Benton v. Town of South Fork et al

Filing 92

WITHDRAWN - RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 16 Motion to Dismiss, 31 Motion to Dismiss of Defendants Colorado State Patrol and Pam Stewart, and 72 Motion to Dismiss be granted, by Magistrate Judge Kathleen M. Tafoya on 2/5/13. (dkals, ) Modified on 2/7/2013 to withdraw pursuant to 93 Minute Order (dkals, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00336-CMA-KMT

DENNY BENTON,
Plaintiff,
v.
TOWN OF SOUTH FORK AND POLICE DEPARTMENT,
FORMER POLICE CHIEF RANDY HERRERA,
CURRENT POLICE CHIEF JAMES CHAVEZ,
AT TIMES ACTING TOWN MANAGER AND CLERK SHARON FAIRCHILD,
FORMER TOWN MANAGER TODD WRIGHT,
FORMER MAYOR LARRY HEERSINK,
TOWN MANAGER BILL MATTHEWS,
TRUSTEE GROVER HAWETHORNE,
COLORADO STATE PATROL DISPATCH ALAMOSA, COLORADO, and
POLICE OFFICER PAM STEWART,
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Kathleen M. Tafoya
This matter is before the court on Defendants Town of South Fork, Town of South Fork
Police Department, James Chavez, Sharon Fairchild, Todd Wright, Larry Heersink, and Grover
Hathorn’s “Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) [sic] & (6)” (Doc. No. 16, filed
June 27, 2012 [“Town Defs. Mot.”]), the “Motion to Dismiss of Defendants Colorado State
Patrol and Pam Stewart” (Doc. No. 31, filed July 20, 2012 [“State Defs. Mot.”]), and Defendant
Randy Herrera’s “Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) & (6)” (Doc. No. 72, filed

Oct. 23, 2012 [Herrera Mot. Dismiss.]).1 For the following reasons, the court recommends that
the Motions be GRANTED.
FACTUAL BACKGROUND
The following factual background is derived from Plaintiff’s Amended Title VII
Complaint (Doc. No. 9, filed Apr. 27, 2012 [“Am. Compl.”]) and the parties’ submissions with
respect to this Recommendation. At the outset, the court notes that Plaintiff’s Amended Title
VII Complaint is far from a model of clarity—indeed, it is styled in a narrative fashion that does
not always progress chronologically or logically. As a consequence, the court refers to other
documents when necessary to provide context.
Plaintiff Denny Benton was a police officer with the Town of South Fork Police
Department until his resignation on September 23, 2009. (Id. at 15.) On August 16, 2008, a
little more than one year prior to Plaintiff’s resignation, Plaintiff initiated a traffic stop of a car
driven by David Zelenok, the Public Works Director for the City of Centennial, Colorado. (See
Zelenok v. Benton, et al., Case No. 09-cv-01918-WDM-KMT, Doc. No. 1.)2 Approximately one

1

The court refers hereinafter to Defendants Town of South Fork, Town of South Fork
Police Department, James Chavez, Sharon Fairchild, Todd Wright, Larry Heersink, Grover
Hathorn, and Defendant Herrera, collectively, as the “Town Defendants.” Defendant Matthews
has not been properly served at this juncture. (See Order Granting Motion to Quash, Doc. No.
88.) Plaintiff has until March 7, 2013 to effect service on Defendant Matthews. (See id. at 6.)
2

