United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants’ Motion to
Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6) [Docket No. 21]. The Court has jurisdiction pursuant
to 28 U.S.C. § 1331.
case arises out of the non-renewal of a city contract for the
Transition from Jail to Community (“TJC”)
program. Docket No. 1 at 3, 10-11, ¶¶ 10, 33, 35.
The City and County of Denver created the TJC program in 2007
to provide “transitional services to adult Denver
residents released from the Denver County Jail and Downtown
Detention Center.” Id. at 3, ¶ 13. From
its inception until December 2017, the TJC program was
administered by the Community Reentry Program
(“CRP”) under a series of one-year contracts
between the City and CRP that were renewed automatically each
year, with the exception of 2011 when the City issued a
Request for Proposal (“RFP”) for the TJC program.
Id. at 3-4, ¶¶ 14, 15, 17. Plaintiff Lisa
Calderón, a Latina/African-American woman, served on
the City committee that created the TJC program. Id.
at 3-4, ¶¶ 11, 15. Between 2007 and December 2017,
plaintiff led the program as Executive Director of CRP.
and August 2017, plaintiff spoke publicly and to defendant
Michael Hancock, the mayor of Denver, on issues related to
race discrimination in the sheriff’s department and the
management of the city jail. See Id. at 5-6,
¶¶ 23-24. In June 2017, officials in various city
offices, including the mayor’s office, the city
attorney’s office, the Department of Safety, and the
Sheriff Department, discussed terminating CRP’s TJC
contract. Id. at 7, ¶ 28. Defendant Jess Vigil,
who at all times relevant to this case was serving the Deputy
Manager of Public Safety for the City of Denver, spoke to
other officials about “terminating the CRP contract
because of [plaintiff’s] activism and criticism of City
officials.” Id. at 7, ¶ 29. During a
meeting on August 14, 2017, defendant Hancock stated that he
was “‘personally offended’ and
‘stung’ by plaintiff’s criticisms of his
and Executive Director O’Malley’s treatment of
African American staff.” Id., ¶ 26.
2017, after six years of automatically renewing CRP’s
TJC contract, the City issued a formal RFP for the TJC
program. Id. at 4, ¶ 18. Plaintiff was not
included on the distribution list for the RFP, id.
at 8, ¶ 32(b), and employees of the sheriff’s
department actively recruited organizations other than CRP to
participate in the bidding process. Id., ¶
32(c). Albus Brooks, President of the Denver City Council,
and former Denver Human Services employee Regina Huerter told
the Crime Prevention and Control Commission and the Denver
City Council that “CRP had failed in its performance of
the TJC contract.” Id. at 9-10, ¶ 32.
After learning about the RFP from a concerned city employee,
plaintiff applied for renewal of the TJC contract on behalf
of CRP and its fiscal agent. Id. at 4, ¶ 19.
Plaintiff was the only woman to respond to the RFP –
all of the other contractors were led by men. Id. at
11, ¶ 37.
process for reviewing applications for a City contract such
as the TJC contract involves four steps. First, the
“Crime Prevention and Control Commission reviews the
applications and makes recommendations to the Executive
Director of Denver Human Services.” Id. at 4,
¶ 20. Second, “the Executive Director reviews and
rubberstamps the recommendation to the Mayor.”
Id. Third, “the Mayor selects the contractor
and sends a proposed ordinance to the City Council.”
Id. Finally, the City Council “votes to accept
the proposed ordinance, with little review or
question.” Id. The mayor is the final decision
maker in the contracting process. Id., ¶ 21.
October 18, 2017, the review committee recommended that a
coalition of organizations, including Servicios De La Raza,
Urban League of Metro Denver, and Colorado Coalition for the
Homeless, be awarded the TJC contract. Id. at 5, 10,
¶¶ 22, 33. Plaintiff warned city officials that the
organizations recommended for the contract had a pattern and
practice of being hostile toward women and thus requiring CRP
to collaborate with those organizations in transitioning the
TJC program would put staff members at risk of harm.
Id. at 12, ¶ 40. City Council members Debbie
Ortega and Rafael Espinoza expressed more general concerns
about the RFP process. Id. at 10-11, ¶ 34. For
example, Ms. Ortega questioned whether the TJC contract
needed to be put out for bid at all and noted that the
contract had been treated dif ferently from another city
contract that had been in place since 2003. Id. Mr.
Espinoza stated that the city’s “advancement of
the contract did not ‘pass the smell test’”
and indicated that putting the contract up for bid would be a
good way to retaliate against plaintiff. Id.
approval of the committee’s recommendation by Denver
Human Services director Don Mares and defendant Hancock, the
TJC contract was formally awarded to the recommended
coalition of organizations on March 19, 2018. Id. at
10, ¶ 33.
initiated this lawsuit on April 2, 2018, alleging claims
under 42 U.S.C. § 1983 for First Amendment retaliation
and violation of her equal protection and due process rights
under the Fourteenth Amendment. Docket No. 1 at 13-15.
Plaintiff asserts that she and CRP have “suffered
economic losses from the City’s refusal to renew the
CRP’s contract . . ., including but not limited to lost
wages and benefits and lost reputation, as well as emotional
and physical suffering.” Id. at 13. She seeks
actual and punitive damages and an award of reasonable
attorney’s fees and costs. Id. at 15. On June
18, 2018, defendants moved to dismiss the complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Docket No. 21.
Plaintiff filed a response to the motion on July 22, 2018,
Docket No. 29, to which defendants replied on August 6, 2018.
Docket No. 30.
move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Dismissal pursuant to Rule 12(b)(1) is appropriate if the
Court lacks subject matter jurisdiction over claims for
relief asserted in the complaint. Rule 12(b)(1) challenges
are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s
allegations as to the existence of subject matter
jurisdiction, or (2) go beyond allegations contained in the
complaint by presenting evidence to challenge the factual
basis upon which subject matter jurisdiction rests.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363
F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v.
Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When
reviewing the factual basis on which subject matter
jurisdiction rests, the district court does not presume the
truthfulness of the complaint and “has wide discretion
to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Holt v. United States,
46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted).
Consideration of evidence outside the pleadings does not
convert the motion to a Rule 56 motion. Id.
contrast to motions to dismiss brought under Fed. R. Civ. P.
12(b)(1), a motion under Fed. R. Civ. P. 12(b)(6) tests the
legal sufficiency of the complaint. To survive a motion to
dismiss under Rule 12(b)(6), a complaint must allege enough
factual matter that, taken as true, makes the
plaintiff’s “claim to relief . . . plausible on
its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged–but it has not shown–that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint’s allegations are “so general that
they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible
claim. Khalik, 671 F.3d at 1191 (quotations
omitted). Thus, ...