United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, Magistrate Judge.
Pending before the Court is Defendants' Motion to Dismiss the Complaint ("Motion") [filed November 5, 2015; docket #5]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. Colo. L.Civ.R 72.1. (c), the Motion has been referred to this Court for recommendation. The Court recommends that, for the reasons stated herein, the Motion be granted.
Plaintiff, proceeding pro se, initiated this suit by filing his Complaint on October 15, 2015, alleging that on May 23, 2015, Officer Kenneth Koski of the Fort Collins [Colorado] Police Services, pulled him over for driving with a broken taillight. Docket #1 at 2, 5. Officer Koski, suspecting Plaintiff to have been driving under the influence, asked Plaintiff to choose between taking a blood test or a breathalyzer test. Id. at 2. Plaintiff asked for a lawyer "so as to know what the pros and cons for each method were." Id. Officer Koski informed Plaintiff that requesting a lawyer would amount to a refusal to take the test and would result in a revocation of his license to drive. Id. Plaintiff then agreed to a blood test. Id. Plaintiff asked Officer Koski to video record the blood draw, which Officer Koski said he would do. Id.
During the blood draw attempt, the nurse at the local hospital where the test was to be conducted had difficulty finding an adequate vein. Id. Plaintiff told the nurse and the officer that the process of the nurse "poking different spots and moving the needle while inside [his] arm searching for [his] veins" was "really painful, " so Plaintiff suggested the nurse try the other arm. Id. Officer Koski told him to "let the nurse do her job." Id. Plaintiff asserts that he at this point "requested to talk to a lawyer[, ] and Officer Koski said that was not going to happen." Id. The nurse continued to search for a vein until, as Plaintiff indicates, "the pain became unbearable and [Plaintiff] said [he] could not continue anymore without seeing a lawyer and knowing what [his] options were." Officer Koski again told Plaintiff that according to Colorado law, requesting a lawyer would be taken as a refusal, which would lead to the Colorado Department of Revenue revoking Plaintiff's license to drive. Id. Plaintiff did not relent, and Plaintiff's license was in fact revoked by the Colorado Department of Revenue as a result. Docket #14 at 2. Officer Koski later said that the recording of the attempted blood draw was missing. Docket #1 at 3.
Plaintiff's Complaint alleges that Defendant Cynthia Coffman (the Colorado Attorney General) and Defendant Barbara Brohl (Executive Director of the Colorado Department of Revenue) violated (1) his Fifth Amendment rights by not allowing him to consult with a lawyer before the blood draw, and (2) his Eighth Amendment rights because the nurse caused him pain while looking for a vein. Id. at 3. Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2403. Id. at 2. He seeks the following relief: that he be given $100, 000 in compensatory damages; that the Colorado Department of Revenue reverse the revocation of his license; that Colorado drop all charges against him arising from his arrest in this incident; and that Colorado's expressed consent statute (Colo. Rev. Stat. § 42-4-1301.1 (2015)) be found unconstitutional unless changes are made to it. Id. at 3-4.
Defendants on November 5, 2015, filed the present Motion on the grounds that any claims against Defendants in their official capacity are barred by sovereign immunity insofar as this is an action for money damages, and insofar as they allegedly violated federal law in the past. Docket #5 at 3. Defendants also argue that to the extent Plaintiff asserts his claims based on Defendants' individual capacities, the claims are barred by qualified immunity. Id. at 4. However, while Plaintiff's Complaint did not clarify under which capacity(ies) he brought his claims, his Response to the current Motion made clear the Defendants "are sued in their official capacities only." Docket #14 at 3. Therefore, the Court addresses only issues involving claims against Defendants in their official capacities.
I. Dismissal under Fed.R.Civ.P. 12(b)(1)
Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of subject matter jurisdiction." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. 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. When 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.
Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the ...