Eberhardt v. City of Greeley, CO et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 22-cv-3032-WJM-SBP
RANDY J. EBERHARDT,
Plaintiff,
v.
CITY OF GREELEY, CO, a Municipality, et al.,
Defendants.
ORDER ADOPTING AS MODIFIED MAGISTRATE JUDGE’S
MAY 28, 2024 RECOMMENDATION
Before the Court is an Objection (ECF No. 47) filed by Defendants City of
Greeley, Colorado, a municipality, et al. (collectively, “Defendants”), to United States
Magistrate Judge Susan Prose’s May 28, 2024 Recommendation (“Recommendation”)
(ECF No. 43) on (1) Plaintiff Randy J. Eberhardt’s competency and, in light of same, (2)
the denial of Defendants’ motion to dismiss (ECF No. 19) and Eberhardt’s motions for
leave to file an amended complaint (ECF Nos. 32, 33, 34, 35, and 41).
For the following reasons, the Court adopts the Recommendation as modified.
I. PERTINENT BACKGROUND
The pertinent facts are detailed in the Recommendation, which the Court
incorporates herein. Briefly, Eberhardt filed a pro se complaint alleging that Defendants
violated his constitutional rights by shooting him while he was inside his house and
delaying medical attention. (ECF No. 1 at 4 (averring that he was severely injured
“when elements/members of the Greeley Police Department opened fire on [his]
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residence causing near fatal wounds when bullets permeated his home while [he] was
standing in his living room holding his cats”).) Defendants moved to dismiss
Eberhardt’s complaint, which Judge Prose recommended the Court grant. (ECF Nos.
19, 31.)
Later, however, Defendants raised concerns about Eberhardt’s competency,
pointing out that he “has been deemed incompetent in his criminal proceeding.” (ECF
No. 37 at 8 (“Defendants are cognizant that Plaintiff has been deemed incompetent in
his criminal proceeding, and question of his competency has been recently extended
until December 10, 2023.”).) In light of this information, the Court sought
a Recommendation from Judge Prose on the resolution of
those issues raised by Defendants’ suggestion under Rule
17(c)(2), including without limitation the following: 1) whether
the competency issue has been properly raised by
Defendants’ passing reference to Rule 17(c) in their recent
filing; 2) whether the Court should appoint a guardian ad
litem to safeguard Plaintiff’s interests in this action; and 3)
whether, as a procedural matter, Judge Prose’s [31]
Recommendation should be withdrawn at this time. Finally,
Judge Prose is encouraged to include in her
Recommendation a discussion of any other matter she
believes would be necessary to a full and final resolution of
any Rule 17(c)(2) issue which might be implicated in this
action.
(ECF No. 38.)
In her Recommendation, Judge Prose took judicial notice of “Colorado state
court criminal records showing that Eberhardt had been charged with burglary” and that
his “competency came to the state court’s attention no later than March 3, 2023.” (ECF
No. 42 at 6.) Judge Prose noted that the state district court found “Plaintiff incompetent
to proceed in the criminal matter” in June 2023. (Id.) And in May 2024, Judge Prose
continued, Eberhardt’s defense counsel moved to dismiss “based upon the lack of a
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substantial probability that Mr. Eberhardt will be restored to competency within the
reasonably foreseeable future.” (Id. at 7.) Thus, relying on Tenth Circuit authority and
Rule 17(c)(2), which provides that “[t]he court must appoint a guardian ad litem—or
issue another appropriate order—to protect a minor or incompetent person who is
unrepresented in an action,” Judge Prose recommended that the Court appoint “a
guardian ad litem to represent Plaintiff pro bono in this litigation.” (Id. at 11.)
Given her competency finding, Judge Prose further recommended that her earlier
recommendation to grant Defendants’ motion to dismiss be withdrawn and that the
motion “be denied without prejudice to Defendants refiling a renewed dispositive motion
at the appropriate time.” (Id.) As to Eberhardt’s numerous filings requesting leave to
file an amended complaint, Judge Prose found “strong reason to doubt that any of these
papers were signed by [him] personally,” as is required under Ruel 11(a) for a pro se
party. (Id.) Furthermore, because Eberhardt “lacks the requisite competency to certify
the averments made in any of these papers,” Judge Prose reasoned, the Court should
deny those motions. (Id. at 12.)
In sum, then, Judge Prose recommends that (1) “an individual be appointed to
serve as both a guardian ad litem and pro bono counsel to protect Plaintiff’s interests in
this action”; (2) “[her] pending recommendation (ECF No. 31) to grant Defendants’
motion to dismiss (ECF No. 19) be withdrawn” and that the motion be “denied without
prejudice to Defendants’ right to refile such a motion at an appropriate time”; and (3)
Eberhardt’s “filings at docket entries 32, 33, 34, 35, and 41” be denied for failure to
comply with the requirements of Rule 11. (ECF No. 43 at 2) (emphases removed).
Defendants filed an Objection, wherein they agree with the substance of the
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Recommendation but quibble only with the Recommendation’s language that they be
permitted to refile their motion to dismiss “at an appropriate time.” (ECF No. 47 at 2.)
