Fortner v. County of El Paso, Colorado et al

Filing 67

ORDER ADOPTING RECOMMENDATIONS OF MAGISTRATE JUDGE GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DISMISSING PLAINTIFF'S CLAIMS, #62 , #52 , #57 , #31 , #32 , #34 , by Judge William J. Martinez on 3/2/2016.(dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0644-WJM-NYW
DARRELL FORTNER,
Plaintiff,
v.
COUNTY OF EL PASO, COLORADO,
STATE OF COLORADO,
BLACK FOREST FIRE/RESCUE PROTECTION DISTRICT,
TERRY MAKETA, Individual and Official capacity,
SCOTT CAMPBELL, Individual and Official capacity,
BOB HARVEY, Individual and Official capacity,
JAMES REBITSKI, Individual and Official capacity,
EDWAN BRACKEN, Individual and Official capacity,
RICK MCMORRAN, Individual and Official capacity,
DIANA MAY, Individual and Official capacity,
PRESTON COOPER, Individual and Official capacity,
DARREL GLENN, Individual and Official capacity,
AMY FOLSOM, Individual and Official capacity,
ANDREW GORGEY, Individual and Official capacity,
JON MUELLER, Individual and Official capacity,
MICHAEL SHELBURNE, Individual and Official capacity,
JOHN HICKENLOOPER, Individual and Official capacity,
DOES 1-100,
EL PASO COUNTY BOARD OF COMMISSIONERS
DENNIS HASLEY, Individual and Official capacity,
PEGGY LITTLETON, Individual and Official capacity,
SALLIE CLARK, Individual and Official capacity, and
AMY LATHEN, Individual and Official capacity,
Defendants.

ORDER ADOPTING RECOMMENDATIONS OF MAGISTRATE JUDGE GRANTING
DEFENDANTS’ MOTIONS TO DISMISS AND DISMISSING PLAINTIFF’S CLAIMS

This matter is before the Court on United States Magistrate Judge Nina Y.
Wang’s Recommendations dated December 9, 2015 (“First Recommendation”) (ECF

No. 52) and January 4, 2016 (“Second Recommendation”) (ECF No. 57).
The First Recommendation recommends granting three motions: Defendants
Terry Maketa, The County of El Paso, Colorado, Scott Campbell, Diana May, El Paso
County Board of County Commissioners, Dennis Hisey,1 Peggy Littleton, Sallie Clark,
Amy Lathen, Daryl Glenn, Amy Folsom, Andrew Gorgey, Michael Shelburne, and John
Mueller’s (collectively, “County Defendants”) Motion to Dismiss “First Amended Verified
Civil Rights Complaint 42 USCS 1983” (ECF No. 31); Defendants Black Forest
Fire/Rescue Protection District, Bob Harvey, Edward Bracken,2 Rick McMorran, and
Preston Cooper’s (collectively, “BFPD Defendants”) Motion to Dismiss First Amended
Complaint (ECF No. 32); and Defendants State of Colorado and Governor John
Hickenlooper’s (collectively, “State Defendants”) Motion to Dismiss First Amended
Complaint (ECF No. 34). (ECF No. 52.) The Second Recommendation recommends
that the First Amended Complaint be dismissed as to Defendant James Rebitski and
that the civil action be dismissed in its entirety. (ECF No. 57 at 3.)
The First and Second Recommendations are incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). After the Court granted two
unopposed Motions for Extension (see ECF No. 56; ECF No. 60), Darrell Fortner
(“Plaintiff”) filed a timely Objection to the Recommendations (ECF No. 62). The County
Defendants (ECF No. 63) and the BFPD Defendants (ECF No. 66) filed responses to

1

Defendant Dennis Hisey was incorrectly named by Plaintiff as “Dennis Hasley.” (See
ECF No. 7 at 1; ECF No. 31 at 3.)
2

Defendant Edward Bracken was incorrectly named by Plaintiff as “Edwan Bracken.”
(See ECF No. 7 at 1; ECF No. 32 at 1.)

