United States District Court, D. Colorado
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.”).
III.
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