Scott v. Carry

          ORDER ADOPTING IN PART AND REJECTING IN PART JULY 5, 2019 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          William J. Martínez, United States District Judge.

         This matter is before the Court on the July 5, 2019 Recommendation by U.S. Magistrate Judge S. Kato Crews (ECF No. 97) (the “Recommendation”) that Defendants' Partial Motion to Dismiss (ECF No. 81) pursuant to Fed.R.Civ.P. 12(b)(6) be granted in part and denied in part. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). For the reasons that follow, the Recommendation is ADOPTED IN PART and REJECTED IN PART.

         I. BACKGROUND

         On October 3, 2018, Plaintiff Lynn Eugene Scott, proceeding pro se, filed his Amended Complaint (ECF No. 75) in this Court against Defendants the City of Aurora (“the City”), Aurora police officer Stevenson Cary (“Cary”), and Defendant Cary's unnamed supervisor (“Doe”) at the Aurora Police Department.

         Plaintiff's Amended Complaint alleges that on November 30, 2016, he called 911 because his girlfriend had cut herself and was bleeding to death. (ECF No. 75 at 4.) Defendants Cary and Doe arrived at the scene and subsequently arrested Plaintiff, apparently believing that Plaintiff was responsible for his girlfriend's injury. (Id.) Plaintiff alleges that Defendants Cary and Doe eventually filed a probable cause affidavit in which they deliberately or recklessly omitted facts that would have cast doubt on the existence of probable cause for Plaintiff's arrest. (Id.) Plaintiff, who is black, alleges that the principal motivator for this arrest was his race, and as such, seeks to recover damages under 42 U.S.C. §§ 1981 and 1983, and Colorado state law. (Id. at 4-15.)

         On October 24, 2018, Defendants Aurora and Cary filed a Partial Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 81) pursuant to Fed.R.Civ.P. 12(b)(6). The motion was referred to U.S. Magistrate Judge S. Kato Crews by the undersigned on February 7, 2019. (ECF No. 92.) The Magistrate Judge entered a Recommendation on July 5, 2019, recommending that Defendants' Motion be granted in part and denied in part. (ECF No. 97.) Plaintiff filed an objection to the Recommendation on September 23, 2019 (ECF No. 108), and Defendants on October 3, 2019 filed a response to Plaintiff's objection (ECF No. 109).

         II. STANDARDS OF REVIEW

         A. Review of a Magistrate Judge's Recommendation

         When a magistrate judge issues a recommendation on a dispositive matter, the district court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In the absence of a timely and specific objection, “the district court may review a magistrate . . . [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record.”). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed R. Civ. P. 72(b)(3).

         B. Review of a Rule 12(b)(6) Motion to Dismiss

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         C. Review of a Pro Se Plaintiff's Pleadings

         The Court must construe a pro se plaintiff's pleadings and filings “liberally”-that is, “to a less stringent standard than formal pleadings filed by lawyers.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). It is not, however, “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (“[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.”).

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