Calderon v. City And County of Denver

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         This 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.^[1] 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. Id.

         In June 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.

         In July 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.

         The 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.

         On 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.

         Following 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.

         Plaintiff 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.

         II. LEGAL STANDARD

         Defendants 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.

         In 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, ...