2

the Objection. For the reasons set forth below, Plaintiff’s Objection is overruled, the
Recommendations are adopted, and Plaintiff’s claims are dismissed.
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” An objection to a recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73
F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” Id. In conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id. In the absence of a timely and
specific objection, “the district court may review a magistrate . . . [judge’s] report under
any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72
Advisory Committee’s Note (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record.”).
Because Plaintiff is proceeding pro se, the Court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as an
advocate for Plaintiff, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
3

1991).
The motions underlying the Recommendation were filed under Federal Rule of
Civil Procedure 12(b)(6). The purpose of a motion to dismiss pursuant to Rule 12(b)(6)
is to test “the sufficiency of the allegations within the four corners of the complaint after
taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support the plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200
(10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (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.” Sutton v. Utah State Sch. for
the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
The Defendants in this case invoke various immunities in arguing that this Court
is divested of subject matter jurisdiction over certain claims made by Plaintiff. Federal
courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction.
See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). Pursuant to Federal
Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject
matter jurisdiction. The determination of a court’s jurisdiction over subject matter is a
question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng’rs, 841 F.2d
1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent
that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
4

Cir. 1974).
II. BACKGROUND
The Black Forest Fire occurred in El Paso County, Colorado, in June 2013 (the
“Fire”). (See ECF No. 7.) Plaintiff alleges that the Fire took the lives of his four German
Shepherd dogs and four family cats. (Id. at 4.) He also alleges that his five horses
were severely burned, his home was destroyed, and trucks and equipment used for his
tree service business were destroyed. (Id. at 4, 18.)
Plaintiff filed this lawsuit on March 30, 2015. (ECF No. 1.) Plaintiff then filed a
First Amended Complaint on April 28, 2015. (ECF No. 7.) He asserted numerous claims
arising out of events related to the Fire. (See id.) Pursuant to 42 U.S.C. § 1983, Plaintiff
asserts numerous constitutional violations by each group of Defendants. (See ECF No. 7
at 14–16.) Plaintiff lists these claims under his “Third Claim for Relief” for “Violation of the
First, Fifth, and Fourteenth Amendments to the United States Constitution, Due Process,
Equal Protection, Equal Employment Opportunity.” (Id. at 14.) Plaintiff also asserts state
law claims over which the Court could potentially exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(a). (See id. at 10–13, 16–19.) Plaintiff’s First Amended
Complaint Contains the following claims under state law: “First Claim for Relief: Gross
Negligence, Outrageous Conduct, Deliberate Indifference”; “Second Claim for Relief:
Gross Negligence/Respondent [sic] Superior, Failure to Train Employees”; “Fourth Claim
for Relief: Deliberate Indifferunce [sic] and Gross Neglegance [sic].” (Id.)
On May 7, 2015 the County Defendants filed a Motion to Dismiss Plaintiff’s First
Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. (ECF No. 31 at 2.) The following day, the BFPD Defendants filed their
5

Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (ECF No. 32 at 1.) Lastly,
the State Defendants filed their Motion to Dismiss pursuant to Rules 12(b)(1) and
12(b)(6). (ECF No. 34 at 2.) The Magistrate Judge reviewed those motions, along with
Plaintiff’s responses and Defendants’ replies, and issued her Recommendations
granting the Motions to Dismiss and dismissing the action as to all Defendants on all
claims. (See ECF No. 52; ECF No. 57.)
III. ANALYSIS
A.

