Pearson v. Colorado Department of Transportation

          ORDER

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss The First Amended Complaint [#36]^[1] (the “Motion”). Plaintiff filed a Response [#46] in opposition to the Motion, and Defendants filed a Reply [#47]. The parties have consented to proceed before the undersigned for all proceedings pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2(d). See [#23]. The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#36] is GRANTED.

         I. Background ^[2]

         Plaintiff is a resident of Brighton, Colorado, who lost his home in the wildfire that started on October 3, 2016, in Beulah, Colorado. Am. Compl. [#34] at 17. The circumstances surrounding the origin of the wildfire form the basis for Plaintiff's claims.

         The day the fire started, Defendant Colorado Department of Transportation (“CDOT”) assigned its employee, Defendant Aaron Adame (“Adame”), to maintain a rock formation designed to protect a nearby bridge from erosion. Id. at 3. The National Weather Service issued a “red-flag” fire warning that was in effect while he completed this task. Id. at 11. Defendant Adame utilized an excavator to move large stones up a bank and into position. Id. at 4. In the course of moving these stones, Plaintiff alleges that Defendant Adame struck a rock with the steel bucket of his excavator, which sparked and ignited nearby brush. Id. at 7, 11. Plaintiff further alleges that Defendant Adame's actions were the cause of the Beulah Wildfire, and thus attributes the loss of his home to Defendants. Id. at 12.

         Plaintiff initiated this lawsuit on October 3, 2018, see Compl. [#1], and filed an Amended Complaint [#34] on February 19, 2019. In his Amended Complaint [#34], Plaintiff asserts two claims: (1) a substantive due process claim under the Fourteenth Amendment for the loss of his property in the wildfire, and (2) a “Colorado Governmental Immunity Act (“CGIA”) claim” for “intentional, deliberate, as well as reckless, willful and wanton, and/or negligent conduct.” Id. at 22. Plaintiff brings his substantive due process claim against Defendant Adame in his individual capacity only, and the CGIA claim against Defendants Adame and CDOT. Id. at 17, 20. As relief, Plaintiff seeks damages and unspecified injunctive and declaratory relief. Id. at 22. In the present Motion [#36], Defendants seek dismissal of both claims.

         II. Legal Standard

         Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).

         Similarly, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[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). That said, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint include all facts necessary to carry the plaintiff's burden.” Khalik, 671 F.3d at 1192 (citation omitted).

         Further, “[t]he plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “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.'” Iqbal, 556 U.S. at 678 (citation omitted).

         To determine if a complaint survives a motion to dismiss, courts utilize Rule 8, instructing that “[a] plaintiff must provide a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule 12(b)(6), “to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible.” Id. Indeed, “Rule 8(a)'s mandate. . . has been incorporated into the 12(b)(6) inquiry.” United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables “the court and the defendants to know what claims are being asserted and to determine how to respond to those claims.” Tuttamore, 429 Fed.Appx. at 689.

         III. Analysis

         A. Fourteenth Amendment Substantive Due Process Claim

         Plaintiff alleges that Defendant Adame infringed his Fourteenth Amendment substantive due process rights by causing Plaintiff to lose his home in the wildfire. In response, Defendant Adame asserts qualified immunity. Specifically, he contends that (1) Plaintiff failed to plead a constitutional violation because Defendant Adame's conduct did not shock the conscience, and (2) Plaintiff failed to demonstrate that Defendant ...