United States District Court, D. Colorado
MIQUEL S. AVERY, and CECIL AVERY, Plaintiffs,
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO COUNTY, COLORADO, Defendant.
ORDER ADOPTING NOVEMBER 20, 2017 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
William J. Martinez United States District Judge.
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).
STANDARD OF REVIEW
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
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).
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.
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).
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).
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.) 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 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 ...