Russo v. Hickenlooper

SALVATORE PETE RUSSO, JR., Plaintiff, v. JOHN HICKENLOOPER, Defendant.

Civil Action No. 15-cv-1740-WJM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 6, 2016

Judge William J. Martínez

ORDER AFFIRMING JULY 30, 2015 ORDER OF MAGISTRATE JUDGE, ADOPTING AUGUST 26, 2015 RECOMMENDATION OF MAGISTRATE JUDGE, AND DISMISSING PLAINTIFF'S LAWSUIT WITHOUT PREJUDICE

This matter is before the Court on United States Magistrate Judge Nina Y. Wang's Order Denying the Petition to Seal (ECF No. 7) dated July 30, 2015, and Magistrate Judge Wang's Recommendation dated August 26, 2015 ("Recommendation"), which recommended that the lawsuit be dismissed without prejudice. (ECF No. 16.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). On August 12, 2015, Plaintiff Salvatore Pete Russo, Jr. ("Plaintiff") filed an Objection to the Magistrate's Order Denying the Petition to Seal (the "Objection to the Order"). (ECF No. 9.) Plaintiff also filed a timely Objection to the Recommendation. (ECF No. 17.) For the reasons set forth below, Plaintiff's Objections to the Order and to the Recommendation are overruled, the Magistrate Judge's Order Denying the Petition to Seal is affirmed, the Recommendation is adopted, and this matter is dismissed without prejudice.

I. STANDARD OF REVIEW

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." 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. 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 the face of the record.").

Because Plaintiff is proceeding pro se, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as an advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

II. BACKGROUND

Plaintiff contends that he is a "pre-1933 Private American National Citizen of the United States of America." (ECF No. 1 at 1.) Plaintiff alleges that this form of citizenship differs from that of general "Public" U.S. citizens. (Id. at 7.) According to Plaintiff, among other things, all Public U.S. citizens were seized as "booty of war" by President Franklin Roosevelt's use of emergency war powers in 1933. (Id. at 7-8.) Attached to Plaintiff's Petition to Seal is a document that Plaintiff refers to as his "Declaration of Status." (Id. at 6-16) In that document, Plaintiff asserts that he has reclaimed his status as a Private American National Citizen. (Id. at 10.) Plaintiff also acknowledges that he is a citizen of the State of Colorado. (Id. at 15.)

Plaintiff did not file a complaint in this case. Instead, he filed a "Bill in Equity" containing his allegations against Colorado Governor John Hickenlooper ("Defendant"). (ECF No. 2.) Plaintiff alleges that he sent private trust documents to Defendant, along with the aforementioned Declaration of Status. (Id. at 2-3.) Plaintiff contends that Defendant acquired trustee duties over two trusts of which Plaintiff is the beneficiary, after Defendant did not disclaim his appointment as trustee within fifteen days of receiving Plaintiff's mailing. (Id. at 3.) Plaintiff is now suing Defendant for breaching his alleged duties under the trust agreements. (Id. at 4.) Plaintiff seeks an equitable remedy and requests that the Court enforce the trust agreements. (Id.)

Plaintiff has not yet disclosed the trust documents to the Court. (See ECF No. 2.) Plaintiff emphasizes that the trust documents are private in nature. (ECF No. 18.) For this reason, Plaintiff requested a private meeting with the Court, so that the undersigned could review the documents. (Id.) That motion was denied because the Court does not grant ex parte private meetings with parties or counsel. (ECF No. 19.)

III. ANALYSIS

The Magistrate Judge has issued both an Order Denying the Petition to Seal and a Recommendation that the lawsuit be dismissed without prejudice. (ECF No. 7; ECF No. 16.) Plaintiff filed Objections to both of these decisions. (ECF No. 9; ECF No. 17.) The Court will discuss the Magistrate Judge's filings, along with the respective objections, in turn.

