United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
the Court is Defendants' Motion to Dismiss [filed
February 14, 2017; ECF No. 20]. The Motion is fully
briefed, and the Court finds oral argument will not assist in
its adjudication. Defendants' Motion argues that the
Court should dismiss this case, because Defendants are
entitled to either sovereign, absolute, or qualified
immunity. For the reasons that follow, the Court
agrees with Defendants. Accordingly, the Court respectfully
recommends that the District Court grant Defendants'
Motion to Dismiss.
initiated this lawsuit on December 16, 2016. See
Compl., ECF No 1. Plaintiff's claims arise from
Plaintiff's interactions with the District Attorney's
(“D.A.”) Office for the Eighteenth Judicial
District and an affidavit Defendant Monique B'Nai
Washington filed in a prior civil case. See Am.
Compl. ¶ 1, ECF No. 10. On February 14, 2017, Defendants
responded to Plaintiff's Amended Complaint by filing the
present Motion. See Defs.' Mot. to Dismiss, ECF
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in his Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(1) pursuant to Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
2013 through 2015, Plaintiff was a criminal defendant in five
separate misdemeanor cases. Am. Compl. ¶ 1. Each of
these cases was prosecuted by Washington-a Deputy D.A. for
the Eighteenth Judicial District. Id. In January
2015, while some of the criminal cases were still pending,
Plaintiff's ex-wife filed a civil complaint against
Plaintiff alleging defamation. Id. at ¶¶ 5,
12; Runyan v. Fey, No. 15-cv-00009-RBJ-CBS. In
support of the ex-wife's motion for summary judgment on
Plaintiff's counterclaims, Washington authored an
affidavit, which summarized the prior criminal cases she
prosecuted against Plaintiff. Am. Compl. ¶ 5;
Runyan, No. 15-cv-00009-RBJ-CBS, ECF No. 61-10. By
May 2015, all five criminal cases had been dismissed with
prejudice. Am. Compl. ¶ 2. Additionally, the case for
which Washington authored the affidavit settled in April
2016. See Id. at ¶12.
December 5, 2015, Plaintiff emailed Defendant George
Brauchler-the D.A. for the Eighteenth Judicial District of
Colorado-to discuss his concerns about the veracity of the
affi davit.Id. at ¶ 7. After no one at
the D.A.'s Office took any action in response, Plaintiff
sent another email to Brauchler requesting review of the
circumstances between Plaintiff and Washington. Id.
at ¶ 8. Seven hours later, Brauchler and Washington
caused Defendant Rich Orman-the Senior Deputy D.A.-to give
written notice to Plaintiff that he could no longer contact
any member of the D.A.'s Office except by United States
Mail or email directed to Orman. Id. at ¶ 9;
Ex. D. to Defs.' Mot. to Dismiss, ECF No. 20-4. The
notice did not include an expiration date or a method for
Plaintiff to seek review. Am. Compl. ¶ 9. As of the date
of the filing of the Amended Complaint, the D.A's Office
has not lifted the restriction. Id. at ¶ 14.
on these factual allegations, Plaintiff filed his Amended
Complaint on January 31, 2017. ECF No. 10. Plaintiff brings
six claims for relief. Plaintiff's first cause of action
alleges Defendants violated Plaintiff's due process
rights by obstructing his access to Brauchler, his elected
official. Am. Compl. 6. Plaintiff's second claim asserts
Defendants conspired with one another to deprive Plaintiff of
his constitutional rights. Id. at 7. The third claim
seeks a declaration that the affidavit Washington filed was
illegal and false. Id. at 7-8. Plaintiff's
fourth cause of action appears to assert a religious
discrimination claim against Washington. Id. at 8.
According to Plaintiff, Washington observed Plaintiff with
his rabbi, who is always dressed in orthodox Jewish clothing,
and “singled out” Plaintiff based on his
religion. Id. at 2, 8. Plaintiff's fifth cause
of action asserts a defamation claim for the statements
Washington made in her affidavit. Id. at 9. Lastly,
Plaintiff asserts a claim for extreme and outrageous conduct.
Id. at 9-10.
responded to Plaintiff's Amended Complaint by filing the
present Motion to Dismiss. ECF No. 20. As to Plaintiff's
claims against the Eighteenth Judicial District of Colorado,
Defendants assert entitlement to sovereign immunity.
Id. at 3-4. Additionally, Defendants argue
Plaintiff's claims against Washington are barred by
absolute immunity. Id. at 4. Defendants also assert
Brauchler is not a proper Defendant, because he did not
personally participate in any of the alleged unconstitutional
activity. Id. at 5. As to Plaintiff's remaining
federal claims, the individually named Defendants claim they
are entitled to qualified immunity, because the communication
restriction imposed on Plaintiff does not violate
Plaintiff's constitutional rights. Id. at 6-8.
Finally, Defendants argue Plaintiff's state claims are
barred by the Colorado Governmental Immunity Act
(“CGIA”). Id. at 8-9.
March 13, 2017, Plaintiff filed a Response to Defendants'
Motion. ECF No. 28. Plaintiff argues the alleged conduct was
not part of Washington's “prosecutorial discretion
or routine.” Id. at 3-4. The remainder of
Plaintiff's Response does not address Defendants'
immunity, but instead reasserts the allegedly
unconstitutional conduct underlying Plaintiff's claims.
Id. at 4-8. Defendants filed a Reply on March 27,
2017. ECF No. 33. Because Defendants' Motion
raises issues of sovereign, absolute, and qualified immunity,
the Court stayed this case pending a determination on the
present Motion. ECF No. 26.
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case, but only a
determination that the court lacks authority to adjudicate
the matter. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal
courts are courts of limited jurisdiction and may only
exercise jurisdiction when specifically authorized to do so).
A court lacking jurisdiction “must dismiss the cause at
any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” Id. (citing Full
Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th
Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be
determined from the allegations of fact in the complaint,
without regard to mere [conclusory] allegations of
jurisdiction.” Groundhog v. Keeler, 442 F.2d
674, 677 (10th Cir. 1971). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.
Pueblo of Jemez, 790 F.3d at 1151. Accordingly,
Plaintiff in this case bears the burden of establishing that
this Court has jurisdiction to hear his claims.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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) (quoting
Bell Atl. 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.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider 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 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
Dismissal of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
pleadings “liberally” and hold the pleadings
“to a less stringent standard than formal pleadings
filed by lawyers.” Smith v. United States, 561
F.3d 1090, 1096 (10th Cir. 2009). “[The] court,
however, will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on plaintiff's behalf.” Id. (citing
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)). The Tenth Circuit interpreted this rule to mean:
[I]f the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, this interpretation is qualified in that it
is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Id.; see also Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989) (“[W]e will not supply additional
facts, nor will we construct a ...