United States District Court, D. Colorado
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,
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
P. Gallagher, United States Magistrate Judge
matter comes before the Court on Defendants' partial
motion to dismiss (ECF # 56), Plaintiffs' response (ECF#
62), and Defendants' reply (ECF #63). The motion has been
referred to this Magistrate Judge for recommendation (ECF
#57). 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.
and Procedural Background
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).
Argument for Dismissal
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
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.
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.
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