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MacGowan v. Town of Castle Rock

United States District Court, D. Colorado

January 10, 2020




         Plaintiff, 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[1] Motion in part and denies it in part as moot.


         The 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).

         “Combolisk” 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.”

         Generally, 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[2] 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 application.


         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         Rule 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.

         Generally, 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).

         II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         The 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.

         Plausibility 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.

         However, “[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).

         III. Treatment of a Pro Se Plaintiff's Complaint

         The 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 Cir. 2018).


         Plaintiffs' Complaint asserts seven claims for relief based on Defendant's alleged unlawful conduct.[3] 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.

         I. Fourteenth Amendment Due Process

         Plaintiff 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 ...

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