Plaintiff a 60-day period to file a
motion to amend his Second Amended Complaint, with a warning to Plaintiff that the
failure to file a timely motion to amend would result in the dismissal of this case for failure
to prosecute. [Doc. 126 at 4–5].
On February 12, 2025, Plaintiff filed a Motion to Amend Complaint (Second
Amendment) (the “Motion to Amend”). [Doc. 129]. Attached to Plaintiff’s Motion to Amend
is a proposed amended complaint, which adds a number of new proposed defendants
and claims. 	See generally [Doc. 129-1]. 	The envelope accompanying the Motion to
Amend and proposed amended complaint indicates that the Motion to Amend was given
to prison officials on February 6, 2025. 	[Doc. 129 at 2]. 	In other words, it appears that
Plaintiff mailed his Motion to Amend to the Court prior to receiving Judge Dominguez
Braswell’s Recommendation.
Defendants object to the Recommendation, but only insofar as Judge Dominguez
Braswell recommends that the Court grant Plaintiff an additional 60 days to file a motion
to amend. See [Doc. 135 at 5–6]. Defendants contend that because Plaintiff has since
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 4 of 7

5
filed his Motion to Amend, there is no need to give him additional time to file a motion that
he has already filed. 	[Id.]. 	Defendants do not object to Judge Dominguez Braswell’s
recommendation that the Motion to Dismiss be denied without prejudice. See [id.].
ANALYSIS
The Court understands Defendants’ contention—that because Plaintiff has filed
his Motion to Amend, and given the delays already abundant in this case, there is no need
to provide Plaintiff additional time to file a new motion to amend. 	However, the Court
respectfully disagrees with Defendants’ assertion that the Recommendation is “moot” in
light of Plaintiff’s Motion to Amend. 	See [id. at 5]. 	While Plaintiff may no longer need
additional time to file a motion to amend, Judge Dominguez Braswell’s Recommendation,
which recommends denying the Motion to Dismiss without prejudice and providing
Plaintiff certain advisements about this case, still contains important issues to be
addressed. 	Plaintiff’s filing of the Motion to Amend does not moot those issues.
Accordingly, Defendants’ objection is respectfully OVERRULED.
The Court finds that Judge Dominguez Braswell’s Recommendation sets out a
well-reasoned approach to facilitate the progression of this case. Accordingly, the Court
will ADOPT the Recommendation, with one minor modification. 	Because Plaintiff has
filed his Motion to Amend, the Court agrees with Defendants that there is no need to
permit Plaintiff additional time to move to amend his Second Amended Complaint.
Accordingly, Plaintiff’s Motion to Amend [Doc. 129] is ACCEPTED AS FILED. In other
words, Plaintiff need not, and should not, file any other motions to amend. 	And
because Plaintiff has moved to amend, the Court will DENY the Motion to Dismiss
without prejudice.
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 5 of 7

6
CONCLUSION
For the above reasons, IT IS ORDERED that:
(1) 	Defendants’ Objection to the Order and Recommendation of United States
Magistrate Judge [Doc. 135] is OVERRULED;
(2) 	The Order and Recommendation of United States Magistrate Judge [Doc.
126] is ADOPTED as modified;
(3) 	Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint
Pursuant 	to 	Fed. 	R. 	Civ. 	P. 	12(b)(6) 	[Doc. 	61] 	is 	DENIED 	without
prejudice;
(4) 	Plaintiff’s Motion to Amend Complaint (Second Amendment) [Doc. 129] is
ACCEPTED AS FILED;
(5) 	The Court sua sponte EXTENDS Defendants’ deadline to respond to the
Motion to Amend to March 19, 2025;
(6) 	Plaintiff shall file any reply in support of his Motion to Amend on or before
April 9, 2025;
(7) 	Plaintiff is ADVISED that, given the delays in this case and the numerous
extensions of deadlines granted to Plaintiff thus far, his reply deadline will
not be extended absent extraordinary circumstances; and
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 6 of 7

7
(8) 	The Clerk of Court shall mail a copy of this Order to:
Jacob Andrew Herrington, #197593
Centennial Correctional Facility
P.O. Box 600
Canon City, CO 81215
DATED: March 3, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:23-cv-01533-NYW-MDB Document 142 filed 03/03/25 USDC Colorado
pg 7 of 7