01/06/2010 24 STATEMENT (Civil Cover Sheet) by Petitioner David Merrill. (sah, ) (Entered: 01/06/2010)
01/13/2010 25 NOTICE to the Court Rule-E(8) Restricted Appearance by Petitioner David Merrill (sah, ) (Entered: 01/13/2010)
03/15/2010 26 REPORT AND RECOMMENDATIONS re 20 MOTION for Order to filed by David Merrill, be DENIED and this case DISMISSED and Stricken from the court's active docket by Magistrate Judge Kristen L. Mix on 3/15/2010. (erv, ) (Entered: 03/16/2010)
03/24/2010 27 OBJECTION to 26 Report and Recommendations filed by Petitioner David Merrill. (sah, ) (Entered: 03/24/2010)
04/06/2010 28 ORDER. The Recommendation of United States Magistrate Judge 20 filed 03/15/2010, is APPROVED AND ADOPTED as an order of this court. The objections stated in plaintiffs Objection 27 filed 03/24/2010 are OVERRULED. Plaintiffs Petition for Writ of Enforcement 20 filed 12/28/2009, is DENIED. This action is DISMISSED. By Judge Robert E. Blackburn on 04/06/2010.(sah, ) (Entered: 04/06/2010)
04/07/2010 29 WRIT OF CORAM VOBIS and REFUSAL OF CAUSE by Petitioner David Merrill. (sah, ) (Entered: 04/07/2010) 04/07/2010 30 JUDGMENT by Clerk. The Petition for Writ of Enforcement 20 filed 12/28/2009 is DENIED. This action is DISMISSED. Signed on 04/07/2010. (sah, ) (Entered: 04/07/2010)
I'm not sure if this was posted before or not
Order wrote:IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-03001-REB-KLM
DAVID MERRILL,
Petitioner,
v.
STATE OF COLORADO CAPITAL FINANCE CORPORATION,
Respondent.
ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#20]1 filed March 15, 2010; and (2) plaintiff’s Objection [#27] filed
March 24, 2010. I overrule the objections, adopt the recommendation, deny plaintiff’s
petition, and dismiss this case.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed, and have considered carefully the
recommendation, objections, and applicable caselaw. Moreover, because plaintiff is
proceeding pro se, I have construed his pleadings more liberally and held them to a less
stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus,
551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton,
Case 1:09-cv-03001-REB-KLM Document 28 Filed 04/06/10 USDC Colorado Page 1 of 3
2 Plaintiff apparently believes that this action has erroneously been filed as a civil action. He now
suggests that the matter should have been docketed as a petition for a writ of coram nobis. See United
States v. Denedo, – U.S. –, 129 S.Ct. 2213, 2220-21, 173 L.Ed.2d 1235 (2009) (describing the origins of
the writ). Putting aside the fact that the first mention of the writ of coram nobis appears in plaintiff’s
objection, there are at least three problems with his arguments and concomitant objection.
First, there is but one form of non-criminal action in the district courts of the United States, a civil action, which is commenced by the filing of a complaint. FED.R.CIV.P. 2 & 3. Thus, assuming arguendo that plaintiff may be entitled to a writ of coram nobis, or any other relief for that matter, he must commence
a civil action and file a complaint to secure that relief. (Neither plaintiff’s current Petition for Writ of Enforcement nor his various evidentiary filings – which he refers to variously as “billing process” and an “evidentiary repository” – constitute a complaint sufficient to commence a civil action in this district court.)
Second, coram nobis is not the appropriate remedy for the injury of which plaintiff appears to
complain, that is, payment of a judgment or debt owed. “[C]oram nobis is but an extraordinary tool to
correct a legal or factual error.” Denedo, 129 S.Ct. at 2221. Nothing in plaintiff’s prolix filings suggests
that he seeks to correct any such error in a prior proceeding. Moreover, coram nobis is an “extraordinary
remedy” and, thus, “may not issue when alternative remedies . . . are available.” Id. Again, nothing in
plaintiff’s papers indicates that the relief he seeks is anything more extraordinary (except perhaps in
amount) than monetary damages or that such relief cannot be secured through the more pedestrian, but
usually efficacious, form of a civil action.
Third, the court’s power to issue a writ of coram nobis pursuant to the All Writs Act, 28 U.S.C. §
1651, presupposes an independent basis of federal subject matter jurisdiction. See id. at 2222. Nothing
in plaintiff’s pleadings regarding the alleged debt suggests that any claim herein arises under federal law.
See 28 U.S.C. § 1331 (federal question jurisdiction). Additionally, although plaintiff styles his action as
one involving a foreign judgment, it appears that he and all the individuals and entities implicated herein
are located in Colorado, thereby, providing no apparent basis for diversity jurisdiction. See id. § 1332.
2
483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d
652 (1972)). The recommendation is detailed and well-reasoned. Contrastingly,
plaintiff’s objections are imponderous and without merit.2
I concur with the magistrate judge that action should be dismissed on both
procedural and substantive grounds. Procedurally, whether considered individually or
collectively, the papers filed by plaintiff fail to satisfy even the liberal requirements of
pleading under Fed. R. Civ. P. 8. Substantively, the papers filed by plaintiff fail to state
any claim on which relief may be granted.
Therefore, I find and conclude that the arguments advanced, authorities cited,
Case 1:09-cv-03001-REB-KLM Document 28 Filed 04/06/10 USDC Colorado Page 2 of 3
3
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#20] filed
March 15, 2010, is APPROVED AND ADOPTED as an order of this court;
2. That the objections stated in plaintiff’s Objection [#27] filed March 24, 2010,
are OVERRULED;
3. That plaintiff’s Petition for Writ of Enforcement [#20] filed December 28,
2009, is DENIED; and
4. That this action is DISMISSED.
Dated April 6, 2010, at Denver, Colorado.
