United States District Court, D. Colorado
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
P. Gallagher United States Magistrate Judge
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),  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 “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). 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
and Procedural Background
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.
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
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).
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).
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 ...