United States District Court, D. Colorado
MICHAEL L. MACGOWAN, JR., Plaintiff,
TOWN OF CASTLE ROCK, COLORADO, Defendant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, initiated this action on June 4, 2019,
asserting seven claims against Defendant Town of Castle Rock,
Colorado, (“Castle Rock” or “the
Town”) related to Defendant's denial of
Plaintiff's application for variances from of the
Town's zoning code regulating signs. Compl. ¶ 1, ECF
2. In response, Defendant filed the present Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(6), arguing Plaintiff fails to
state plausible claims for relief (ECF 11). For the reasons
that follow, the Court grants Defendant's Motion in part
and denies it in part as moot.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in his Complaint and attached
exhibits, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
is a trademark and tradename for Plaintiff's business
which seeks to build a self-regulated network of
“outdoor free speech structures” called
Combolisks. A Combolisk is a large obelisk or obelisk-like
structure “designed to broadcast digital messages along
thoroughfares in the tradition of the outdoor
billboard.” A Combolisk would display a rotating mix of
for-profit, sponsored, or commercial broadcasts with a
required, minimum number of nonprofit broadcasts. The
Combolisk organization believes, among other things, that
“the right to Obelisks predates the civilizations based
upon the common law upon which our country and its
predecessors are based, ” and that Combolisks
“transcend old zoning concepts and use the Obelisk as
a base to the inherent right in the real property.”
the Combolisk organization's plan is to create a single,
for-profit Combolisk, then use the profits to form an
overseeing nonprofit organization to manage all future
Combolisks. To that end, in 2017, Plaintiff submitted a
Sign-Permit Application to Defendant, which he requested be
suspended on October 3, 2017. In 2018, Plaintiff submitted
another application to Defendant to “install free
standing off[-]premise billboard” at a car wash next to
a major interstate highway in Castle Rock, Colorado. During
initial discussions about the project, Castle Rock Zoning
Manager Tammy King indicated to Plaintiff the project would
require variances based on the proposed (1) overall size, (2)
height, and (3) relative size of the sign given the size of
the car wash lot. She did not mention the need for a variance
for the sign's off-premises use. After notice was given about
a hearing on Plaintiff's application, the need for the
fourth variance-for off-premises use-was noted.
Plaintiff's hearing was then delayed to accommodate
including the fourth variance in Plaintiff's application.
On May 2, 2019, Defendant's Board of Adjustment
(“BOA”) held a public hearing at which it denied
all four of Plaintiff's variance requests. The BOA's
denial at the hearing was a final decision on the
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of the plaintiff's case, but only
a determination that the court lacks authority to adjudicate
the matter. See Butler v. Kempthorne, 532 F.3d 1108,
1110 (10th Cir. 2008) (recognizing federal courts are courts
of limited jurisdiction and “there is a presumption
against our jurisdiction”). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceeding in which it becomes apparent that jurisdiction
is lacking.” Full Life Hospice, LLC v.
Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion
to dismiss under Rule 12(b) “admits all well-pleaded
facts in the complaint as distinguished from conclusory
allegations.” Smith v. Plati, 258 F.3d 1167,
1174 (10th Cir. 2001). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.
See Pueblo of Jemez v. United States, 790 F.3d 1143,
1151 (10th Cir. 2015). Accordingly, Plaintiff bears the
burden in this case of establishing that this Court has
jurisdiction to hear his claims.
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction take two forms. Holt v. United States,
46 F.3d 1000, 1002 (10th 1995).
First, a facial attack on the complaint's allegations as
to subject matter jurisdiction questions the sufficiency of
the complaint. In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
as true. Second, a party may go beyond allegations contained
in the complaint and challenge the facts upon which subject
matter jurisdiction depends. When reviewing a factual attack
on subject matter jurisdiction, a district court may not
presume the truthfulness of the complaint's factual
allegations. A court has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted); see also
Pueblo of Jemez v. United States, 790 F.3d 1143, 1148
n.4 (10th Cir. 2015).
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is
to test the sufficiency of the plaintiff's complaint.
Sutton v. Utah State Sch. For the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in
the context of a motion to dismiss, means that the plaintiff
pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Twombly requires a
two-prong analysis. First, a court must identify “the
allegations in the complaint that are not entitled to the
assumption of truth, ” that is, those allegations which
are legal conclusions, bare assertions, or merely conclusory.
Id. at 679. Second, the Court must consider the
factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
If the allegations state a plausible claim for relief, such
claim survives the motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
Treatment of a Pro Se Plaintiff's Complaint
Supreme Court has directed courts to hold pro se
litigants' pleadings “to less stringent standards
than formal pleadings drafted by lawyers.” Tatten
v. City & Cty. of Denver, 730 Fed.Appx. 620, 623
(10th Cir. 2018), cert. denied, 139 S.Ct. 826, 202
L.Ed.2d 579 (2019) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972)). The Tenth Circuit interpreted the
Haines rule to mean “that if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so.”
Id. (quoting Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991)). “This
liberal-construction rule does not, however, relieve a pro se
plaintiff of his burden to present sufficient facts to state
a legally cognizable claim, nor will the court act as his
advocate and make his arguments for him.” Id.
at 624. Accordingly, the court must “not supply
additional facts, nor...construct a legal theory for
plaintiff that assumes facts that have not been
pleaded.” Peterson v. Shanks, 149 F.3d 1140,
1143 (10th Cir. 1998) (citing Dunn v. White, 880
F.2d 1188, 1197 (10th Cir. 1989)). In addition, the Tenth
Circuit instructs that courts must “hold pro se
litigants to the requirements of the Federal Rules.”
Clark v. Time, Inc., 727 Fed.Appx. 975, 978 (10th
Complaint asserts seven claims for relief based on
Defendant's alleged unlawful conduct. Plaintiff alleges
constitutional claims based on the alleged violation of his
(1) Fourteenth Amendment right to due process; (2) Fourteenth
Amendment right to equal protection; (3) First Amendment
right to free speech; and (4) First Amendment right to
assembly. Plaintiff further asserts claims for (5)
“abuse of power, ” (6) “just compensation,
” and (7) “discrimination.” Compl.
¶¶ 7-48. Defendant moves to dismiss the entirety of
the Complaint for failing to state a claim under Fed.R.Civ.P.
12(b)(6). Mot. to Dismiss 2, ECF 11.
Fourteenth Amendment Due Process
first claims that he was denied due process in his variance
application because (1) he never received a final, appealable
order on his first application; (2) Ms. King did not mention
he would need a variance for off-premises use during
discussions about the project; and (3) he “was forced
to have a variance hearing in order to receive a final
appealable order” on his second application. Compl.
¶¶ 7-10. In the Motion to Dismiss, Defendant argues
that no order was issued on the first application because
Plaintiff requested the Town “suspend” it. Mot.
4; see ECF ...