United States District Court, D. Colorado
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.
ORDER ON DEFENDANTS' CORRECTED MOTION TO DISMISS
(DOCKET NO. 18)
Michael J. Watanabe United States Magistrate Judge
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.
facts recounted below are based on Plaintiffs'
allegations. The court assumes these facts and allegations
are true for purposes of a motion to dismiss.
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.
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.
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.
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.
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.)
STANDARDS OF REVIEW
Lack of Subject Matter Jurisdiction
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)
Failure to State a Claim Upon Which Relief Can Be
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).
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.
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 ...