The court takes judicial notice of the pleadings filed in the Zelenok case. See
Continental Coal, Inc. v. Cunningham, 511 F. Supp. 2d 1065, 1071 (D. Kan. 2007) (court may
take judicial notice of pleadings filed in other cases on Rule 12 motion).
2

year later, on August 12, 2009, Mr. Zelenok filed a civil rights lawsuit against Plaintiff and the
Town of South Fork based on Plaintiff’s conduct during that stop. (See id.)
In late August or early September 2009, Defendant Herrera became the new chief of
police for the Town of South Fork. (Am. Compl. at 7.) According to Plaintiff, “as soon as Chief
Herrera arrived it was nothing but threats that he was going to ruin [Plaintiff’s] career and
[Defendant Herrera] placed [Plaintiff] in a very hostile work environment.” (Id.)
First, in early- to mid-September 2009, Defendant Herrera initiated an internal affairs
investigation relating to the Zelenok stop—even though, according to Plaintiff, the prior chief of
police had already reviewed the stop and “saw nothing wrong with neither [the] stop nor the
charges made against Zelenok.” (Id. at 8.) When Plaintiff asked if Mr. Zelenok had filed suit
over the stop, Defendant Herrera denied that Plaintiff “was being taken to court.” (Id. at 8.)
Second, on September 6, 2009, Plaintiff initiated a traffic stop of a car driven by Mr.
Billy Elgin, referred to only in passing in the Amended Complaint as the “Elgin stop.” (Id. at 21,
28; see also Doc. No. 78-2 at 6-8.) Defendant Herrera disciplined Plaintiff through a formal
write-up for his conduct during the Elgin stop after a complaint was lodged with the police
department. (Am. Compl. at 21; see also Doc. No. 78-2 at 7-8.)
Third, on September 11 and 13, 2009, Plaintiff did not report on time for his scheduled
shifts. (Am. Compl. at 10.) Defendant Hererra formally wrote Plaintiff up for these incidents
even though, according to Plaintiff, department policy and procedure required an officer to be
late three times before being disciplined. (Id. at 10; see also Doc. No. 78-2 at 2-5.)

3

Fourth, Defendant Herrera allegedly told Plaintiff that two town trustees wanted him
fired. (Am. Compl. at 9.) Plaintiff deduces that Defendant Hathorn must have been one of those
trustees because Defendant Hathorn previously threatened the Town of South Fork Police
Department and Plaintiff, in particular, with financial reprisal after Plaintiff cited him for having
his dogs off-leash. (Id. at 9, 15.)
Finally, Defendant Herrera allegedly told Plaintiff that a man Plaintiff’s age “should be
looking for another career.” (Id. at 9.) Plaintiff also maintains that he was “treated the exact
opposite of the other two Hispanic Officers by Herrera.” (Id. at 15.) Defendant Herrera
allegedly gave these two Hispanic Officers extra time to work during a music festival while
Plaintiff was ordered not to work at all. (Id. at 16.) Defendant Herrera also promoted Defendant
Chavez to an unspecified position, notwithstanding Plaintiff’s seniority. (Id. at 16.)
The disciplinary actions discussed above culminated in a September 22, 2009 meeting
between Plaintiff, Defendant Wright, and Defendant Herrera. (Id. at 10-13, 16, 21, 31.) At that
meeting, Defendants Wright and Herrera presented Plaintiff with at least one of the formal writeups and informed him that they were going to recommend that Plaintiff be fired at the town
board meeting the next night. (Id. at 10.) It appears that Plaintiff may have been offered the
option of resigning in lieu of termination—if he did so before the town board meeting—as

4

Plaintiff alludes vaguely to an informal agreement whereby certain write-ups3 would not go into
his personnel file if he resigned. (Id. at 11.)
Plaintiff formally resigned on September 23, 2009. (Id. at 15.) During his exit interview,
he presented a “written complaint/grievance” to Defendant Heersink, the town mayor at the time.
(Id. at 15-16.) Defendant Heersink allegedly told Plaintiff that the grievance would go in his
personnel file and Plaintiff would look like a “big whiner.” (Id.)
After resigning, Plaintiff searched for police officer positions elsewhere. However, the
Town of Delta, Colorado, Police Department rejected Plaintiff’s application after viewing his
Town of South Fork Police Department personnel file. (Id. at 14, 18.)
In December 2009, Plaintiff was served with a summons from the Zelenok lawsuit. (Id.
at 14; see also Return of Summons, Doc. No. 18, Case No. 09-cv-01918-WDM-KMT.) Plaintiff
alleges that prior to his being served, he did not know that he was named as a defendant in that
case. (Am. Compl. at 14.)
Plaintiff obtained a copy of his personnel file in January 2011 from Defendant Fairchild,
the Town of South Fork Town Clerk. (Id. at 23.) Plaintiff alleges that Defendant Fairchild (1)
made statements to the effect that Plaintiff should be glad he did not go to prison and that there
was always drama going on in the Town; (2) charged Plaintiff $1.00 per page to copy records
instead of $0.25; (3) forwarded Plaintiff’s personnel file to an attorney without a court order; and