Proper Defendants
Colorado Revised Statutes § 30-11-105 requires that all proceedings against a

Colorado county be brought against “the board of county commissioners” of that county.
Defendants Darryl Glenn, Amy Lathen, Sallie Clark, Dennis Hisey, and Peggy Littleton
comprise the El Paso County Board of County Commissioners.3 Furthermore, a suit
against a government official in his or her official capacity is simply “another way of
pleading an action against an entity of which an officer is an agent.” McDonald v. Wise,
769 F.3d 1202, 1215 (10th Cir. 2014). Since Plaintiff also named “El Paso County
Board of County Commissioners” as a defendant, the Magistrate Judge found that
naming the County itself and the individual commissioners as Defendants was
duplicative; and, therefore, those Defendants should be dismissed.
Plaintiff does not specifically object to the Magistrate Judge’s findings regarding

3

See El Paso County Colorado Board of County Commissioners, Your Commissioners,
http://bcc.elpasoco.com/Pages/default.aspx (last visited Feb. 19, 2016). The Court may take
judicial notice of the contents of an agency’s website. See e.g., Chasteen v. Black, 2014 WL
5448702, at *2 n.2 (D. Colo. Oct. 27, 2014) (citing Coleman v. Dretke, 409 F.3d 665, 667 (5th
Cir. 2005)).

6

the duplicative nature of these particular Defendants. (See ECF No. 62.) Where
Plaintiff does not object to the Magistrate Judge’s findings, the Court reviews those
findings under a “clearly erroneous” standard of review. The Court finds no clear error
in the Magistrate Judge’s reasoning regarding this recommendation and, thus, adopts it.
The County of El Paso, as well as Defendants Glenn, Lathen, Clark, Hisey, and Littleton
in their respective official capacities, are dismissed as Defendants.
B.

Plaintiff’s Constitutional Claims
The Magistrate Judge found that Plaintiff failed to state a cognizable

constitutional claim against any Defendant. (ECF No. 52 at 21, 30, 35.) On that basis,
the Magistrate Judge recommended that Plaintiff’s Third Claim for Relief be dismissed
as to all Defendants. (Id. at 21, 31, 36) Plaintiff objects to this portion of the
Recommendation, at least as it pertains to the County Defendants. (ECF No. 62 at 3.)
Specifically, he “[o]bject[s] to the dismissal of the defendants that the Magistrate stated
on page 21 as the court stated in part, that the third claim be dismissed against all
County defendants and any defendant in their official capacity . . . .” (Id.)
Plaintiff asserts several claims under the umbrella of his Third Claim for Relief.
(ECF No. 7 at 14.) Plaintiff lists equal protection, equal employment opportunity, due
process, and the First, Fifth, and Fourteenth Amendments as the bases of his
constitutional claims. (Id.) The Court will review each of these claims in turn.
1.

Equal Protection Claim

The Magistrate Judge found that Plaintiff failed to plead facts that could support a
claim under the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 52 at
14.) This clause makes unlawful dissimilar treatment for similarly-situated persons
7

unless there is a rational basis for the difference in treatment. See Warrington v. Bd. of
Cnty. Comm’rs of Mineral Cnty., 4 F. Supp. 3d 1243, 1246 (D. Colo. 2013). It is not,
however, a “generic guard against arbitrary or unlawful governmental action.” See
SECSYS, LLC v. Vigil, 666 F.3d 678, 684 (10th Cir. 2012).
When analyzing an equal protection claim, “[f]irst, we ask whether the challenged
state action intentionally discriminates between groups of persons.” Id. at 685. Plaintiff
does not explicitly identify any group to which he belongs that was treated differently
than any other group.4 (See ECF No. 7.) The closest Plaintiff comes to asserting an
equal protection claim comes when he alleges that Defendants Maketa, Campbell, and
Harvey diverted fire-fighting resources from the main Black Forest fire to protect the
home of their co-worker Bob McDonald. (Id. ¶ 114.) However, even if Plaintiff alleges
some difference in treatment between an individual and a group—a co-worker of
Defendants versus a group of people who were not co-workers of Defendants—Plaintiff
fails to make a showing that he and his fellow group members were “similarly situated”
to Bob McDonald. See Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (“In
order to assert a viable equal protection claim, plaintiffs must first make a threshold
showing that they were treated differently from others who were similarly situated to
them.”); see also Vigil v. Raemisch, 2014 WL 4417719, at *6 (D. Colo. Sept. 8, 2014)
(adopting a magistrate judge’s recommendation and dismissing an equal protection
claim where a pro se plaintiff failed to allege specific facts showing he was similarly

4

In fact, Plaintiff does not specify which of his allegations are intended to support a
claim under the Equal Protection Clause. (See ECF No. 7 at 14–16). The First Amended
Complaint does not mention equal protection at all outside of its appearance in the heading for
Plaintiff’s Third Claim for Relief. (See id.)

