United States District Court, D. Colorado
ERIC L. CARREE, Plaintiff,
STATE OF COLORADO, DEPT. OF HUMAN SERVICES, DIV. OF VOC. REHAB., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on "Defendant's Motion to Dismiss" (Doc. No. 22 [Mot.], filed July 9, 2015). Plaintiff filed his response on September 2, 2015 (Doc. No. 27 [Resp.]), and Defendant filed its reply on September 19, 2015 (Dor. No. 32 [Reply]).
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed his case pursuant to Title VII of the Civil Rights Act of of 1964, 42 U.S.C. § 2000e-5, alleging race and color discrimination. ( See Doc. No. 10 [Compl.].) Plaintiff claims on June 22, 2010, he applied for services through the defendant, the Division of Vocational Rehabilitation ("DVR"). ( Id. at 11, ¶ 15.) Plaintiff states DVR "accepted him on July 20, 2010, and categorized him as being a person with most significant disabilities.'" ( Id. ) Beginning in November 2011, Plaintiff met with DVR agents and employees with the goal of setting up a hot dog cart business. ( Id., ¶¶ 17-19.) DVR approved Plaintiff's business plan in December 2012. ( Id. at 12, ¶ 26.) Plaintiff thereafter purchased a hot dog cart and operating equipment, and also obtained the necessary permits and license. ( Id., ¶¶ 27, 34, 36-38.) Plaintiff alleges he has experienced significant delays and problems with DVR in starting his hot dog cart business. ( See id. at 12-14.) Plaintiff alleges DVR has intentionally delayed services designed to provide him with employment and has treated him differently from a non-African American because of his race or color. ( See id. at 15.)
Defendant moves to dismiss Plaintiff's Complaint in its entirety. (Mot.)
STANDARDS OF REVIEW
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his 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).
B. 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, 678 (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 679-81. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
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, 556 U.S. at 678. 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. (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citation omitted).
Defendant moves to dismiss Plaintiff's claims against it because Plaintiff has failed to show he was ...