3

Plaintiff appears to assert such an agreement constituted a verbal contract between
himself, Defendant Herrera and Defendant Wright that was breached when Plaintiff later
discovered those write-ups in his personnel file. (Am. Compl. at 29.)
5

(4) did not “follow through” on an unspecified hospital bill regarding stitches Plaintiff received
while he was employed. (Id. at 23-25.)
In December 2011, Plaintiff filed a release of records request and a freedom of
information act request with the Town of South Fork and the South Fork Police Department for
“police policies and procedures[,] for the Zelenok Case file and audio” and for the minutes from
the “hostile work meeting.” (Id. at 27.) However, he “never received a legal reason why they
did not respond in writing.” (Id.)
That same month, December 2011, Plaintiff requested a copy of the case file on the
Zelenok traffic stop from Defendant Colorado State Patrol Dispatch in Alamosa, Colorado,
which, according to Plaintiff, is a subcontractor of the Town of South Fork. (Id. at 28-29.) He
received a response from Defendant Stewart “saying that they did have it but it was on a
computer they did not know how to get it off of.” (Id. at 28.) Defendant Stewart also said
“something close . . . to [Plaintiff] should just leave it at that.” (Id.)
In January 2012, Plaintiff obtained a copy of the file kept on the Zelenok traffic stop from
the Town of South Fork and alleges that the file had been changed since Plaintiff resigned. (Id.
at 23-25.) Plaintiff further alleges that Defendants Chavez and Mathews threatened to arrest him
when he tried to view both his personnel file and the Zelenok case file again. (Id.) Plaintiff also
alleges he was refused a copy of the police department procedures and policies. (Id. at 26.)4

4

Plaintiff’s Amended Complaint also features a lengthy discussion of his interactions
with his own counsel on the Zelenok case. (See generally Am. Compl.) However, Plaintiff has
not named these individuals as defendants in this case; as such, these allegations are not relevant
to this Recommendation.
6

PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, commenced this lawsuit by filing his Title VII Complaint on
February 8, 2012. (Doc. No. 1.) Plaintiff’s Amended Complaint, now the operative pleading,
was filed on April 27, 2012. (Am. Compl.) Therein, he appears to assert (1) claims under Title
VII of the Civil Rights Act of 1964 for race discrimination, retaliation, and hostile work
environment (id. at 3); (2) claims under the Age Discrimination in Employment Act of 1967
(ADEA) for age discrimination, retaliation, and hostile work environment (id.); (3) a claim under
42 U.S.C. § 1983 for violations of his Fourteenth Amendment rights (id. at 3-6, 28-29); and (4)
state law claims for defamation and breach of contract (id. at 6, 29-31). Plaintiff also asserts an
ambiguous claim that some defendants “won’t release freedom of information and release of
records request.” (Id. at 3.)
The Town Defendants, with the exception of Defendant Herrera, filed their Motion to
Dismiss on June 27, 2012. (Town Defs. Mot.) Defendants Colorado State Patrol and Pam
Stewart (collectively, the “State Defendants”) filed their Motion to Dismiss on July 20, 2012.
(State Defs. Mot.) Defendant Herrera filed his Motion to Dismiss on October 23, 2012, which
incorporates much of the Town Defendants’ Motion to Dismiss by reference.5 (Herrera Mot.
Dismiss.)
On November 13, 2012, Plaintiff filed his “Motion for Amended Response to Oppose
Defendants (sic) Motion to Vacate This Case.” (Doc. No. 78 [Resp.].) Although not entirely

