Herrington v. El Paso County Sheriff Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–01533–NYW–MDB
JACOB HERRINGTON,
Plaintiff,
v.
EL PASO COUNTY SHERIFF’S OFFICE,
SEITER, Leiutenant,
PALM, Sargeant, and
JOHN DOES 1-3,
Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SUMMARY FOR PRO SE PLAINTIFF
The Court understands that the multiple facility transfers and delays associated with
receiving the shift logs have made it difficult for you to respond to the Motion to Dismiss. It also
understands that you would like to file an amended complaint. However, the Court cannot let this
case be delayed indefinitely. Additionally, the docket shows that despite the multiple facility
transfers, you are capable of filing some documents. Therefore, the Court is recommending to
the presiding judge that the current Motion to Dismiss be denied for now, and that you be
allowed 60 days to file a motion to amend your complaint. However, the Court is also
recommending that you be advised of the importance of meeting that deadline and that if you do
not meet that deadline you risk having your case dismissed for failure to prosecute. If the
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presiding judge agrees with this recommendation, your motion to amend will need to attach a
proposed amended complaint that clearly shows each of the changes you would like to make, so
that the Court can consider whether your amendments should be allowed.
BACKGROUND
This matter is before the Court sua sponte. Plaintiff is a Colorado Department of
Corrections (“CDOC”) inmate. He initiated this action in June 2023, asserting claims against the
El Paso County Sherrif’s office and its employees, in connection with his pretrial detainment at
the El Paso County Criminal Justice Center (“CJC”) in 2021 and 2022. (Doc. No. 2.) Since
drawn from initial review in February 2024 (Doc. No. 28), this case has been beset by delays,
extension requests, and difficulties communicating with Plaintiff due to frequent facility transfers
by CDOC.1
The named Defendants moved to dismiss this action on August 5, 2024. ([“MTD”], Doc.
No. 61.) Throughout the fall of 2024, Plaintiff made repeated requests for extensions of time to
file his response. (Doc. Nos. 64; 69; 76; 81; 88.) These requests cited his frequent facility
transfers and issues associated with those transfers—including Plaintiff’s access to mail and his
legal documents. Plaintiff argued these transfers were preventing him from properly reviewing
the MTD and filing a response. Based on Plaintiff’s repeated filings, the Court harbored concerns
that Plaintiff was being selective about the impact of these transfers. On the one hand, the Court
can understand the difficulty of keeping up with the process, receiving mail, and filing responses
in the face of multiple transfers. On the other hand, Plaintiff demonstrated he was capable of
1 Plaintiff appears to have been transferred eight times since this case was drawn from initial
review. (Doc. Nos. 64; 69; 76; 80; 94; 103; 111; 118.)
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filing other documents in the interim. (See, e.g., Doc. Nos. 70; 105; 120; 121.). Nevertheless, the
Court gave Plaintiff the benefit of the doubt and granted him additional time to respond. (Doc.
Nos. 74; 78; 86; 92.)
The Court also set a December 18, 2024, Status Conference following Plaintiff’s sixth
request for an extension of time to respond to the MTD. (Doc. No. 98.) During that Conference,
Plaintiff indicated a desire to amend his Complaint by identifying the Doe Defendants. (Doc. No.
108.) Based on Plaintiff’s oral request during the Status Conference, the Court ordered
Defendants to provide Plaintiff CJC shift logs for certain relevant dates, such that Plaintiff could
identify the Doe Defendants. (Id.) Defendants were directed to submit the relevant logs to the
Court for mailing to Plaintiff. (Id.) The Court directed Plaintiff to review the logs, and either file
a response to the MTD or a motion to amend his Complaint January 22, 2025. (Id.)
The logs were sent to Plaintiff at Limon Correctional Facility (“LCF”) on January 14,
2025, (Doc. No. 113), and in light of the timing, the Court sua sponte extended Plaintiff’s
deadline to file an MTD response or motion to amend his Complaint to February 7, 2025. (Doc.
No. 112.) However, before Plaintiff received the shift logs, he was transferred again on January
15, 2025, this time from LCF to Centennial Correctional Facility (Doc. Nos. 118; 119.) In his
notice of the transfer, Plaintiff indicated he had yet to receive the shift logs. (Id.; see also Doc.
No. 120 (Plaintiff’s Motion to Order Defendants to Produce Unknown Names of Officers).)
Plaintiff also estimated that any document sent to LCF would take “2–4 weeks, if [it was] not
lost.” (Doc. No. 118 at 2.) Plaintiff further indicated his forthcoming motion to amend his
Complaint would do more than identify the Doe Defendants, and would seek to expand his
claims and potentially add new ones. (Doc. No. 119 at 1 (saying Plaintiff has accessed ‘The
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Prisoner’s Self-Helf Litigation Manual” and determined he “failed to properly plead [his] case”);
see also Doc. No. 121 (Plaintiff’s Motion to Seek Permission to Expand and Amend
Complaint).) Plaintiff also filed a response to the MTD. (Doc. No. 123.) Within the response,
Plaintiff repeatedly indicates he wishes to file a motion to amend. (Id.)
RECOMMENDATION AND ORDERS
This case presents the Court with an unusual set of circumstances. Plaintiff’s apparent
efforts to prosecute this case have been at least partially hindered by frequent CDOC facility
transfers. Neither the Court nor the parties have insight into the timing or reasons for the
transfers, nor whether they will soon conclude.
Plaintiff now indicates a desire to amend his Complaint, and the Court believes such a
motion would be appropriate—though it expresses no view on the merits of such a motion. But
the Court cannot allow this case to linger for an indefinite period of time while Plaintiff’s
transfer circumstances resolve and he attempts to put together such a motion. Moreover, the
continuous drip of deadline extensions prejudices Defendants and complicates the Court’s ability
to manage its docket. Accordingly, given the unique circumstances, the Court makes the
following recommendations and orders:
1) 	The Court respectfully RECOMMENDS that the El Paso County Defendants’ Motion to
Dismiss Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)
(Doc. No. 61) be DENIED without prejudice.
2) 	The Court respectfully RECOMMENDS that Plaintiff be granted 60 days to file a
motion to amend his Complaint that attaches a proposed amended complaint. Given the
repeated extensions and the fact that Plaintiff has been able to effect at least some filings
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in the face of multiple transfers, the Court further RECOMMENDS that Plaintiff be
advised that failure to comply with this deadline could result in dismissal for failure to
prosecute.
3) The Court ORDERS that Plaintiff’s Motion to Order Defendants to Produce Unknown
Names of Officers (Doc. No. 120) is DENIED as moot because El Paso County has
already turned over the shift log documents. However, the Court directs the clerk to
resend Plaintiff the shift logs.
4) The Court ORDERS that Plaintiff’s Motion to Seek Permission to Expand and Amend
Complaint (Doc. No. 121) is DENIED without prejudice because without reviewing a
proposed complaint, the Court cannot determine whether the expansion and amendment
Plaintiff seeks should be permitted.
5) The Clerk is directed to mail a copy of this Order and Recommendation to Plaintiff:
Jacob Andrew Herrington
#197593
Centennial Correctional Facility (CCF)
P.O. Box 600
Canon City, CO 81215
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
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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.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 3rd day of February, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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