8

situated to those treated differently from him). Therefore, the Court finds that Plaintiff
fails to state a claim under the equal protection clause as to all Defendants.
2.

Equal Employment Opportunity Claim

Plaintiff alleges that by refusing to accept his bid for the Black Forest tree cutting
project in the burned area, certain Defendants violated Plaintiff’s “Equal Employment
Opportunity.” (ECF No. 7 ¶ 116.) Nevertheless, the Magistrate Judge found that
Plaintiff failed to plead facts that could support a claim invoking any equal employment
opportunity protections. (ECF No. 52 at 15.)
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). While Plaintiff alleges his rights were
violated, nothing in the First Amended Complaint suggests that Defendants was
discriminated against due to improper consideration of his race, color, religion, sex, or
national origin. (See ECF No. 7.) Indeed, nothing in the First Amended Complaint even
identifies Plaintiff as a member of a protected class. (Id.) The Court finds that Plaintiff
fails to assert any facts to demonstrate that he was discriminated against in a manner
that invokes “Equal Employment Opportunity” protections. Thus, the Court finds that
Plaintiff fails to state a claim under this theory as to all Defendants.
3.

First Amendment Claim

Plaintiff alleges that Defendants Bracken, Cooper, and McMorran “violated
Plaintiff’s First Amendment Right to speak at a public hearing.” (ECF No. 7 ¶ 108.)
Plaintiff contends that these three Defendants “refused to allow anyone to speak, and
9

physically forced Plaintiff . . . out of the building.” (Id. at ¶ 107.) The Magistrate Judge
found that Plaintiff failed to plead facts that could support a claim under the First
Amendment. (ECF No. 52 at 29.)
The Supreme Court has outlined a three-step framework to be used when
analyzing private speech restrictions on government property. Wells v. City & Cnty. of
Denver, 257 F.3d 1132, 1138 (10th Cir. 2001) (citing Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). That framework requires this Court to (1)
determine whether the speech at issue is protected, (2) identify the nature of the forum,
and (3) assess whether justifications for exclusion from the forum satisfy the requisite
standard. Id.
Plaintiff does not state what meeting he was at when his rights were allegedly
violated, what “building” the meeting was in, what date and time the meeting took place,
or what actions each individual defendant took to prevent Plaintiff from speaking. (See
ECF No. 7.) Nor does Plaintiff specify the message Defendants prevented him from
voicing. (See id.) As a result, Plaintiff fails to provide a statement of the claim showing
that he is entitled to relief. See Fed. R. Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (“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.”). Thus, the Court finds that Plaintiff fails to state a claim under the First
Amendment as to all Defendants.
4.

Due Process Claims

Plaintiff specifically invokes the Due Process Clause, by name, in two of his
assertions under his Third Claim for Relief. First, Plaintiff alleges that Defendant Rick
10

