United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This case involves claims that Defendants violated Plaintiff's constitutional rights and Colorado state rights. This matter is before the court on "Defendant Lynch's Combined Motion to Dismiss and Motion for Summary Judgment" (Doc. No. 30 [Lynch's Mot.], filed August 8, 2014) and "Defendant Steve Gallagher's Motion to Dismiss" (Doc. No. 31 [Gallagher's Mot.], filed August 8, 2014). Plaintiff filed her combined response on September 26, 2014. (Doc. No. 41 [Resp.].) Defendant Lynch filed his reply on October 10, 2014 (Doc. No. 50 [Lynch's Reply]), and Defendant Gallagher filed his reply on October 6, 2014 (Doc. No. 49 [Gallagher's Reply]). These motions are ripe for ruling.
STATEMENT OF THE CASE
Plaintiff alleges on October 29, 2011, Defendants "violated [her] civil rights [b]y using excessive force" by handcuffing her behind her back, throwing her to the ground, and belly flopping and dog piling onto her. (Doc. No. 18 [Am. Compl.] at 2, 4-5.) Plaintiff alleges she was not struggling and was not armed. ( Id., ¶ 8.) Plaintiff alleges the defendants placed her into a holding cell and did not check her for injuries or offer medical attention. ( Id., ¶¶ 9-10.) Plaintiff alleges Defendant Gallagher used excessive force when he placed Plaintiff into arm and leg restraints for transport to an unnamed location. ( Id., ¶ 12.) Plaintiff alleges the restraints were too tight, but the defendants ignored her requests to loosen them. ( Id., ¶ 13.) Plaintiff alleges the defendants' use of excessive force resulted in a back injury and other illnesses. ( Id., ¶ 15.)
Plaintiff asserts two claims for relief. In her First Claim for Relief, she alleges the defendants used excessive force in violation of her Fourth and Fourteenth Amendment rights and they conspired against her in violation of 18 U.S.C. § 241. ( See id. at 7-8.) In her Second Claim for Relief, she alleges the defendants committed battery against her in violation of Colorado law. ( See id. at 10-11.)
Defendant Lynch moves to dismiss Plaintiff's claims against him on the bases that (1) her claims are barred by the statute of limitations; (2) Plaintiff has failed to sufficiently allege a violation of her rights; (3) he is entitled to qualified immunity; and (4) Plaintiff's battery claim must be dismissed for her failure to comply with the Colorado Governmental Immunity Act ("CGIA"). ( See Lynch's Mot. at 6-15.) Defendant Lynch also moves for summary judgment on the basis that Plaintiff's claims are barred by the statute of limitations. ( Id. at 16.)
Defendant Gallagher moves to dismiss the claims against him on the bases that (1) her claims are barred by the statute of limitations; and (2) he is entitled to qualified immunity. ( See Gallagher's Mot.)
STANDARD OF REVIEW
1. Pro Se Plaintiff
Plaintiff is 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 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. 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 ...