United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on Defendant Littleton Housing Authority's "Motion to Dismiss." (Doc. No. 17 [Mot.], filed October 28, 2013.) Plaintiff filed her response on January 23, 2014 (Doc. No. 25 [Resp.]), and Defendant filed its reply on February 4, 2014 (Doc. No. 35 [Reply]). This court granted Plaintiff leave to file a surreply ( see Doc. No. 36), and Plaintiff filed same on February 18, 2014. (Doc. No. 42 [Surreply].) This motion is ripe for ruling.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed her Complaint on July 22, 2013. (Doc. No. 1.) Plaintiff, who states she is elderly and disabled, alleges discrimination under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. ( See id. ) Plaintiff states Defendant allowed Plaintiff and her husband to live with their daughter with Section 8 housing assistance. ( Id., ¶ 5.) Plaintiff asserts that Defendant discriminated against her when her husband passed away on October 23, 2008, and Defendant "made housing unavailable to [Plaintiff]" requiring her to apply for a new Section 8 Housing Choice Voucher instead of transferring ownership of her husband's Head of Household Voucher to Plaintiff. ( Id. ) Plaintiff states she was approved for a new Section 8 voucher in 2010, but Defendant "again made housing unavailable by denying [Plaintiff] housing assistance unless she moved to a facility against her will." ( Id. ) Plaintiff alleges the defendant forced "the unjust isolation & segregation of Plaintiff" and "effected the removal of [Plaintiff' from the most integrated setting" where Plaintiff was receiving Home and Community Based Services ("HCBS"). ( Id. )
Plaintiff asserts five claims for relief, all related to Defendant's alleged discrimination, seeking monetary damages. ( Id. at 5, 7-8, 16-17, 21.)
STANDARD OF REVIEW
1. Pro Se Plaintiff
At the time Plaintiff filed her Complaint, she was proceeding pro se. The court, therefore, "review[s] [her] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). The plaintiff's pro se status does not entitle her to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
2. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1940. Moreover, "[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. at 1949 (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (citation omitted).
Defendant moves to dismiss Plaintiff's claims as barred by the applicable statute of limitations. A two-year statute of limitations applies to ADA claims. Quinn v. Univ. of Okla., 276 F.App'x 809, 810-811 (10th Cir. 2008); Hughes v. Colo. Dep't of Corrs., 594 F.Supp.2d 1226, 1235 (D. Colo. 2009). "In general, ... claims accrue and the statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). "A plaintiff has reason to know of his injury when he should ...