Brewer v. Tschetter et al

Filing 19

OPINION AND ORDER GRANTING MOTION TO DISMISS. Mr. Brewer's Motion for Temporary Restraining Order (# 4 ) is DENIED AS MOOT. The Defendants' motions to dismiss (# 6 , 9 ) are GRANTED, and the claims in this action are DISMISSED in their entirety. The Clerk of the Court is directed to close this case, by Judge Marcia S. Krieger on 08/18/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-03122-MSK-CBS
RETIRED MAJOR IVAN M. BREWER,
Plaintiff,
v.
MARK N. TSCHETTER;
HIGHLINE HOLDINGS, LLC;
JUDGE MARY CELESTE, in her personal and official capacity;
BILL HEANEY, in his personal and official capacity;
OFFICER CHRIS MOLLOY, in his personal and official capacity, and
JUDGE LARRY BOHNING,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTIONS TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Plaintiff’s Emergency Motion
for Temporary Restraining Order (# 4), and Defendants Highline Holdings, LLC (“Highline”)
and Tschetter’s response (# 8); Highline and Mr. Tschetter’s Motion to Dismiss (# 6), to which
Mr. Brewer filed no response; and Defendants Celeste, Bohning, Heaney, and Molloy’s Motion
to Dismiss (# 9), to which Mr. Brewer filed no response.
FACTS
Mr. Brewer’s pro se Amended Complaint (# 5) is lengthy, discursive, and somewhat
unfocused. In summary, Mr. Brewer states that he is the owner of a parcel of real property
located on Madison Street in Denver, Colorado. On November 4, 2011, on behalf of Highline,
Mr. Tscehetter commenced a forcible entry and detainer action in the Colorado County Court
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for Denver County, to evict Mr. Brewer from the Madison Street property. On November 14,
2011, Mr. Brewer sought to have the case transferred to the Colorado District Court for Denver
County, on the belief that “the limitations of the state County Court precluded the resolution of a
dispute related to title to land.” Over the next several days, Mr. Brewer repeatedly visited the
Clerk’s Office for the County Court, inquiring whether the case had been transferred.
Eventually, Defendant Heaney, the Clerk of the County Court, told Mr. Brewer that the case
would not be transferred. Mr. Brewer apparently insisted that Mr. Heaney transfer the case, and
eventually, Mr. Heaney summoned a Sheriff’s Office deputy, Defendant Molloy, to remove Mr.
Brewer. Thereafter, Defendant Celeste, the County Court judge assigned to preside over the
case, set the matter for a hearing on December 7, 2011. (The Amended Complaint’s chronology
ends at this point and nothing in the record discloses the outcome of proceedings in the case.)
Based on these allegations, Mr. Brewer alleges several claims: (i) race discrimination
under 42 U.S.C. § 1981, apparently asserted against all Defendants, based mainly on the premise
that Colorado law requires transfer of the case to the District Court in the circumstances
presented here, and the Defendants’ failure to do so is attributable to Mr. Brewer’s race (black);
(ii) a claim captioned “Obstruction section 1503,” but which appears to invoke the civil remedies
provision of the RICO Act, 18 U.S.C. § 1964, alleging that “an enterprise was formed” when the
Defendants refused to transfer the case; (iii) a claim, apparently under Colorado common law,
for civil conspiracy, in that the defendants “are all either members of or beholden to . . . a secret
society dedicated to holding out the appearance of impropriety while abusing their authority and
violating their respective oaths” in order to hinder Mr. Brewer’s “free exercise of privileges and
rights preserved under the U.S. Constitution”; (iv) a claim under 42 U.S.C. § 1985, in that the

