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Cunningham v. Hoff

United States District Court, D. Colorado

May 26, 2017

TRAVIS CUNNINGHAM, as the biological father, legal guardian, and next friend of the minor child, HC; JERALDINE SKINNER; and SANG YOON, Plaintiffs,
CHRISTINE HOFF, individually and acting in her official capacity as a City of Aurora Municipal Prosecutor; JOSEPH BUCCERI, individually and acting in his official capacity as a City of Aurora Municipal Prosecutor; OFFICER DANIEL SMICK, individually and acting in his official capacity as a City of Aurora Police Officer, Defendants.


          Michael J. Watanabe United States Magistrate Judge

         This case is before the court pursuant to the parties' consent to jurisdiction of magistrate judge. (Docket No. 32.) Now before the court is Defendants' Corrected Motion to Dismiss (Docket No. 18). Plaintiffs filed a response (Docket No. 31) and Defendants filed a reply. (Docket No. 35.) The court has carefully considered the motion. The court has taken judicial notice of the court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and order.

         I. BACKGROUND

         a. Relevant Facts

         The facts recounted below are based on Plaintiffs' allegations. The court assumes these facts and allegations are true for purposes of a motion to dismiss.

         Plaintiffs are three individuals who each allege that they were unjustly prosecuted in the City of Aurora (“Aurora”) Municipal Court. Defendants Christine Hoff and Joseph Bucceri are Aurora city attorneys. Defendant Daniel Smick is an Aurora police officer. All Defendants are sued in their official and individual capacities.

         Plaintiff Skinner, who is “elderly and disabled, ” received a summons to appear in Aurora Municipal Court after she had some sort of dispute with her young, “muscle-bound” neighbor on May 2, 2015. Prior to the pretrial hearing, held a month later, the neighbor threatened to assault Skinner and her counsel, which was reported to Aurora police. A trial was set for July 2, 2015, but after jury selection, Hoff requested and received a mistrial, claiming that the neighbor was afraid to testify. After Hoff failed to offer a plea bargain, Skinner was eventually tried by a jury on August 20, 2015, during which “Hoff made several misleading statements, comments, and arguments about facts, some not in evidence, in the presence of the jury.” The jury found Skinner not guilty.

         Plaintiff Yoon was summoned to Aurora Municipal Court for stealing garbage services. Yoon contends that he was just taking the trash out for his vacationing father. Yoon presented supporting evidence to Hoff on January 4, 2016. Hoff refused to dismiss the case and persisted in the prosecution even after Yoon's father appeared in court and presumably supported his son's claims. Hoff, however, did eventually dismiss the case on January 21, 2016, which was the same day Yoon's counsel subpoenaed the homeowner's association's agents as trial witnesses.

         Plaintiff Cunningham was a juvenile on October 23, 2015, the day that he received a summons to Aurora Municipal Court for fighting. He had been jumped at high school and was defending himself. When Cunningham and his father appeared in court, they were told by Hoff that if Cunningham did not accept the plea offer that day, it would be revoked. Cunningham hired legal counsel who learned that an exculpatory video of the fight existed but had been destroyed. On January 19, 2016, Cunningham filed a motion to dismiss based on law enforcement's failure to preserve this evidence. During a February 10, 2016 motions hearing, Bucceri, after speaking privately with Smick, told Cunningham's counsel that Smick made a verbal request to the school to preserve the video. Cunningham contends that this was a lie and offers several reasons to suspect that Bucceri assisted Smick in devising it. Smick gave testimony on February 20, 2016, that was consistent with this supposed falsehood. The judge ruled against Cunningham based on Smick's perjured testimony. Cunningham subsequently found evidence contradicting Smick's story. The charges were eventually dropped on April 13, 2016, by another municipal prosecutor, Andrea Wood.

         b. Procedural History

         Plaintiffs originally filed this action on June 22, 2016, in Arapahoe County District Court. Their Complaint (Docket No. 2) asserts four claims for relief: (1) malicious prosecution; (2) abuse of process; (3) violations of their constitutional rights under 42 U.S.C. § 1983; and (4) injunctive relief-specific performance in the form of Defendants' “immediate abatement of actions complained herein, and resignation from all positions held within the City of Aurora.” On July 29, 2016, Defendants timely removed the case to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. Defendants responded to the Complaint by filing the subject motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim for which relief may be granted. (Docket No. 18.)


         a. Lack of Subject Matter Jurisdiction

         Federal Rule of Civil Procedure Rule 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 case 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)

         b. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at1198. “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 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. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers 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 679.

         However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts ...

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