United States District Court, D. Colorado
ANTHONY L. GONZALEZ, Plaintiff,
KING SOOPERS/KROGER CORP., KING SOOOPERS STORE #76, KEVIN KEELY KING SOOOPERS REPRESENTATIVE, STEPHANY BOOKNIGH KING SOOPERS REPRESENTATIVE KROGER INC.-DILLONS CO., Defendants.
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on "Defendants' Motion to Dismiss Plaintiff's Amended Complaint" (Doc. No. 21 [Mot.], filed August 7, 2014). Plaintiff did not file a response. The motion is ripe for ruling.
Plaintiff filed his "Notice, Claim and Summons to Appear for Trial" in Small Claims Court in El Paso County, Colorado. (Doc. No. 4 [Compl.].) Defendants removed the case to this Court on March 14, 2014, pursuant to 28 U.S.C. § 1331. ( See Doc. No. 1.) In his original Complaint, Plaintiff named King Soopers and Raymond M. Deeny as Defendants. (Doc. No. 4.) On March 27, 2014, Defendants King Soopers and Deeny moved to dismiss Plaintiff's Complaint for failure to state a claim. (Doc. No. 9.) On June 24, 2014, this court entered an Order granting the motion to dismiss and dismissing Plaintiff's Complaint without prejudice for failure to comply with the Fed.R.Civ.P. 8(a) pleadings requirements. ( See Doc. No. 18.) The court further ordered Plaintiff to file an amended complaint within thirty days from the date of its Order. ( Id. at 7.)
On July 22, 2014, Plaintiff filed an Amended Complaint. ( See Doc. No. 20 [Am. Compl.].) In his Amended Complaint, Plaintiff asserts claims against King Soopers; King Soopers Store #76; Kevin Kelly, the store manager; and Stephany Booknight, the Human Resources representative. ( See Am. Compl. at 1, 4.)
STATEMENT OF THE CASE
Plaintiff's Amended Complaint is not a model of clarity. Plaintiff alleges King Soopers "refused & disobeyed" contractual policies with Local #7 Union, as well as state and federal employment laws. (Am. Coml. at 1.) Plaintiff alleges he was terminated after filing a complaint against a fellow employee and after taking time off work for surgery. ( Id. at 2.) Plaintiff states his termination was arbitrated twice over a four-year period. ( Id. ) After arbitration, Plaintiff was awarded eighty days' pay. ( Id. ) Plaintiff alleges King Soopers miscalculated the amount owed to him and "decided to issue only a partial payment." ( Id. )
Plaintiff asserts three claims for relief. In his First Claim for Relief, it appears Plaintiff alleges that Defendants owe $2, 665.60, plus interest, from the arbitration award. ( See id. at 6-7.) In his Second Claim for Relief, Plaintiff alleges he was unlawfully terminated. ( See id. at 14.) In his Third Claim for Relief, Plaintiff alleges Defendants "[r]efused to recognize [Plaintiff] was under Doctors supervision and violated [his] civil rights." ( See id. at 30.)
STANDARD OF REVIEW
1. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his 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 him 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. ...