Noflin v. Two Rivers Drug Enforcement Team

          RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS PART I: THE GARFIELD COUNTY DEFENDANTS (ECF #17) PART II: THE MUNICIPAL DEFENDANTS (ECF #22) PART I: THE GARFIELD COUNTY DEFENDANTS

          Gordon P. Gallagher United States Magistrate Judge

         This matter comes before the Court on Defendants' motion to dismiss (TRIDENT, Garfield County Board of Commissioners, and the Garfield County Sheriff's Office) (collectively the Garfield County Defendants) (ECF # 17), ^[1] Defendants' reply (ECF #28) (apparently filed as a reply on the basis that the intervening filing of exhibits was a response (ECF #21), and Plaintiff's pro se^[2] “motion to dismiss answer” (ECF# 31)-which I construe as a response. The motion has been referred to this Magistrate Judge for recommendation (ECF #38).^[3] 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. This Magistrate Judge respectfully recommends that the motion be GRANTED.

         Factual and Procedural Background

         Plaintiff Noflin brings suit against a variety of parties as follows (ECF #1): claim one is against TRIDENT for defamation; claim two is for “harassment by people in power” (sic); and claim three is for “government agencies to allow their employees to violate a person civil rights and abuse its power” (sic). Claims two and three do not specifically state to which Defendant each claim applies. Plaintiff states therein, see, e.g. ECF #1, p. 6, that he has attached exhibits to his pleading. No. exhibits were so attached. However, some six weeks later, Plaintiff filed a packet of exhibits at ECF #21.

         Defendants' Motion

         The Garfield County Defendants move to dismiss on the basis that: (1) counts one and two sound in tort and are barred by law under the Colorado Government Immunity Act (CGIA); (2) res judicata-based on both prior state and federal litigation; (3) count one is barred by the statute of limitations; (4) the claims are barred by a prior settlement agreement; (5) lack of standing for count II; and (6) failure to plausibly allege a claim with regard to count III (ECF #17).

         Plaintiff's Response

         Plaintiff argues that: (1) the facts of this suit are different than the two prior litigations-essentially opposing the Garfield County Defendants' assertion of res judicata; (2) that CGIA notice was properly afforded; (3) that the settlement agreement does not apply to this factual scenario; and (4) that the statute of limitations is not an issue because “[t]he Defendants can't agree on the time” (ECF #31).

         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 in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atlantic Corp., 127 S.Ct. at 1974). It is entirely appropriate to dismiss an action at the motion to dismiss stage based on res judicata. See Argueta-Pereira v. Ochoa, 2012 WL 2564813 *1-2 (D. Colo. 2012) (dismissing the plaintiff's federal law suit as barred by res judicata because of a lawsuit in state court).

         Res judicata-claim preclusion

         As it appears to conclusively resolve this action, I will first address the res judicata argument-thus not reaching the remaining arguments made by each set of Defendants.

The doctrine of res judicata, or claim preclusion, will prevent a party from litigating a legal claim that was or could have been the subject of a previously issued final judgment. The principle underlying the rule of claim preclusion is that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not have another chance to do so. To apply claim preclusion, three elements must exist: (1) a [final] judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits. In addition, even if these three elements are satisfied, there is an ...