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Heidel v. Mazzola

United States District Court, D. Colorado

November 25, 2018

GARY HEIDEL, individually, MICHELE ASCHBACHER, individually, CAMILLE ROWELL, individually, KERSTEN HEIDEL, individually, and MICHAEL ROWELL, individually, and as the PERSONAL REPRESENTATIVE of the ESTATE OF CATHERINE ROWELL, Plaintiffs,
v.
SHERIFF ANTHONY MAZZOLA, in his individual and official capacity; SERGEANT JEREMY MUXLOW, in his individual capacity; DEPUTY KIM COOK, in his individual capacity; DEPUTY CLINTON KILDUFF, in his individual capacity; DEPUTY JOHNNY MURRAY, in his individual capacity, Defendants.

          RECOMMENDATION REGARDING DEFENDANTS' PARTIAL MOTION TO DISMISS

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on Defendants' partial motion to dismiss (ECF # 56), [1]Plaintiffs' response (ECF# 62), and Defendants' reply (ECF #63). The motion has been referred to this Magistrate Judge for recommendation (ECF #57).[2] The Court has reviewed the pending motion, response, reply, and all attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument is not necessary in this circumstance. This Magistrate Judge respectfully recommends that the motion be DENIED.

         Factual and Procedural Background

         Plaintiffs, the personal representative, family, and heirs of Decedent Catherine Rowell, filed suit against Sheriff Mazzola, et. al. Tragically, Ms. Rowell committed suicide while she was a pre-trial detainee in the Rio Blanco County Detention Facility (ECF #54). Plaintiffs' second claim for relief is a wrongful death claim based on premises liability to an invitee for the negligent operation of the detention facility for failure to use reasonable care to protect against danger on the property (ECF #54, pp. 13-14). Plaintiffs' third claim for relief is a wrongful death claim based on premises liability to a licensee for the negligent operation of the detention facility for failure to use reasonable care to protect against danger on the property (ECF #54, pp. 14-15).

         Defendants' Argument for Dismissal

         Defendants' motion for partial dismissal (ECF #56) is targeted only at claims two and three of the second amended complaint (ECF #54). Defendants argue that Plaintiffs' sole right to relief falls under Colorado's Wrongful Death Act (ECF #56, p. 2). Defendants further assert that Plaintiffs are barred from recovery under the premises liability statute due to the Wrongful Death Act (ECF #56, p. 3). Defendants acknowledge that “any such action for injury must be brought under the Wrongful Death Act.” Id. Defendants' motion to dismiss is brought under Rule 12(b)(6) for failing to state a claim upon which relief can be granted.

         Plaintiffs' Response

         Plaintiffs respond, stating that “the wrongful death act is just a vehicle for heirs to bring cases based on underlying tortious conduct, which could be negligence, negligence per se, or premises liability” (ECF #62, p. 2). Essentially, Plaintiffs' argument is that Plaintiffs' claims fall under the Wrongful Death Act and that said Act is the appropriate vehicle for a tort claim when death has occurred. Id. passim.

         Defendants' Reply

         Defendants briefly reply, “acknowledg[ing that] a violation of the premises liability statute could form a basis for a “wrongful act” under Colorado's Wrongful Death Act” (ECF #63, p. 2). However, Defendants go on to assert that “to the extent Plaintiffs' Counts Two and Three allege causes of action independent and distinct from Colorado's Wrongful Death Act, said claims should be dismissed.” Id.

         Standard of Review

         Rule 12(b)(6)

         The Court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) may also be based on the lack of a cognizable legal theory. See Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). To withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, which, taken as true, “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Although allegations of fact are accepted as true, legal conclusions are not. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Accordingly, the Court disregards conclusory statements and looks only to whether the remaining factual allegations plausibly suggest the defendant is liable. Khalik, 671 F.3d at 1190-91. “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts ...


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