United States District Court, D. Colorado
SUREN TATULYAN; and PIT SISTERS, a Florida charitable organization, Plaintiffs,
CITY OF AURORA; and JENEE aka JENNEE SHIPMAN in her official and individual capacity, Defendants.
RECOMMENDATION ON MOTION TO DISMISS
L. Carman United States Magistrate Judge
matter is before the Court on Defendants' Motion to
Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P.
12(b)(6) [Doc. 36]. The Motion was referred to
Magistrate Judge Carman pursuant to the Order of Reference
dated January 19, 2018 [Doc. 38]. The Court has carefully
considered the Motion and related briefing, the entire case
file, and the applicable case law. For the following reasons,
the Court recommends that the Motion be granted.
Suren Tatulyan ("Tatulyan") owned a pit bull dog
named Bandit while residing in the City of Aurora, Colorado
[Doc. 27 p. 2]. Pit bulls are a restricted breed in Aurora
Id. On January 4, 2017, Bandit attacked a FedEx
driver delivering a package to Tatulyan's Aurora home.
Id. The City of Aurora cited Tatulyan for dog
running at large, keeping an aggressive dog, and keeping a
restricted breed, and consequently impounded Bandit.
Id. at 2, 6. Tatulyan was informed that a hearing
would be held to determine Bandit's fate, and he was
"urged" to prepare and present any mitigating
evidence on Bandit's behalf [Doc. 35 Ex. 1].
hearing, it was determined that Bandit was a pit bull and
could not "be safely maintained, cared for and
controlled without danger to the community" [Doc. 13
¶ 16]. Tatulyan, who appeared at the hearing pro
se, alleges he was not provided an interpreter or a
meaningful opportunity to present evidence on Bandit's
behalf. Id. ¶¶ 18-19. The hearing's
transcript indicates that despite English not being
Tatulyan's native language, he declined the panel's
offer to provide him an interpreter and was provided the
opportunity to present a defense on Bandit's behalf [Doc.
35, Ex. 2, and Doc 67-1].
further alleges that the City later refused to conduct a
specific temperament test on Bandit, known as SAFER, or have
Bandit evaluated by Tatulyan's preferred expert [Doc. 13
¶¶ 20-21, 23]. The City held a hearing to consider
Tatulyan's request for a SAFER test and to have Bandit
examined by Tatulyan's expert, but declined to allow
either [Doc. 54 p. 3]. Tatulyan later pleaded guilty to the
criminal charges against him [Doc. 2 p. 3].
August 24, 2017, Tatulyan transferred an undivided one-half
interest in Bandit to Pit Sisters, a pit bull advocacy
organization [Doc. 54 p. 4]. Tatulyan and Pit Sisters filed
their original Complaint a week later [Doc. 1 ]. In addition
to a claim pursuant to 42 U.S.C. § 1983, the Complaint
sought an order blocking Bandit's euthanasia.
Id. at 4. Plaintiffs filed a Motion for Temporary
Restraining Order Without Notice [Doc. 2] contemporaneously
with the Complaint. That Motion was denied without prejudice
for failure to show substantial likelihood of success on the
claim's merits [Doc. 9].
filed their Amended Complaint on October 25, 2017 [Doc 11],
with another Motion for Temporary Restraining Order following
on December 12, 2017 [Doc. 31], which stayed Bandit's
scheduled December 20 euthanasia. Defendants filed their
Motion to Dismiss Plaintiffs' Complaint [Doc. 36] on
January 19, 2018. This Court denied Plaintiffs' Second
Motion for Temporary Restraining Order on February 28, 2018,
again concluding Plaintiffs failed to establish they were
likely to succeed on the claim's merits [Doc. 54].
Plaintiffs filed an Emergency Motion for Temporary
Restraining Order the same day seeking additional time to say
goodbye to Bandit and further restating their previously
submitted arguments [Doc. 55]. This Court denied the
Emergency Motion for Temporary Restraining Order that same
day [Doc. 56]. Bandit was euthanized on March 2, 2018 [Doc.
63 p. 3]. Plaintiffs then filed their Motion for Leave to
File Amended Complaint on March 6, 2018 [Doc. 57].
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court may dismiss a complaint for "failure to state a
claim upon which relief can be granted." See
Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule
12(b)(6), the court must "accept as true all wellpleaded
factual allegations . . . and view these allegations in the
light most favorable to the plaintiff." Casanova v.
Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010)
(quoting Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009)). The court is not, however, "bound to
accept as true a legal conclusion couched as a factual
allegation." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In addition, the court may consider
exhibits attached to the Complaint without converting the
motion into one for summary judgment pursuant to Rule 56.
See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.
survive a motion to dismiss, "a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face."
Ashcroft, 556 U.S. at 678 (internal quotation marks
omitted). A claim is plausible when the plaintiff
"pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. "The nature and
specificity of the allegations required to state a plausible
claim will vary based on context." Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.
2011). Thus, while the Rule 12(b)(6) standard does not
require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may
help to determine whether the plaintiff has set forth a
plausible claim. Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012). This standard requires more
than the sheer possibility that a defendant has acted
unlawfully. Ashcroft, 556 U.S. at 679. Facts that
are "merely consistent" with a defendant's
liability are insufficient. Id. at 678. The ultimate
duty of the court is to "determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed." Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Amended Complaint sets forth a single claim, a deprivaton of
rights pursuant to 42 U.S.C. §1983. Specifically,
Plaintiffs allege Tatulyan was deprived of due process and
"federal rights, and property interests" when
Bandit was seized [Doc. 13 ¶¶ 26-27]. Plaintiffs
specified the nature of their claims in their Response to
Defendants' Motion to Dismiss [Doc. 63]. The claim is
based upon five alleged violations, all of which have been
presented throughout this matter in regards to the
Plaintiffs' attempts to obtain restraining orders:
1. The City of Aurora failed to provide any Fifth Amendment
protections for Tatulyan when he was charged with a municipal
offense and was challenging Bandit's seizure.
2. Dog owners must request an impoundment hearing upon
seizure of the dog and the City does not provide any Fifth
Amendment protections for that request or subsequent
3. Dog owners are denied due process at the impoundment
hearing by not allowing the owner access to be evaulated by
an animal behavior expert of their choice.
4. Tatulyan was not provided an intrepeter at the impoundment
5. The decision by the City of Aurora, under the advice of
Jenee Shipman, to have Bandit euthanized was arbitrary and