United States District Court, D. Colorado
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE
matter is before the court on “Defendant Mitchell's
Motion to Dismiss Plaintiff's Amended Complaint (Doc. 17)
Pursuant to Fed.R.Civ.P. 12(b)(1) and (6).” (Doc. No.
22 [Mitchell Mot.], filed September 28, 2018.) Plaintiff
filed her response on March 23, 2019 (Doc. No. 39 [Resp.
Mitchell Mot.]), and Defendant Mitchell filed his reply on
April 3, 2019 (Doc. No. 41 [Mitchell Reply]).
before the court is the “City Defendants' Motion to
Dismiss Amended Complaint.”(Doc. No. 23 [City Mot.,
filed October 2, 2018.) Plaintiff filed her response on March
23, 2018 (Doc. No. 38 [Resp. City Mot.]), and the City
Defendants filed their reply on April 8, 2019 (Doc. No. 42
before the court is Plaintiff's “Motion for Leave
to File a Second Amended Complaint” (Doc. No. 26 [Mot.
Amend], filed October 16, 2018). Defendants filed a joint
response on October 24, 2018 (Doc. No. 30 [Resp. Mot.
Amend]), and Plaintiff filed her reply on November 7, 2018
(Doc. No. 34 [Reply Mot. Amend]).
OF THE CASE
proceeding pro se, filed her Amended Complaint on
September 24, 2018. (Doc. No. 17 [Am. Compl.].) Plaintiff
alleges Defendant City of Colorado Springs “has
utilized its resources of the police and fire dept. in a
pattern that illegally threatens and persecuted
[Plaintiff's] absolute natural right to [her] sole
beliefs and practices, GreenFaithMinistry, [her]
spirituality/religion under the First Amend. Free Exercise
Clause.” (Id. at 3.)
states she is the “Property manager, Volunteer, High
Priestess (second minster [sic] in command), member, etc. [of
GreenFaithMinistry] who leases two rooms [to
GreenFaithMinistry].” (Id. at 8, ¶ 18.)
Plaintiff alleges on July 10, 2017, Plaintiff alleges that
two City Fire Department Marshals (Defendants McClarin and
Nieves) and a City Police Officer (Defendant Vargason)
attempted to conduct an occupancy check of the building in
which GreenFaithMinistry is located. (Id.,
¶¶ 11-13, 18-19.) Plaintiff states she refused to
let the defendants in the building and, instead, told them
they would have to contact Reverend Baker. (Id.,
¶ 19.) Plaintiff alleged Defendant McClarin told her,
“If you do not let us in, nobody will be allowed
in.” (Id. at 11, ¶ 24.)
Defendants McClarin, Nieves, and Vargason contacted Reverend
Baker by telephone from the front porch of the building,
other GreenFaithMinistry members approached the building.
(Id., ¶¶ 21, 27, 34, 35.) Defendant Nieves
allegedly questioned one of the individuals, asking
“[i]f marijuana is being consumed inside the
building.” (Id., ¶ 34.) The various
members who approached the building left the premises.
(Id., ¶¶ 27, 34, 35.)
alleges Defendant Vargason pulled forcefully on the doors to
GreenFaithMinistry in an “attempt to gain illegal
entry.” (Id. at 16-17, ¶ 28.) Plaintiff
came to the door, and the following exchange allegedly took
place between her and Defendant Vargason:
“Open this door. If you do not open this door, you will
be in trouble” Defend[ant] Roger Vargason then uses all
his weight and leans noticeably back in attempt to pull the
secured entrance door. Plaintiff [ ] responds “this is
private property do you have a warrant? This angers Defendant
Officer Roger Vargason who reply's [sic] “Oh now I
am talking to Rob Corry” (Marijuana lawyer out of
Denver)[.] Defendant Officer Roger Vargason continues to
attempt to unlawfully, lawlessly, arbitrary, forcefully open
secured doors in violation of Art. 6, Clause 2 Supremacy
Clause, Constitutions, Fourth Amend.
(Id., ¶¶ 28, 30.) Plaintiff also alleged
Defendant Vargason threatened Plaintiff and made “the
false, unjustified accusation and persecuted statement
‘we know you have an illegal grow in there.'
” (Id., ¶ 28.) Plaintiff alleges that,
after questioning another member of GreenFaithMinistry and
taking pictures of the some of the members' license
plates, Defendants Vargason, McClarin and Nieves left the
premises after approximately 45 minutes, apparently without
gaining access to the property. (Id. at 21-23,
alleges the defendants' actions deprived her,
GreenFaithMinistry, and its members of their right to freely
exercise their religion. (Id.) Plaintiff alleges she
and four other church members/volunteers were required to
vacate their place of worship, which caused Plaintiff to
believe she, GreenFaithMinistry, and the other members were
“persecuted via Guilt by Association.”
(Id. at 11-12, ¶ 24.)
asserts claims for the defendants' violations of her
“Absolute Natural Rights, Art. 6, Clause 2 Supremacy
Clause, Constitutions [sic], First Amend. Violations of the
Establishment Clause, ” (id. at 37); the
“Free Exercise Clause-Business, Beliefs, Practice,
Association, Viewpoint, Idea, Expression, Activities,
Conscience, ETC.” (id. at 45), the
“Fourth Amend. Clauses and 42 U.S. Code § 1985 -
Conspiracy to Interfere with civil rights. (3) Attempts to
enter without a warrant violation of the Fourth Amendment.
Attempted Warrantless Search” (id. at 52), and
U.S. of A. Constitution Art. 1 Section 9 Clause 3 No. Bill of
Attainder or ex post facto Law shall be passed, Section 10
Clause 1 Shall not pass any Bill of Attainder, ex post facto
Law, or Law impairing The Obligation of Contracts, or grant
any Title of Nobility., Amend. 5 Due Process, Amend. 9,
Amend. 10 All Reserved Powers of the people and Also
Entangled with the Colorado Constitution Article II Section
1: Vestment of Political Power, Section 3: Inalienable
Rights, Section 11: Ex Post Facto Laws nor immunities,
Section 25: Due Process of Law, Section 28: Rights Reserved
(id. at 61).
Pro Se Plaintiff
is proceeding pro se. The court, therefore, “review[s]
h[er] 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.Appx.
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
[her] alleged injury, and [s]he must provide such facts if
the court is to determine whether [s]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 her to application of different rules.
See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim upon Which Relief Can Be
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, 551 U.S. at 322; 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.