Baker v. State of Colorado, et al

Filing 24

ORDER. The 14 Recommendation of United States Magistrate Judge is adopted. Defendants' 14 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5) is granted in part. Plaintiff's claims are dismissed without prejudice for lack of subject matter jurisdiction. By Judge Philip A. Brimmer on 2/18/14.(mfiel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01334-PAB-KLM
BRANDON BAKER, Rev.,
Plaintiff,
v.
THE STATE OF COLORADO and
COLORADO ATTORNEY GENERAL,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 22] filed on February 7, 2014.
The magistrate judge recommends that the Court grant Defendants’ Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(5) [Docket No. 14] filed by defendants the State of
Colorado and Colorado Attorney General and dismiss without prejudice the amended
complaint [Docket No. 8] filed by plaintiff Reverend Brandon Baker. On February 12,
2014, plaintiff filed timely objections [Docket No. 23] to the Recommendation. The
Court will “determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3). In light of plaintiff’s pro se status,
the Court reviews his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991).
This case arises out of plaintiff’s constitutional challenge to Colorado House Bill
13-1325, which was passed on May 28, 2013. 2013 Colo. Legis. Serv. Ch. 331 (H.B.

13-1325) (West). Plaintiff also challenges Colo. Rev. Stat. §§ 18-3-106 and 18-3-205.
The relevant factual background is set forth in detail in the Recommendation and will
not be recited here.
I. ANALYSIS
The magistrate judge recommends that this case be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) because plaintiff does not allege “an invasion
of a legally protected interest that is (a) concrete and particularized; and (b) actual or
imminent” as required to establish Article III standing. Docket No. 22 at 10 (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Plaintiff does not object to the recommended dismissal of his claims under the
First, Fifth, Sixth, and Fourteenth Amendments. Docket No. 23 at 5, ¶ 11. He does
object to the recommended dismissal of his claim that the challenged statutes violate
the Fourth Amendment insofar as they permit police to draw blood without consent and
without a warrant in the course of investigating a traffic stop for driving under the
influence of marijuana. Id. at 5-8, ¶¶ 12-19; see Colo. Rev. Stat. § 42-4-1301.1(2)(b)(I)
(“[a]ny person who drives any motor vehicle . . . throughout this state shall be required
to submit to and to complete . . . a test or tests of such person’s blood, saliva, and urine
for the purpose of determining the drug content within the person’s system when so
requested and directed by a law enforcement officer having probable cause to believe
that the person was driving a motor vehicle in violation of the prohibitions against
[Driving Under the Influence] or [Driving While Ability Impaired] and when it is
reasonable to require such testing of blood, saliva, and urine to determine whether such

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person was under the influence of, or impaired by, one or more drugs”). Plaintiff reads
Colo. Rev. Stat. § 42-4-1301.1(2)(b)(I) as a blanket authorization to draw blood without
a warrant, solely on the basis that an individual is suspected of driving under the
influence of marijuana, and argues that such an authorization is not justified under the
Fourth Amendment, particularly in light of the Court’s holding in Missouri v. McNeely, --U.S. ----, 133 S. Ct. 1552, 1563 (2013) (“Whether a warrantless blood test of a drunkdriving suspect is reasonable must be determined case by case based on the totality of
the circumstances.”).
Plaintiff states that he has standing because “[a]n individual has a direct interest
in objecting to laws that upset the constitutional balance between the National
Government and the States when the enforcement of those laws causes injury.”
Docket No. 23 at 9-10, ¶ 25. With respect to the injury-in-fact requirement, plaintiff
contends that “every involuntary draw of blood in routine DUI stop/investigation related
to cannabis is proof” and that he “can easily demonstrate to the court via direct
evidence and expert witnesses that a 5ng limit for impairment as well as the involuntary
blood draw violates the compelling interest and the 4th amendment.” Id. at 10, ¶ 26.
These arguments are unavailing.
“Standing to sue may not be predicated upon an interest . . . which is held in
common by all members of the public, because of the necessarily abstract nature of the
injury all citizens share.” Chrisman v. C.I.R., 82 F.3d 371, 373 (10th Cir. 1996) (internal
citation omitted). “[E]ven when a plaintiff is sincere and motivated to pursue a case, the
court cannot exercise jurisdiction for generalized grievances, but must face a tangible,
personal, threatened interest.” Id.
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The interest that plaintiff seeks to vindicate–submitting the challenged statutes to
judicial scrutiny based on their alleged violation of the Fourth Amendment–is one “held
in common by all members of the public.” See id. Plaintiff does not allege a “tangible,
personal, threatened interest.” Id. Although he suggests that his religious beliefs and
practices expose him to a heightened risk of prosecution, see Docket No. 8 at 6, ¶ 19
(“We cant [sic] overlook there is no religious exemption putting all bona fide patrons of
the bona fide Native American and Rastafarian sacrament churches, like greenfaith
Ministry NAC . . . at further risk of 1st Amend violations on top of 4th 6th and 14th/5th
Amend. violations.”), he does not allege “facts explaining how the marijuana DUI statute
infringes on his ability to use cannabis for personal use or during his church’s religious
practices” or allege “facts indicating that his religion specifically necessitates marijuana
use resulting in five ngs or more of Delta 9-[Tetrahydrocannabinol] in his bloodstream
while driving a car.” See Docket No. 22 at 8.
Thus, plaintiff’s complaint does not establish that he has standing to maintain his
Fourth Amendment claim. Absent standing, the Court lacks subject matter jurisdiction
to consider the substance of plaintiff’s claim. See Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974).
II. CONCLUSION
Plaintiff’s remaining objections are not sufficiently specific to “enable[ ] the district
judge to focus attention on those issues–factual and legal–that are at the heart of the
parties’ dispute.” United States v. One Parcel of Real Property Known As 2121 East
30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). In the absence of a proper objection, the

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district court may review a magistrate judge’s recommendation under any standard it
deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that Congress
intended to require district court review of a magistrate’s factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings”).
In this matter, the Court has reviewed the parts of the Recommendation to which no
one has properly objected to satisfy itself that there is “no clear error on the face of the
record.”1 Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the
Court has concluded that these parts of the Recommendation correctly apply the facts
and the law. Wherefore, it is
ORDERED that Recommendation of United States Magistrate Judge [Docket
No. 22] is ADOPTED. It is further
ORDERED that Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(5) [Docket No. 14] filed by defendants the State of Colorado and Colorado
Attorney General is GRANTED in part. Plaintiff’s claims are dismissed without
prejudice for lack of subject matter jurisdiction.

DATED February 18, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
1

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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