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Rose v. City and County of Denver

United States District Court, D. Colorado

April 11, 2018

DAWN ROSE, MICHELLE TIPPET, PATTI SEARS, KATHY CLAYTON, Plaintiffs,
v.
CITY AND COUNTY OF DENVER, and ALICE NIGHTENGALE, in her official capacity, Defendants.

          OPINION AND ORDER ON MOTION TO DISMISS

          Marcia S. Krieger Chief United States District Judge.

         THIS 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.

         I. JURISDICTION

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         II. BACKGROUND[1]

         The 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 value.

         The 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, [2] (2) extreme and outrageous conduct causing emotional distress, and (3) willful and wanton conduct. The Defendants have moved to dismiss all claims (# 21).

         III. LEGAL STANDARD

         In 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 Cir. 2007).

         A claim 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).

         IV. DISCUSSION

         The 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 (1985).

         A. Due-Process Claim

         A 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 Amended ...


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