Harper et al v. Montezuma County Board of Commissioners et al

Filing 40

ORDER granting 36 Joint Motion to Strike and striking 33 Amended Complaint. Motions to Dismiss 7 and 26 are granted, and 3 Complaint is dismissed without prejudice. 31 Motion to Quash is denied as moot. By Judge Christine M. Arguello on 5/9/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-02429-CMA-KLM
MARION HARPER, and
MONTGOMERY COYOTE,
Plaintiffs,
v.
MONT. CO BOARD OF COMMISSIONERS,
SHERIFF DEPT.,
CITY OF CORTEZ,
CORTEZ POLICE,
22ND JUDICIAL DISTRICT, and
OFFICER ANGEL O. MARTINEZ,
Defendants.

ORDER

This case is before the Court on the “Joint Motion to Strike Plaintiffs’ ComplaintAmended Complaint Per Judge Boyd Boland’s Order,” filed by Defendants City of
Cortez, Cortez Police Department, Officer Angelo Martinez, Montezuma County Board
of Commissioners, and the Montezuma County Sheriff’s Office, (collectively
“Defendants”1), (Doc. # 36); two motions to dismiss filed by Montezuma County Board
of Commissioners and the Montezuma County Sheriff’s Office, (Doc. # 26), and

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The 22nd Judicial District has not entered an appearance in this case or filed a responsive
pleading in this matter.

Defendants City of Cortez, Cortez Police Department, and Officer Angelo Martinez,
(Doc. # 7); and Defendants’ Joint Motion to Quash Subpoena (Doc. # 31).
I. BACKGROUND
Plaintiffs initiated this lawsuit pro se in Montezuma County District Court on April
31, 2012. (Doc. # 1 at 1.) Plaintiffs’ complaint alleged violations of “numerous federal
and state laws, including illegal police surveillance and harassment of Native
Americans, Blacks, and Hispanics; racial profiling; discrimination based on race and jury
selection process.” (Doc. # 3.) Plaintiffs’ “Notice of Pending Litigation” referenced a
“federal class action” alleging “constitutional violations [and] 42 U.S.C. [§] 1983 denial of
rights under cover [sic] of law . . . .” (Doc. # 1-B at 3-4.) On September 13, 2012, the
case was removed to federal court because it presented various federal questions.
(Doc. # 1.) On September 5, 2012, Plaintiffs filed another lawsuit in this District alleging
similar claims, but adding the names of several judges and the district attorney in the
22nd Judicial District. (No. 1:12-cv-02368-LTB, Doc. # 1.) Magistrate Judge Boland
issued an order striking the complaint in that case as non-compliant with Fed. R.
Civ. P. 8. (Id., Doc. # 7.)
Plaintiffs served a subpoena dated February 22, 2013 on counsel for Defendants
City of Cortez, Cortex Police Department, and Officer Angelo Martinez requesting
appearance of an unnamed party at a hearing on March 15, 2013 and production of
several documents. (Doc. # 29.) Defendants moved to quash the subpoena. (Doc.
# 31.) On March 15, 2013, Plaintiffs filed an amended complaint in the case at bar,

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(Doc. # 33), and Defendants filed a joint motion to strike Plaintiffs’ amended complaint
(Doc. # 36).
II. STANDARD OF REVIEW
The court must construe the pleadings liberally because Plaintiffs are not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this general rule has limits:
“the court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005); Hall, 935 F.2d at 1110.
III. DISCUSSION
As a threshold matter, the Court notes that both complaints in this case are
signed only by Mr. Harper, who has already been admonished by Magistrate Judge
Boland that he “may not assert claims on behalf of other individuals, and he may not list
other individuals as Plaintiffs in a pleading that only he has signed.” (No. 1:12-cv02368-LTB, Doc. # 7 at 1-2.) A pro se litigant may not represent other pro se litigants
in federal court, see 28 U.S.C. § 1654, and is not an adequate class representative for
a putative class action. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321
(10th Cir. 2000). Therefore, Mr. Harper may pursue only his own individual claims
in this action and this Court will discuss only the pending motions as they apply to
Mr. Harper as the named Plaintiff.

