United States District Court, D. Colorado
JOSE M. APODACA, Plaintiff,
CITY OF LAKEWOOD COLORADO (Municipality), LAKEWOOD POLICE DEPARTMENT, KEVIN PALETTA, (Chief of Police), in his individual and official capacities, ZBIGNIEW RICHARD KOSIK, (Police Officer), in his individual and official capacities, and ALICIA HARRIS, (Police Officer), in her individual and official capacities, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendants City of Lakewood, Colorado (the "City"), the Lakewood Police Department (the "Police Department"), and Kevin Paletta's ("Chief Paletta") (collectively, "Defendants") Motion to Dismiss Claims Pursuant to Fed.R.Civ.P. 12(b)(6) [#43] ("Motion"). Plaintiff, proceeding pro se,  filed a Response to the Motion [#53] and Defendants filed a Reply to Plaintiff's Response [#66]. Plaintiff then filed a Surreply entitled Response to Motion to Dismiss [#70] ("Surreply").
In addition, numerous other motions are pending before the Court: Plaintiff's Motion to Compel Information [#47]; Defendants' Motion to Stay Discovery [#50]; Plaintiff's Motion for Extension of Time to Properly Respond to Motions [#68]; Plaintiff's Motion Requesting Court to Direct U.S. Marshal's Office to Serve Summons at Employment for Alicia Harris [#72]; Plaintiff's Motion for Leave to Amend Pleadings [#76]; Plaintiff's Motions to Strike Motion to Dismiss [#85, #86]; and Plaintiff's Motion for Status Update [#89].
Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), these pending Motions have been referred to the undersigned. See Orders Referring Motions [#44, #48, #51, #69, #73, #79, #87, #90, #92]. The Court has reviewed the Motions, the Response, the Reply, and Surreply, the relevant law, and the entire case file, and is advised in the premises. For the reasons stated below, the Court RECOMMENDS that Defendants' Motion to Dismiss [#43] be GRANTED and that, additionally, that all claims against Defendant Harris be DISMISSED for lack of service. Further, given the Court's recommendation, the Court RECOMMENDS that the Motion for Leave to Amend Pleadings [#76] be DENIED, and DENIES as moot the Motions to Compel Information [#47], to Stay Discovery [#50], to Direct U.S. Marshal's Office to Serve Summons [#72], to Strike Motion to Dismiss [#85, #86], and for Status Update [#89]. Lastly, the Court GRANTS Plaintiff's Motion for Extension of Time [#68] and considers Plaintiff's Surreply [#70] filed after Defendants' Reply.
Plaintiff Jose Apodaca, an inmate in the Sterling Correctional Facility, filed this civil action on January 2, 2015. See generally Compl. [#1]. On March 10, 2015, Plaintiff filed a Second Amended Complaint [#12], and, subsequently, was granted leave to file a Third Amended Complaint [#35], which he filed on May 5, 2015.
Plaintiff alleges that he was subjected to excessive force during the course of his arrest on January 5, 2013 by two officers of the Lakewood Police Department, Defendants Kosik and Harris. Third Am. Compl. [#35] at ¶ 18. Plaintiff claims that he was forcefully thrown to the ground by Defendant Kosik and, when he was then handcuffed and placed into the officers' police cruiser, Defendant Kosik inflicted a number of injuries on him by striking him on his legs and feet with a police baton. Id. at ¶¶ 18-19. Plaintiff states that, although he requested medical attention while he was being arrested and placed in the cruiser, all such requests were disregarded by Defendants Kosik and Harris. Id. Plaintiff alleges that as a result he suffered severe injuries on his face, legs, and wrists. Id. at ¶ 20.
Plaintiff thus filed this action pursuant to 42 U.S.C. § 1983 alleging the following causes of action: (1) equal protection violations against Defendant Harris in her individual and official capacities; (2) use of excessive force and violation of due process of law against Defendant Kosik in his individual and official capacities; (3) deprivation of medical attention and equal protection violations against Defendants Kosik and Harris, in their individual and official capacities; and (4) fiduciary duty violations, due process violations, and equal protection violations against Defendant Kevin Paletta, Chief of Police. Id. at ¶¶ 8-12.
II. Legal Standard
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). "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." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) ("The complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." (quoting Twombly, 550 U.S. at 570)).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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 assertion[s] devoid of further factual enhancement." Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " a factual allegation has been stated, "but it has not show[n] that the pleader is entitled to relief, " as required by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
A. Defendant ...