McMorran, along with other individuals, “called the El Paso County Sheriff and had the
Sheriff investigate fifty eight (58) Black Forest fire victims, including Plaintiff, . . . without
due process.” (ECF No. 7 ¶ 109.) Second, Plaintiff alleges that Defendant Shelburne
entered Plaintiff’s property and then “pulled his service pistol and pointed it at Plaintiff
. . . without Due Process [or] Probable cause.” (Id. ¶ 121.) The Magistrate Judge found
that Plaintiff failed to state these claims, or any other constitutional claims, under the
due process clause. (See ECF No. 52 at 16–20, 28–29.)
The Fourteenth Amendment prohibits any state from depriving a person of life,
liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. Due
process claims can take the form of a procedural or substantive violation; however, to
prevail on either a procedural or substantive due process claim, a plaintiff must first
establish that a defendant’s actions deprived plaintiff of a protectible property, life, or
liberty interest. See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 &
n.2 (10th Cir. 2000). The Court must therefore determine whether Plaintiff has stated a
protected interest as to each of his due process claims.
Regarding Plaintiff’s due process claim against Defendant McMorran, the Court
finds that Plaintiff failed to state a protected property or liberty interest that could have
been deprived by the alleged actions of McMorran. Avoiding an investigation is not a
protected property or liberty interest. See Popovic v. United States, 997 F. Supp. 672,
678 (D. Md. 1998) (“To the extent that [plaintiff] is arguing that he had a property or
liberty right not to be investigated . . . [his] claim has no foundation in law. An individual
has no constitutional right not to be investigated for suspected violations by agencies
authorized to conduct such authorizations.”), aff’d, 175 F.3d 1015 (4th Cir. 1999).
11

Therefore, Plaintiff has failed to state a due process claim as to Defendant McMorran’s
request to have Plaintiff investigated.
Regarding Plaintiff’s due process claim against Defendant Shelburne, the Court
finds that, rather than a claim under the Due Process Clause, this claim should have
been brought under the Fourth Amendment. In his allegation, Plaintiff writes that the
pistol was pointed at him “without . . . probable cause.” (ECF No. 7 ¶ 121.) This
sounds in Fourth Amendment doctrine which protects against unreasonable seizures of
persons. See U.S. Const. amend. IV. The Tenth Circuit has held that “[t]he more
general due process considerations of the Fourteenth Amendment are not a fallback to
protect interests more specifically addressed by the Fourth Amendment” in the context
of pre-trial liberty interests. Becker v. Kroll, 494 F.3d 904, 918–19 (10th Cir. 2007).
As a result, the Court finds that Plaintiff’s claim as to Defendant Shelburne
should be interpreted under the Fourth Amendment. However, Plaintiff has not pled this
claim as such. Plaintiff’s allegations, in their current form, fail to state a claim for an
unreasonable seizure under the Fourth Amendment. Therefore, this claim is dismissed.
In addition to the two explicit due process claims discussed above, Plaintiff
makes several other assertions within his Third Claim for Relief that are not associated
with any specific clause of the Constitution. (See ECF No. 7 at 14–16.) The Magistrate
Judge elected to analyze those claims in accordance with due process doctrine. (ECF
No. 52 at 16–17, 29.) This Court will do the same.
First, Plaintiff asserts that Defendants Mueller and Gorgey falsified documents for
use as exhibits in federal court (ECF No. 7 ¶¶ 122–23), and Defendants Mueller, May,
and Folson “fabricated four El Paso County Municipal Court filed Court Cases” (id.
12

¶¶ 124–26). Plaintiff further claims that these fabrications damaged Plaintiff’s “good
name” and therefore affected his tree service business. (Id. ¶ 127.) Nevertheless,
“stigma or defamatory harm to reputation in itself [is] insufficient to create a liberty
interest.” Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011). Only stigma plus
an alteration in legal status implicates a liberty interest. Id. Plaintiff does not plead any
alteration in legal status as the result of the alleged fabrications. (See ECF No. 7.)
Furthermore, Plaintiff does not explain why the process provided under state and
federal rules of civil procedure is insufficient to address these issues. See, e.g., Fed. R.
Civ. P. 60(b); C.R.C.P. 60(b). Therefore, the Court finds that Plaintiff fails to state a due
process claim as to these claims of fabrication.
Plaintiff also alleges that he suffered losses resulting from the County
Defendants’ refusal to accept Plaintiff’s bid for the Black Forest tree cutting project.
(ECF No. 7 ¶¶ 116, 119.) Plaintiff has failed to state a due process claim as to this
issue because a protected property interest is not created when a governmental entity
seeks competitive bids on a project. S. Disposal, Inc. v. Tex. Waste Mgmt., a Div. of
Waste Mgmt. of Tex., Inc., 161 F.3d 1259, 1265 (10th Cir. 1998).

