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Thiess v. City of Wheat Ridge

United States District Court, D. Colorado

September 19, 2019

DEREK THIESS, Plaintiff,
CITY OF WHEAT RIDGE, COLORADO, a home rule municipality; and KENNETH JOHNSTONE, in his individual capacity, Defendants.



         This 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.

         I. BACKGROUND[1]

         Plaintiff 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., ¶ 12-13.

         On 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, ¶ 58.

         Plaintiff 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, ¶ 54.[2]

         On June 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.

         On June 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.

         Meanwhile, 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.

         In 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.

         Plaintiff 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.

         Plaintiff 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.[3] Docket No. 83 at 27, ¶ 105.

         On 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.

         Plaintiff 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. at 38.


         Dismissal 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.

         Defendants 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).

         Under 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.

         Finally, 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).

         Defendants 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 this motion.

         III. ANALYSIS

         Defendants 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 plaintiff’s ...

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