United States District Court, D. Colorado
ORDER GRANTING DEFENDANT WEESE'S MOTION TO
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court on Defendant Officer Kristina
Weese's Motion to Dismiss Plaintiff Thomas Carr's
Complaint under Federal Rule of Civil Procedure 8 and
12(b)(6). (Doc. # 14.) Because Mr. Carr fails to adequately
plead his case under Rule 12(b)(6), the Court grants the
Carr commenced this action on May 8, 2017, alleging one claim
of excessive force against Defendants Officers
Bartoshevich and Weese and seeking money
damages. (Doc. # 1). His Complaint contains one
paragraph of allegations:
On May 6, 2015, I was stopped by Englewood Police Office
Bartoshevich, and was brutally assaulted by Officers
Bartoshevich, Weese, and any other policemen on the scene:
resulting in: Concussion, Traumatic Brain Injury, PTSD,
fractured pelvis, facial injuries, torn rotator cuff, injured
knew, bodily injuries, and mental despair.
(Doc. # 1 at 2.)
10, 2017, this Court issued its Order Directing Plaintiff to
File Amended Complaint. (Doc. # 5.) That Order described in
detail what Mr. Carr needed to include in his Amended
Complaint, including what each named defendant did to him,
when the defendant did it, how the defendant's action
harmed him, and what specific legal right he believes the
defendant violated. (Id.) Mr. Carr failed to so
amend his Complaint.
September 6, 2017, Officer Weese filed the instant motion to
dismiss, arguing that Mr. Carr has failed to adequately plead
the claims against her under Federal Rule of Civil Procedure
12(b)(6). Mr. Carr has not responded to the motion.
Rule 12(b)(6), the Court may dismiss a complaint for failure
to state a claim if it appears beyond a doubt that the
plaintiff can plead no set of facts in support of his claim
that would entitle him to relief. Golan v. Ashcroft,
310 F.Supp.2d 1215, 1217 (D. Colo. 2004). Dismissal under
Rule 12(b)(6) may also be based on the lack of a cognizable
legal theory. Id. at 1217. In reviewing a motion to
dismiss, courts take all well-pleaded allegations in the
plaintiff's complaint as true and construe the
allegations in the light most favorable to plaintiff.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012).
a 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”).
Carr appears pro se in this matter. 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); Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Mr. Carr's pro se status does not,
however, entitle him to the application of different rules.
See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.
2002). Moreover, the Court may not “construct arguments
or theories for [Mr. Carr] in the absence of any discussion
of those issues.” Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).