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Carr v. Bartoshevich

United States District Court, D. Colorado

December 19, 2017

THOMAS CARR, Plaintiff,
v.
OFFICER R. BARTOSHEVICH, and OFFICER WEESE, Defendants.

          ORDER GRANTING DEFENDANT WEESE'S MOTION TO DISMISS

          CHRISTINE M. ARGUELLO United States District Judge

         This 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 motion.[1]

         I. BACKGROUND

         Mr. Carr commenced this action on May 8, 2017, alleging one claim of excessive force against Defendants Officers Bartoshevich[2] and Weese and seeking money damages.[3] (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.)

         On May 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.

         On September 6, 2017, Officer Weese[4] 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.

         II. LEGAL STANDARDS

         A. RULE 12(b)(6)

         Under 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).

         However, 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”).

         Mr. 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).

         B. ...


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