Carlson v. Town of Mountain Village

          ORDER

          PHILIP A. BRIMMER Chief United States District Judge

         This matter is before the Court on the Motion to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) of Defendants Town of Mountain Village and Chris Broady [Docket No. 72] and Defendant Brian Y. Carlson's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [Docket No. 75].

         I. BACKGROUND

         This case arises out of the breakdown of the marriage between plaintiff and defendant Brian Carlson (“Carlson”). Plaintiff alleges that, due to “an unlawful and extortionate conspiracy . . . organized and implemented by her former husband, ” she was wrongfully jailed and otherwise prevented from having contact with her children. Docket No. 68 at 12, ¶ 10.^[1] For purposes of this order, the Court only considers those allegations relevant to defendants Carlson, the Town of Mountain Village, Colorado (“Town”), and Chris Broady (“Broady”), the Town's Chief of Police.

         On the evening of December 3, 2013, Carlson accused plaintiff of child abuse, felony burglary, trespassing, sexual assault, and theft in or near their home in Mountain Village, a resort town located in San Miguel County, Colorado. Id. at 4, 18, 34, ¶¶ 4B, 35-36, 123.^[2] Carlson “just made up” these charges in order to put plaintiff in jail. Id. at 38, ¶¶ 137-38. The charges were supported by an unlawfully notarized arrest affidavit signed by defendant Anthony Morabito, at the time a police officer for the Town. Id. at 13, ¶¶ 12-13. Broady was the Chief of Police. Id. at 4-5, ¶ 4D. Plaintiff was arrested that evening. Id. at 27, ¶ 83. At the time of her arrest, plaintiff was on probation in Jefferson County, Colorado for a driving under the influence conviction in 2011. Id. at 16, ¶ 27. Plaintiff remained in custody after her arrest. Id. at 18, ¶ 35.

         On May 1, 2014, plaintiff pled guilty to a probation violation in Jefferson County, based on the charges filed against plaintiff in San Miguel County. Id. at 39, ¶ 144. The District Court for Jefferson County, Colorado sentenced plaintiff to one year in the county jail. Id., ¶ 145. In early June, 2014, plaintiff entered an Alford plea in the San Miguel County case. Id. at 28, ¶ 90.^[3] On August 16, 2014, plaintiff was released from custody. Id. at 18, ¶ 35.

         On January 22, 2017, Carlson falsely reported to law enforcement that plaintiff was intoxicated. Id. at 64-65, ¶ 291. Plaintiff was arrested for alleged intoxication in violation of a protection order. Id. at 65, ¶ 293. Though this charge was ultimately dismissed, the arrest triggered another probation revocation in Jefferson County, which led to plaintiff's incarceration from May 25 to October 10, 2017. Id. at 45-46, 65, ¶¶ 182, 293. On December 30, 2017, defendants Kip Albanese and Nathan Santos, who are police officers employed by the Town, arrested plaintiff at a restaurant. Id. at 5, 53, ¶¶ 4E, 4F, 230. The officers - along with defendant Tom Halper, a deputy marshal in the nearby town of Telluride - “used brutal and entirely unnecessary physical force to deal with [plaintiff].” Id. at 5, 54, ¶¶ 4G, 235. The officers' conduct was “abetted” by Broady, who “failed to exercise even remotely competent command supervision.” Id. at 54, ¶ 236.

         On December 3, 2017, plaintiff filed this action. Docket No. 1. In the Second Amended Complaint, plaintiff asserts five claims for relief: (1) damages for violations of the Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”), 18 U.S.C. §§ 1961-1968; (2) equitable relief for violations of RICO; (3) damages and forfeiture of property under the Colorado Organized Crime Control Act (“COCCA”), Colo. Rev. Stat. §§ 18-17-106 et seq.; (4) damages under the Civil Rights Acts of 1871, 42 U.S.C. §§ 1981-1988; and (5) injunctive relief. Id. at 74-81, ¶¶ 337-361.

         Defendants Carlson, the Town, Broady, Kip Albanese, Nathan Santos, Colleen Mahoney, Telluride School District R-1, and Tom Halper have filed or joined motions to dismiss. Docket Nos. 72, 75, 101, 106, 124, 125, 129. Def endants Morabito, Joshua Klimasewski, Alisia Klimasewiski, Virginia Achter, Apex Construction, LLC, and Connect Skis, LLC have not entered appearances. Only the motions filed by Carlson, the Town, and Broady are before the Court at this time. Docket Nos. 72, 75.

         II. STANDARD OF REVIEW

         A. Fed.R.Civ.P. 12(b)(1)

         A motion under Fed.R.Civ.P. 12(b)(1) is a request for the Court to dismiss a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Plaintiff bears the burden of establishing that the Court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). When the Court lacks subject matter jurisdiction over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City and Cty. of Denver, No. 11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept. 24, 2012).

         Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). The court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S., 343 F.3d 1282, 1296 (10th Cir. 2003).

         B. Fed.R.Civ.P. 12(b)(6)

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent, ” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).

         C. The Rooker-Feldman doctrine

         “It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts “must have a statutory basis for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). Section 1257(a) of United States Code, Title 28 provides that only the Supreme Court - not lower federal courts - has jurisdiction to review “[f]inal judgments or decrees” rendered ...