United States District Court, D. Colorado
WESLEY R. BROWN, Plaintiff,
BECKY SHOE, Supervisor for Colorado Bureau of Investigations Insta Check Unit, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Defendant's Motion
to Dismiss Pursuant to F.R.C.P. 12(b)(6)
[#18] (the “Motion”). Plaintiff, who
is proceeding pro se,  filed a Response [#23] in opposition to
the Motion [#18]. Defendant did not file a reply. Pursuant to
28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the
Motion [#18] has been referred to the undersigned for a
recommendation regarding disposition. See Memorandum
[#19]. The Court has reviewed the Complaint [#1], the Motion
[#18], the Response [#23], 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 [#18] be
Summary of the Case
short, Plaintiff is suing Defendant in her official capacity
based on her denial of Plaintiff's application to
purchase a firearm. Compl. [#1] at 3. Plaintiff is a
homeless, four-time-convicted felon with paranoid
schizophrenia. Id. at 3, 15. On November 20, 2015,
Plaintiff tried to purchase a revolver and was denied.
Id. at 3, 13. On December 1, 2015, Plaintiff
appealed the decision and was denied again because of his
prior felony convictions and mental health adjudication.
Motion [#18] at 1; Pl. Ex. to Compl.
[#1-10] at 6-7. Consequently, Plaintiff filed a complaint
(“first complaint”) in Civil Action No.
15-cv-02730-MEH. The Court dismissed the action for lack of
jurisdiction and Plaintiff appealed. The Tenth Circuit Court
of Appeals affirmed the Court's ruling but remanded the
case for dismissal without prejudice. Brown v. Shoe,
703 Fed.Appx. 665, 667-68 (10th Cir. 2017).
filed this suit on December 15, 2017, asserting claims under
42 U.S.C. § 1983. Compl. [#1] at 4. Plaintiff
asserts seven claims challenging the constitutionality of
various federal and state laws preventing felons and people
adjudicated as having mental health issues from buying and
possessing firearms. Id. at 4. Plaintiff directs
only two of his seven claims at Defendant: (1) Plaintiff
“sues Defendant . . . because he seeks declaratory and
injunctive relief to prevent future denials of firearm
transfers, ” and (2) Plaintiff alleges that he has not
been adjudicated as “a mental defective” and
therefore the police should not consider his mental health
issues when assessing his firearm application. Id.
filed the present Motion arguing that the claims against her
are barred under the theories of res judicata and collateral
estoppel and that the claims should be dismissed because they
were filed outside the applicable statute of limitations.
Motion [#18] at 3-8. In his Response, Plaintiff
argues that his claims are not barred by the statute of
limitations because (1) it should have tolled on June 3, 2016
(when he filed his Notice of Appeal with the Tenth Circuit
Court of Appeals in 15-cv-02730-MEH and paid his filing fee)
and restarted when the Appellate Court remanded the case back
to the District Court, and (2) extraordinary circumstances
prevented him from filing within the statute of limitations.
Response [#23] at 12.
Standard of Review
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion,
“[t]he complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds' that discovery
will reveal evidence to support plaintiff's
allegations.” Shero v. City of Grove, Okla.,
510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, a
complaint must include “enough facts to state a claim
to relief that is plausible on its face.” TON
Services, Inc. v. Qwest Corp., 493 F.3d 1225, 1235 (10th
Cir. 2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the alleged misconduct.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Moreover, “[a]
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does the complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.”
Id. (citations omitted).
a claim under Rule 12(b)(6) on the basis of an affirmative
defense is only proper where that defense is clear from the
face of the complaint. Martinez v. City & Cty. of
Denver, No. 08-CV-01503-PAB-MJW, 2010 WL 1380529, at *3
(D. Colo. Mar. 31, 2010). “[R]ule 12(b)(6) is
a proper vehicle for dismissing a complaint that, on its
face, indicates the existence of an affirmative defense such
as noncompliance with the limitations period.” See
Bullington v. United Air Lines, Inc., 186 F.3d 1301,
1310 n.3 (10th Cir.1999) (abrogated on other grounds by
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002); see also Cosgrove v. Kansas Dept. of Social and
Rehabilitation Services, 332 Fed.Appx. 463, 467 (10th
Cir.2009) (unpublished) (“[T]he statute of limitations
is an affirmative defense, and to dismiss a claim pursuant to
Rule 12(b)(6) on this basis it must be clear from the face of
the complaint that the claims are time-barred.”).
argues that the claims against her should be dismissed
because they were filed outside the applicable statute of
limitations. Motion [#18] at 6. The Complaint [#1]
does not explicitly address the statute of limitations.
Plaintiff's Response seems to argue that (1) the statute
of limitations began running when he filed the first
complaint; (2) it should have tolled on the day he filed and
paid for his appeal until the Court of Appeals remanded the
case; and (3) that his alleged exceptional circumstances
merit equitable tolling. Response [#23] at 12. The
Court first examines the proper statute of limitations, then
determines whether the statute of limitations was tolled.
Statute of Limitations
brought pursuant to 42 U.S.C. § 1983 are subject to the
general personal injury limitation period of the state in
which the action arose. Hunt v. Bennett, 17 F.3d
1263, 1265 (10th Cir. 1994). In Colorado, the limitation on a
personal injury claim brought pursuant to Section 1983 is two
years. See Colo. Rev. Stat. § 13-80-102(1)(g)
(2014) (creating a two-year limitation period for
“[a]ll actions upon liability created by a federal
statute where no period of limitation is provided in said
federal statute” and for “[a]ll other actions of
every kind for which no other period of limitation is
provided”); Blake v. Dickason, 997 F.2d 749,
750 (10th Cir. 1993) (applying Colo. Rev. Stat. §
13-80-102 to a § 1983 claim).
federal law rather than state law determines when a cause of
action accrues. See Indus. Constructors Corp. v. U.S.
Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir.
1994). Pursuant to federal law, “[t]he statute of
limitations begins to run when the plaintiff knows or has
reason to know of the existence and cause of the injury which
is the basis of his action.” Id. at 969. That
is, “[a] civil rights action accrues when facts that