United States District Court, D. Colorado
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion
to Dismiss The First Amended Complaint
[#36] (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.
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
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.
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.
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).
“[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).
“[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
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.
Fourteenth Amendment Substantive Due Process Claim
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