United States District Court, D. Colorado
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants’ Rule 12(b)(1)
and (6) Motion to Dismiss Second Amended Complaint (#83)
[Docket No. 85] filed on August 31, 2018. Plaintiff did not
file a response.
Derek Thiess is a general contractor who remodels and
rehabilitates homes for a living. Docket No. 83 at 5, ¶
12. At all times relevant to this lawsuit, he owned The
Mystinfield Group, LLC and was a manager of Colleton
Holdings, LLC (“Colleton”). Id., ¶
September 27, 2011, Colleton purchased a home located in
Wheat Ridge, Colorado (“the property”).
Id., ¶ 14. Colleton hired plaintiff and
Mystinfield to remodel the home on the property. Id.
at 6, ¶ 15. Tensions soon arose between plaintiff and
the Wheat Ridge Building Department, managed by defendant
Johnstone, which persisted for several years. Id.,
¶ 17. Plaintiff alleges that defendants imposed
“unreasonable requirements” on him and his
building project. Id. For example, when plaintiff
filed a set of revised building plans, the Building
Department rejected the plans because they were printed on
colored paper, even though the Building Department had no
requirement that the plans be printed on white paper.
Id. at 9, ¶ 23. Moreover, when plaintiff
attempted to renew a building permit in 2015, he was turned
away because his plans were not stamped. Id. at 16,
describes the years since he purchased the property as a
“systematic, targeted, and selective enforcement [of
administrative procedures] against” him. Id.
at 10, ¶ 33. He alleges that, in early 2015, defendant
Wheat Ridge “began to step up its efforts to target
[plaintiff] for harassment.” Id. at 14, ¶
49. On February 5, 2015, John Schumacher, the city’s
Chief Building Officer (“CBO”), issued a criminal
citation to plaintiff for alleged code violations.
Id. at 14-15, ¶ 52. This occurred after
defendant Johnstone contacted Schumacher to discuss the
property. Id. at 14, ¶ 50. According to the
city clerk, this was the first time in the Building
Department’s documented history that it had issued a
criminal citation. Id. at 15, ¶
10, 2015, “during the criminal proceedings, [plaintiff]
made requests for discovery” under the Colorado
municipal court rules. Id. at 22, ¶ 90.
Plaintiff also issued “a set of subpoena duces
[tecum]” upon city council members “seeking
documents that he believed to exist.” Id.,
¶ 91. Throughout the plea bargaining process with the
city attorney, plaintiff was continuously threatened with the
imposition of “maximum jail sentences” on all
charges. Id. at 23, ¶ 93.
16, 2015, plaintiff was issued a second criminal citation for
working on the property without a permit on a day that
plaintiff claims that he was not even in the city.
Id. Both criminal citations against plaintiff were
dismissed on September 23, 2015. Id., ¶ 95.
in June 2015, defendants issued a Notice and Order to
Colleton Holdings, “the property owner of
record,” regarding the property. Id. at 18,
¶ 68-70; Docket No. 85-1 at 1. Defendant Wheat Ridge
issued the citation, which was signed by defendant Johnstone.
Docket No. 85-1 at 1-3. Plaintiff appealed the Notice and
Order, Docket No. 85-1. Docket No. 83 at 18, ¶ 71. The
Wheat Ridge Municipal Court held a hearing on the matter, and
the municipal judge dismissed the proceedings. Id.
at 19, ¶ 72.
August 2015, plaintiff initiated an investigation into
whether city officials had turned over all of the material
that they should have disclosed under his discovery requests
in the criminal proceedings. Id. at 22-23, ¶
92. Plaintiff made several open records requests and
discovered what he believed were many wrongfully withheld
documents. Id., ¶ 92. In November 2015,
plaintiff “significantly increased” his open
records requests, seeking documents related to defendant
Johnstone. Id. at 24, ¶ 97. Plaintiff alleges
that, at this point, defendants “escalate[d] the
retaliation” for the exercise of plaintiff’s
first amendment rights. Id. at 25, ¶ 98.
also alleges that his employees were harassed while working
on the property. Id. at 14, ¶ 48. For example,
through June and July 2015, officers “were patrolling,
watching, and questioning persons” at the property
“on a nearly daily basis,” id. at 20,
¶ 77, plaintiff’s employees were cited for working
without a permit, id., ¶ 80, and the police
interrogated plaintiff’s employees “on more than
one occasion.” Id. at 21, ¶ 85. One
police officer informed plaintiff that “this [was not]
a police matter” and that her orders were coming from
the “top down.” Id., ¶ 86.
put the property on the market in August 2015. Id.
at 25-26, ¶¶ 99-100. Plaintiff was forced to
continually lower the asking price due to his ongoing issues
with the city rendering potential purchasers apprehensive to
buy. Id. at 26, ¶ 101. On October 20, 2015,
defendant Wheat Ridge issued another Notice and Order, Docket
No. 85-2, deeming the property a “dangerous
building,” which was signed by defendant Johnstone.
Id. at 26-27, ¶ 102; Docket No. 85-2 at 5.
Plaintiff claims that, after this Notice and Order, he lost
the ability to borrow from his funding source and was forced
to sell the property. Docket No. 83 at 27, ¶ 105.
