United States District Court, D. Colorado
RAYMOND P. MOORE, District Judge.
This matter is before the Court on U.S. Magistrate Craig Shaffer's recommendation ("Recommendation") (ECF No. 134) that this Court grant the Motion to Dismiss Plaintiff's Fourth Amended Complaint filed by the Defendants (ECF No. 125). Plaintiff Nathaniel Hampton ("Plaintiff") has filed timely objections (ECF No. 136) to the Recommendation and an untimely supplement to those objections (ECF No. 141) (together the "Objections"). For the reasons stated below, the Court (1) ADOPTS the Recommendation in part and REJECTS the Recommendation in part; and (2) GRANTS Defendants' motion to dismiss in part and DENIES Defendants' motion to dismiss in part; and (3) SUSTAINS Plaintiff's objections in part and OVERRULES Plaintiff's objections in part.
I. LEGAL STANDARD
A. Review of the Magistrate Judge's Recommendation
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting his review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. Rule 12(b)(6) Motion
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Id. at 555 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. A "plaintiff must nudge  [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss.... Thus, 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." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original, internal citation and quotation omitted).
The Tenth Circuit Court of Appeals has held "that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation and citation omitted). The Tenth Circuit has further noted "that the nature and specificity of the allegations required to state a plausible claim will vary based on context." Id. (Internal quotation and citation omitted.) Thus, the Tenth Circuit "concluded the Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.'" Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in a plaintiff's favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996) (citations omitted). However, "when legal conclusions are involved in the complaint the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions...." Khalik, 671 F.3d at 1190 (quoting Iqbal, 556 U.S. at 678). "Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed this 42 U.S.C. § 1983 action on May 27, 2011 seeking to recover from the City of Colorado Springs (the "City") and several individual employees of the City regarding an alleged public strip search Plaintiff was subject to in front of his home when he was arrested the night of July 6, 2010 and the impoundment and eventual sale of Plaintiff's truck. Specifically, Plaintiff alleges in his Fourth Amended Complaint (ECF No. 120, the "FAC") that Officer Evans ("Evans") searched Plaintiff in front of his home at the time of his arrest as his neighbors looked on. (ECF No. 120, FAC at 6.) During that search, Plaintiff alleges that Evans pulled down his pants and underwear exposing Plaintiff's genital and buttocks area. ( Id. ) Plaintiff also alleges that Officers Cherry and Nelson ("Cherry" and "Nelson") incorrectly informed Plaintiff at the time of his arrest that his truck would be towed from his home and placed into evidence. ( Id. at 5, 7.) Instead, Cherry had the truck impounded and it was eventually sold at auction. ( Id. ) Evidence Technician Regina Miller ("Miller") mailed notice of the auction to Plaintiff's home address via registered mail, which letter was returned undelivered. ( Id. at 11.) Plaintiff seems to allege that this notice of non-delivery should have put the City on notice that he did not receive proper notice. ( Id. ) Plaintiff's FAC states (1) Fourteenth Amendment due process claims against Nelson, Cherry, Miller and the City based on the impoundment and eventual sale of his truck and (2) a Fourth Amendment claim against Evans based on the public strip search. The FAC also includes a request for punitive damages against all Defendants. Officers Nelson and Cherry have moved to dismiss the claims against them and all Defendants have moved to have Plaintiff's request for punitive damages dismissed. (ECF No. 125.) Counsel for Miller did not move to dismiss the FAC, stating that Miller had not yet been properly served. ( Id. at 2 n.1.)
This case was previously subject to a September 26, 2012 order by U.S. District Judge Philip A. Brimmer (ECF No. 96, the "Previous Order") on a motion to dismiss Plaintiff's previous amended complaint. The Previous Order granted Plaintiff permission to file an amended complaint containing a Fourth Amendment claim against Evans for the acts described above and a ...