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Avery v. Board of County Commissioners of County of El Paso County

United States District Court, D. Colorado

March 26, 2018



          William J. Martinez United States District Judge.

         This matter is before the Court on the November 20, 2017 Recommendation of United States Magistrate Judge Kathleen M. Tafoya (“Recommendation”) (ECF No. 32) that Defendant's “Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1)” (ECF No. 18) (“Motion to Dismiss”) be granted. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Rule 12(b)(1) is proper when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site Services, LLC v. Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).

         When a court's subject matter jurisdiction is challenged, the court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S., 342 F.3d 1282, 1296 (10th Cir. 2003) (stating that “when a party challenges the allegations supporting subject-matter jurisdiction, the ‘court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts'” (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt, 46 F.3d at 1003.

         Further, the Court is mindful of Plaintiffs' pro se status, and accordingly reads their pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiffs, who still must comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).


         In their Amended Complaint (ECF No. 6) (“Complaint”), Plaintiffs claim that

On April 16, 2016, an El Paso County Court entered a judgment that prohibited the [D]efendant from destroying [P]laintiffs' property described as “modular structures” located on Date Street in Colorado Spring[s], Colorado. []On March 14, 2017, the [D]efendant entered Plaintiffs' property and destroyed all 32 items under the authority of El Paso Ordinance 06-02 which is a rubbish ordinance. On 13 April 2017, [P]laintiffs received a report from Defendant attorney for the cost of $109, 500 as a result of the destruction of Plaintiffs' property. Defendant seeks to recover[] this cost [by] attaching it to [Plaintiffs'] property tax bill without the authority of law/ Plaintiffs believe that the Ordinance 06-02 did not authorize the County of El Paso to declare [Plaintiffs'] property rubbish, remove, and destroy the modular structures, trailers, heating and air conditioning units.

(ECF No. 6 at 3.) Plaintiffs challenge these actions pursuant to 42 U.S.C. § 1983 (id. at 7), claiming violations of their Fifth and Fourteenth Amendment rights (id. at 11).

         In its Motion to Dismiss, filed on August 14, 2017, Defendant presents facts about the state court proceeding that Plaintiffs failed to mention in their Complaint. As Plaintiffs claim, the state court originally did not authorize disposal of the modular components and trailers. (ECF No. 18-8 at 1.) However, Plaintiffs failed to mention that the state court later granted Defendant's Motions for Summary Judgment and Default Judgment and ordered Plaintiffs to remove all of the modular components including any debris and/or rubbish within thirty days. (ECF Nos. 18-11, 18-12, 18-13, 18-14, 18-15.) When Plaintiffs failed to comply with the state court's orders, Defendant issued two notices informing Plaintiffs that it would be seeking an administrative warrant to abate the nuisance. (ECF Nos. 18-22, 18-23.) Plaintiffs did not respond, so Defendant filed for a Verified Application for Administrative Entry and Seizure Warrant, which the state court granted on March 13, 2017 (“Warrant”). (ECF Nos. 18-24, 18-25.) In the Warrant, the state court noted that the property at issue constituted “rubbish” under El Paso County ordinance 06-02. (ECF No. 18-25.)[1] The state court determined that “it [was] unsafe to attempt to remove the modular components as whole sections[, ] and in order to remove them safely they may be demolished on site and disposed of according to law. The [c]ourt [took] further notice of safety concerns raised by the El Paso County Sheriff's Department, the El Paso County Environmental Division, and the El Paso County Engineer, thus the modular components are a public safety hazard.” (Id. ¶ 11.) Accordingly, the state court granted the Warrant and ordered the following:

The El Paso County Sheriff's Office is by this warrant authorized to assist the El Paso County Board of County Commissioners, acting through employees of El Paso County and any agent of a private trash, waste disposal, or demolition/debris removal company needed for this purpose, in the entry upon the properties identified as 4375 Date Street (further identified as El Paso County Parcel Nos. 6326203039 and 6326203002) 4375 Date Street, with legal descriptions of LOT 35 BLK 3 PARK VISTA ADD, EX PT TO CITY BY BK 6602-357 and LOT 34 BLK 3 PARK VISTA ADD and seizing the items listed in paragraph 3 which constitute “rubbish” above, to include the modular components, within ten (10) days following the date of this Warrant, during any time of the day or night. Seizure of any items constituting rubbish may be done by any method practicable, such as demolishing on site, removing, and then disposing according to law. Plaintiff, its employees and contractors, are authorized to fence off the subject properties during the course of removal for safety reasons. Entry authorized by this warrant is limited to the persons, employees, and agents described herein and limited to the purposes described herein so that the property no longer violates El Paso County Ordinance 06-02 and the nuisance is abated. The El Paso County Sheriff's Office is specifically granted the authority to remove any persons from the properties who are not authorized to be present on the subject property and/or who may interfere with the execution of this Order.

(Id. at 4 (internal emphasis omitted).) The Defendant executed the Warrant and mailed to Plaintiffs a final invoice for the associated costs of executing the Warrant to provide Plaintiffs with an opportunity to ...

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