Haubenreiser v. City and County of Denver et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 24-cv-02399-NYW-TPO
JASON HAUBENREISER,
DANIEL K. MILLER,
ELIZABETH D. WILHOUR, and
SEAN M. WILHOUR,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER,
DENVER POLICE DEPARTMENT,
LIEUTENANT JAMES COSTIGAN,
MARY J. DULACKI,
OFFICER EMMET HURD,
DETECTIVE SPITZER,
OFFICER ALVARADO,
OFFICER YANEZ,
OFFICER LEE,
DENVER DEPARTMENT OF HEALTH AND PUBLIC ENVIRONMENT,
INSPECTOR OCHOA, and
SUPERVISOR MATSUDA,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation issued by the Honorable
Timothy P. O’Hara on February 24, 2026. 	[Doc. 59]. 	Judge O’Hara recommends that
Defendants’ Motion to Dismiss, [Doc. 40], be granted in part and denied in part, see [Doc.
59 at 2, 32–33]. 	Specifically, he recommends that all claims in this case be dismissed
except for Claim Four, to the extent it is asserted by Plaintiff Haubenreiser against
Defendants Yanez and Lee and is based on Plaintiff Haubenreiser’s alleged unlawful
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arrest in October 2024. 	[Id. at 33].1 	Judge O’Hara also recommends that Plaintiffs be
granted leave to file a Second Amended Complaint within fourteen days of the date of
this Order. [Id.].
The Recommendation states that objections to the Recommendation must be filed
within fourteen days after its service on the Parties. [Id. at 32 n.11]; see also 28 U.S.C.
§ 636(b)(1)(C). The Recommendation was served on February 24, 2026. See [Doc. 59
at 34]. No Party has objected to the Recommendation and the time to do so has elapsed.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a [magistrate
judge’s] factual or legal conclusions, under a de novo or any other standard, when neither
party 	objects 	to 	those 	findings.”). 	In 	this 	matter, 	the 	Court 	has 	reviewed 	the
Recommendation to satisfy itself that there is “no clear error on the face of the record.”2
Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment. 	Based on this
review, the Court has concluded that the Recommendation is thorough, well-reasoned,
and a correct application of the facts and the law.
Accordingly, Defendants’ Motion to Dismiss is GRANTED in part and DENIED in
part, as set forth below. 	The Court will also adopt Judge O’Hara’s Recommendation
1 The Recommendation includes a chart that sets out each claim asserted in the First
Amended Complaint, the Plaintiff(s) asserting the claim, the Defendant(s) named in the
claim, and a citation to relevant allegations. [Doc. 59 a 4–5].
2 This standard of review is something less than a “clearly erroneous or . . . contrary to
law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review,
Fed. R. Civ. P. 72(b).
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insofar as it recommends that Plaintiffs be granted leave to file a Second Amended
Complaint.
However, the Court observes that since they signed the First Amended Complaint,
see [Doc. 30; Doc. 30-1; Doc. 33], Plaintiffs Daniel K. Miller, Elizabeth Wilhour, and Sean
Wilhour have not participated in this case. They did not respond to Defendants’ Motion
to Dismiss, and they have not joined in Plaintiff Haubenreiser’s recent Motions. See, e.g.,
[Doc. 55; Doc. 56; Doc. 57]. For his part, Plaintiff Haubenreiser appears to proceed as if
he is the only remaining Plaintiff in this case. See [Doc. 57 (Plaintiff Haubenreiser seeking
leave to file an amended pleading that names himself as the single Plaintiff)]. 	It thus
appears to this Court that Plaintiffs Miller and Wilhour no longer wish to participate in this
litigation, and indeed, their claims have been dismissed through this Order.
For purposes of clarity with respect to any amended pleading and to ensure the
efficient progression of this litigation, it is ORDERED that, on or before April 2, 2026,
Plaintiffs Daniel K. Miller, Elizabeth Wilhour, and Sean Wilhour SHALL SHOW CAUSE
as to why they should not be dismissed as Plaintiffs in this case for failure to prosecute.
