United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M Tafoya, United States Magistrate Judge.
matter comes before the court on Defendants'
“Motion to Dismiss” (Doc. No. 20 [Mot.], filed
January 15, 2019). Plaintiff did not file a
OF THE CASE
an inmate at the Teller County Jail, alleges that when he was
booked into the jail, he declared himself to be a Christian.
(Doc. No. 1 [Compl.] at 4.) After studying the bible, he
“became persuaded that as a Christian he is a true Jew
by the teachings of Paul.” (Id.) On August 28,
2018, Plaintiff requested to be put on a kosher diet, and
Defendants Hammond and Boe told him that a rabbi must first
convert Plaintiff to the Jewish faith. (Id.)
Plaintiff states he appealed the denial of a kosher diet to
Defendant Sloan, who denied his appeal. (Id.)
asserts claims for the defendants' violations of
Plaintiff's First and Fourteenth Amendment rights and the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). (Id. at 4-5.) Defendants
move to dismiss all of Plaintiff's claims. (See Mot.)
Pro Se Plaintiff
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). See
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by
lawyers”). Pro se plaintiffs must “follow the
same rules of procedure that govern other litigants”
and “must still allege the necessary underlying facts
to support a claim under a particular legal theory.”
Thundathil v. Sessions, 709 Fed. App'x 880, 884
(10th Cir. 2017) (citations and internal quotation mark
omitted). “[A] pro se plaintiff requires no special
legal training to recount the facts surrounding his alleged
injury, and he must provide such facts if the court is to
determine whether he makes out a claim on which relief can be
granted.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A pro se litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief
can be based.” Id.
“cannot take on the responsibility of serving as the
litigant's attorney in constructing arguments” or
the “role of advocate” for a pro se
plaintiff. Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005). 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. Assoc. Gen. Contractors
of Cal., Inc. v. Cal. 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”). The plaintiff's pro se status
does not entitle him to application of different rules.
See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.
Failure to State a Claim
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) (quotation marks omitted).
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 v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991). “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 conclusion, 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.
the court need not accept conclusory allegations without
supporting factual averments. S. 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).
evaluating a Rule 12(b)(6) motion to dismiss, the court may
consider documents incorporated by reference, documents
referred to in the complaint that are central to the claims,
and matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly
filed court records, including court transcripts, are subject
to judicial notice. St. Louis Baptist Temple, Inc. v.
Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979); United States v. Ahidley, 486 F.3d 1184, 1192
n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx.
691, 693 (10th Cir. 2003).