United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the Recommendation of United
States Magistrate Judge (“the recommendation”)
[Docket No. 22] filed on July 22, 2019. Magistrate Judge
Kristen L. Mix recommends that the Court grant in part and
deny in part defendant's Motion to Dismiss Portions of
Amended Complaint [Docket No. 11]. Plaintiff filed timely
written objections. Docket No. 23.
The
Court will “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
proper if it is specific enough to enable the Court “to
focus attention on those issues - factual and legal - that
are at the heart of the parties' dispute.”
United States v. 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In light of plaintiff's
pro se status, the Court reviews his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991). Because the recommendation contains a
detailed statement of the case and its procedural background,
the Court will discuss only the facts relevant to the
resolution of plaintiff's objections.
Among
plaintiff's claims is a state-law tort claim for assault,
which the Court has jurisdiction over pursuant to 28 U.S.C.
§ 1367. Docket No. 7 at 6. Plaintiff claims that, on
September 21, 2011, he was a “victim of assault while
on the job, ” providing no further details.
Id. Magistrate Judge Mix recommends that the claim
be dismissed because it is barred by the applicable statute
of limitations. Docket No. 22 at 9-14. Plaintiff objects to
this portion of the recommendation. Docket No. 23. The Court,
construing plaintiff's filing liberally, understands him
to be making two arguments: (1) the recommendation erred by
concluding that statutory tolling on the basis of mental
incompetency does not apply to plaintiff's claim, see
id. at 5; and (2) the recommendation erred by not
applying equitable tolling to plaintiff's claim. See
id. at 10-11. Plaintiff does not, however, object to the
Magistrate Judge's conclusion that, but for some form of
tolling, plaintiff's assault claim is time-barred. It is
the plaintiff's burden to “plausibly
establish” some form of entitlement to tolling or face
dismissal under Fed.R.Civ.P. 12(b)(6). Graham v. Teller
Cty., Colo., 632 Fed.Appx. 461, 463 (10th Cir. 2015)
(unpublished).
The
Court turns first to statutory tolling. Colorado law provides
for a form of statutory tolling for “a person under
disability at the time [a cause of action] accrues.”
Colo. Rev. Stat. § 13-81-103(1); see Southard v.
Miles, 714 P.2d 891, 897 (Colo. 1986) (noting that
§ 13-81-103 “operate[s] to suspend the running of
the applicable statute of limitations until either the
disability is removed or . . . a legal representative is
appointed for the person under disability”) (internal
quotations omitted). As relevant here, a “person under
disability” means “a mental incompetent.”
Id. § 13-81-101(3). An individual is mentally
incompetent if he or she is “a person with an
intellectual and developmental disability, ”
id. § 25.5-10-237, which must be
“determined by a community-centered board.”
Id. § 25.5-10-202(26)(b). An
“intellectual and developmental disability” means
a disability “that manifests before the person reaches
twenty-two years of age, that constitutes a substantial
disability to the affected person, and that is attributable
to an intellectual and developmental disability or related
conditions, including Prader-Willi syndrome, cerebral palsy,
epilepsy, autism, or other neurological conditions when the
condition or conditions result in impairment of general
intellectual functioning or adaptive behavior similar to that
of a person with an intellectual and developmental
disability.” Id. § 25.5-10-202(26)(a);
see Graham, 632 Fed.Appx. at 463-64.
Plaintiff
argues that the recommendation erred in its conclusion that
he had not established mental incompetency. He asserts that
he began suffering from post-traumatic stress disorder
(“PTSD”) as a result of the alleged 2011 assault.
Docket No. 23 at 5-10. In support of his objection, he
provides two letters from Dr. Samuel P. Ammirato, a licensed
psychologist, dated September 30, 2017 and July 23, 2018.
Id. at 13-14. These letters appear to not have been
in the record before the magistrate judge; thus, the Court
does not consider them. But, even if it did, plaintiff would
fail to demonstrate mental incompetency. The letters indicate
that plaintiff's PTSD and related health issues arise as
a result of the alleged 2011 assault. Id. However,
plaintiff does not allege, and the letters do not state, that
plaintiff's PTSD “manifest[ed]” before he
turned twenty-two, or that his PTSD is “attributable to
an intellectual or developmental disability or related
conditions.” See Colo. Rev. Stat. §
25.5-10-202(26)(a); see also Docket No. 23 at 14
(letter from plaintiff's psychologist noting that, as of
September 2017, plaintiff “recently receiv[ed] his
[thirty] year plaque” as a “long term
employee” of defendant). Moreover, plaintiff does not
allege that he has been determined to have “an
intellectual and developmental disability” by a
“community-centered board.” See Colo.
