United States District Court, D. Colorado
Brooke Jackson, United States District Judge
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
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.
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.
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.
STANDARD OF REVIEW
Magistrate Judge Recommendation.
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)).
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).
“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
Pro Se Party.
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