5

Hereinafter, the court’s references to the Town Defendants’ Motion to Dismiss are
intended to encompass both Doc. Nos. 16 and 72.
7

clear, the court construes this document to be a response to the Motions to Dismiss. The Town
Defendants filed “Responses” to this document, (Doc. Nos. 82, 83, filed Nov. 27, 2012),
which—because the court has construed Plaintiff’s “Motion for Amended Response” as a
response—constitute replies in support of their Motions to Dismiss. Plaintiff subsequently filed
“Rebuttals” (Doc. Nos. 86, 87, filed Dec. 26, 2012), which effectively constitute improper
surreplies. See D.C.COLO.LCivR 7.1 C. Nevertheless, although they were filed well after the
applicable deadlines to respond to any of the Motions to Dismiss, the court has reviewed and
considered Plaintiff’s Response and Surreplies, and has concluded that they do not alter the
court’s recommended disposition of Defendants’ Motions to Dismiss.
LEGAL STANDARDS
A.

Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other

papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also
Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citations omitted). A court may not assume that a plaintiff can prove facts that have not been
alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct.
8

897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (a court may not “supply additional factual allegations to round out a plaintiff’s
complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may
not “construct arguments or theories for the plaintiff in the absence of any discussion of those
issues”).
B.

Lack of Subject Matter Jurisdiction
Fed. R. Civ. P. 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 a plaintiff’s case. Rather, it calls for a determination that the court lacks
authority to adjudicate the matter, attacking the existence of jurisdiction rather than the
allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction
when specifically authorized to do so). The burden of establishing subject matter jurisdiction is
on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings
in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that
dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice
is a disposition on the merits which a court lacking jurisdiction may not render).

9

A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however,
the Court may consider matters outside the pleadings without transforming the motion into one
for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a
party challenges the facts upon which subject matter jurisdiction depends, a district court may
not presume the truthfulness of the complaint’s “factual allegations ... [and] has wide discretion
to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
C.

Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)
(2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Bellmon, 935
F.2d at 1198. “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.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
10

(2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court
identifies “the allegations in the complaint that are not entitled to the assumption of truth,” that
is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at
678-80. Second, the Court considers 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 679.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).
D.

Qualified Immunity
The doctrine of qualified immunity shields government officials from individual liability

for civil damages “insofar as their conduct does not violate clearly established statutory or
11

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Qualified immunity is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001).
Although qualified immunity is most often raised at the summary judgment stage, the
Tenth Circuit has recognized the propriety of raising a qualified immunity defense in a motion to
dismiss. See Pueblo Neighborhood Health Ctr., Inc. v. Losavio, 847 F.2d 642, 645-46 (10th Cir.
1988). Once the defense is asserted, the burden shifts to the plaintiff to establish 1) that the
defendant’s actions violated a federal constitutional or statutory right and 2) that the federal right
was clearly established at the time of the challenged conduct. PJ ex rel. Jensen v. Wagner, 603
F.3d 1182, 1196 (10th Cir. 2010); see also Losavio, 847 F.2d at 646. While the plaintiff bears
this burden, at the motion to dismiss stage, well-pleaded factual allegations are taken as true,
although the court must consider whether they plausibly give rise to a claim for relief. Weise v.
Casper, 593 F.3d 1163,1166 (10th Cir. 2010). The plaintiff first must establish that his
allegations, taken in the light most favorable to plaintiff, show that the officer’s conduct violated
a constitutional right. Saucier, 533 U.S. at 201. If the plaintiff establishes a violation of a
constitutional or statutory right, “the next, sequential step is to ask whether the right was clearly
established.” Id. This determination must be made “in light of the specific context of the case,
not as a broad general proposition.” Id. “[T]he relevant, dispositive inquiry . . . is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he

12

confronted.” Id. at 202. If the plaintiff fails to satisfy either part of this “heavy two-part
burden,” the court must grant the defendant qualified immunity and dismiss the deficient claims.
The United States Supreme Court has altered somewhat the analytical process outlined in
Saucier, holding that the sequence of the analysis is no longer mandatory. Pearson v. Callahan,
555 U.S. 223 (2009). The judges of the district courts and the courts of appeals are now
permitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand. Id. at 236. The Supreme Court noted, however, that the sequence set forth in Saucier
often is the appropriate analytical sequence. Id.
ANALYSIS
A.