Rev. Stat. § 25.5-10-202(26)(b). As a result, plaintiff
has not plausibly established that he is a “person
under disability” who is entitled to statutory tolling.
See Graham, 632 Fed.Appx. at 464 (“[W]ithout a
community centered board's determination that [plaintiff]
has an impairment . . . [plaintiff] can't be deemed
mentally incompetent for the purposes of the tolling
statute.”). Thus, the Court agrees with the
recommendation that statutory tolling does not apply to the
statute of limitations on plaintiff's state-law assault
claim.
If
statutory tolling is unavailable, plaintiff must rely on
equitable tolling. Under Colorado law, equitable tolling
applies “where the defendant's wrongful conduct
prevented the plaintiff from asserting his or her claims in a
timely manner, ” based on the principle that “a
person should not be permitted to benefit from his or her own
wrongdoing.” Dean Witter Reynolds, Inc., v.
Hartman, 911 P.2d 1094, 1096-97 (Colo.
1996).[1] Colorado courts “rarely” apply
the doctrine of equitable tolling. Escobar v. Reid,
668 F.Supp.2d 1260, 1272 (D. Colo. 2009).
In his
objection, plaintiff argues that equitable tolling is
appropriate in cases where “the plaintiff has been
deemed to be mentally incompetent at the time” and
“the parties were engaged in a good faith negotiation[]
to resolve [the] dispute.” Docket No. 23 at 10. In
support, plaintiff cites Borchard v. Anderson, 542
N.W.2d 247 (Iowa 1996), and Barrett v. Principi, 363
F.3d 1316 (Fed. Cir. 2004). Neither case applies Colorado
law. In Borchard, the Iowa Supreme Court concluded
that, under Iowa law, the plaintiff's tort claim was not
subject to either statutory or equitable tolling as a result
of a PTSD diagnosis. See Borchard, 542 N.W.2d at
249-51. In Barrett, the Federal Circuit held that
mental illness could toll 38 U.S.C. § 7266(a) if
“the failure to file was the direct result of a mental
illness that rendered [the filer] incapable of rational
thought or deliberate decision making, or incapable of
handling his own affairs or unable to function in
society.” See Barrett, 363 F.3d at 1321
(internal citations, quotations, and alterations
omitted).[2] Because these cases do not apply Colorado
law, they are not on point and do not establish
plaintiff's entitlement to equitable
tolling.[3] The Court agrees with the recommendation
that the allegations in plaintiff's complaint that the
defendant led “bogus investigations” in order to
exhaust plaintiff's time to file his assault claim are
conclusory. See Docket No. 7 at 14. As plaintiff
fails to plausibly establish that “the defendant's
wrongful conduct prevented the plaintiff from asserting his .
. . claims in a timely manner, ” he is not entitled to
equitable tolling on his assault claim. See Dean Witter
Reynolds, 911 P.2d at 1097.
Plaintiff
has failed to plausibly establish that he is entitled to
either statutory or equitable tolling, and the Court will
therefore overrule his objections. The Court has reviewed the
remainder of the recommendation to satisfy itself that there
is “no clear error on the face of the
record.”[4] Fed.R.Civ.P. 72(b), Advisory Committee
Notes. Based on this review, the Court has concluded that the
Recommendation is a correct application of the facts and the
law. Accordingly, it is
ORDERED
that the Recommendation of United States Magistrate Judge
[Docket No. 22] is ACCEPTED. It is further
ORDERED
that plaintiff's Objections to Magistrates [sic] Judge
Kristen L. Mix to Dismiss Portions of Complaint [Docket No.
23] are OVERRULED. It is further
ORDERED
that Defendant's Motion to Dismiss Portions of Amended
Complaint [Docket No. 11] is GRANTED IN PART
and DENIED IN PART. It is further
ORDERED
that plaintiff's assault claim is DISMISS ...