United States District Court, D. Colorado
A. BRIMMER Chief United States District Judge
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].
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, ¶
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
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. 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.
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. On August 16, 2014,
plaintiff was released from custody. Id. at 18,
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.
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,
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.
STANDARD OF REVIEW
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.
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).
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).
The Rooker-Feldman doctrine
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 ...