Fourteenth Amendment Claim
In their Motion to Dismiss, the Town Defendants concluded that Plaintiff’s Fourteenth

Amendment claim asserts a violation of his due process rights and relates solely to conduct that
occurred prior to Plaintiff’s resignation. As such, the Town Defendants argue that Plaintiff’s
Fourteenth Amendment claim is barred by the applicable statute of limitations and, alternatively,
fails to state a substantive or procedural due process violation. (Town Defs. Mot. at 10-11.) The
State Defendants, on the other hand, conclude that Plaintiff’s Fourteenth Amendment claim
concerns Defendant Stewart’s failure to send Plaintiff the information he requested from the
Alamosa, Colorado office. (State Defs. Mot. at 4-6.)
Defendants’ confusion is understandable; Plaintiff’s Complaint is unnecessarily verbose
and often unintelligible. However, the court disagrees with both sets of Defendants as to the
13

subject matter of Plaintiff’s Fourteenth Amendment claim. Instead, liberally construing
Plaintiff’s Amended Complaint, as it must, the court finds that Plaintiff’s Fourteenth
Amendment claim asserts that the Town Defendants retaliated against him based on the Zelenok
lawsuit. In support of this construction, the court points to Plaintiff’s statement that “the Town
of South Fork retaliated against the Plaintiff for a Federal Civil Law Suit being filed by an
influential citizen (wrongful influence)[] [w]ithout informing Officer Benton of the Lawsuit []
was brought against him as well. This is a 14th amendment violation.” (Am. Compl. at 3-4)
(emphasis added.)6
The only claim remotely analogous to Plaintiff’s allegations is a § 1983 claim for
impermissible retaliation based on a plaintiff’s exercise of his First Amendment right of access
to the courts. The First Amendment applies to state actors by way of incorporation into the due
process clause of the Fourteenth Amendment. Citizens Concerned for Separation of Church and
State v. City and Cnty. of Denver, 481 F. Supp. 522 (D. Colo. 1979). Although most cases
involving this right arise in the context of a prisoner’s right of access to the courts, see, e.g.,
Bounds v. Smith, 430 U.S. 817 (1977), at least one circuit court has found that non-prisoners may
bring a similar claim, Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1427-28
(8th Cir. 1986).

6

See also Am. Compl. at 5-6 (“The Town of South Fork Retalited [sic] against a police
officer (Plaintiff) which[] is a 14th Amendment violation for the City receiving a federal civil
law suite [sic]); id at 6 (“In addition Plaintiff is a victim of retaliation by the Town of South Fork
for a civil law suit being brought against the Town of South Fork and Plaintiff.”).
14

Even assuming that Plaintiff may assert such a claim, it must fail. “To establish a claim
for unlawful retaliation against a public employee based on that employee’s exercise of First
Amendment rights” the employee must allege “(i) that he engaged in constitutionally-protected
First Amendment activity; (ii) that the defendant took an adverse action against him that would
chill a person of ordinary firmness from continuing to engage in that activity; and (iii) that the
adverse action was substantially motivated by the employee’s protected activity.” Cillo v. City
of Greenwood Village, --- F. Supp. 2d ----, 2012 WL 4478952, at *2 (D. Colo. Sept. 28, 2012)
(citing Shero v. City of Grove, 510 F.3d 1996, 1203 (10th Cir. 2007)).
Here, Plaintiff’s claim fails on the first prong. Plaintiff does not allege he exercised his
constitutionally-protected right of access to the courts. Rather, it was the Zelenok plaintiffs who
exercised this right by filing a federal civil rights lawsuit against Plaintiff and the Town of South
Fork, based on Plaintiff’s conduct during the August 16, 2008 traffic stop. Other than bringing
this matter, Plaintiff has not alleged that he engaged in any constitutionally protected activity.
Accordingly, the court finds that Plaintiff’s Fourteenth Amendment claim is properly dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief.
B.