January 20, 2016, an administrative hearing was held on
plaintiff’s appeal of the October 20 Notice and Order,
and a “Consent Order” was entered by agreement of
the parties. Id. at 27, ¶ 106. The Consent
Order lists Mystinfield, Colleton, and Yagouaroundi
Acquisitions, LLC as interested parties. Docket No. 85-6 at
1. Plaintiff entered into this agreement “so he could
sell the property.” Docket No. 83 at 28, ¶ 106. On
April 7, 2016, plaintiff sold the property. Id.,
¶ 111. This sale resulted in a loss of profits to
plaintiff, “in part because his compensation and
reimbursement for work done on the job relied on the
anticipated profits that were lost due to the conduct
of” defendants. Id. Plaintiff, as manager of
Mystinfield, filed a lien on the property for his
uncompensated work as general contractor. Id. In
February 2017, the property sold to another owner.
Id. at 29, ¶ 113. Plaintiff claims that
“[t]he new owner and developer were treated very
differently by [defendants] and were not subjected to the
same building code requirements as [plaintiff].”
Id., ¶ 114.
sued defendants, bringing claims for (1) retaliation for
protected first amendment activity under 42 U.S.C. §
1983; (2) deprivation of equal protection rights as a class
of one under 42 U.S.C. § 1983; (3) a pattern or practice
of denying equal protection under Monell against
defendant Wheat Ridge; (4) a pattern or practice of
retaliation for first amendment protected activity under
Monell against defendant Wheat Ridge; (5) malicious
prosecution under Colorado law; (6) abuse of process under
Colorado law; and (7) intentional interference with
contractual relations under Colorado law. See Docket
No. 83 at 29-36. Plaintiff seeks compensatory and punitive
damages, attorney’s fees and costs, and any other
relief that the Court deems just and equitable. Id.
pursuant to Federal Rule of Civil Procedure 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)). “In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
as true.” Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995). Here, defendants’ attack on
plaintiff’s complaint is a facial attack. They do not
raise additional or contradictory facts to dispute
plaintiff’s claims; rather, they argue that
plaintiff’s complaint is facially deficient in that it
fails to establish that plaintiff has standing to assert his
claims and fails to meet his pleading burden under Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). See
Docket No. 85 at 2.
also argue that defendant Johnstone is shielded from
liability as to plaintiff’s first and second claims
under the doctrine of qualified immunity. Docket No. 85 at
4-10. “Qualified immunity balances two important
interests – the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity provides immunity from trial and the other
burdens of litigation such as discovery, rather than merely a
defense to liability. See Saucier v. Katz, 533 U.S.
194, 200 (2001), overruled on other grounds by
Pearson, 555 U.S. 223. Therefore, a court should
resolve questions of qualified immunity at the earliest
possible stage of litigation. Anderson v. Creighton,
483 U.S. 635, 646 n.6 (1987).
the doctrine of qualified immunity, “government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Upon a public official’s assertion of a
qualified immunity defense, plaintiff bears a “heavy
burden” under a two-pronged analysis. Buck v. City
of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008).
Under the first prong of the analysis, the plaintiff is
required to “establish that the defendant’s
actions violated a constitutional or statutory right.”
Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir.
2003) (quoting Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The
determination of whether a violation occurred under the first
prong of the qualified immunity analysis turns on substantive
law regarding that right. See, e.g., Casey v. City of
Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007).
Under the second prong, the plaintiff must show that the
right at issue was “clearly established” at the
time of the defendant’s alleged misconduct.
Saucier, 533 U.S. at 201.
to survive a motion to dismiss under Fed. R. Civ. P 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
Twombly, 550 U.S. at 570). “[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.” Iqbal, 556 U.S. at 679.
(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, even though modern rules of pleading are
somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).
attach several documents to their motion to dismiss.
See Docket Nos. 85-1 to 85-7. Generally, if a court
considers matters outside the pleadings in deciding a Rule
12(b)(6) motion, “the motion must be treated as one for
summary judgment under Rule 56.” Fed. R. Civ. P 12(d).
However, “if a plaintiff does not incorporate by
reference or attach a document to its complaint, but the
document is referred to in the complaint and is central to
the plaintiff’s claim, a defendant may submit an
indisputably authentic copy to the court to be considered on
a motion to dismiss.” GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997). Here, defendants have attached (1) two Notice and
Orders, issued in June and October 2015, entered by
defendants alleging the property is a “dangerous
building” under city code [Docket Nos. 85-1, 85-2]; (2)
plaintiff’s appeal of the October 2015 Notice and Order
to the city’s Board of Appeals [Docket No. 85-3]; (3)
two letters sent from plaintiff to defendant Johnstone
regarding the permit process [id.]; (4) a Notice to
Abate Nuisance filed against the Mystinfield Group, LLC in
February 2016 [Docket No. 85-4]; (5) a Withdrawal of Notice
to Abate Nuisance issued in March 2016 [Docket No. 85-5]; (6)
a Consent Order between defendants, Colleton Holdings, The
Mystinfield Group, and Yagouaroundi Acquisitions, LLC
regarding the June 2015 Notice and Order, entered into on
February 3, 2016 [Docket No. 85-6]; and (7) a police report
from an incident in which police were called to the property
on suspicion that someone was illegally living there [Docket
No. 85-7]. With the exception of the letters [Docket No.
85-3] and the Withdrawal of the Notice to Abate Nuisance
[Docket No. 85-5], the Court finds that these documents are
referenced in and central to plaintiff’s complaint.
Thus, the Court considers the remaining exhibits in deciding
argue that plaintiff’s claims should be dismissed in
their entirety for a number of reasons. Specifically, they
argue that (1) plaintiff lacks standing to assert his claims;
(2) qualified immunity shields defendant Johnstone from
liability; and (3) plaintiff failed to state a viable
Monell claim. See Docket No. 85 at 2-14.
Defendants also argue that, if the Court dismisses