McDonald v. Eagle County

          REPORT AND RECOMMENDATION ON DEFENDANT EAGLE COUNTY, STATE OF COLORADO'S MOTION TO DISMISS (DKT. #23) AND DEFENDANT BELLCO CREDIT UNION'S MOTION TO DISMISS (DKT. #31)

          N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court pursuant to Orders (Dkt. ##26 & 32) issued by Judge Christine M. Arguello referring Defendants Eagle County, State of Colorado ("Eagle County") and Bellco Credit Union's ("Bellco") (collectively "Defendants") respective Motions to Dismiss. (Dkt. ##23 & 31.) The Court has carefully considered the motions, Plaintiff Reed Kirk McDonald's Responses (Dkt. ##33 & 38), and Defendants' Replies. (Docket ##35 & 42.) The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and makes the following recommendation.

         I. BACKGROUND

         Mr. McDonald initiated this case by filing a Complaint and Jury Demand against Eagle County. (Dkt. #1.) On March 8, 2018, he filed an Amended Complaint in which he asserted additional claims against Bellco.^[1] (Dkt. #14.) Mr. McDonald proceeds pro se and the nature of his claims are convoluted and difficult to ascertain with any certainty. However, construing the pleadings liberally, as it must, the Court gleans the following.

         This action stems from two unrelated state court cases. First, Mr. McDonald alleges that in McDonald v. Zions First Natl Bank, N.A., Eagle County District Court No. 2009-cv-604 (the "Eagle County Litigation"), Eagle County refused to allow him to "present his civil case" against Zions First National Bank, N.A., and successive Eagle County judges have "disobeyed the Court of Appeals Orders."^[2] (Dkt. #14 ¶¶ 24-29.) Mr. McDonald's claims in the Eagle County Litigation were dismissed on summary judgment. (Dkt. #31 -1.)^[3] Judgment was entered against him on April 7, 2011 in the amount of $102, 267.75. (Dkt. ##31-2 & 31-3.) A writ of garnishment was issued on Mr. McDonald's Bellco bank account. (Id.) All this somehow led to Mr. McDonald's arrest by the FBI.^[4] (Dkt. #14 ¶ 36.)

         Mr. McDonald asserts the following claims against Eagle County: (1) Violations of his Fifth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 by denying him equal protection and due process within "its court proceedings"; (2) Violation of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983 for issuing a writ of garnishment and the issuance of an unlawful arrest warrant; (3) Violations of his Fifth and Fourteenth Amendment rights by denying equal protection and due process; and (4) Violation of 42 U.S.C. § 1985 for conspiring to violate his civil rights.

         The second state court case relates to Mr. McDonald's claims against Bellco in Bellco Credit Union v. McDonald, Arapahoe District No. 17-cv-162 (the "Arapahoe County Litigation"). That case started as a county court collections action initiated after Mr. McDonald failed to pay on a car loan.^[5] Mr. McDonald counterclaimed against Bellco under the state and federal fair debt collection laws and attempted to join Eagle County as a third-party defendant. (Dkt. #31-4.) The matter was removed to Arapahoe County District Court, and all claims save for Bellco's original collections claims were dismissed, including Mr. McDonald's counterclaims against Bellco and the third-party claims against Eagle County. (Dkt. #31-5.) Mr. McDonald improperly purported to remove the Arapahoe County Litigation to this Court on January 24, 2018 (Dkt. #6), and then argued in the state court case that the Arapahoe County District Court did not have jurisdiction. (Dkt. #31-6 at 1.) This strategy proved futile; on March 14, 2018, the Arapahoe County District Court entered summary judgment in favor of Bellco. (Dkt. #31-7.) Judgment in the amount of $14, 664.09 was entered in favor of Bellco and against Mr. McDonald on March 14, 2018. (DM. #31-8 at 9.) Mr. McDonald has appealed. (Id. At 2.)

         Mr. McDonald asserts the following claims against Bellco: (1) Violation of the Fourteenth Amendment; (2) Violation of the federal Fair Debt Collection Practices Act ("FDCPA"); (3) Violation of Colorado's FDCPA; and (4) Violation of his First Amendment rights.

         Defendants now move to dismiss Mr. McDonald's claims pursuant to Fed.R.Civ.P. 12(b)(1) and (12)(b)(6).

         II. LEGAL STANDARDS

         a. Pro Se Plaintiff

         Mr. McDonald is proceeding pro se. The Court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hail v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cai, inc. v. Cai. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         b. Lack of Subject Matter Jurisdiction

         Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the case at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Id. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)

         A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resoive disputed jurisdictional facts under Rule 12(b)(1)." Id.

         c. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "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," Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         "A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall, 935 F.2d at1198. "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 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Moreover, ^{, (}[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."' Id. (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief."' Id. (citation omitted).

         In assessing a motion to dismiss under Rule 12(b)(6), the usual rule is that a court should consider no evidence beyond the pleadings. See Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1216 (10th Cir.2007). "If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). However, "the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity." Alvarado, 493 F.3d at 1216 (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)); see also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)("[i]f a document is referenced in and central to a complaint, a court need not convert the motion but may consider that document on a motion to dismiss."). In addition, "facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment." Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10thCir.2006).

         III. ANALYSIS

         a. Claims ...