United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion for Judgment on the
Pleadings [filed March 23, 2017; ECF No. 18]. The
Honorable Christine M. Arguello referred the motion to this
Court for recommendation. ECF No. 19. The motion is fully
briefed, and the Court finds that oral argument will not
assist in its adjudication. Defendant's motion asks the
Court to determine whether Plaintiffs' Complaint states a
constitutional violation against the City of Colorado
Springs. Because Plaintiffs' claims fail to allege an
entity liability claim under 42 U.S.C. § 1983, the Court
respectfully recommends that Defendant's motion for
judgment on the pleadings be granted.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiffs in the Complaint, which are
taken as true for analysis under Fed.R.Civ.P. 12(c). See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1160 (10th Cir. 2000) (“A motion for
judgment on the pleadings under Rule 12(c) is treated as a
motion to dismiss under Rule 12(b)(6).”).
owns two public golf courses within its city limits-Patty
Jewett Municipal Golf Course and Valley Hi Golf Course.
Compl. ¶ 7, ECF No. 1. Defendant contracts with private
businesses to operate the golf courses' concessions.
Id. at ¶ 9. From 1994 to 2014, Northern Golf,
Inc.-a company wholly owned by Michael Northern-successfully
operated and managed the concessions at Valley Hi.
Id. at ¶ 10. During the latter part of this
period, a company named Gimmie Golf operated the concessions
at Patty Jewett. Id. at ¶ 11.
2012 through 2014, Defendant employed a golf manager, named
Dal Lockwood, to oversee its courses. Id. at ¶
8. Plaintiffs presented evidence to Lockwood that Gimmie Golf
mismanaged Patty Jewett, costing Defendant hundreds of
thousands of dollars in lost revenue. Id. at ¶
13. Despite this evidence, Lockwood took no action to
penalize Gimmie Golf. Id. at ¶ 14. To the
contrary, Lockwood routinely approved improvements at Patty
Jewett, while rejecting Plaintiffs' proposed improvements
at Valley Hi. Id. at ¶ 16. Additionally, in
2012, Lockwood instituted a baseless investigation into
Northern Golf's operations of Valley Hi and issued a
“Cure Notice” to Plaintiffs for a deficiency in
cash flows. Id. at ¶ 17.
Golf's and Gimmie Golf's contracts with Defendant had
set expiration dates and required Defendant to engage in a
competitive bidding process before renewal. See Id.
at ¶¶ 19, 21. Pursuant to this process, after
Defendant accepted bids for the concessions at each golf
course, a panel of “evaluators” decided which bid
to accept. See Id. at ¶ 24. In 2013, Lockwood
renewed Gimmie Golf's expired contract without seeking
bids. Id. at ¶ 18. However, when Northern
Golf's then-existing contract was set to expire on
December 31, 2014, Lockwood opened the contract to the
competitive bidding process. Id. at ¶¶
21-22. Gimmie Golf and Northern Golf submitted bids, and
Defendant awarded the contract to Gimmie Golf. Id.
at ¶ 23. The evaluators of the bids based their
decision, at least in part, on Lockwood's 2012
investigation of Northern Golf and the lack of any similar
investigation into Gimmie Golf's conduct. Id. at
¶ 24. After Defendant terminated Northern Golf's
contract, Mr. Northern raised his concerns regarding Gimmie
Golf's management with the chief of staff for
Defendant's mayor and through a formal ethics complaint.
Id. at ¶¶ 25-26. Defendant dismissed both
of these complaints. Id.
thereafter, Defendant forced Lockwood to resign due to
Lockwood's “poor management skills and blatant
favoritism . . . .” Id. at ¶ 28. In
September 2015, Defendant posted the golf manager position on
the Internet. Id. at ¶ 29. Shortly after Mr.
Northern applied, Defendant removed the position, allegedly
due to “budgetary issues.” Id. at
¶¶ 30-31. Nonetheless, Defendant eventually filled
the position with someone less qualified than Mr. Northern.
Id. at ¶¶ 32-33.
on these factual allegations, Plaintiffs filed their
Complaint on May 10, 2016. ECF No. 1. Plaintiffs bring three
claims for relief under 42 U.S.C. § 1983. Id.
at ¶¶ 35-51. Plaintiffs' first claim alleges
that Defendant treated Northern Golf, a class of one,
differently than other similarly situated entities, and thus
violated Northern Golf's equal protection rights.
Id. at ¶ 37. Plaintiffs' second claim
asserts a cause of action for deprivation of Northern
Golf's property interest in the maintenance of its
concessions contract with Defendant and its right to bid on
the Patty Jewett contract. Id. at ¶¶
40-45. Plaintiffs' final claim for relief contends
Defendant refused to hire Mr. Northern for the golf manager
position in retaliation for Mr. Northern's complaints
about Gimmie Golf. Id. at ¶¶ 46-51.
filed an Answer to the Complaint on June 3, 2016. ECF No. 10.
Then, on March 23, 2017, Defendant filed the present Motion
for Judgment on the Pleadings. ECF No. 18. Defendant argues
the case should be dismissed, because Plaintiffs'
Complaint does not allege an official policy or custom.
Id. at 3-4. Additionally, Defendant asserts that all
of Plaintiffs' causes of action fail to state a
constitutional violation. Id. at 5-14. Plaintiffs
filed a Response to Defendant's Motion on April 13, 2017.
ECF No. 20. Plaintiffs contend Defendant is liable, because
Lockwood's actions amount to an informal policy or
custom, Lockwood is a final policymaker, and alternatively,
Defendant ratified Lockwood's decisions. Id. at
4-6. Plaintiffs also argue that each of their causes of
action sufficiently alleges a constitutional violation.
Id. at 6-15. On April 27, 2017, Defendant filed a
Reply in Support of its Motion. ECF No. 21.
motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6).”
Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1160 (10th Cir. 2000); Aberkalns v.
Blake, 633 F.Supp.2d 1231, 1233 (D. Colo. 2009)
(“Courts review a motion for judgment on the pleadings
using the same standard as a motion under Rule
12(b)(6).”). “To 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.'” Iqbal, 556 U.S. at 678
(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 678-80.
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.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to ...