Buhendwa v. Regional Transportation District

Filing 49

ORDER by Judge Philip A. Brimmer on 3/10/15. ORDERED: The Recommendation of United States Magistrate Judge [Docket No. 41] is ACCEPTED. ORDERED: Defendant Regional Transportation District's Motion to Dismiss [Docket No. 10] is GRANTED. ORDERE D: Defendants Charles L. Sisk, Bruce Daly, Natalie Menten, Lorraine Anderson, Paul Daniel Solano, Judy Lubow, Larry Hoy, Kent Bagley, Gary Lasater, Tom Tobiassen, Claudia Folska, Jeff Walker, Angie Rivera Malpiede, Barbara Deadwyler, Bill James, and the (15) Board of Directors' Motion to Dismiss [Docket No. 31] is GRANTED. ORDERED: Plaintiff's first, second, and third claims for relief are dismissed with prejudice. ORDERED: Plaintiff's fourth claim for relief for tortious interfe rence with contract is dismissed without prejudice. ORDERED: Plaintiff Madina Buhendwa's Amended Motion for Leave to File Interlocutory Appeal [Docket No. 44] is DENIED. ORDERED: Within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. ORDERED: This case is dismissed in its entirety. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00720-PAB-CBS
MADINA BUHENDWA,
Plaintiff,
v.
REGIONAL TRANSPORTATION DISTRICT, University Based Pass/CU Student Bus
Pass,
(15) BOARD OF DIRECTORS, in their official capacities,
BILL JAMES,
BARBARA DEADWLER
ANGIE RIVERA MALPIEDE,
JEFF WALKER,
CLAUDIA FOLSKA,
TOM TOBIASSEN,
GARY LASATER,
KENT BAGLEY,
JUDY LUBOW,
LARRY HOY,
PAUL DANIEL SOLANO,
LORAINE ANDERSON,
NATALIE MENTEN,
BRUCE DALY, and
CHARLES L. SISK,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Craig B. Shaffer (the “Recommendation”) filed on February 6, 2015
[Docket No. 41]. The magistrate judge recommends that the Court grant two motions to
dismiss, one filed by defendant Regional Transportation District (“RTD”) [Docket No. 10]
and a second filed by defendants Charles L. Sisk, Bruce Daly, Natalie Menten, Lorraine

Anderson, Paul Daniel Solano, Judy Lubow, Larry Hoy, Kent Bagley, Gary Lasater,
Tom Tobiassen, Claudia Folska, Jeff Walker, Angie Rivera Malpiede, Barbara
Deadwyler, Bill James, and the 15 RTD Board of Directors (collectively, the “board
members”) [Docket No. 31]. 1 Plaintiff filed timely objections to the Recommendation on
February 20, 2015. Docket No. 42.
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 the absence of a
proper objection, the 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”). An objection is proper if it is specific enough to enable the Court “to focus
attention on those issues–factual and legal–that are at the heart of the parties’ dispute.”
United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of
plaintiff’s pro se status, the Court construes her filings liberally. See Haines v. Kerner,

1

The Court takes judicial notice of the fact that, at the time plaintiff filed her
complaint, defendants Bill James, Barbara Deadwyler, Angie Rivera Malpiede, Jeff
Walker, Claudia Folska, Tom Tobiassen, Gary Lasater, Kent Bagley, Judy Lubow, Larry
Hoy, Paul Daniel Solano, Loraine Anderson, Natalie Menten, Bruce Daly , and Charles
A. Sisk were members of the RTD Board of Directors. See RTD Board of Directors
Meeting Minutes, February 18, 2014, available at
http://rtd.iqm2.com/citizens/FileOpen.aspx?Type=15&ID=1744&Inline=True. The Court
may take judicial notice of the contents of an agency’s website. See, e.g., Coleman v.
Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (taking judicial notice of Texas agency’s
website).
2

