Aguilera v. City of Colorado Springs

          ORDER

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE

         This 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]).

         Also before the court is the “City Defendants' Motion to Dismiss Amended Complaint.”^[1](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 [City Reply]).

         Also 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]).

         STATEMENT OF THE CASE

         Plaintiff, 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.)

         Plaintiff 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.)

         While 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.)

         Plaintiff 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, ¶¶ 33-36.)

         Plaintiff 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.)

         Plaintiff 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 Not Disparaged

(id. at 61).

         STANDARDS OF REVIEW

         A. Pro Se Plaintiff

         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.

         Courts “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. 2002).

         B. Lack of Subject Matter Jurisdiction

         Federal 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).

         A Rule 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.

         C. Failure to State a Claim upon Which Relief Can Be Granted

         Federal 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).

         “A 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.

         Notwithstanding, 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).

         In 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. ...