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Fymbo v. City & County of Denver

United States District Court, D. Colorado

November 21, 2014

DONALD E. FYMBO, Plaintiff,
v.
THE CITY AND COUNTY OF DENVER, COLORADO; MITCHELL MORRISEY, District Attorney; ALFRED HARRELL, Denver County Judge; JOHN LIETZ, Detective, Denver Police Department; STATE OF COLORADO, Denver Auto Dealer Licensing Board; FRANK MACIAS; and ROBERT KENNEY, Defendants

Donald E. Fymbo, Plaintiff, Pro se, Denver, CO.

For The City and County of Denver, Colorado, Defendant: David Charles Cooperstein, Denver City Attorney's Office, Denver, CO.

For The State of Colorado, Denver Auto Dealer Licensing Board, Defendant: William V. Allen, Colorado Attorney General's Office, Denver, CO.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Boyd N. Boland, United States Magistrate Judge.

This matter arises on the City and County of Denver's Motion to Dismiss [Doc. #11, filed 08/15/2014] (the " Motion").[1] I respectfully RECOMMEND that the Motion be GRANTED.

I. STANDARD OF REVIEW

The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). I cannot act as advocate for a pro se litigant, however, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

In ruling on a motion to dismiss, the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The complaint must contain specific allegations sufficient to establish that it plausibly supports a claim for relief. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir. 2007). " The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).

II. BACKGROUND

The plaintiff filed his Complaint on March 21, 2014. The Complaint contains the following allegations:

1. The plaintiff is the owner of over 100 vintage and collectible automobiles. Twenty-seven of those vehicles were made in 1980 or later. The 27 collector vehicles were allegedly offered for sale on a website that does not contain the plaintiff's name, address, place of business, or telephone number. Complaint, ¶ 14.

2. On March 15, 2013, a summons was issued by defendant Investigator Frank Macias which charged the plaintiff with 27 counts of violating C.R.S. 12-6-120(2), " acting as an unlicensed motor vehicle dealer." Id. at ¶ 12.

3. The State of Colorado and the Denver Police illegally seized six of the collector cars while they were being stored on private property. Macias put a hold on the vehicles at the Denver impound lot so they could not be released. The cars are still in the impound lot, and the plaintiff has incurred ...


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