A. Order Denying Plaintiff's Petition to Seal

Plaintiff's first filing in the case was a Petition to Seal the entirety of the case file. (ECF No. 1.) Specifically, Plaintiff requests that the Court "proceed with the matter . . . as 'private' and 'sealed' . . . in chambers, without the public, without publication of the press, excluding spectators and 'enemies' of the Court." (Id. at 1-2.)

Local Rule 7.2(c) instructs that a party seeking to restrict access to judicial records must make a multi-part showing. The party must: (1) identify the document or proceeding for which restriction is sought; (2) identify the interest to be protected and the reasons why that interest outweighs the presumption of public access; (3) identify a clear and serious injury that would result if access is not restricted; and (4) explain why alternatives to restricted access—such as redaction, summarization, or partial restriction—are not adequate. D.C.COLO.LCivR 7.2(c). The Magistrate Judge found that Plaintiff did not satisfy these requirements and denied the Petition to Seal. (ECF No. 7 at 1.)

Plaintiff objects to the Magistrate Judge's denial, arguing that the proceeding must be "held privately under seal . . . so that the special and private, restricted and confidential, proprietary and privileged trust documents can be reviewed at anEvidentiary Hearing as [Plaintiff] requests in his Bill in Equity." (ECF No. 9 at 2.) A similar argument appears in Plaintiff's Petition to Seal, in which Plaintiff asserts that the Court can only grant him the relief he requests if the suit is "sealed and private." (ECF No. 1 at 2.) These arguments do not satisfy Local Rule 7.2(c) which requires more than conclusory assertions that restriction is necessary.

Plaintiff comes closest to addressing the requirements of Rule 7.2(c) when he states that restriction is necessary to "secure [Plaintiff's] private citizen due process rights" and to ensure that "the public [will] not be alarmed." (ECF No. 1 at 2.) Nevertheless, Plaintiff fails to identify why these interests outweigh the presumption of public access. See D.C.COLO.LCivR 7.2(c)(2). Furthermore, the Court finds that Plaintiff's concerns as to his due process rights and public "alarm" do not amount to clearly defined injuries. Id. at 7.2(c)(3). Lastly, Plaintiff does not address why alternatives to restriction are inadequate. Id. at 7.2(c)(4). For these reasons, the Court agrees with the Magistrate Judge that Plaintiff does not satisfy the requirements of the Local Rule. The Court therefore overrules this Objection and affirms the Magistrate Judge's Order Denying the Petition to Seal.

B. Recommendation

Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint "must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought . . . ." Fed. R. Civ. P. 8(a). While the Court liberally construes pro se pleadings, pro se status does not excuse the obligation of any litigant to comply with the requirements of the Federal Rules of Civil Procedure. Ogden v. SanJuan Cnty., 32 F.3d. 452, 455 (10th Cir. 1994). Therefore, Plaintiff's pleadings must comply with the Federal Rules of Civil Procedure, including Rule 8.¹ The Magistrate Judge found that neither the Petition to Seal nor the Bill in Equity satisfy the requirements of Rule 8(a). (ECF No. 16 at 2.) For that reason, the Magistrate Judge recommended that the lawsuit be dismissed without prejudice. (Id. at 3.)

The Magistrate Judge's recommendation was made sua sponte, rather than at the request of Defendant. (Id. at 1.) This Court has previously held that it possesses the power to dismiss complaints sua sponte. See, e.g., Butler v. People of Ninth Dist. of Colo., 2009 WL 185628, at *4 (D. Colo. Jan. 23, 2009). When a complaint does not comply with Rule 8, the district court "has the power, on its own initiative . . . to dismiss the complaint." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The decision to dismiss an action without prejudice for failure to comply with Rule 8 is within the sound discretion of the district court. Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993); see also Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992). Therefore, the Court has the power to adopt the Magistrate Judge's Recommendation and to dismiss the lawsuit if it chooses to do so.

Plaintiff's Objection to the Recommendation contains two distinct grounds for objection. (ECF No. 17.) First, Plaintiff argues...