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Brown v. Shoe

United States District Court, D. Colorado

July 10, 2018

WESLEY R. BROWN, Plaintiff,
v.
BECKY SHOE, Supervisor for Colorado Bureau of Investigations Insta Check Unit, Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix, United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) [#18][1] (the “Motion”). Plaintiff, who is proceeding pro se, [2] 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 GRANTED.

         I. Summary of the Case

         In short, Plaintiff is suing Defendant in her official capacity based on her denial of Plaintiff's application to purchase a firearm.[3] 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).

         Plaintiff 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. at 13-15.

         Defendant 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.

         II. Standard of Review

         The 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).

         “Dismissing 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.”).

         III. Analysis

         Defendant 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.

         A. Statute of Limitations

         Actions 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).

         However, 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 would ...


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