United States District Court, D. Colorado
Kathleen M. Tafoya United States Magistrate Judge
matter is before the court on “Defendant's Motion
for Partial Dismissal” (Doc. No. 11 [Mot.], filed April
13, 2017). Plaintiff filed his response on May 8, 2017 (Doc.
No. 16 [Resp.]).
OF THE CASE
proceeding pro se, filed his Complaint pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5 (“Title VII”) on February 6, 2017,
asserting the defendant discriminated against him because of
his race and age. (See Doc. No. 1 [Compl.].)
Plaintiff states he was “talking to a person that was
pretending to be 19 years old” during a drug sting
operation. (Id. at 4.) Plaintiff states he was never
charged with anything, but the information about the sting
operation was conveyed to his employer, and Plaintiff was
terminated on August 3, 2015. (Id. at 3-4) Plaintiff
believes his involvement in the sting operation and
subsequent termination was “racial profiling,
harassment, and entrapment” (Id. at 4.)
Plaintiff asserts claims for discrimination on the bases of
race and age in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-5 (“Title
VII”) and the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 et. seq.
(“ADEA”). (See Id. at 2, 4-6.) Plaintiff
also asserts claims for “defamation and questioning the
County's Conflict of Interest stance” and
“hostile environment and verbal abuse by [his]
supervisor.” (See Id. at 7-9.) Plaintiff seeks
compensatory damages, punitive damages, and costs and fees.
(Id. at 10.)
moves to dismiss Plaintiff's common law claims for lack
of jurisdiction. (See Mot.)
Pro Se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by
lawyers”). However, a pro se litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). A court may not assume that a
plaintiff can prove facts that have not been alleged, or that
a defendant has violated laws in ways that a plaintiff has
not alleged. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526
(1983). See also Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (court may not “supply
additional factual allegations to round out a plaintiff's
complaint”); Drake v. City of Fort Collins,
927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not
“construct arguments or theories for the plaintiff in
the absence of any discussion of those issues”). The
plaintiff's pro se status does not entitle him
to application of different rules. See Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Subject Matter Jurisdiction
Rule of Civil Procedure 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. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
moves to dismiss Plaintiff's state law claims for lack of
subject matter jurisdiction, arguing Plaintiff failed to
comply with the notice requirement mandated by the Colorado
Governmental Immunity Act (“CGIA”), Colo. Rev.
Stat. § 24-10-109. (Mot. at 3-5.)
states that Plaintiff's Second Claim for Relief for
“defamation and questioning the County's Conflict
of Interest stance” and Third Claim for Relief for
“hostile work environment and verbal abuse by [his]
supervisor” are claims sounding in tort that must be
dismissed. (Mot. at 3.) The “court must
consider the nature of the relief sought to determine whether
a particular action ‘lies in tort or could lie in
tort' within the meaning of the CGIA.” City of
Colo. Springs v. Conners, 993 P.2d 1167, 1176 (Colo.
2000). The court “should determine whether an action is
one for ‘injury which lies in tort or could lie in
tort' under the [Colorado Civil Rights Act
(“CCRA”)] by assessing whether the plaintiff
seeks compensation for personal harms.” Id.
Relief provided by the CCRA does not recompense a plaintiff
for tort-like “personal injury, such as pain and
suffering, emotional distress, harm to reputation, or other
consequential damages.” Id. at 1175 (quoting
United States v. Burke, 504 U.S. 229-239 (1992),
modified on other grounds by The Small Business
Protection Act of 1996, Pub. L. No. 104-188, § 1605, 110