404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
I. ANALYSIS
Plaintiff brings claims of statutory race discrimination and tortious interference
with contract on the basis that defendant RTD restricted her access to its public
transportation services because of her race.2
Plaintiff brought a previous federal lawsuit against defendant RTD seeking
damages for (1) violation of her Fourteenth Amendment right to equal protection and
due process pursuant to 42 U.S.C. § 1983, (2) interf erence with her contractual rights in
violation of 42 U.S.C. § 1981, (3) racial discrimination in violation of Title VI, and (4)
tortious interference with contractual rights. See Buhendwa v. Regional Transp. Dist.,
Case No. 12-cv-01711-PAB-CBS (“Buhendwa I”) (Docket No. 12).3 On March 22,
2013, the Court granted RTD’s motion to dismiss. Id. (Docket No. 18). Plaintiff
appealed. The Tenth Circuit Court of Appeals affirmed the district court’s dismissal of
plaintiff’s claims. Buhendwa v. Regional Transp. Dist., 553 F. App’x 768 (10th Cir.
2014). Further relevant facts are set forth in detail in the Recommendation, see Docket
No. 41 at 2-6, and will not be recited here.

2

In an order dated April 30, 2014, Judge Lewis Babcock dismissed all of
plaintiff’s claims against the board members in their individual capacities and allowed
plaintiff’s statutory claims and her claim for tortious interference with contract against
RTD and the board members to proceed. Docket No. 11 at 10. Judge Babcock also
dismissed four parties – James A. Stadler, Stephen P. Schmitz, an Unknown Driver,
and Benjamin Norman – who were originally named as defendants in this action.
Docket No. 11 at 9.
3

The Court may take judicial notice of other cases filed in this court. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979).
3

A. Statutory Claims
Plaintiff objects to the Recommendation’s finding that her federal statutory claims
are barred by the doctrine of res judicata because of the dismissal of plaintiff’s previous
federal lawsuit. Docket No. 42 at 7. “The doctrine of res judicata, or claim preclusion,
will prevent a party from relitigating a legal claim that was or could have been the
subject of a previously issued final judgment.” MACTEC, Inc. v. Gorelick, 427 F.3d 821,
831 (10th Cir. 2005) (internal citations omitted). Three elements are required to apply
the doctrine of claim preclusion: (1) a final judgment on the merits in an earlier action,
(2) identity or privity of the parties in the two suits, and (3) identity of the cause of action
in both suits. Id. (citing Wilkes v. Wyo. Dep’t of Emp’t Div. of Labor Stds., 314 F.3d 501,
504 (10th Cir. 2003)). “If these requirements are met, [claim preclusion] is appropriate
unless the party seeking to avoid preclusion did not have a ‘full and fair opportunity’ to
litigate the claim in the prior suit.” Id. (citing Yapp v. Excel Corp., 186 F.3d 1222, 1226
n.4 (10th Cir. 1999)).
Plaintiff’s lone objection to the Recommendation’s finding on claim preclusion is
that the defendant board members were not in privity with the RTD because the board
members were not defendants in the earlier suit. See Docket No. 42 at 6-7, ¶ 25.
Plaintiff, however, does not dispute the Recommendation’s finding that the claims in the
instant case are identical to those she brought in Buhendwa I, that she had a full and
fair opportunity to litigate her claims in the prior action, and that plaintiff and the RTD
were parties to the earlier action.

4

“RTD is a political subdivision of the state of Colorado” and is considered a “local
government unit.” Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1345-46
(10th Cir. 1997). The board members are the RTD’s governing body. See Colo. Rev.
Stat. § 32-9-109.5. The Tenth Circuit has held that “[t]here is privity between officers of
the same government so that a judgment in a suit between a party and a representative
of the [government] is res judicata in relitigation of the same issue between that party
and another officer of the government.” United States v. Rogers, 960 F.2d 1501, 1509
(10th Cir. 1992); see also Dean v. Mississippi Bd. of Bar Admissions, 394 F. App’x 172,
177 (5th Cir. 2010) (finding claims precluded where, “[i]n [the first case], only the Board
was a named defendant,” while in the second case, “the Board’s members are named
individually as defendants” but “[plaintiff’s] allegations only refer to actions taken by the
individual defendants while functioning in their capacities as Board members”);
Simonsen v. Chicago Bd. of Educ., 115 F. App’x 887, 889-90 (7th Cir. 2004) (“the
inclusion of individual board members as defendants in the federal suit does not
prevent the application of claim preclusion because a government and its officers are in
privity for purposes of res judicata”) (quotation and citation omitted).
Because the board members are in privity with the RTD, plaintiff’s claims against
them in their official capacity are barred by the doctrine of res judicata. Accordingly, the
Court finds no error with this aspect of the recommendation.4

