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Wilkenson v. State

United States District Court, Tenth Circuit

December 16, 2013

DAVID E. WILKENSON, Plaintiff,
v.
STATE OF COLORADO, and MESA COUNTY, COLORADO, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant State of Colorado's Motion to Dismiss All Claims Asserted Against it in the Amended Complaint [#15][1] (the "State Motion") and Defendant "Mesa County's" Motions to Dismiss Pursuant to Fed.R.Civ.P. [sic] 12(b)(2), 12(b)(5), and 12(b(6) [#17] (the "County Motion" and, collectively with the State Motion, the "Motions"). On August 5, 2013, Plaintiff filed a Response to the State Motion [#18]. On August 7, 2013, Defendant State of Colorado ("State") filed a Reply [#21]. On August 5, 2013, Plaintiff filed a Response to the County Motion [#19]. On August 12, 2013, Defendant Mesa County ("County") filed a Reply [#22]. The Motions are ripe for review. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1C, the Motions have been referred to this Court for a recommendation regarding disposition [#20]. The Court has reviewed the Motions, the Responses, the Replies, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motions [##15, 17] be GRANTED.

I. Background

Plaintiff initiated this lawsuit on June 7, 2013. See generally Compl. [#1]. After reviewing the Complaint, the Court sue sponte struck the Complaint [#1] and ordered Plaintiff to file an amended complaint. The Court also advised Plaintiff of the pleading requirements of Fed.R.Civ.P. 8 and 9. See generally Order Regarding Complaint [#12]. Specifically, the Court advised Plaintiff "to provide a short and concise statement explaining what each defendant did to him, when each defendant did it, how each defendant's action harmed him, what specific legal right each defendant violated, and what remedy he seeks for each violation." Id. at 3. In response, Plaintiff filed his First Amended Complaint [#14]. The First Amended Complaint did little to clarify the factual allegations in support of Plaintiff's claims against Defendants. However, Plaintiff did add sections titled "Causes of Action against Defendant State of Colorado" and "Causes of Action against Defendant Mesa County." First Am. Compl. [#14] at ¶¶ 92-113. Plaintiff also delineated the relief he seeks. Id. at ¶¶ 114-129.

In short, Plaintiff's allegations relate to his 1996 domestic relations case which resulted in custody of his children being awarded to their mother. Id. at ¶¶ 4-6. Many of Plaintiff's allegations relate to actions taken in 1996 and 1997 relating to the domestic relations case. Plaintiff also states that the state court "destroyed the record of the case" and that his appeal regarding this claim was denied by the appellate court. Id. at ¶ 9. However, he does not provide a time frame for these allegations In addition, Plaintiff makes a variety of allegations against non-parties, including, among other people, Magistrate Jane Westbrook, Magistrate Cynthia Cyphers, and Mesa County Assistant County Attorney Valerie Robinson. See, e.g., id. at ¶¶ 19-30.

Plaintiff purports to bring claims against Defendant pursuant to 42 U.S.C. § 1983, and the First, Fifth, and Fourteenth Amendments. Id. at ¶ 50. However, he later clarifies that he is bringing a section 1983 claim for alleged violations of his First, Fifth, and Fourteenth Amendment rights. Id. at ¶ 54. Plaintiff also asserts that the Court has jurisdiction pursuant to 28 U.S.C. § 1331. Id. at ¶ 50.

II. Standard of Review

In the Motions, Defendants request dismissal pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6).

A. Federal Rule of Civil Procedure 12(b)(1)

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because "federal courts are courts of limited jurisdiction, " the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). In addition, "[t]he burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987)). The Court's reliance on "evidence outside the pleadings" to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

B. Federal Rule of Civil Procedure 12(b)(2)

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) is to test whether the Court has personal jurisdiction over the named parties. After a motion to dismiss has been filed, the plaintiff bears the burden of establishing personal jurisdiction over the defendants. Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir. 1984). The Court accepts the well-pled allegations (namely the plausible, nonconclusory, and nonspeculative facts) of the operative pleading as true to determine whether the plaintiff has made a prima facie showing that the defendants are subject to the Court's personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). The Court "may also consider affidavits and other written materials submitted by the parties." Impact Prods., Inc. v. Impact Prods., LLC, 341 F.Supp.2d 1186, 1189 (D. Colo. 2004). Any factual disputes are resolved in the plaintiff's favor. Benton v. Cameco Corp., 375 F.3d 1070, 1074-75 (10th Cir. 2004).

The Due Process Clause permits the exercise of personal jurisdiction over nonresident defendants when two conditions are met. First, a defendant must have "minimum contacts" with the forum state. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, if sufficient minimum contacts are shown, "the Due Process Clause requires that [the Court] further consider whether the exercise of personal jurisdiction over [the] defendant would ...


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