United States District Court, D. Colorado
ORDER ON MOTION FOR PARTIAL DISMISSAL
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant Mike Leiker's
(“Defendant” or “Mr. Leiker”) Motion
for Partial Dismissal (or “Motion”), filed
September 7, 2018. [#22]. The Parties consented to have the
undersigned Magistrate Judge preside over this matter fully
for all purposes. See [#13]; 28 U.S.C. §
636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court
concludes that oral argument will not materially assist in
the resolution of this Motion. Accordingly, having reviewed
the Motion, the applicable case law, and the entire docket,
this court GRANTS the Motion for Partial
Dismissal for the reasons stated herein.
court draws the following facts from the Complaint and
presumes they are true for purposes of the instant Motion.
Plaintiff Florence Sparacio (“Plaintiff” or
“Ms. Sparacio”) is a fifty-nine-year-old woman
who was a neighbor and friend to Defendant's mother.
See [#1 at ¶ 1, 10-11]. Plaintiff alleges that
while Defendant did not reside with his mother, he met Ms.
Sparacio “once or twice and generally knew her as the
neighbor that helped his mother.” [Id. at
¶ 12]. Deborah Clark (“Ms. Clark”) lived
with Defendant's mother and provided “assisted
living care” to Defendant's mother when her health
began deteriorating. [Id. at ¶ 13].
afternoon, Ms. Clark contacted Plaintiff and asked Plaintiff
if she would help move Ms. Clark's belongings out of
Defendant's mother's home, because Defendant's
mother had recently been transferred to a hospice care
facility. [Id. at ¶¶ 14-17]. Ms. Clark
allegedly informed Defendant that Ms. Sparacio would assist
her with the move. [Id. at ¶ 18]. When
Plaintiff arrived, she asked to speak with Defendant, who was
at his mother's house “to gather some
documents.” [Id. at ¶¶ 15, 19-20].
Ms. Sparacio alleges that not soon after, Mr. Leiker
aggressively confronted her, shoved her into Ms. Clark and a
door, and yelled “get out, your [sic] trespassing, and
I'm a police officer.” [Id. at
¶¶ 21-22]. Mr. Leiker then grabbed Plaintiff's
arm and twisted it behind her back “as if to handcuff
her, ” and led Plaintiff into the kitchen while stating
he was a “police officer” and that Ms. Sparacio
was “under arrest.” [Id. at ¶ 24].
Defendant then “forcefully pushed” Plaintiff down
into a chair, read Plaintiff her Miranda rights, and
stated that Plaintiff was “going to spend the night in
jail.” [Id. at ¶¶ 25-26]. Aurora
police officers later arrived at the scene in response to a
911 call. See [id. at ¶ 2].
initiated this action on June 4, 2018. [#1]. She asserts
federal claims against Defendant pursuant to 42 U.S.C. §
1983 for violations of her Fourth Amendment rights for
wrongful stop/detention and unlawful arrest and for excessive
force, as well as state law claims for assault and battery
and for false arrest and imprisonment. See
[id. at 6-9]. On September 7, 2018, Mr. Leiker filed
an Answer [#21] to Ms. Sparacio's federal claims and the
instant Motion [#22] seeking dismissal of Ms. Sparacio's
state law claims pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Ms. Sparacio sought and received an
extension of time until October 22, 2018 to file her Response
to the Motion for Partial Dismissal because of the October 1,
2018 Settlement Conference and the prospect of resolving this
matter without further briefing on the Motion. See
[#23; #24]. Settlement negotiations were unsuccessful, and
the Parties appeared before the undersigned for a Scheduling
Conference on October 11, 2018, indicating that settlement
did not seem likely. See [#27]. To date, Plaintiff
has not yet responded to the Motion for Partial Dismissal and
has not sought an additional extension of time to do
Nonetheless, the court concludes that it is appropriate to
adjudicate the instant Motion at this time, D.C.COLO.LCivR
7.1(d), and considers Defendant's arguments below.
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent
obligation to determine whether subject matter jurisdiction
exists even in the absence of a challenge from any party.
