United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion
to Dismiss [#6] (the “Motion”). Plaintiff
filed a Response [#11] in opposition to the Motion, and
Defendant filed a Reply [#12]. The Court has reviewed the
Motion, the Response, the Reply, the entire case file, and
the applicable law, and is sufficiently advised in the
premises. For the reasons stated below, the Court
respectfully RECOMMENDS that the Motion [#6]
Summary of the Case 
a civil rights action seeking damages against a Colorado
Springs Police K-9 Officer for dog bite injuries suffered by
Plaintiff on December 11, 2015. Compl. [#1] ¶
1. The incident occurred as Plaintiff enjoyed a night out and
was leaving the Peak Tavern, located at 2001 Platte Avenue,
in Colorado Springs, Colorado. Id. ¶ 10.
Defendant arrived at the tavern, in full police uniform, with
about four or five other officers. Id. ¶ 11.
The officers went into the tavern through the front door
while Defendant waited outside the back door. Id.
¶ 12. Plaintiff exited the tavern through the back door,
which led almost immediately to an adjacent apartment complex
where Plaintiff lived. Id. ¶ 13.
exiting the tavern, Plaintiff heard some muffled shouts, but
no indication that the man was a police officer or that
Plaintiff was being commanded to do anything. Id.
¶ 15. Seeing Plaintiff walk away, Defendant ordered his
K-9 unit “Blitz” to seize Plaintiff by biting
him. Id. ¶ 16. Plaintiff turned toward the
source of the yelling in time to see the officer point toward
him and the animal run in his direction. Id. ¶
17. The dog ran up to Plaintiff and bit Plaintiffs leg
multiple times, for approximately 5-10 seconds, and then held
Plaintiff down on the ground during which time Defendant did
not attempt to intervene to prevent the dog from biting or
otherwise cease the attack. Id. ¶ 18.
Eventually Defendant removed the dog from the hold the dog
had on Plaintiffs leg. Id. ¶ 19. Plaintiff was
treated by EMTs and later at Penrose St. Francis Hospital
where doctors sutured several puncture wounds and one large
gaping wound made by the K-9, as well as abrasions on both of
Plaintiff s palms. Id. ¶¶ 21, 22.
being treated, Defendant's K-9 Supervisor, Brian
Cummings, arrived and asked Plaintiff questions about the
incident. Id. ¶ 23. He informed Plaintiff that
the officers had been looking for a white male in his 50s or
60s, and that Plaintiff obviously did not fit the
description. Id. He acknowledged that the K-9 should
not have been used to bite him and that Defendant had
violated Colorado Springs Police Department
(“CSPD”) protocol. Id.
Plaintiff's second lawsuit seeking damages arising from
the December 11, 2015 encounter with Defendant. See
Motion [#6] at 1. Plaintiff filed his first complaint in
the District Court of El Paso County, Colorado (the
“State Court Action”) and alleged that he was
injured when “[i]n December of 2015, Officer Browne of
CSPD released his German Shephard on me when I had committed
no crime.” Id. The first complaint alleged a
constitutional claim based on 42 U.S.C. § 1983 and
sought damages for “hospital fees, loss of work, pain
& suffering, and humiliation due to Defendant's
misconduct.” Id. at 2. Defendant and other
defendants in the State Court Action (collectively, the
“City Defendants”) filed a motion to dismiss for
failure to state a claim upon which relief could be granted.
Id. The court granted the City Defendants'
motion and noted that Plaintiff did not file an objection.
See Def.'s Ex. C [#6-3] at 1. Plaintiff did not
appeal the court's rulings. Rather, Plaintiff turned to
this Court and filed a second complaint.
second complaint, Plaintiff again names Tim Browne as a
defendant, seeking relief under 42 U.S.C. § 1983, and
claims that he was injured by the K-9 unit. Compl.
[#1] ¶ 1. In the present Motion [#6], Defendant seeks
dismissal of this action pursuant to Fed.R.Civ.P. (12)(b)(6).
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); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
To withstand a motion to dismiss pursuant to Rule 12(b)(6),
“a complaint must contain enough allegations of fact to
state a claim for relief that is plausible on its
face.” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Shero
v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.
2007) (“The complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds' that
discovery will reveal evidence to support the plaintiff's
allegations.” (quoting Twombly, 550 U.S. at
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 misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusion
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort
Co., 555 F.3d 1188, 1191 (10th Cir. 2009).
“[W]here the well pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,
” a factual allegation has been stated, “but it
has not show[n] [ ] that the pleader is entitled to relief,
” as required by Fed.R.Civ.P. 8(a). Iqbal, 556
U.S. at 679 (second brackets added; citation and internal
quotation marks omitted).
argues that claim preclusion bars Plaintiff's claims
because Plaintiff is seeking to relitigate issues that were
or could have been brought in the State Court Action. See
Motion [#6] at 4. “Under res judicata, or claim
preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in the prior
action.” Satsky v. Paramount Commc'ns,
Inc., 7 F.3d 1464, 1467 (10th Cir. 1993) (citing N.
Nat. Gas v. Grounds, 931 F.2d 678, 681 (10th Cir. 1991)
(internal quotation marks omitted)). Claim preclusion
requires that four elements be satisfied: (1) a judgment on
the merits in the earlier action; (2) identity of the parties
or their privies in both suits; (3) ...