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Jordan v. Simones

United States District Court, D. Colorado

March 21, 2014

AARON JORDAN, Plaintiff,
v.
ALEXANDER DIAS SIMONES, MARC SEARS, official capacity suit City of Aurora's officers, CARRIAGE PARK CONDO ASSOCIATION, and DENNIS HOUCK, Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

The matters before me are (1) the magistrate judge's Recommendation on Defendants Carriage Park Homeowners Association's and Dennis Houck, President of Carriage Park HOA's Motion To Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) (Docket No. 12) and Aurora Defendants' Motion To Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(5) for Insufficiency of Service of Process (Docket No. 15) [#50], [1] filed February 7, 2014; and (2) plaintiff's Objection to Recommendation to Dismiss Defendants Dennis Houck and Carriage Park H.O.A. Pursuant to F.R.C.P. 12(b)(1), (5), (6) (Docket 12) and Aurora Defendants' Motion To Dismiss Pursuant to Fed.R.Civ.P. 12(b)5 for Insufficiency of Service of Process (Docket No. 15) [#53], filed February 25, 2014. I overrule the objections, adopt the recommendation, and grant the apposite motions to dismiss.

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. I have considered carefully the recommendation, objections, and applicable caselaw. The recommendation is detailed and well-reasoned. Plaintiff's objections are imponderous and without merit.

Concerning the HOA defendants, plaintiff claims that he has adequately pleaded concerted activity between these private actors and the police. See Wittner v. Banner Health, 720 F.3d 770. 777 (10th Cir. 2013). Nevertheless,

when a plaintiff attempts to assert the state action required for a § 1983 claim against private actors based on a conspiracy with government actors, mere conclusory allegations with no supporting factual averments are insufficient. Rather, the plaintiff must specifically plead facts tending to show agreement and concerted action.

Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (internal quotation marks and citation omitted). In this regard plaintiff's complaint fails. Plaintiff's principal allegation as to these defendants concerns their repeated, allegedly false reports to police concerning plaintiff's activities within his own home.[2] Yet as the magistrate judge properly noted, such allegations do not give rise to liability on the part of a private actor for joint activity with state actors for purposes of section 1983. See Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983); Lane v. Johnson, 385 F.Supp.2d 1146, 1151 (D. Kan. 2005). See also American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) ("[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.") (citation and internal quotation marks omitted).

I concur also with the magistrate judge's recommendation to dismiss the claims against the Aurora police officers, defendants Alexander Dias Simones and Marc Sears, for insufficiency of service of process. As the magistrate judge notes, it appears that plaintiff attempted to serve these defendants himself. ( See Proof of Service [#6], filed July 8, 2013.) Rule 4(c)(2) of the Federal Rules of Civil Procedure plainly forbids a party to the action to effectuate service himself, even by mail. See Constien v. United States, 628 F.3d 1207, 1213-15 (10th Cir. 2010). The Federal Rules of Civil Procedure do not permit or recognize the type of equitable exceptions plaintiff seeks to invoke here. ( See Objection at 4 ("A conspiracy of this magnitude should not be dismissed for insufficient service, especially when the victim is one who was just previously injured disabled from constitutional abuse in state custody.").) See 4A C. WRIGHT, et al., Federal Practice & Procedure Civil § 1083 at 333 (3rd ed.) (although "[t]he general attitude of the federal courts is that the provisions of Federal Rule 4 should be liberally construed in the interest of doing substantial justice[, ].... there are limits to the rule's malleability. The goal of liberal construction cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process may be had.") (footnote, citation, and internal quotation marks omitted). See also Combs v. Nick Garin Trucking, 825 F.2d 437, 446 (D.C. Cir. 1987).

Thus, I find and conclude that the arguments advanced, authorities cited, 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 magistrate judge's Recommendation on Defendants Carriage Park Homeowners Association's and Dennis Houck, President of Carriage Park HOA's Motion To Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) (Docket No. 12) and Aurora Defendants' Motion To Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b0(5) for Insufficiency of Service of Process (Docket No. 15) [#50], filed February 7, 2014, is APPROVED AND ADOPTED as an order of this court;

2. That the objections stated in plaintiff's Objection to Recommendation to Dismiss Defendants Dennis Houck and Carriage Park H.O.A. Pursuant to F.R.C.P. 12(b)(1), (5), (6) (Docket 12) and Aurora Defendants' Motion To Dismiss Pursuant to Fed.R.Civ.P. 12(b)5 for Insufficiency of Service of Process (Docket No. 15) [#53], filed February 25, 2014, are OVERRULED;

3. That Defendants Carriage Park Homeowners Association's and Dennis Houck, President of Carriage Park HOA's Motion To Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) [#12], filed July 18, 2013, is GRANTED;

4. That the Aurora Defendants' Motion To Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(5) for Insufficiency of Service of Process [#15], filed August 5, 2013, is GRANTED;

5. That plaintiff's claims against defendants Carriage Park Condo Association and Dennis Houck are DISMISSED WITHOUT PREJUDICE for failure to allege facts sufficient to state plausible claims for relief;

6. That plaintiff's claims against defendants Alexander Dias Simones and Marc Sears are DISMISSED WITHOUT PREJUDICE for insufficiency of service of process; and

7. That judgment without prejudice SHALL ENTER in favor of defendants, Alexander Dias Simones; Marc Sears; Carriage Park Condo Association; and Dennis Houck, against plaintiff, Aaron Jordan, as to all claims and causes of action asserted herein.


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