United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT'S AMENDED
MOTION TO DISMISS (DOCKET NO. 49)
Michael J. Watanabe United States Magistrate Judge.
case is before the Court pursuant to an Order (Docket No. 50)
referring the subject motion (Docket No. 49) issued by Judge
Raymond P. Moore. Now before the Court is Defendants Mark
Potter, Kimberly Williams, and Christina Nguyen's
(collectively “Defendants”) Amended Motion to
Dismiss. (Docket No. 49.) The Court has carefully considered
the motion, the response (Docket No. 51), the reply (Docket
No. 52), and the sur-reply (filed without leave of Court).
(Docket No. 54.) 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 recommendation.
otherwise noted, the allegations below are taken from the
Second Amended Complaint (Docket No. 11), and described in
the light most favorable to Plaintiff, who is proceeding
was enrolled at Metropolitan State University of Denver
(“MSU”). In May 2015, Plaintiff received an email
from Defendant Williams, the MSU Director of Student
Intervention Services, informing him that he was being placed
on academic warning status due to his poor grades, but
explaining that “[s]tudents on Academic Warning are
eligible to register and are encouraged to retake courses to
improve their overall academic standing.” Plaintiff
then registered for the 2015 fall term.
November 2015, about halfway through the semester, Plaintiff
began receiving letters and emails from Defendant Nguyen, the
MSU Bursar, about unpaid tuition. Ultimately, Defendant
Nguyen placed a registration hold for non-payment on
Plaintiff's account, and Plaintiff's outstanding
tuition bills were sent to collections. Eventually, a
collections hold was also placed on Plaintiff's past-due
August 3, 2016, Plaintiff filed a grievance in which he
complained that MSU deviated from its guidelines and policies
in activating the registration holds. Plaintiff also stated
that his inability to register for classes in two consecutive
semesters resulted in the automatic cutoff of his financial
aid and triggered loan repayment. Defendant Potter, MSU's
Associate Vice President of Undergraduate Studies, responded
to Plaintiff's grievance in an unsatisfactory manner.
Court construes the claims alleged in the Second Amended
Complaint as follows: 1) violations of due process alleged
against Defendant Potter; 2) violations of due process
alleged against Defendants Williams and Nguyen; and 3)
intentional infliction of emotional distress and breach of
duty of good faith and fair dealing against Defendant Nguyen.
Plaintiff requests money damages.
Pro Se Plaintiff
is proceeding pro se. 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).
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 him to an 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). “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.