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Arthur v. City and County of Denver

United States District Court, D. Colorado

April 7, 2014



CRAIG B. SHAFFER, Magistrate Judge.

This matter comes before the court on Defendants' Motion to Dismiss (Doc # 10), filed on December 26, 2013. On January 22, 2014, this case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C. COLO. LCivR 72.2. (Doc. #18). The court has carefully reviewed the motion, the related briefings and hearings, the entire case file, and the applicable law. For the following reasons, the Defendants' Motion to Dismiss is GRANTED.


Plaintiff Trenton Arthur's sole claim arises under 42 U.S.C. § 1983 and is asserted against the City and County of Denver, Michael Hancock, Denver Civil Service Commission ("DCSC"), and Earl Peterson (collectively "Defendants"). Plaintiff's claim arises out of Defendant DCSC's failure to add five veteran's preference points to Plaintiff's score on the Denver Civil Service Test. Plaintiff's lower score precluded him from advancing in the hiring process for the Denver Fire Department's ("DFD") 2007 class. Plaintiff now seeks an order awarding him the rank and salary he would have earned had he been hired by the DFD in 2007.

Plaintiff filed a complaint in Colorado District Court (doc. #10-1) in 2007 claiming that Defendants violated Article XII, Section 15 of the Colorado Constitution by failing to award the preference points, and asking the district court to order DCSC to add the points to his test score. The district court granted summary judgment for Defendants on the basis that Plaintiff's employment application had included inadequate proof to demonstrate he was entitled to the veterans' preference (doc. #10-2). Plaintiff appealed (doc. #10-3). The Colorado Court of Appeals reversed the district court and held that Plaintiff was entitled to the veteran's preference (doc. #10-4). While the case was on remand, Plaintiff asked the district court to order Defendants to also pay him a retroactive fire fighter's salary from 2006[1] (doc. # 10-5). The district court ordered Defendants to add the points to Plaintiff's 2006 test, but ruled that Plaintiff had not shown he "would have succeeded in the rest of the selection process in 2006, in which he was denied the opportunity to compete, " and thus was not entitled to back pay. (Doc. #10-6). DCSC subsequently awarded Plaintiff the veteran's preference and added five points to his 2006 test score. DFD hired Plaintiff in September 2011.

Plaintiff filed the instant action on November 4, 2013, alleging that Defendants violated the Due Process Clause of the Fourteenth Amendment in depriving him of a property interest without procedural due process.[2] Defendants were served with a summons and copy of the Complaint the same month. Defendants subsequently filed a Motion to Dismiss (doc. #10) and a Brief in Support of their Motion to Dismiss (doc. # 11) on December 26, 2013. The court held a scheduling conference on January 21, 2014, at which the undersigned granted Defendants' unopposed Motion to Stay Discovery (doc. #15) pending the resolution of their Motion to Dismiss, and scheduled oral argument on Defendants' Motion to Dismiss for February 26, 2014.[3] Following argument on February 26, the court granted Defendants' Motion to Dismiss based on their statute of limitations defense, and advised that this written opinion and order would follow.

Because I find that Plaintiff filed his Complaint after the statute of limitations had expired, I need not reach the merits of Defendants' arguments relating to issue preclusion and claim estoppel, whether Plaintiff possessed a property interest in his position, and whether Plaintiff is precluded from even litigating this issue because he failed to exhaust administrative remedies.


Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Under 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), "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." "The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).


"The elements of a § 1983 claim are the deprivation of rights secured by the Constitution or federal law, and action occurring under color of state law." Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984). Section 1983 creates a cause of action for violations of constitutional rights; it does not itself grant any substantive rights. Id. (citing Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18 (1979) ("[O]ne cannot go into court and claim a violation of § 1983'-for § 1983 by itself does not protect anyone against anything."). The remedy provided by § 1983 is statutory in origin, but the underlying liability it enforces stems primarily from the Constitution. Garcia, 731 F.2d at 650.

"A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998). Because "the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.'" Id. (internal quotations and citations omitted) (quoting Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir. 1994)). Colorado governs such actions with a two year statute of limitations. Colo. Rev. Stat. Ann. § 13-80-102(1)(g); see also Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994); Merrigan v. Affiliated Bank Shares of Colorado, Inc., 775 F.Supp. 1408, 1411-12 (D.Colo. 1991).

Plaintiff claims a violation of the Fourteenth Amendment as the underlying liability for his § 1983 claim. Specifically, he alleges that Defendants deprived him of his property interest without procedural due process. The property interest he asserts is somewhat unclear, however. Plaintiff was a Fire Fighter Third Grade when he filed the Complaint.[4] His reference to the DFD collective bargaining agreement providing for yearly promotions and commensurate raises (doc. #1), and his focus on "the position he would have had... [in 2007]" (doc. #14), implies that Plaintiff asserts a property interest in the rank and salary of a Fire Fighter First Grade.[5] However, Plaintiff appears to claim in Count 1 of his Complaint that the property interest of which he was deprived was a fire fighter job at any grade, and the deprivation occurred when Defendants withheld the ...

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