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Defendants conspired to “accomplish the unlawful objective of permanently dispossessing the
Plaintiff of his real property”; (v) a claim under 42 U.S.C. § 1986, in that “each one of the
Defendants failed in their respective duties to prevent or aid in the prevention of the violations
against the Plaintiff”; and (vi) a claim under 42 U.S.C. § 1983, apparently asserting the same
race discrimination claim alleged under § 1981.
Each of the Defendants moves (# 6, 9) moves to dismiss the claims against them, offering
various arguments. As explained below, it is unnecessary for the Court to address these
arguments in detail.
ANALYSIS
A. Standard of review
1. Pro se pleadings
In considering Mr. Brewer’s filings, the Court is mindful of his pro se status, and
accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting errors
and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Pro se status does not relieve Mr. Brewer of the duty to comply
with the various rules and procedures governing litigants and counsel or the requirements of the
substantive law, and in these regards, the Court will treat him according to the same standard as
counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106,
113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

2. Pleading requirements

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In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-plead allegations in the Complaint as true and view those allegations in the light most
favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d
1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), the Supreme Court clarified what constitutes a “well-pleaded
fact” for purposes of a Rule 12 analysis. A pleader is not required to set forth “detailed factual
allegations,” but must offer more than “labels and conclusions,” a “formulaic recitation of the
elements of a cause of action,” or “naked assertions devoid of further factual enhancement.”
Iqbal, 129 S.Ct. at 1949. The cases make clear that it is facts, not conclusions, that must be
pled; “the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” including “legal conclusion[s] couched as a factual
allegation.” Id. at 1949-50. Moreover, the facts pled must demonstrate a claim that is more than
just an abstract “possibility” that the defendant has engaged in actionable misconduct. Id. One
way in which the Court might conduct its analysis is to “identify[ ] pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth,” and disregard them.
Then, faced with only well-pleaded factual allegations, the Court “should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950.
B. The Amended Complaint fails to state a plausible claim
The Court turns to the question of whether, under Iqbal’s “plausibility” standard, Mr.
Brewer states a cognizable claim. As in Iqbal, the Court begins by identifying certain key
allegations in the Amended Complaint that were not entitled to the assumption of truth. 556 U.S.

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at 680. All of Mr. Brewer’s federal claims require either a showing that the Defendants engaged
in racial discrimination (the § 1981 and 1983 claims) or that the Defendants engaged in a
conspiracy against him (the RICO, § 1985, and § 1986 claims). The Court finds that Mr.
Brewer’s allegations as to these issues are insufficiently conclusory. The contention of racial
animus are supported by nothing more than the fact that the Defendants are white and Mr.
Brewer is black. This is insufficient to raise the specter of racial discrimination from a
“possibility” to a “plausibility” under Iqbal. 556 U.S. at 678 (“the plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully”). The allegations of a conspiracy among the Defendants is also entirely
conclusory: Mr. Brewer offers no allegations that if true would suggest that any of the
Defendants knew of, much less intended to join in, any of the other Defendants’ actions.1 Thus,
the Court finds that Mr. Brewer has not adequately pled facts demonstrating the central
component of his federal claims.
Even assuming he had, however, the Court would nevertheless dismiss Mr. Brewer’s
federal claims for a different reason. In essence, Mr. Brewer complains that the County Court’s
refusal to transfer his case to the state District Court is a violation of Colorado law, and asks this
federal court to intercede. The doctrine of comity counsels that federal courts, “anxious though
[they] may be to vindicate and protect federal rights and federal interests, always endeavor[ ] to
do so in ways that will not unduly interfere with the legitimate activities of the States.” Levin v.