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A

AMENDED COMPLAINT
Defendants argue that Plaintiff’s amended complaint should be stricken because

Plaintiff did not seek permission from the other parties or leave from this Court. (Doc.
# 36.) Before trial, a party may amend its pleading once as a matter of course within
21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B) (discussing
pleadings to which a responsive pleading is required); Fed. R. Civ. P. 12 (complaints
require a responsive pleading). Plaintiff filed his original complaint on April 31, 2012
and the case was removed to federal court on September 13, 2013. Defendants filed
motions to dismiss pursuant to 12(b) on September 21, 2012 and January 18, 2013.
Plaintiff filed an amended complaint on March 15, 2013, well outside of the 21 day limit
imposed by Fed. R. Civ. P. 15(a)(1)(B). Plaintiff, therefore, was not entitled to amend
his complaint as a matter of course and may only amend with this Court’s permission or
Defendants’ written consent.
Moreover, Plaintiffs’ amended complaint includes Defendants that were not
previously named in their original complaint, and also leaves off the “Sheriff[’s]
Department.” 2 (Doc. # 33.) “An amendment changing parties requires leave of the
court . . . .” Sparks v. Foster, 2006 WL 446081 at *1 (D. Colo. Feb. 21, 2006) aff'd, 241
F. App'x 467 (10th Cir. 2007) (quoting 7 Wright, Miller, & Kane, Federal Practice and
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Plaintiffs’ amended complaint appears to be identical to the amended complaint filed in
a dismissed case before Judge Babcock, which originally included several judges and the
district attorney from the 22nd Judicial District, and did not include the “Sheriff[’s] Department.”
(No. 1:12-cv-02368-LTB, Doc. # 1.)

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Procedure: Civil 3d § 1688 (2001)). Thus, Plaintiff may not add or remove parties to the
action without leave of the Court.
For these reasons, and because Plaintiff attempts to assert claims on behalf of
another individual plaintiff and a class of plaintiffs, the Court strikes Plaintiff’s amended
complaint. However, Plaintiff may amend his complaint in a manner consistent with
this order. In so doing, Plaintiff should ensure that he only asserts claims on his own
behalf and that he correctly names the entities and individuals that he intends to sue as
defendants.
B.

MOTIONS TO DISMISS
Defendants also filed two separate motions to dismiss, based on Plaintiff’s initial

complaint. Because the Court determined that Plaintiff’s amended complaint must be
stricken, the Court will now address the sufficiency of his original complaint pursuant to
the motions to dismiss, which raise essentially the same arguments. The Court further
notes that Plaintiff did not respond to the motions; therefore, they are unopposed.
1. Insufficient Service of Process
Defendants argue that Plaintiff’s complaint should be dismissed for insufficiency
of process and service of process. See Fed. R. Civ. P. 12(b)(4), 12(b)(5). Defendants
first point out that Plaintiff signed the affidavit as the process server, in violation of Fed.
R. Civ. P. 4(c)(2) and Colo. R. Civ. P. 4(d), which state that a party may not serve a
summons and complaint. Although this alone may be sufficient ground to dismiss
Plaintiff’s complaint, the Court is mindful of its obligation to helpfully advise a pro se

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litigant of Rule 4 requirements and to allow an opportunity to comply. Olsen v. Mapes,
333 F.3d 1199, 1205 (10th Cir. 2003) (dismissal with prejudice for failure to serve under
Rule 4 is error because the rule is complicated and the record is replete with Plaintiffs’
attempts to comply with the rule). In so advising, the Court makes no determination as
to the propriety of claims against any Defendant. 3 See Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir.1991) (“[T]he court will not construct arguments or theories
for the plaintiff in the absence of any discussion of those issues.”)
The only filing Plaintiff made to demonstrate that he served Defendants was an
“Affidavit of Service” filed with Montezuma County Court. (See Doc. # 1-1 at 1.) This
affidavit shows that Plaintiff impermissibly served the summons and complaint himself.
See Fed. R. Civ. P. 4(c)(2) and Colo. R. Civ. P. 4(d). The affidavit also fails to identify
which defendants Plaintiff served, making it impossible for this Court to determine
whether service was proper. In support of their motion, Defendants include several
affidavits averring that Plaintiff did not properly serve them. (See Doc. # 1-1.) Plaintiff
did not respond to either motion to dismiss.
As no waivers of service have been filed with the court, Plaintiff must comply
with the service requirements of Fed. R. Civ. P. 4, governing service on, inter alia,
3

