United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
action brought pursuant to 28 U.S.C. § 1983, Plaintiff
Zacharias Aaron Bey (“Bey”) proceeds pro se and
asserts three claims for relief against the Defendants. The
Honorable Colleen Clark (“Clark”) responded to
the operative Amended Complaint seeking dismissal of claims
against her for Bey's failure to comply with Fed.R.Civ.P.
8 and, to the extent that a claim may be discerned against
the judge, based on absolute immunity. Separately, Defendant
1st Class Towing (“1st
Class”) responded seeking dismissal of the
Plaintiff's complaint for insufficient service of
process, lack of jurisdiction, and Bey's failure to
comply with Fed.R.Civ.P. 8. First, the Court notes that,
although Bey informed the Court on November 13, 2017 that he
would complete service of process on Defendants D. Swift and
1st Class (ECF No. 23), he has failed to
demonstrate any service on D. Swift and, pursuant to
Fed.R.Civ.P. 4(m), the Court recommends that Bey's claim
against D. Swift be dismissed. In addition, the Court finds
Judge Clark is entitled to absolute immunity and recommends
dismissing Bey's claim against her. Finally, the Court
concludes 1st Class has failed to demonstrate
dismissal is proper pursuant to Fed.R.Civ.P. 4(m), 12(b)(1),
12(b(4), 12(b)(5), and 12(b)(6), but has shown that Bey's
service was insufficient. Based on the circumstances of this
case, the Court respectfully recommends that the Honorable
William J. Martinez quash Bey's service and permit Bey to
re-serve 1st Class properly pursuant to
factual allegations set forth here and in the Amended
Complaint are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
alleges that on March 25, 2017, he was traveling by car to
work when an Arapahoe County deputy sheriff pulled him over.
Bey presented his “national identification card, travel
card, rights card, and proclamation” to the deputy, who
did not read them. Deputies then handcuffed Bey “too
tightly” and Bey asked to speak to a sergeant, who
arrived, spoke with Bey briefly, then spoke with the deputies
and left. One of the deputies removed the handcuffs,
instructed Bey to sit on the curb, then searched Bey's
deputies' request, Defendant 1st Class arrived
and towed Bey's vehicle away, despite Bey's statement
to the driver that his “conveyance cannot be search[ed]
or seize[d].” Bey was not able to retrieve the vehicle
until March 31, 2017 and, as a result, missed work.
April 17, 2017, Bey appeared before Judge Clark on the
traffic citation he received, “stated to the judge
[his] nationality, and challenged her jurisdiction.”
Bey alleges his “request was not met” and he
“lost a job due to making special appearances in
court.” He also seeks that the traffic citation be
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.” Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a
plaintiff's case, but only a determination that the court
lacks authority to adjudicate the matter. See Castaneda
v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing
federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do
so). A court lacking jurisdiction “must dismiss the
cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” Full Life
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.
2013). A Rule 12(b)(1) motion to dismiss must be determined
from the allegations of fact in the complaint, without regard
to mere conclusory allegations of jurisdiction. Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden
of establishing subject matter jurisdiction is on the party
asserting jurisdiction. Butler v. Kempthorne, 532
F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff here
bears the burden of establishing that the Court has
jurisdiction to hear his claims.
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction take two forms. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as
to subject matter jurisdiction questions the sufficiency of
the complaint. In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter
jurisdiction depends. When reviewing a factual attack on
subject matter jurisdiction, a district court may not presume
the truthfulness of the complaint's factual allegations.
A court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). The present
motion launches a factual attack on this Court's subject
matter jurisdiction; therefore, the Court will not accept the
truthfulness of the factual allegations for its Rule 12(b)(1)
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) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 678-80.
Second, the Court must consider 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 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
Treatment of a Pro Se Plaintiff's Complaint
se plaintiff's “pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers . . . .” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991)). “Th[e] court, however, will not
supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on
plaintiff's behalf.” Smith v. United
States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)). The Tenth Circuit interpreted this rule to mean,
if a court “can reasonably read the pleadings to state
a valid claim on which the plaintiff could prevail, [it]
should do so despite the plaintiff's failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Diversey
v. Schmidly, 738 F.3d 1196, 1199 (10th ...