4

Because the Court finds that plaintiff’s statutory claims are barred by the
doctrine of res judicata, and this finding disposes of those claims in their entirety, the
Court does not address the Recommendation’s other findings, that the complaint did
not allege specific facts about what each of the individual board members did, and that
plaintiff’s claims are barred by the doctrine of collateral estoppel.
5

B. Supplemental Jurisdiction Over Plaintiff’s State Law Claim
Plaintiff does not specifically object to the Recommendation that the Court
decline to exercise jurisdiction over plaintiff’s claim for tortious interference with
contract. See Docket No. 42. In the Tenth Circuit, when “the district court has
dismissed all claims over which it has original jurisdiction, 28 U.S.C. § 1367(c)(3),
courts must dismiss pendent state law claims without prejudice “‘absent compelling
reasons to the contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010)
(quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (reversing the district court’s
grant of summary judgment on state law claims); Endris v. Sheridan Cnty. Police Dep’t,
415 F. App’x 34, 36 (10th Cir. 2011) (“any state-law claims for assault and battery or
mental and emotional injury were inappropriate subjects for the exercise of pendent
jurisdiction where all federal claims had been dismissed”); but see Henderson v. Nat’l
R.R. Passenger Corp., 412 F. App’x 74, 79 (10th Cir. 2011) (finding no abuse of
discretion in trial court’s decision to retain jurisdiction over state law claims after plaintiff
voluntarily dismissed claims arising under federal law). Because the Court has
independently determined that plaintiff’s federal statutory claims are barred by the
doctrine of res judicata, the Court declines to exercise supplemental jurisdiction over
plaintiff’s state law claim, and dismisses this claim without prejudice. See Colo. Rev.
Stat. § 13-80-111 (permitting claims properly commenced within the statute of
limitations to be re-filed if involuntarily dismissed because of lack of jurisdiction); Dalal
v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo. App. 1996) (interpreting 28

6

U.S.C. § 1367(d) as tolling the statute of limitations while claim is pending in federal
court).
C. Plaintiff’s Motion For Leave To File Interlocutory Appeal
On February 25, 2015, plaintiff filed an Amended Motion for Leave to File an
Interlocutory Appeal of the Recommendation. Docket No. 44. As defendants point out,
Docket No. 46 at 1, the Recommendation had not yet been adopted at the time plaintiff
filed her motion. Because the Recommendation was not an order, there is no basis to
grant an interlocutory appeal.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 41] is ACCEPTED. It is further
ORDERED that defendant Regional Transportation District’s Motion to Dismiss
[Docket No. 10] is GRANTED. It is further
ORDERED that defendants Charles L. Sisk, Bruce Daly, Natalie Menten,
Lorraine Anderson, Paul Daniel Solano, Judy Lubow, Larry Hoy, Kent Bagley, Gary
Lasater, Tom Tobiassen, Claudia Folska, Jeff Walker, Angie Rivera Malpiede, Barbara
Deadwyler, Bill James, and the (15) Board of Directors’ Motion to Dismiss [Docket No.
31] is GRANTED. It is further
ORDERED that plaintiff’s first, second, and third claims for relief are dismissed
with prejudice. It is further

7

ORDERED that plaintiff’s fourth claim for relief for tortious interference with
contract is dismissed without prejudice. It is further
ORDERED that plaintiff Madina Buhendwa’s Amended Motion for Leave to File
Interlocutory Appeal [Docket No. 44] is DENIED. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.

DATED March 10, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

8