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Tatulyan v. City of Aurora

United States District Court, D. Colorado

July 17, 2018

SUREN TATULYAN; and PIT SISTERS, a Florida charitable organization, Plaintiffs,
v.
CITY OF AURORA; and JENEE aka JENNEE SHIPMAN in her official and individual capacity, Defendants.

          RECOMMENDATION ON MOTION TO DISMISS

          Mark L. Carman United States Magistrate Judge

         This 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.

         BACKGROUND

         Plaintiff 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].

         At the 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][1].

         Tatulyan 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].

         On 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].

         Plaintiffs 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].

         STANDARD OF REVIEW

         B. Fed.R.Civ.P. 12(b)(6)

         Under 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. 1991)[2].

         To 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).

         ANALYSIS

         Plaintiffs' Amended Complaint[3] 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 testimony.
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 hearing.
5. The decision by the City of Aurora, under the advice of Jenee Shipman, to have Bandit euthanized was arbitrary and ...

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