Title VII and ADEA Claims
The Town Defendants argue that Plaintiff’s Title VII and ADEA claims are (1)

procedurally barred for failure to comply with timely filing and administrative exhaustion
prerequisites, and (2) are improperly brought against the individual defendants. (Town Defs.
Mot. at 7-12.)

15

1.

Individual Liability Under Title VII and ADEA

Individual-capacity suits are an inappropriate way to proceed in Title VII and ADEA
actions. Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (“Under Title VII . . . individual
capacity suits are inappropriate. The relief granted under Title VII is against the employer, not
individual employees whose action would constitute a violation of the Act”); see Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir. 1994) (“[T]he ADEA limits civil liability to
the employer.”]); Smith v. Lomax, 45 F.3d 402, 403 (11th Cir. 1995) (individual county
commissioners could not be considered plaintiff’s employer and therefore could not be held
liable under the ADEA or Title VII); cf. Butler v. City of Prairie Village, 172 F.3d 736, 744
(10th Cir. 1999) (basing holding that the ADA precludes individual suit on reasoning that it
defines employers in same terms as the ADEA). Accordingly, to the extent that Plaintiff’s Title
VII and ADEA claims are targeted at the individual Town Defendants, the court finds that they
are properly dismissed.
2.

Failure to Exhaust Administrative Remedies

Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under both
Title VII and the ADEA. Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (Title VII);
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (ADEA). As Title VII
and the ADEA have virtually identical requirements with respect to filing EEOC charges, their
exhaustion requirements are the same. Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 n.1
(10th Cir. 2004). A plaintiff, as the party seeking federal jurisdiction, has the burden of showing
exhaustion of remedies. McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir.
16

2002). Exhaustion of administrative remedies requires that the plaintiff timely present his claims
to the EEOC and receive a right-to-sue letter based on those claims. Simms v. Okla. ex rel. Dep’t
of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
Plaintiff maintains that he filed a charge of discrimination with the EEOC on July 18,
2011. (Am. Compl. at 2.) The only document attached to his Amended Complaint is an
unsigned Colorado Civil Rights Division (“CCRD”) Charge of Discrimination. (Id. at 33.)
However, based on the fact that the Charge states “I want this charge filed with both the Equal
Employment Opportunity Commission and the State or local Agency,” the court will presume
that it was indeed filed with the EEOC. See Rodriguez v. Wet Ink, LLC, 603 F.3d 810, 813 (10th
Cir. 2010) (describing collaborative worksharing agreement between the EEOC and the CCRD
whereby each agency has “designate[d] the other as its agent for the purpose of receiving and
drafting [employment discrimination] charges.”)
Nevertheless, Plaintiff has not demonstrated that he received a right to sue letter from the
EEOC. Plaintiff maintains that he received a right-to-sue letter on November 11, 2011, but no
such letter is attached to his Amended Complaint. (Id. at 2, 24.) The Town Defendants have
submitted with their Motion to Dismiss the November 11, 2011 letter to which Plaintiff
ostensibly refers.7 (Town Defs. Mot., Ex. C.) That document is not a right-to-sue letter from the
EEOC; rather it is a Determination Letter from the CCRD finding no probable cause to support

7

The court may review this document because exhaustion implicates the court’s subjectmatter jurisdiction. Holt, 46 F.3d 1003.
17

Plaintiff’s claim of retaliation.8 (Id.) “Nothing in the worksharing agreement or relevant case
law support [the] view that the CCRD can issue right-to-sue notices of behalf of the EEOC.”
Rodriguez, 603 F.3d at 813. As such, this CCRD determination letter does not constitute an
EEOC right to sue letter.
Otherwise, there is no evidence in the record to support Plaintiff’s position that he
received a right-to-sue notice letter from the EEOC. As such, the court finds that Plaintiff has
failed to sustain his burden of demonstrating he has exhausted administrative remedies.
Accordingly, Plaintiff’s Title VII and ADEA claims as to the remaining Town Defendants are
properly dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
C.