See D.C.COLO.LCivR 41.1 (“A judicial officer may issue an order to show cause why a
case should not be dismissed for failure to prosecute.”). If Plaintiffs Miller and Wilhour
do not file a response or otherwise fail to show good cause by this deadline, the
Court will direct the Clerk of Court to terminate them as Plaintiffs in this case.
In addition, Plaintiffs are GRANTED LEAVE to file a Second Amended Complaint
no later than April 30, 2026. 	The Second Amended Complaint may not include any
claims 	dismissed 	with 	prejudice 	in 	this 	Order. 	However, 	no 	Second 	Amended
Complaint may be filed in this case until this Court has either discharged its Order
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to Show Cause or made its Order to Show Cause absolute. 	If Plaintiffs Miller and
Wilhour show good cause and demonstrate their intent to re-raise claims in this case, and
if this Court discharges its Order to Show Cause, then all Plaintiffs must file a single
Second Amended Complaint, signed by all Plaintiffs, that includes all of their
claims. Plaintiff Haubenreiser may not file a separate amended pleading asserting
only his claims unless this Court makes its Order to Show Cause absolute and
terminates Plaintiffs Miller and Wilhour as Parties to this case. 	If no Second
Amended Complaint is filed by April 30, 2026, the First Amended Complaint [Doc.
33] 	will 	remain 	the 	operative 	pleading 	in 	this 	action 	and 	only 	Plaintiff
Haubenreiser’s 	Claim 	Four 	will 	remain, 	to 	the 	extent 	it 	is 	asserted 	against
Defendants Yanez and Lee and is based on Plaintiff Haubenreiser’s October 2024
arrest.
Accordingly, it is ORDERED that:
(1) 	The Recommendation [Doc. 59] is ADOPTED;
(2) 	Defendants’ Motion to Dismiss [Doc. 40] is GRANTED in part and DENIED
in part;
(3) 	All claims asserted against the Denver Police Department and the “Denver
Department of Health and Public Environment,” see [Doc. 33 at 1], are
DISMISSED with prejudice;
(4) 	Claims One, Three, Five, Nine, Ten, and Fourteen are DISMISSED without
prejudice;
(5) 	Claims Six, Eight, Eleven, Twelve, and Thirteen are DISMISSED without
prejudice for lack of subject matter jurisdiction;
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(6) 	Claim Two is DISMISSED without prejudice to the extent it is based on
Plaintiff Haubenreiser’s arrest and is DISMISSED with prejudice to the
extent it is based on wrongful habitability violations;
(7) 	Claim Four is DISMISSED without prejudice except to the extent it is
asserted by Plaintiff Haubenreiser against Defendants Yanez and Lee;
(8) 	Claim Seven is DISMISSED with prejudice;
(9) 	Plaintiff Jason Haubenreiser’s Motion for Extension of Time Nunc Pro Tunc
to Accept Response to Motion to Dismiss [Doc. 55] is DENIED as moot;
(10) 	Plaintiff 	Jason 	Haubenreiser’s 	Motion 	for 	Leave 	to 	File 	Surreply 	to
Defendants’ Reply in Support of Motion to Dismiss [Doc. 56] is DENIED as
moot;
(11) 	Plaintiff Jason Haubenreiser’s Motion for Leave to File [Second] Amended
Complaint [Doc. 57] is DENIED as moot;
(12) 	On or before April 2, 2026, Plaintiffs Daniel K. Miller, Elizabeth Wilhour, and
Sean Wilhour SHALL SHOW CAUSE as to why they should not be
dismissed as Plaintiffs in this case for failure to prosecute. 	Failure to
respond or otherwise show good cause will result in this Court
terminating Plaintiffs Miller and Wilhour from this case;
(13) 	Plaintiffs are granted leave to file a Second Amended Complaint no later
than April 30, 2026, subject to the strict requirements set forth above;
and
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(14) 	The Clerk of Court shall mail a copy of this Order to:
Daniel K. Miller
1950 Trenton Street
#114
Denver, CO 80220
Elizabeth Wilhour
1950 Trenton Street
#114
Denver, CO 80220
Sean Wilhour
1950 Trenton Street
#114
Denver, CO 80220
and
Jason Haubenreiser
600 Lafayette Street
Denver, Colorado 80218
DATED: March 19, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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