Opinion
Civil Action 1:21-cv-03252-SKC
09-23-2022
JASON AARON PRESCOTT, Plaintiff, v. RICHARD VALDEZ, et al. Defendants.
ORDER & RECOMMENDATION RE: DEFENDANTS' PARTIAL MOTION TO DISMISS [DKT.7.]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jason Prescott brought this action pursuant to 42 U.S.C. § 1983, asserting the Sheriff of Archuleta County, his deputies, and the Board of County Commissioners violated Plaintiff's constitutional rights when they conspired with Plaintiff's wife to have him arrested and to have his children removed from his custody. [Dkt. 1.]
Defendants filed a partial motion to dismiss the claims against the Board of County Commissioners and Defendants Lattin, H. Brown, Smith, and Civiletto. Defendants also seek dismissal of Plaintiff's fourth claim for extreme and outrageous conduct. [Dkt. 7.] The Court has reviewed the Complaint, the Motion and related briefing, and the applicable law. No hearing is necessary. For the following reasons, the Court RECOMMENDS the Motion be GRANTED.
Because the parties did not file their paperwork regarding consent to magistrate judge jurisdiction, and because the time for doing so has passed, the case will be redrawn to a presiding District Judge.
STANDARD OF REVIEW
A. Rule 12(b)(1)
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Further, the Court has a duty to consider its own subject matter jurisdiction sua sponte. Fed.R.Civ.P. 12(h)(3).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's subject-matter jurisdiction is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 112425 (10th Cir. 2010) (internal citations omitted). But the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id. at 678 (internal quotation marks omitted).
ANALYSIS
A. Board of County Commissioners of Archuleta County & Defendants Lattin, H. Brown, Smith, and Civiletto.
Defendants seek dismissal of the Board of County Commissioners because it is a separate governmental entity from the Sheriff, and therefore, is not liable for the Sherriff's actions or those in his employment. Defendants also argue Plaintiff has failed to allege a policy, practice, or custom for which the Board could be held independently liable under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). [Dkt. 7 at pp.2-6.] Defendants are correct, and Plaintiff concedes as much in his Response. [Dkt. 13.] Bristol v. Bd. of Cnty. Comm'rs of Cnty. of Clear Creek, 312 F.3d 1213, 1219 (10th Cir. 2002) (“Under the Colorado constitution, the County Sheriff is a distinct position, separate from the Board of County Commissioners.”).
Regarding Defendants Lattin, H. Brown, Smith, and Civiletto, Defendants correctly observe the Complaint fails to allege any actions taken by these individuals personally. Escobar v. Reid, 668 F.Supp.2d 1260, 1290 (D. Colo. 2009) (To maintain a § 1983 claim, the plaintiff must allege facts showing the defendant was “personally involved in the decisions leading to [the plaintiff's] mistreatment.”). Plaintiff again concedes the issue. [Dkt. 13 at p.2.]
The only dispute between the parties is whether the dismissal of these Defendants should be with or without prejudice. However, because Defendants did not raise arguments regarding the futility of amendment, the Court concludes dismissal without prejudice is appropriate. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”) (emphasis added).
B. Extreme and Outrageous Conduct
In the Complaint, Plaintiff appears to assert a claim of extreme and outrageous conduct under 42 U.S.C. § 1983. Defendants correctly observe, however, that extreme and outrageous conduct is not a cognizable constitutional claim, and therefore, it is not appropriately asserted under section 1983. Hous. Auth. of Kaw Tribe of Indians of Oklahoma v. City of Ponca City, 952 F.2d 1183, 1188 (10th Cir. 1991) (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979)) (“[S]ection 1983 does not provide any substantive rights at all but only creates a remedy for the violation of substantive rights guaranteed by the Constitution.”).
In his Response, Plaintiff admits this issue, but argues his claim is not brought pursuant to section 1983. He maintains it is asserted as a tort claim under Colorado common law. [Dkt. 13.] Accepting this characterization, and because the Defendants are inarguably public employees, Plaintiff's claim is, therefore, subject to the requirements of the Colorado Governmental Immunity Act (CGIA). Castaldo v. Stone, 192 F.Supp.2d 1124, 1139 (D. Colo. 2001) (“There is no dispute that the Sheriff Defendants are public employees under the CGIA.”); Garcia v. Chamjock, No. 11-cv-00263-PAB-MEH, 2012 WL 638145, at *2 (D. Colo. Feb. 27, 2012) (claims for outrageous conduct are subject to the CGIA notice requirements).
Under the CGIA, public employees are granted immunity from tort claims that arise out of an act or omission occurring during the performance of duties and within the scope of employment. Colo. Rev. Stat § 24-10-118(2)(a). Prior to asserting a claim, a plaintiff must comply with the notice requirements of the CGIA, which provide in pertinent part:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action. . .Colo. Rev. Stat. § 24-10-109(1). This notice provision applies when, as here, federal courts hear Colorado tort claims under supplemental jurisdiction. Renalde v. City & County of Denver, 807 F.Supp. 668, 675 (D. Colo. 1992).
“Colorado courts strictly construe section 24-10-109(1) and consistently hold that ‘[complying with the notice of claim [as set forth in section 24-10-109(1)] is a jurisdictional prerequisite to suit.'” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 839 (10th Cir. 2003) (quoting Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002)). They also hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal. See Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766, 769 (Colo.App. 2000) (“[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.”) (citations omitted).
This Court has carefully reviewed the Complaint; it does not include any allegation of compliance with the CGIA's notice provision, nor any allegations that could be liberally construed as alleging such compliance. [Dkt. 1.] “When a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of ‘fact' that the plaintiff failed to comply with the notice provisions.” Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 840. “This lack of compliance, then, is a jurisdictional issue.” Id.
Consequently, the Court recommends dismissal without prejudice of Plaintiff's claim for extreme and outrageous conduct. Eagar v. Drake, 829 Fed.Appx. 878, 885 (10th Cir. 2020) (“Dismissals for lack of jurisdiction are without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.”).
For the foregoing reasons, the Court ORDERS this case to be drawn to a presiding District Judge.
The Court RECOMMENDS the Partial Motion to Dismiss [Dkt. 7.] be GRANTED and the claims be dismissed without prejudice.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).