The 22nd Judicial District has not entered an appearance in this matter. However, if a
defendant is not served within 120 days after the complaint is filed, the Court must dismiss the
action without prejudice against that defendant or order that service be made within a specified
time. Fed. R. Civ. P. 4(m); see also Espinoza v. United States, 52 F. 3d 838, 841 (10th Cir.
1995) (“If the plaintiff fails to show good cause, the district court must still consider whether
a permissible extension of time may be warranted. At that point, the district court may in its
discretion either dismiss the cause without prejudice or extend the time for service.”) The
Court sua sponte includes the 22nd Judicial District to provide guidance to Plaintiff as to how
to roperly proceed with his claims, but does not dismiss the claims on this basis.

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individuals, municipal corporations, and state-created governmental organizations. See
Fed. R. Civ. P. 4(e), (j)(2). Pursuant to the Federal Rules of Civil Procedure, an
individual may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed. R. Civ. P. 4(e). State law provides for personal service in Colorado:
Upon a natural person whose age is eighteen years or older by delivering
a copy thereof to the person, or by leaving a copy thereof at the person’s
usual place of abode, with any person whose age is eighteen years or
older and who is a member of the person’s family, or at the person’s
usual workplace, with the person’s secretary, administrative assistant,
bookkeeper, or managing agent; or by delivering a copy to a person
authorized by appointment or by law to receive service of process.
Colo. R. Civ. P. 4(e)(1).
“A state, a municipal corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to its chief executive
officer; or
(B) serving a copy of each in the manner prescribed by that state’s law for serving
a summons or like process on such a defendant.
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Fed. R. Civ. P. 4(j)(2). Colorado law provides for service on, inter alia, a municipal
corporation “by delivering copy thereof to the mayor, city manager, clerk, or deputy
clerk,” Colo. R. Civ. P. 4(e)(6), a county “by delivering a copy thereof to the county clerk,
chief deputy, or county commissioner,” Colo. R. Civ. P. 4(e)(7), and on “an officer,
agent, or employee of the state, acting in an official capacity, by delivering a copy
thereof to the officer, agent, or employee and by delivering a copy to the attorney
general.” Colo. R. Civ. P. 4(e)(10)(A). A political subdivision, special district, or quasimunicipal entity may be served “by delivering a copy thereof to any officer or general
manager, unless otherwise provided by law.” Colo. R. Civ. P. 4(e)(11).
A court cannot obtain personal jurisdiction over a party without proper service of
process. See Murphy Brothers, Inc., v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 350
(1999) (“Before a . . . court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.”) (citation omitted);
Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) ( “Effectuation of
service is a precondition to suit. . . .”); Oklahoma Radio Associates v. F.D.I. C., 969 F.2d
940, 943 (10th Cir. 1992) (“Rule 4 service of process provides the mechanism by which
a court having venue and jurisdiction over the subject matter of an action asserts
jurisdiction over the person of the party served”) (citations omitted). “[T]he serving party
bears the burden of proving” the validity of service of process “or good cause for failure
to effect timely service.” Systems Signs Supplies v. U.S. Dept. of Justice, 903 F.2d
1011, 1013 (5th Cir. 1990); see also Fed. Deposit Ins. Corp. v. Oaklawn Apartments,

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959 F.2d 170, 174 (10th Cir. 1992) (plaintiff has burden of establishing validity of service
of process). Plaintiff has not carried his burden of demonstrating that the Defendants
have been properly served. Therefore, if Plaintiff choses to file an amended complaint
in this action, he must serve Defendants in a manner consistent with this order.
2. Failure to State a Claim
Defendants also move to dismiss Plaintiff’s original complaint for failure to state
a claim upon which relief can be granted. “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) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must provide fair notice
to the defendants sued of what the claims are and the grounds supporting such claims,
Twombly, 550 U.S. at 555, and allow the court to conclude that the allegations, if
proven, show that the plaintiff is entitled to relief. Monument Builders of Greater Kansas
City, Inc. v. American Cemetery Ass’n of Kansas, 1480 (10th Cir. 1989). The factual
allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191
(10th Cir. 2009). Rule 8(a) provides that a complaint “must contain (1) a short and plain
statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement
of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought . . . .” Fed. R. Civ. P. 8.