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Mr. Brewer does allege that, when Mr. Heaney summoned Mr. Molloy to remove Mr.
Brewer from the Clerk’s Office, Mr. Brewer read the text of the relevant County Court transfer
rules to Mr. Molloy. However, as Mr. Brewer states, Mr. Molloy is a Sheriff’s Deputy, not a
member of the Clerk’s Office, and thus, there is no indication that Mr. Molloy had the ability to
overturn Mr. Heaney’s decision not to transfer the case.
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Commerce Energy, Inc., 130 S.Ct. 2323, 2336 (2010). Although comity is a prudential doctrine,
it is particularly appropriate here, as the State of Colorado has a strong interest in controlling
how its own courts apply its own law, and this Court has relatively little interest in invoking
federal power to dictate interpretations of state law to state courts. This is not a situation in
which Mr. Brewer has no other option except to proceed via a federal suit. Assuming the
County Court case is still ongoing,2 Mr. Brewer presumably possesses a wide array of options as
to how to proceed in the face of a court that, he contends, is acting outside of its authority: he
may appeal, seek mandamus from an appropriate higher court, may file his own declaratory
action in the District Court, or take any one of a number of other actions to address the situation.
Thus, without minimizing the importance of various federal civil rights statutes as tools to
remedy unconstitutional state action, this Court would nevertheless find that, under the facts
alleged by Mr. Brewer, the doctrine of comity prevents this Court from interceding in the County
Court action by hearing Mr. Brewer’s claims.
Accordingly, the Court dismisses all of Mr. Brewer’s federal claims under Fed. R. Civ. P.
12(b)(6). Because the Court dismisses Mr. Brewer’s federal claims, it declines to exercise
supplemental jurisdiction over the state-law civil conspiracy claim. 28 U.S.C. § 1367(c)(3).
Thus, the Amended Complaint is dismissed in its entirety.
C. Remaining matters
The Court notes that on January 10, 2012, Mr. Brewer moved (# 10) for an extension of
time to respond to the Defendants’ motions. Mr. Brewer noted that he had been “evicted from

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Assuming the County Court case has reached its conclusion (as it appears to have done),
Mr. Brewer also faces an obstacle in the form of the Rooker-Feldman doctrine.
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his home yesterday and has not secured another place to live.” Since that time, mailings from
the Court to Mr. Brewer’s address of record have been returned as undeliverable (# 12, 17, 18).
More than eight months have passed since Mr. Brewer’s last communication with the Court, and
to date, he has not supplied the Court with any updated mailing address. This constitutes a
violation of D.C. Colo. L. Civ. R. 10.1(M), which requires parties to notify the Court of any
change of address within 5 days.
The Court further notes that, at about the same time Mr. Brewer commenced the instant
action, he filed another case in this Court, Brewer v. RBC Bank USA, D.C. Colo. Case No. 11-cv2830. On April 12, 2012, the Magistrate Judge presiding in that case noted Mr. Brewer’s failure
to inform the Court of a change in his address and ordered Mr. Brewer to show cause why the
case should not be dismissed. Id., docket # 30. Mr. Brewer did not respond to that order,
leading the Magistrate Judge to recommend that Mr. Brewer’s case be dismissed. Id., docket #
32. Mr. Brewer did not respond to the recommendation, and on June 18, 2012, the Court
adopted the recommendation and dismissed Mr. Brewer’s case. Id., docket # 35.
In light of the proceedings in that case, this Court sees little salutary benefit to repeating
the same order to show cause/recommendation/adoption and dismissal process based on his
failure to provide the Court with a current mailing address in this action. Mr. Brewer has had
adequate notice of his failure to comply with the Court’s local rules, regardless of the caption of
the case in which that notice was issued, and his failure to remedy that noncompliance in either
case warrants dismissal of both. Accordingly, as an alternative to the grounds stated above, this
Court also dismisses Mr. Brewer’s Amended Complaint in this action for failure to comply with
Local Rule 10.1(M).

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Mr. Brewer had previously filed an Emergency Motion for Temporary Restraining Order
(# 4) in this case. Based on the Court’s dismissal of this action in its entirety, that motion is
denied as moot.
CONCLUSION
For the foregoing reasons, Mr. Brewer’s Motion for Temporary Restraining Order (# 4)
is DENIED AS MOOT. The Defendants’ motions to dismiss (# 6, 9) are GRANTED, and the
claims in this action are DISMISSED in their entirety. The Clerk of the Court is directed to
close this case.
Dated this 18th day of August, 2012

BY THE COURT:

Marcia S. Krieger
United States District Judge

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