United States District Court, D. Colorado
ORDER AFFIRMING AND ADOPTING THE SEPTEMBER 8, 2015 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (DOC. # 156)
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
On December 11, 2014, this case was referred to United States Magistrate Judge Michael J. Watanabe to conduct all motion proceedings pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72(a) and (b). (Doc. # 4.) In a Report & Recommendation issued on September 8, 2015, Magistrate Judge Watanabe recommended granting Defendants’ motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. ## 106, 107, 108, 110, and 140). (Doc. # 156.) This Court incorporates Magistrate Judge Watanabe’s Report & Recommendation herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). On October 7, 2015, Plaintiff Marcus Lessard, proceeding pro se, filed a timely objection to Magistrate Judge Watanabe’s recommendation. (Doc. # 167.)
I. LEGAL STANDARDS
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommended] disposition that has been properly objected to.” In conducting its 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).
The legal standard governing a Rule 12(b)(1) motion to dismiss is as follows:
Generally, Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject-matter jurisdiction questions the sufficiency of t he c o mplaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject-matter jurisdiction depends. W hen reviewing a factual attack on subject-matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citations omitted). It is Plaintiff's burden to demonstrate that the Court has subject-matter jurisdiction over his complaint. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court “accept[s] all the well-pleaded allegations of the complaint as true” and “construe[s] them in the light most favorable to the plaintiff.” Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). The Court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” The Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007)). The plausibility standard is “not akin to a probability requirement, ” but it asks for more than a “sheer possibility” that the alleged claim might have occurred. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). In evaluating the plausibility of a given claim, the Court “need not accept conclusory allegations” without supporting factual averments. S. Disposal,
Inc., v. Tex. 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, 556 U.S. at 678.
The Court must construe the pleadings of a pro se litigant liberally, as they are held to a less stringent standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Therefore, “[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give an opportunity to amend.” Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (citation omitted). However, the Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his or her] behalf.” Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
II. PLAINTIFF’S CLAIMS
In his 215-page Second Amended Complaint, Plaintiff asserts 19 claims against 27 defendants. (Doc. # 83.) The numerous facts underlying Plaintiff’s claims are succinctly summarized in Magistrate Judge Watanabe’s Report & Recommendation (Doc. # 156 at 3-7.) and, therefore, will not be repeated here.
Claims 1, 2, and 3 pertain to Defendant Traci Cravitz and her immediate supervisor. (Doc. # 83 at 111-18.) Defendant Cravitz signed the original affidavit for Plaintiff’s arrest warrant in 2010. (Id.) These claims allege malicious prosecution, unlawful arrest, and gender discrimination. (Id.)
Claims 4 and 5 are asserted against Defendants Karen Lorenz and Natasha Anderson. (Id. at 119-26.) Defendants Lorenz and Anderson are the deputy district attorneys who drafted and signed both the criminal complaint and the motion for temporary protection order filed against Plaintiff in 2010. (Id.) Plaintiff alleges that Defendants Lorenz and Anderson engaged in malicious prosecution stemming from a lack of probable cause. (Id.)
Claims 6 and 7 allege conspiracy to commit malicious prosecution without probable cause and/or based on gender discrimination. (Id. at 127-39.) These conspiracy claims are brought against Defendants Cravitz, Liz LaFemina, five “property/evidence techs” from the Boulder Police Department, and individuals who rejected Plaintiff’s requests for investigation from 2011 to 2013. (Id.)
Claim 8 asserts that Defendant Anderson (the lead prosecutor in Plaintiff’s 2010 case), Defendant Steven Louth (Plaintiff’s defense attorney in the 2010 case), and a police investigator conspired to violate Plaintiff’s due process rights by coercing him into a guilty plea. (Id. at 140-45.)
Claim 9 alleges that multiple prosecutors and investigators from the Office of the District Attorney for the Twentieth Judicial District, Defendant Louth, and the judges who presided over Plaintiff’s bond setting, personal protection order hearing, and change of plea/sentencing hearing conspired to violate Plaintiff’s equal protection rights by coercing him into a guilty plea. (Id. at 146-53.)
Claim 10, asserted against nearly every named defendant in this case, alleges conspiracy to maliciously prosecute Plaintiff in violation of his Fourth Amendment and Fourteenth Amendment rights by both unlawful arrest and the coercing of Plaintiff into a guilty plea. (Id. at 154-57.)
Claim 11 combines Claims 7 and 9 and alleges a conspiracy to unlawfully arrest Plaintiff and coerce him into a guilty plea because of his gender, in violation of his equal protection rights. (Id. at 158-62.) Similar to Claim 10, Plaintiff names the majority of Defendants in Claim 11.
Claims 12 and 13 are asserted against the prosecutor in Plaintiff’s 2014 criminal case and allege that a number of steps in the 2014 proceeding were taken in retaliation for both Plaintiff’s request for an investigation into the 2010 proceeding and his filing of the instant lawsuit. (Id. at 163-70.) Plaintiff contends that his First Amendment rights of speech and access to the courts were violated by the prosecutor. (Id.)
Claim 14 is brought against both the prosecutor in Plaintiff’s 2014 criminal case and Defendant Cravitz, who signed the affidavit for the arrest warrant in 2010 and testified at a competency hearing in the 2014 criminal case. (Id. at 171-74.) Plaintiff asserts the same First Amendment rights as those stated in Claims 12 and 13, but alleges that those rights were violated through a conspiracy to obstruct justice. (Id.)
Claims 15, 16, 17, and 18 allege supervisory liability, liability for failure to prevent, and Monell liability on the part of Defendants Stan Garnett, Greg Testa, and various public entities for the constitutional violations asserted in the prior claims. (Id. at 175-94.)
Claim 19 alleges malicious prosecution against Defendant ...