Defendants explain: “To resolve this ambiguity, and to address the Magistrate Judge’s
intent, Defendants respectfully request amendment to the Recommendation to define
the ‘appropriate time’ as within 21 days following the entry of appearance of a guardian
ad litem/pro bono counsel.” (Id.; see also id. at 5 (objecting to the Recommendation
only “to the extent that it imposes unreasonable procedural entanglements on
Defendants’ time to file their next documents in this matter”).)
Eberhardt acknowledges receiving a copy of Judge Prose’s recommendation and
asserts that he “understand[s] a pro-bono attr [sic] can be appointed for me.” (ECF No.
46.) He says that he “will greatly appreciate that.” (Id.) Eberhardt also filed other
letters, wherein he says he is “searching for an attorney to represent me in my case”
(ECF No. 51), and that he has tried to “read and understand” Defendants’ Objection but
“can’t” (ECF No. 49).
II. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” In the absence of a timely and specific objection, “the district court may
review a magistrate . . . [judge’s] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S.
140, 150 (1985)); see also Fed. R. Civ. P. 72 advisory committee’s note (“When no
timely objection is filed, the court need only satisfy itself that there is no clear error on
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the face of the record.”). An objection to a recommendation is properly made if it is both
timely and specific. United States v. One Parcel of Real Property Known as 2121 East
30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it
“enables the district judge to focus attention on those issues—factual and legal—that
are at the heart of the parties’ dispute.” Id. In conducting its review, “[t]he district court
judge may accept, reject, or modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with instructions.” Id.
When reviewing an objection to a magistrate judge’s non-dispositive ruling, the
Court must adopt the ruling unless it finds that the ruling is “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S. West Commc’ns, Inc., 167 F.R.D. 131,
133 (D. Colo. 1996). The clearly erroneous standard “requires that the reviewing court
affirm unless it on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464
(10th Cir. 1988). The “contrary to law” standard permits “plenary review as to matters of
law,” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr.
2015 update), but the Court will set aside a Magistrate Judge’s order only if it applied
the wrong legal standard or applied the appropriate legal standard incorrectly, see
Wyoming v. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1236 (D. Wyo. 2002).
III. ANALYSIS
As mentioned, Defendants agree with the vast majority of the Recommendation.
(ECF No. 47 at 1 (“Defendants applaud the majority of the Recommendations . . . .”).)
But they ask the Court to clarify how much time they will have to refile their motion to
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dismiss, should they later wish to do so. (Id. at 2.) Eberhardt does not (and is likely
unable to) challenge the Recommendation nor Defendants’ Objection.
Because neither party objects to the material findings of the Recommendation,
the Court need only review the Recommendation for clear error. See Fed. R. Civ. P.
72(b) advisory committee’s note (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(“In the absence of timely objection, the district court may review a magistrate’s report
under any standard it deems appropriate.”). Perceiving no clear error on the face of the
Recommendation, the Court adopts it with a single modification. The modification
pertains to Defendants’ request that the Court give them 21 days after the appointment
of a guardian ad litem/pro bono counsel to refile a motion to dismiss.
Rule 12(a)(4) states that, if the district court denies a motion under Rule 12(b), a
responsive pleading “must be served within 14 days after notice of the court's action.”
Fed. R. Civ. P. 12(a)(4); Scott v. Allen, 2022 WL 16961940, at *2 (D. Colo. Nov. 16,
2022). Here, the Court is adopting the Recommendation to deny Defendants’ motion to
dismiss without prejudice, thereby starting the 14-day clock on Defendants’ ability to file
a responsive pleading, such as another motion to dismiss. But Rule 12(a)(4) implicitly
authorizes the Court to adjust this deadline where appropriate. Fed. R. Civ. P. 12(a)(4)
(setting the 14-day deadline “[u]nless the court sets a different time”) (emphasis added).
Finding it appropriate to do so under these circumstances, the Court will grant
the guardian ad litem/pro bono counsel 30 days from the date of his or her appointment
to file an amended complaint, or such other filing as is necessary to protect the interests
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of the Plaintiff in this action. The Court will grant Defendants 14 days from the date
Eberhardt’s guardian ad litem/pro bono counsel files such further pleading to file their
responsive pleading to his then-operative complaint.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. 	The May 28, 2024 Recommendation (ECF No. 43) is ADOPTED AS MODIFIED,
as set forth above;
2. 	The August 28, 2023 Recommendation on Defendants Motion to Dismiss (ECF
No. 31) is WITHDRAWN;
3. 	Defendants’ Motion to Dismiss (ECF No. 19) is DENIED WITHOUT PREJUDICE,
as set forth above;
4. 	Eberhardt’s Motions for Leave to File an Amended Complaint (ECF Nos. 32, 33,
34, 35, and 41) are DENIED WITHOUT PREJUDICE;
5. 	The Clerk shall promptly select, notify, and appoint a guardian ad litem/pro bono
counsel to represent Eberhardt in this civil matter;
6. 	The guardian ad litem/pro bono counsel shall have 30 days from the date of their
appointment to file an amended complaint, or such other filing as is necessary to
protect the interests of Eberhardt in this action; and
7. 	Defendants shall have 14 days from the date Eberhardt’s guardian ad litem/pro
bono counsel files the further pleading referenced in Item 6 above to file their
responsive pleading to the then-operative complaint.
Dated this 18 th day of September, 2024.
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BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
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