Goodman v. Hickenlooper

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss [#36]^[1] (the “Motion”). Plaintiff filed a Response [#46] in opposition to the Motion [#36]. Defendants did not file a Reply. Plaintiff proceeds in this matter as a pro se individual.^[2] Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#36] has been referred to the undersigned for recommendation. See [#37]. The Court has reviewed the Motion, Response, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#36] be GRANTED.

         I. Summary of the Case^[3]

         On April 6, 2017, Plaintiff was arrested and incarcerated. Am. Compl. [#17] at 6. Plaintiff suffered a respiratory infection and hearing loss after his arrest. Id. Plaintiff remains under house arrest with an ankle bracelet. Id.

         Plaintiff claims that “there are no public officers currently elected or appointed anywhere within the State of Colorado who have filed evidence for public scrutiny [of] a mandated fiduciary bond or recognizance” [sic]. Id. at 1. Consequently, Plaintiff argues that “those persons posing as state and county public officers defy the will of the People of Colorado.” Id. Plaintiff further avers that “there are no lawful or valid criminal or civil cases in the State of Colorado Court system and all the courts in the State of Colorado are vacant from the Supreme Court on down . . .; imposters now hold positions in those courts.” Id. at 2. In total, Plaintiff claims there are 574 imposters holding public office within Colorado. Id. at 3. The two named Defendants, Governor John Hickenlooper (“Hickenlooper”) and Colorado Attorney General Cynthia Coffman (“Coffman”), are among those claimed to be imposters. Id. at 1.

         The Amended Complaint [#17] contains an unenlightening screed which purports to set forth the legal basis for Plaintiff's claims and includes references to the Colorado Constitution, United States Constitution, 18 U.S.C. § 241, 18 U.S.C. § 242, and 18 U.S.C. § 1513. Am. Compl. [#17] at 5-7. For relief, Plaintiff is seeking: (1) that the Court issue an order declaring all public offices in Colorado to be vacant; (2) that the Court “[r]equire that each and every Colorado State Legislature [sic] verify and the Court to be assured that those persons holding a state public office are constitutionally and statutorily holding those offices prior to appropriating public funds for any purpose;” (3) that the Court appoint a “Master” to collect the paychecks of the illegitimate office holders; (4) damages for “personal damage, property loss and damage to reputation, ” plus damages in the amount of “$10, 000 for every day of incarceration, at least $1, 000 per day for every day under the continuing house arrest, and rent and damages from said imposters squatting on [P]laintiff's house;” (5) that the Court declare all contracts between Plaintiff and the “imposters” void; and (6) that the Court order Defendants to “put up an appellate bond . . . equal to their portion of public appropriations.” Am. Compl. [#17] at 7-8.

         Defendants have filed the present Motion [#36] seeking to dismiss the Amended Complaint [#17] pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

         II. Standard of Review

         Subject matter jurisdiction may be challenged by a party or raised sua sponte by the court at any point in the proceeding. Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19, (1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed.R.Civ.P. 12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint supported by affidavits or other documents, the Court makes its own factual findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 1003.

         Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case before it. Dismissal of a federal claim for lack of subject-matter jurisdiction “is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. Cty. of Oneida, 414 U.S. 661, 666 (1974)). Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         III. Analysis

         Plaintiff refers to alleged violations of the Colorado Constitution, United States Constitution, 18 U.S.C. § 241, 18 U.S.C. §242, and 18 U.S.C. § 1513. Am. Compl. [#17] at 5-7. The criminal statutes referenced by Plaintiff are not enforceable by him in this lawsuit, as no private right of action exists under those statutes. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986). Hence, the authority on which Plaintiff purports to base his legal claims remains unclear. Moreover, it is likewise unclear whether Plaintiff is suing Defendants in their official capacities or their individual capacities. See Id. at 1. The Amended Complaint [#17] lists Defendants without their official titles. However, in the Motion to Dismiss [#36], Defendants list themselves as acting in their official capacities. In the Response, Plaintiff argues that “[t]he altered caption on [the Motion [#36]] . . . is an unsupported assertion by [D]efendants who are not lawfully holding office.” [#46] ¶ 1. For purposes of this analysis, the Court assumes that Plaintiff is suing Defendants in both their official capacities and individual capacities.

         Defendants argue, among other things, that although Plaintiff's “ultimate goal is not entirely clear from the [Amended Complaint [#17]] itself, . . . this case is an attempt to prevent his state criminal prosecution from going forward.” Motion [#36] at 3. Defendants further contend that Plaintiff lacks standing to assert his claims.^[4] Motion [#36] at 6. “[The] standing doctrine addresses whether, at the inception of litigation, the plaintiff had suffered a concrete injury that could be redressed by action of the court.” Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir. 2004). “To establish Article III standing, the plaintiff bears the burden of demonstrating the following three elements: (1) an injury in fact; (2) a causal connection between the injury and the challenged action; and (3) a likelihood that a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011).

         Out of an abundance of caution, the Court addresses both Plaintiff's request for relief on behalf of citizens of Colorado and the alleged individual harm he claims to have suffered. First, in order to determine whether Plaintiff lacks standing, the Court must consider whether Plaintiff has suffered an injury in fact. Plaintiff alleges that persons are posing as state and county officers and that those persons are defying “the will of the People of Colorado and deny the need for their trust.” Am. Compl. [#17] at 1. Plaintiff asserts that if the “imposters” are allowed to continue serving in their positions there will be “a massive loss to the entire republic.” Id. at 7. This claim is grand in scale; however, “standing to sue may not be predicated upon an interest . . . which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Baker v. State, No. 13-cv-01334-PAB-KLM, 2014 WL 624342, at *2 (D. Colo. Feb. 18, 2014) (quoting Chrisman v. C.I.R., 82 F.3d 371, 373 (10th Cir. 1996)). Plaintiff claims that the people of Colorado have been denied a republican form of government, which Plaintiff claims is “a massive loss to the entire republic.” Am. Compl. [#17] at 7. A loss that affects the entire republic necessarily entails an injury that applies equally to all citizens of Colorado, and is therefore generalized. See Baker, ...