United States District Court, D. Colorado
EDWARD L. MULCAHY JR., Plaintiff,
ASPEN/PITKIN COUNTY HOUSING AUTHORITY, a multi-jurisdictional housing authority, Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Aspen/Pitkin County
Housing Authority's Motion to Dismiss First Amended
Complaint Pursuant to F.R.Civ.P. 12(b)(1) and 12(b)(6)
[Docket No. 15].
case arises out of a dispute over property located at 53
Forge Road in Aspen, Colorado. Defendant Aspen/Pitkin County
Housing Authority (“APCHA”) is a housing
authority that, among other things, oversees and administers
the affordable housing program in Pitkin County, Colorado.
Docket No. 13 at 2, ¶ 4-7. As part of the affordable
housing program, defendant conveys deed-restricted property
to Aspen and Pitkin County residents at below-market prices.
Id., ¶ 6. Prospective buyers are chosen by
lottery and must meet certain employment and income
demographics, which are determined by defendant. Id.
at 2-3, ¶¶ 6, 10.
Edward L. Mulcahy, Jr. (“Mulcahy”) has been a
permanent resident of Aspen since 1995. Id. at 3-4,
¶ 10. In October 2006, plaintiff received the deed to
the property at 53 Forge Road after purchasing the property
through APCHA's housing lottery process. Id. at
3, ¶ 9. Plaintiff's deed to the property is subject
to certain restrictions enforceable by defendant, namely,
plaintiff must use the property as his primary residence and
be a full-time employee working in Pitkin County for an
employer whose business address is located within Aspen or
Pitkin County, whose business employs employees within Pitkin
County, whose business license is in Aspen or Pitkin County,
and/or the business taxes are paid in Aspen or Pitkin County
(if an employer is not physically based in Pitkin County, an
employee must be able to verify that they physically work in
Pitkin County a minimum of 1500 hours per calendar year for
individuals, business or institutional operations located in
Pitkin County) . . . .
Docket No. 13-3 at 19.
17, 2015, plaintiff received a letter from defendant alleging
that he was not in compliance with the deed restrictions.
Id. at 6, ¶ 16. The letter stated that
plaintiff had fourteen days to respond to the letter and
sixty calendar days to resolve the issues identified in the
letter. Id. at 8, ¶ 22. Plaintiff communicated
with defendant's qualifications specialist in an attempt
to resolve the situation. Id. at 7-8, ¶¶
19-22. On August 5, 2015, defendant sent a second compliance
letter to plaintiff. Id. at 11, ¶ 27. On August
25, 2015, defendant sent an “official notice of
violation” to plaintiff finding a breach of the deed
restriction. Id. The official notice of violation
indicated that plaintiff had fifteen days to contest the
finding. Id. Because plaintiff was traveling outside
the country, he was not aware of the notice of violation and
did not respond. Id. at 12, ¶ 30. Subsequently,
defendant issued a final letter, indicating that because
plaintiff failed to timely request a hearing he had lost the
right to contest defendant's findings. Id.
Defendant ordered that plaintiff list the 53 Forge Road
property for sale. Id.
December 2, 2015, defendant brought an action in the District
Court for Pitkin County, Colorado, seeking to force plaintiff
to sell the property. Id. at 13, ¶ 32. On March
3, 2016, the district court granted summary judgment for
defendant, concluding that, since plaintiff had failed to
exhaust his administrative remedies, the court did not have
jurisdiction to hear his defenses and defendant was entitled
to judgment as a matter of law. Id. On August 8,
2016, the district court denied plaintiff's motion for
reconsideration. Id. at 14, ¶ 34. On September
14, 2017, the Colorado Court of Appeals affirmed the district
court's order. Id. at 14-15, ¶ 35. On April
30, 2018, the Colorado Supreme Court denied plaintiff's
petition for writ of certiorari. Docket No.
11-3. On January 7, 2019, the U.S. Supreme Court
denied plaintiff's petition for writ of certiorari.
Docket No. 55-2. On March 6, 2019, the district court granted
defendant's motion to lift the stay of its original
judgment and denied plaintiff's motion to vacate the
judgment. Docket No. 55-1.
29, 2018, plaintiff filed this lawsuit. Docket No. 1. The
operative complaint brings claims for relief under 42 U.S.C.
§ 1983 for (1) deprivation of plaintiff's due
process rights and (2) deprivation of plaintiff's equal
protection rights. Docket No. 13 at 16-21, ¶¶
38-62. Plaintiff requests as relief, in part, “[a]n
order declaring [defendant's] August 25, 2015 prematurely
issued notice of violation to be invalid” and an order
to defendant to “properly issue a notice of
violation.” Id. at 21, ¶¶ 62(a),
September 21, 2018, APCHA filed this motion to dismiss.
Docket No. 15.APCHA asserts that the complaint should be
dismissed on the grounds that (1) plaintiff's claims are
barred by the doctrines of res judicata and
collateral estoppel, (2) plaintiff has failed to exhaust
administrative remedies, (3) plaintiff has failed to allege a
procedural due process violation, and (4) plaintiff's
claims are barred by the Rooker-Feldman doctrine.
Docket Nos. 13, 15.
motion under Fed.R.Civ.P. 12(b)(1) is a request for the Court
to dismiss a claim for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of
establishing that the Court has jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). When the Court lacks subject matter jurisdiction over
a claim for relief, dismissal is proper under Rule 12(b)(1).