Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. Gallegos

United States District Court, Tenth Circuit

November 14, 2013

DELAREE ROSS, a/k/a Delise Ross, Plaintiff,
v.
DAVID GALLEGOS, Aurora P.O., Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on the Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [#20] (the "Motion"). On August 26, 2013, Plaintiff filed a Response [#22]. On September 9, 2013, Defendant Gallegos filed a Reply [#23].

Pursuant to 28 U.S.C. ยง 636(b)(1) and D.C.COLO.LCivR 72.1C., the Motion is referred to this Court [#21]. The Court has reviewed the Motion, the Response, the Reply, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motion [#20] be GRANTED.

I. Background

Plaintiff, a resident of Denver, Colorado, attempts to assert[1] what appear to be three claims against Defendant Gallegos for damages stemming from "mental-emotional distress, " "pain-suffering, " and "defamation of character." Am. Compl. [#12] at 3-5.

Plaintiff's first claim for relief is for "mental-emotional distress" arising from the alleged "falsif[ication of] numerous A.K.A.'s."[2] Id. at 3. The assertion appears to be that Defendant Gallegos engaged in deliberate misconduct during the proceedings of federal case number 11-cv-02957. Id. Plaintiff claims that she "was awarded damages for false arrest-imprisonment, mental-emotional distress [and for] having [her] reputation smeared." Id. However, a review of the docket[3] reveals that case number 11-cv-02957 was dismissed without prejudice, and that Plaintiff was not awarded any damages. See Order of Dismissal [#10], filed February 13, 2012, in 11-cv-02957.

The Amended Complaint's second claim for relief is for "pain-suffering." Am. Compl. [#12] at 4. Plaintiff asserts that she has experienced difficulties in obtaining permanent housing, including Section 8 housing. Id. She complains that she is made (presumably by Defendant Gallegos) to "look like America's Most Wanted." Id. As such, she asserts that "defamation of character prevails." Id.

The third claim for relief is for "defamation of character." Id. at 5. Plaintiff asserts that a "substituti[on of] numerous A.K.A.'s" was done "falsely-deliberately [and without] probable cause[] [i]n attempts to manipulate...." Id. Finally, Plaintiff "seek[s a ruling of] wrongful-conviction." Id.

Plaintiff's requested relief is for "punitive damages [and] monetary damages [in the amount of] $80, 000 [so that an attorney can] clean [her] name of 63 A.K.A.'s." Id. at 6. Additionally, Plaintiff appears to be requesting "good housing" because, as she avers, she is homeless due to the allegedly falsified A.K.A.'s. Id.

In addition to her handwritten allegations, Plaintiff has photocopied and attached fourteen pages of materials taken from law reviews, non-related cases, and other secondary materials. Id. at 7-20. She attaches these documents to "assert [her] reasons, " and presumably to help her state a claim and advance her cause. Id.

II. Standard of Review

Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick , 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla. , 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 677 (2009). However, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (citation omitted). That said, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik , 671 F.3d at 1192.

"The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider , 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "Where a complaint pleads facts that are merely ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.