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Bey v. Clark

United States District Court, D. Colorado

February 21, 2018

ZACHARIAS AARON BEY, Plaintiff,
v.
COLLEEN CLARK, D. SWIFT, and 1ST CLASS TOWING, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         In this 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 Fed.R.Civ.P. 4(h).

         STATEMENT OF FACTS

         The 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).

         Bey 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 vehicle.

         At the 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.

         On 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 “discharged.”

         LEGAL STANDARDS

         I. Fed.R.Civ.P. 12(b)(1)

         Rule 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.

         Generally, 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 as true.
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) analysis.

         II. Fed.R.Civ.P. 12(b)(6)

         “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) (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.

         Plausibility 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.

         However, “[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).

         III. Treatment of a Pro Se Plaintiff's Complaint

         A pro 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 ...


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