Failure to Release Records Claim
The court finds that Plaintiff’s claim that some defendants “won’t release freedom of

information and release of records request” (Am. Compl. at 2) is targeted at both the Town and
State Defendants. As to the State Defendants, this claim appears to concern Defendant Pam
Stewart’s failure to release records to Plaintiff at the Alamosa, Colorado office. (Am. Compl. at
28.) As to the Town Defendants, Plaintiff alleges he placed a “request of release of records
and[/]or freedom information act request in writing to South Fork and PD” but that he “never
received a legal reason why they did not respond in writing.” (Id. at 27.)
To the extent that this claim can be construed to assert violations of the Colorado Open
Records Act or Open Meetings Act (see State Defs. Mot. at 5-6), these statutes do not provide

8

It appears that Plaintiff erroneously assumes that the Determination Letter constitutes an
EEOC right-to-sue letter.
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for private rights of action. See Colo. Rev. Stat. § 24-72-206 (Colorado Open Records Act);
Colo. Rev. Stat. § 24-6-402 (Colorado Sunshine Law); see also Shields v. Shelter, 682 F. Supp.
1172, 1175 (D. Colo. 1988) (“The exclusive remedy for a violation of the Colorado Open
Records Act is C.R.S. § 24-72-206. That section does not provide for a private right of action.”)
(internal citation omitted). Additionally, the Freedom of Information Act, 5 U.S.C. § 552 et seq.,
is inapplicable here because it applies to federal, rather than state, agencies. See Grand Cent.
Partnership, Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999) (“it is beyond question that [the
Freedom of Information Act] applies only to federal and not to state agencies”); Philip Morris
Inc. v. Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997) (“The [Freedom of Information Act],
however, by its own terms, applies only to federal executive branch agencies.”).
Accordingly, this court finds Plaintiff’s claim for failure to release records is properly
dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Therefore, the court
finds that Defendants’ Motions to Dismiss are properly granted as to this claim.
D.

State Law Tort and Breach of Contract Claims
Plaintiff also asserts claims for defamation and breach of a contract allegedly made

during the September 22, 2009 meeting. (Am. Compl. at 6, 29-31.) However, the court has now
found that all of Plaintiff’s federal law claims are properly dismissed. As such, the court finds it
proper to decline to exercise jurisdiction over Plaintiff’s state law claims. See Smith v. City of
Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the
court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.”).
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WHEREFORE, for the foregoing reasons, the court respectfully
RECOMMENDS that Defendants Town of South Fork, Town of South Fork Police
Department, James Chavez, Sharon Fairchild, Todd Wright, Larry Heersink, and Grover
Hathorn’s “Motion to Dismiss Pursuant to F.R.C.P. 12(B)(1) (sic) & (6)” (Doc. No. 16), the
“Motion to Dismiss of Defendants Colorado State Patrol and Pam Stewart” (Doc. No. 31), and
Defendant Randy Herrera’s “Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) & (6)” (Doc. No.
72) be GRANTED, that all federal law claims against these defendants be dismissed with
prejudice, and that the District Court decline to exercise jurisdiction over Plaintiff’s state law
claims against these defendants. The court further
RECOMMENDS that the District Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that
any appeal from this recommendation would not be taken in good faith and therefore in forma
pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). Thereafter, if Plaintiff files a notice of appeal he also must pay the full $455.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days of the court’s final order in accordance with Fed.
R. App. P. 24.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
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general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

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1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 5th day of February, 2013.

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