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Fortner v. County of El Paso

United States District Court, D. Colorado

March 2, 2016

COUNTY OF EL PASO, COLORADO, STATE OF COLORADO, BLACK FOREST FIRE/RESCUE PROTECTION DISTRICT, TERRY MAKETA, Individual and Official capacity, SCOTT CAMPBELL, Individual and Official capacity, BOB HARVEY, Individual and Official capacity, JAMES REBITSKI, Individual and Official capacity, EDWAN BRACKEN, Individual and Official capacity, RICK MCMORRAN, Individual and Official capacity, DIANA MAY, Individual and Official capacity, PRESTON COOPER, Individual and Official capacity, DARREL GLENN, Individual and Official capacity, AMY FOLSOM, Individual and Official capacity, ANDREW GORGEY, Individual and Official capacity, JON MUELLER, Individual and Official capacity, MICHAEL SHELBURNE, Individual and Official capacity, JOHN HICKENLOOPER, Individual and Official capacity, DOES 1-100, EL PASO COUNTY BOARD OF COMMISSIONERS DENNIS HASLEY, Individual and Official capacity, PEGGY LITTLETON, Individual and Official capacity, SALLIE CLARK, Individual and Official capacity, and AMY LATHEN, Individual and Official capacity, Defendants.


William J. Martínez, United States District Judge.

This matter is before the Court on United States Magistrate Judge Nina Y. Wang’s Recommendations dated December 9, 2015 (“First Recommendation”) (ECF No. 52) and January 4, 2016 (“Second Recommendation”) (ECF No. 57).

The First Recommendation recommends granting three motions: Defendants Terry Maketa, The County of El Paso, Colorado, Scott Campbell, Diana May, El Paso County Board of County Commissioners, Dennis Hisey, [1] Peggy Littleton, Sallie Clark, Amy Lathen, Daryl Glenn, Amy Folsom, Andrew Gorgey, Michael Shelburne, and John Mueller’s (collectively, “County Defendants”) Motion to Dismiss “First Amended Verified Civil Rights Complaint 42 USCS 1983” (ECF No. 31); Defendants Black Forest Fire/Rescue Protection District, Bob Harvey, Edward Bracken, [2] Rick McMorran, and Preston Cooper’s (collectively, “BFPD Defendants”) Motion to Dismiss First Amended Complaint (ECF No. 32); and Defendants State of Colorado and Governor John Hickenlooper’s (collectively, “State Defendants”) Motion to Dismiss First Amended Complaint (ECF No. 34). (ECF No. 52.) The Second Recommendation recommends that the First Amended Complaint be dismissed as to Defendant James Rebitski and that the civil action be dismissed in its entirety. (ECF No. 57 at 3.)

The First and Second Recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). After the Court granted two unopposed Motions for Extension (see ECF No. 56; ECF No. 60), Darrell Fortner (“Plaintiff”) filed a timely Objection to the Recommendations (ECF No. 62). The County Defendants (ECF No. 63) and the BFPD Defendants (ECF No. 66) filed responses to the Objection. For the reasons set forth below, Plaintiff’s Objection is overruled, the Recommendations are adopted, and Plaintiff’s claims are dismissed.


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 [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties’ dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific objection, “the district court may review a magistrate . . . [judge’s] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); 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.”).

Because Plaintiff is proceeding pro se, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as an 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).

The motions underlying the Recommendation were filed under Federal Rule of Civil Procedure 12(b)(6). 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). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

The Defendants in this case invoke various immunities in arguing that this Court is divested of subject matter jurisdiction over certain claims made by Plaintiff. Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court’s jurisdiction over subject matter is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng’rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).


The Black Forest Fire occurred in El Paso County, Colorado, in June 2013 (the “Fire”). (See ECF No. 7.) Plaintiff alleges that the Fire took the lives of his four German Shepherd dogs and four family cats. (Id. at 4.) He also alleges that his five horses were severely burned, his home was destroyed, and trucks and equipment used for his tree service business were destroyed. (Id. at 4, 18.)

