United States District Court, D. Colorado
DAWN ROSE, MICHELLE TIPPET, PATTI SEARS, KATHY CLAYTON, Plaintiffs,
CITY AND COUNTY OF DENVER, and ALICE NIGHTENGALE, in her official capacity, Defendants.
OPINION AND ORDER ON MOTION TO DISMISS
S. Krieger Chief United States District Judge.
MATTER comes before the Court on the Defendants'
Motion to Dismiss (# 21) and the
Plaintiffs' response (# 27). For the
following reasons, the Motion to Dismiss is granted in part.
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiffs are owners of French Bulldogs - Raven, Vinnie,
Soufflé, Bechamel, Champagne, Wyatt, Biscuit, Beignet,
Pearl, and Nugget (collectively the Dogs) - that are
registered with the American Kennel Club. Each Plaintiff gave
physical possession of a Dog or Dogs to Marleen Puzak in
order to board, care, and show them in dog shows. On July 7,
2017, Defendant City and County of Denver (the City) seized
the Dogs from Ms. Puzak's home for unstated reasons.
Without consent of the Plaintiffs, the City has
spayed/neutered some of the Dogs and performed other
veterinary procedures that reduce the value of the Dogs as
show dogs. The Plaintiffs sought to retrieve their dogs from
City custody, but their requests have been refused. Instead,
the City has notified the Plaintiffs that their Dogs would be
offered to new owners for adoption. Despite Plaintiffs'
repeated requests, the City has provided no process by which
Plaintiffs can prove their ownership of the Dogs, seek return
of the Dogs or object to medical treatments that reduce their
Amended Complaint (# 18) asserts three
causes of action: (1) deprivation of due process in violation
of the Fourteenth Amendments via 42 U.S.C. § 1983,
extreme and outrageous conduct causing emotional distress,
and (3) willful and wanton conduct. The Defendants have moved
to dismiss all claims (# 21).
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court must accept all
well-pleaded allegations in the complaint as true and view
those allegations in the light most favorable to the
nonmoving party. Stidham v. Peace Officer Standards &
Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting
Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit
its consideration to the four corners of the complaint, any
exhibits attached thereto, and any external documents that
are incorporated by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, a
court may consider documents referred to in the complaint if
the documents are central to the plaintiff's claim and
the parties do not dispute the documents' authenticity.
Alvarado v. KOB-TV LLC, 493 F.3d 1210, 1215 (10th
is subject to dismissal if it fails to state a claim for
relief that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make
such an assessment, the Court first discards those averments
in the complaint that are merely legal conclusions or
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements. The Court then takes
the remaining, well-pleaded factual contentions, treats them
as true, and ascertains whether those facts (coupled, of
course, with the law establishing the requisite elements of
the claim) support a “plausible” as compared to a
“conceivable” claim. See Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
Defendants argue the Complaint fails to state a cognizable
due-process claim because it lacks allegations to support
municipal liability. They seek to dismiss the state-law
claims due to the failure of the Plaintiffs to allege
compliance with the Colorado Governmental Immunity Act
because the Plaintiffs did not allege compliance with C.R.S.
§ 24-10-109(1). The Court will analyze the
Plaintiffs' municipal and official-capacity claims
together because official-capacity suits are treated as suits
against the entity “in all respects other than
name”. Kentucky v. Graham, 473 U.S. 159, 166
determination on whether a plaintiff's
procedural-due-process rights were violated is grounded in
two questions: whether the individual had a protected
property interest and whether the individual was afforded an
appropriate level of process. Camuglia v. City of
Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006). The
requisite level of process is generally a hearing before the
government acts to impair the property interest, although the
hearing need not afford the protections of a trial. See
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Here, the