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Rollie v. Potter

United States District Court, D. Colorado

February 8, 2018

HENRY ROLLIE, Plaintiff,
v.
MARK POTTER, Associate Vice President Undergraduate Studies Being Sued in His Individual Capacity, KIMBERLY WILLIAMS, Director Student Intervention Services Being Sued in Her Individual Capacity, and CHRISTINA NGUYEN, Bursar Being Sued in Her Individual Capacity, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANT'S AMENDED MOTION TO DISMISS (DOCKET NO. 49)

          Michael J. Watanabe United States Magistrate Judge.

         This 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.

         I. BACKGROUND

         Unless 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 pro se.

         Plaintiff 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.

         In 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 account.

         On 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.

         The 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.

         II. LEGAL STANDARD

         a. Pro Se Plaintiff

         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).

         b. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal 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).

         “A 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. I ...


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