Lastly, Plaintiff alleges that Defendants allowed the destruction of his property in
the Fire and failed to protect Plaintiff and his property. (ECF No. 7 ¶ 115.) The Court
finds that Plaintiff has failed to state a protected property interest and, thus, has failed to
state a due process claim as to this issue. See Shortino v. Wheeler, 531 F.2d 938 (7th
Cir. 1976) (affirming that plaintiff had no constitutionally protected interest in having home
and business protected from fire even where municipality undertook to provide fire
13

protection); see also Westbrook v. City of Jackson, Miss., 772 F. Supp. 932, 939–40
(S.D. Miss. 1991) (“[L]aws providing the general public with police or fire protection do not
grant individuals a property right in that protection.” (emphasis in original)).
As to any remaining due process claims, the Court agrees with the Magistrate
Judge that Plaintiff has failed to state any claim. Substantive due process protection is
accorded to fundamental interests “relating to marriage, family, procreation, and the
right to bodily integrity.” Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir. 2008).
None of these interests are implicated by Plaintiff’s allegations. Furthermore, Plaintiff
has not described the procedure to which he was entitled or how Defendants deprived
him of any such process. See Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“In
procedural due process claims, the deprivation by state action of a constitutionally
protected interest . . . is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.”).
5.

Municipal Liability

To the extent Plaintiff alleges that “Defendants, State, County, and BFPD’s
custom and policies was [sic] the legal proximate cause of damages and losses to the
[P]laintiff” (ECF No. 7 ¶ 129), municipalities cannot be held liable under § 1983 for the
actions of other under the theory of respondeat superior. Simmons v. Uintah Health
Care Special Serv. Dist., 506 F.3d 1281, 1284 (10th Cir. 2007). Instead, “[t]o establish
municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy
and (2) a direct and causal link between the custom or policy and the violation alleged.”
Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996). Or, the plaintiff may allege the
constitutional violations were rendered by the actions of final policymakers, “whose
14

conduct can be no less described as the ‘official policy’ of a municipality. Simmons, 506
F.3d at 1285.
In his First Amended Complaint, Plaintiff includes a history of various fires
suffered by Colorado dating from 1994 to 2013. (ECF No. 7 at 7.) But, he identifies no
express policy or established practice and does not allege that any of the individual
Defendants are policymakers. (See ECF No. 7.) Thus, Plaintiff fails to state a claim
against any Defendants under a theory of municipal liability.
6.

Constitutional Claims Against the State Defendants

The Eleventh Amendment bars suits against a state by its own citizens, and
generally immunizes state defendants sued in their official capacities from liability for
damages. Johns v. Stuart, 57 F.3d 1544, 1552 (10th Cir. 1995); see also V-1 Oil Co. V.
Utah State Dep’t of Pub. Safety, 131 F.3d 1415, 1420–21 (10th Cir. 1997). An
exception to this general bar is a suit in which a plaintiff seeks to prospectively enjoin a
state official from violating federal law. Johns, 57 F.3d at 1552. Therefore, Eleventh
Amendment immunity bars any claims for damages Plaintiff asserts against the State
and Governor Hickenlooper acting in his official capacity.
The Court now turns to Plaintiff’s federal and constitutional claims against the
State Defendants which are not barred by the Eleventh Amendment. Claims against
Governor Hickenlooper in his individual capacity are not barred by the Eleventh
Amendment. However, Plaintiff does not allege that Governor Hickenlooper personally
participated in any constitutional violation or other violation of federal law. (See ECF
No. 7 at 14–16.) Additionally, the Eleventh Amendment does not prevent Plaintiff from
seeking prospective injunctive relief to prevent the State Defendants from violating
15

federal law, including the Constitution. Regardless, the Court finds—as provided
above—that Plaintiff has failed to allege any constitutional or federal claim against any
of the Defendants. The Court dismisses Plaintiff’s Third Claim for Relief as to all
Defendants.
C.