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Plaintiff’s original complaint fails to articulate specific allegations as to each
defendant and the corresponding basic details, such as the date of the act or
identification of alleged actor, as well as the specific legal right each defendant allegedly
violated. The complaint makes conclusory statements loosely tied to various
Constitutional claims, but contains no facts that would allow this Court to “draw the
reasonable inference that defendant[s are] liable for the misconduct alleged.” See
Iqbal, 556 U.S. at 678. In short, the complaint totally fails to state a plausible claim for
relief, or to comply with the federal rules. Although the 22nd Judicial District has not
filed a motion to dismiss on this basis, the Court notes that Plaintiff’s complaint wholly
fails to raise a plausible claim as to any defendant. However, “dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 806 (10th Cir.
1999). With this in mind, the Court acknowledges that it must give Plaintiff an
opportunity to amend his complaint to fix these deficiencies.
The Court advises Plaintiff to provide a short and concise statement explaining
what each defendant did to him, when each defendant did it, how each defendant’s
action harmed him, what specific legal right each defendant violated, and what remedy
he seeks for each violation. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007); see also Lazarov v. Kimmel, No.10-cv-01238-CMA, 2010 WL
2301749 (D. Colo. June 8, 2010). Furthermore, because Plaintiff is asserting claims

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against municipal entities, he must identify a municipal policy or custom that caused the
alleged violations of his rights. See Dodds v. Richardson, 614 F.3d 1185, 1202 (10th
Cir. 2010) (discussing Supreme Court standards for municipal liability).
C.

MOTION TO QUASH SUBPOENA
Defendants also move to quash the subpoena dated February 22, 2013 that

Plaintiff served on counsel for Defendants City of Cortez, Cortex Police Department,
and Officer Angelo Martinez requesting appearance of an unnamed party at a hearing
on March 15, 2013 and production several documents. (Doc. # 31.) The Court date
for this conference has passed and consistent with this order, both complaints are
dismissed. Therefore, the motion to quash is DENIED AS MOOT.
Until Plaintiff files a proper complaint, he may not serve a subpoena. To the
extent Plaintiff attempts to use a subpoena to compel production of documents, the
Court reminds Plaintiff that once a proper complaint is filed, he may request discovery
from Defendants consistent with Fed. R. Civ. P. 34.
IV. CONCLUSION
Accordingly, it is ORDERED that the Joint Motion to Strike “Plaintiffs’ ComplaintAmended Complaint Per Judge Boyd Boland’s Order” (Doc. # 36) is GRANTED and the
amended complaint is STRICKEN. It is
FURTHER ORDERED that Defendants City of Cortez, Cortez Police
Department, Officer Angelo Martinez, Montezuma County Board of Commissioners,
and the Montezuma County Sheriff’s Office Motions to Dismiss (Doc. ## 7, 26) are

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GRANTED and Plaintiff’s original complaint is DISMISSED WITHOUT PREJUDICE.
It is
FURTHER ORDERED if that Mr. Harper wishes to proceed with his claims in this
action, he must file within thirty (30) days from the date of this order an amended
complaint that complies with the pleading requirements of Fed. R. Civ. P. 8 as
discussed in this order. It is
FURTHER ORDERED that Mr. Harper properly serve Defendants in such a way
that complies with the Federal Rules of Civil Procedure within one hundred twenty
(120) days from the date he files his amended complaint. It is
FURTHER ORDERED that, if Mr. Harper fails within the time allowed to file an
amended complaint that complies with this order and/or fails to properly serve
Defendants, the action will be dismissed without further notice. It is
FURTHER ORDERED that Defendant’s motion to quash (Doc. # 31) is DENIED
AS MOOT.
DATED: May

09

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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