United States District Court, D. Colorado
DEBORAH J. LAMB, Plaintiff,
ROYAL CREST DAIRY INC., Defendant.
Magistrate Judge Kathleen M. Tafoya
matter comes before the court on Defendant's
“Motion to Dismiss” (Doc. No. 16, filed October
27, 2017). Plaintiff did not file a response.
OF THE CASE
proceeding pro se, asserts claims, pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5, for sexual harassment and retaliation. (See
Doc. No. 1 [Compl.], filed May 4, 2017). Plaintiff also
asserts a claim for “negligence for accommodating
workplace safety.” (Id. at 2.)
alleges she was continuously harassed by her supervisor at
Royal Crest Dairy, Ryszard Tomtas (“Tomtas”),
from April 2006 to July 2015. (Id. at 3.) Plaintiff
claims she attempted on several occasions to relate
Tomtas' verbal and physical harassment to his supervisor,
Grady Cleckler, but eventually was forced to contact the
Longmont Police and then to obtain a permanent restraining
defendant moves to dismiss Plaintiff's Complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief can be granted. (Mot.)
Pro Se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] [her] 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 her to application of
different rules. See Montoya v. Chao, 296 F.3d 952,
957 (10th Cir. 2002).
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) (2007). “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 v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
1991). “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 ...