Plaintiff filed this lawsuit on March 30, 2015. (ECF No. 1.) Plaintiff then filed a First Amended Complaint on April 28, 2015. (ECF No. 7.) He asserted numerous claims arising out of events related to the Fire. (See id.) Pursuant to 42 U.S.C. § 1983, Plaintiff asserts numerous constitutional violations by each group of Defendants. (See ECF No. 7 at 14-16.) Plaintiff lists these claims under his “Third Claim for Relief” for “Violation of the First, Fifth, and Fourteenth Amendments to the United States Constitution, Due Process, Equal Protection, Equal Employment Opportunity.” (Id. at 14.) Plaintiff also asserts state law claims over which the Court could potentially exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). (See Id. at 10-13, 16-19.) Plaintiff’s First Amended Complaint Contains the following claims under state law: “First Claim for Relief: Gross Negligence, Outrageous Conduct, Deliberate Indifference”; “Second Claim for Relief: Gross Negligence/Respondent [sic] Superior, Failure to Train Employees”; “Fourth Claim for Relief: Deliberate Indifferunce [sic] and Gross Neglegance [sic].” (Id.)

On May 7, 2015 the County Defendants filed a Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 31 at 2.) The following day, the BFPD Defendants filed their Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (ECF No. 32 at 1.) Lastly, the State Defendants filed their Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (ECF No. 34 at 2.) The Magistrate Judge reviewed those motions, along with Plaintiff’s responses and Defendants’ replies, and issued her Recommendations granting the Motions to Dismiss and dismissing the action as to all Defendants on all claims. (See ECF No. 52; ECF No. 57.)


A. Proper Defendants

Colorado Revised Statutes § 30-11-105 requires that all proceedings against a Colorado county be brought against “the board of county commissioners” of that county. Defendants Darryl Glenn, Amy Lathen, Sallie Clark, Dennis Hisey, and Peggy Littleton comprise the El Paso County Board of County Commissioners.[3] Furthermore, a suit against a government official in his or her official capacity is simply “another way of pleading an action against an entity of which an officer is an agent.” McDonald v. Wise, 769 F.3d 1202, 1215 (10th Cir. 2014). Since Plaintiff also named “El Paso County Board of County Commissioners” as a defendant, the Magistrate Judge found that naming the County itself and the individual commissioners as Defendants was duplicative; and, therefore, those Defendants should be dismissed.

Plaintiff does not specifically object to the Magistrate Judge’s findings regarding the duplicative nature of these particular Defendants. (See ECF No. 62.) Where Plaintiff does not object to the Magistrate Judge’s findings, the Court reviews those findings under a “clearly erroneous” standard of review. The Court finds no clear error in the Magistrate Judge’s reasoning regarding this recommendation and, thus, adopts it. The County of El Paso, as well as Defendants Glenn, Lathen, Clark, Hisey, and Littleton in their respective official capacities, are dismissed as Defendants.

B. Plaintiff’s Constitutional Claims

The Magistrate Judge found that Plaintiff failed to state a cognizable constitutional claim against any Defendant. (ECF No. 52 at 21, 30, 35.) On that basis, the Magistrate Judge recommended that Plaintiff’s Third Claim for Relief be dismissed as to all Defendants. (Id. at 21, 31, 36) Plaintiff objects to this portion of the Recommendation, at least as it pertains to the County Defendants. (ECF No. 62 at 3.) Specifically, he “[o]bject[s] to the dismissal of the defendants that the Magistrate stated on page 21 as the court stated in part, that the third claim be dismissed against all County defendants and any defendant in their official capacity . . . .” (Id.)

Plaintiff asserts several claims under the umbrella of his Third Claim for Relief. (ECF No. 7 at 14.) Plaintiff lists equal protection, equal employment opportunity, due process, and the First, Fifth, and Fourteenth Amendments as the bases of his ...

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