Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Strepka v. Alba

United States District Court, D. Colorado

February 17, 2017

MARK ALAN STREPKA, Plaintiff,
v.
FRANCISCO L. ALBA, 14016, individually and in his official capacity as police officer in and for the City and County of Denver, Colorado, Defendant.

          ORDER

          R. Brooke Jackson, United States District Judge

         This matter is before the Court on defendant Francisco Alba's motion to dismiss for failure to state a claim, ECF No. 21, and Magistrate Judge Kristen L. Mix's recommendation on that motion, ECF No. 45. Judge Mix recommends that this Court grant in part and deny in part defendant's motion. ECF No. 45 at 2. Her recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). After a de novo review of the portions of the recommendation the parties object to, see id., the Court ADOPTS in full Judge Mix's recommendation. Accordingly, the Court GRANTS IN PART and DENIES IN PART defendant's motion.

         I. FACTS

         On January 19, 2015 defendant Francisco L. Alba, a Denver police officer, allegedly began to follow plaintiff Mark Alan Strepka as he was driving a rental car. Amended Complaint, ECF No. 9 at 3-4. Plaintiff alleges that defendant followed him for over a mile before pulling him over. Id. He asserts that defendant has claimed that he pulled plaintiff over for two reasons: (1) because he could not clearly see plaintiff's rear license plate; and (2) because he thought the vehicle plaintiff was driving might be an “un-reported steal” from out of state. See Id. at 6. Plaintiff contends that he was not violating any laws when defendant stopped him. See id.

         Upon stopping him, defendant allegedly began to question plaintiff. Id. Defendant purportedly asked plaintiff where he was coming from and inquired into whether or not plaintiff was in possession of any drugs or weapons. Id. Defendant then allegedly conducted a search of plaintiff's vehicle without a warrant. Id.at 3-5, 7-8. The search turned up two firearms that were locked inside the trunk of the vehicle, as well as a small blue vial that allegedly contained methamphetamine. Id. at 8. Although he did not have an arrest warrant, defendant arrested plaintiff upon discovering these items and took plaintiff to jail. Id. at 9.

         On July 8, 2015, plaintiff filed this civil rights action under 42 U.S.C. § 1983, alleging violations of the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. Complaint, ECF No. 1. He amended his initial complaint on December 16, 2015. ECF No. 9. The case was subsequently referred to Magistrate Judge Kristen L. Mix on January 6, 2016. ECF No. 17. On February 2, 2016 defendant filed a motion to dismiss plaintiff's amended complaint for failing to state a claim under Rule 12(b)(6). ECF No. 21. On September 6, 2016 Magistrate Judge Mix recommended that this Court grant in part and deny in part defendant's motion. ECF No. 45. Plaintiff subsequently objected to several portions of that recommendation. ECF No. 56.

         II. STANDARD OF REVIEW

         A. Magistrate Judge Recommendation.

         When a magistrate judge makes a recommendation on a dispositive motion, the district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). “In the absence of timely 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)).

         B. Rule 12(b)(6).

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” 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, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

         Importantly, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted); accord Robbins v. Okla. ex. rel. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). “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) (internal citation omitted).

         C. Pro Se Party.

         When a case involves a pro se party, the court will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, “it is [not] the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. Pro se parties must ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.