1mage Software, Inc. v. Reynolds & Reynolds,
Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
When, as here, a party levies a facial challenge to subject
matter jurisdiction, the court takes the allegations in the
Complaint as true. See Pueblo of Jemez v. United
States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015);
Holt v. United States, 46 F.3d 1000, 1002-03 (10th
Cir. 1995). The burden of establishing jurisdiction rests
with the party asserting jurisdiction. Basso v. Utah
Power & Light Co., 495 F.2d 906, 909 (10th Cir.
Colorado Governmental Immunity Act (“CGIA”) bars
actions in tort against public employees and entities,
subject to certain provisions waiving immunity. Medina v.
State, 35 P.3d 443, 453 (Colo. 2001). Relevant here, the
CGIA immunizes “public employees” from liability in
tort actions that “arise out of an act or omission of
such employee occurring during the performance of his duties
and within the scope of his employment unless the act or
omission causing injury was willful and wanton[.]”
Colo. Rev. Stat. § 24-10-118(2)(a). The CGIA provides
that a plaintiff must file written notice with the public
employee “within one hundred eighty-two days after the
date of discovery of the injury, regardless of whether the
person knew all of the elements of a claim or of a cause of
action for such injury.” Id. at §
24-10-109(1). The notice provision is a jurisdictional
prerequisite to suit, and it applies even when federal courts
consider Colorado state law tort claims under supplemental
jurisdiction. Maestas v. Lujan, 351 F.3d 1001,
1013-14 (10th Cir. 2003).
Leiker raises two arguments for dismissal of Ms.
Sparacio's state law claims: (1) Ms. Sparacio failed to
comply with the CGIA's notice provision and (2) the
circumstances giving rise to her state law claims are not
those in which CGIA immunity is waived. [#22 at 4-6]. As to
Mr. Leiker's second point, the court agrees that Ms.
Sparacio's claims for assault and battery and for false
arrest and imprisonment are not circumstances under which
CGIA immunity is waived. See Colo. Rev. Stat. §
24-10-106(1)(a)-(f) (listing situations in which CGIA is
waived). Thus, Ms. Sparacio must comply with the CGIA's
Mr. Leiker's first argument, he avers that he is not
aware of any notice by Plaintiff and that Plaintiff does not
allege compliance with the CGIA's notice provision in her
Complaint. See [#22 at 5]. Based on the record
before the court, this argument also appears meritorious.
review of her Complaint, Ms. Sparacio makes no allegation
concerning the CGIA or her compliance with its required
notice provision. “When a plaintiff fails to plead
compliance with the CGIA, and a court addresses the case in
the context of a motion to dismiss, the court must accept as
a matter of ‘fact' that the plaintiff failed to
comply with the notice provisions.” Aspen
Orthopedics & Sports Med., LLC v. Aspen Valley Hospital
Dist., 353 F.3d 832, 840 (10th Cir. 2003). “This
lack of compliance, then, is a jurisdictional issue.”
Id. Accordingly, I conclude that the court lacks
subject matter jurisdiction over Plaintiff's state law
claims given her failure to comply with the CGIA's notice
Leiker continues that because Mr. Sparacio's injuries
stem from events occurring on or about June 2, 2017, the
182-day notice period expired on or about December 1, 2017
and, thus, Ms. Sparacio cannot remedy her failure to give
notice, thereby absolutely barring her state law claims.
See [#22 at 5]. But there exists some ambiguity as
to when Mr. Sparacio's alleged injuries
occurred. For instance, the Complaint states that
“[p]rior to June 2, 2018, ”
Defendant's mother lived at her home in Aurora, Colorado.
[#1 at ¶ 10]. The Complaint also alleges that
Defendant's mother was transported to a hospice care
facility “[a]t some point leading up to June 2,
2018.” [Id. at ¶ 14]. The
subsequent paragraph then alleges that on “June 2,
2017” Defendant went to his mother's home
to “gather some documents”, [id. at
¶ 15], and that this was when the altercation between
Plaintiff and Defendant occurred. In Defendant's Partial
Answer, he maintains that the incident occurred on June 2,
2017, and that Ms. Clark moved into ...