Plaintiff’s State Law Claims
Under 28 U.S.C. § 1367(a), the Court may exercise supplemental jurisdiction

over state claims in any case in which it exercises original jurisdiction. However,
§ 1367(c)(3) states that a district court may decline to exercise supplemental jurisdiction
if “the district court has dismissed all claims over which it has original jurisdiction.” The
Tenth Circuit has gone further and held that “[w]hen all federal claims have been
dismissed, the court may, and usually should, decline to exercise jurisdiction over any
remaining state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)
(emphasis added).
The Court has dismissed all of Plaintiff’s federal and constitutional claims.
Plaintiff has no remaining federal claims; therefore, the Court declines to exercise
jurisdiction over Plaintiff’s remaining state claims. Plaintiff’s first, second, and fourth
“Claims for Relief” are state claims. (ECF No. 7 at 10–13, 16–19.) Accordingly, the
Court dismisses these three Claims.
D.

Other Defendants
1.

Does 1–100

In his First Amended Complaint, Plaintiff names Does 1–100 as Defendants.
(ECF No. 7 at 1.) However, Plaintiff fails to mention the Does in any other part of his
First Amended Complaint. (See ECF No. 7.) He does not mention the Does in any of
16

his allegations, nor does he identify which of his claims apply to the Does. (See id.)
The Magistrate Judge made no recommendation regarding these defendants.
(See ECF No. 52; ECF No. 57.) Nevertheless, the Court finds that Plaintiff fails to plead
any cognizable claim as to Does 1–100 under either Rule 12(b)(6) or Rule 8. Plaintiffs’
claims against those defendants are dismissed.
2.

James Rebitski
Federal Rule of Civil Procedure 4(m) provides, “If a defendant is not served

within 120 days after the complaint is filed, the court . . . after notice to the plaintiff . . .
must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.”5 As of December 9, 2015, Plaintiff had not served
Defendant James Rebitski and more than 120 days had elapsed since the filing of the
suit on March 30, 2015. (See ECF No. 1; ECF No. 53 at 2.) As a result, the Magistrate
Judge ordered Plaintiff to show cause why the action should not be dismissed as to
Defendant Rebitski on or before December 23, 2015. (ECF No. 53.)
After receiving this notice, Plaintiff did not provide any cause for the failure of
service, nor did he otherwise demonstrate that service had been effected on Defendant
Rebitski. (ECF No. 57 at 3.) Consequently, the Magistrate Judge, in accordance with
D.C.COLO.LCivR 41.1, recommended that the Court dismiss the action as to Defendant
Rebitski. Plaintiff’s Objection does not object to this particular recommendation, and

5

Federal Rule of Civil Procedure 4(m) was amended on April 29, 2015, effective
December 1, 2015. The Amendment reduces the presumptive time for serving a defendant
from 120 days to 90 days. This amendment was not effective until after Plaintiff filed his
complaint and 120 days passed. Therefore, the amendment does not apply in analyzing
Plaintiff’s failure to serve James Rebitski.

17

Plaintiff still has provided no cause for his failure of service. (See ECF No. 62.) The
Court dismisses Plaintiff’s claim against Defendant James Rebitski, without prejudice,
for failure to comply with Rule 4(m).
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objection to the Recommendations (ECF No. 62) is OVERRULED;

2.

The First Recommendation (ECF No. 52) is ADOPTED;

3.

The Second Recommendation (ECF No. 57) is ADOPTED;

4.

The County Defendants’ Motion to Dismiss (ECF No. 31) is GRANTED;

5.

The BFPD Defendants’ Motion to Dismiss (ECF No. 32) is GRANTED;

6.

The State Defendants’ Motion to Dismiss (ECF No. 34) is GRANTED;

7.

Plaintiff’s damages claims against State Defendants in their official capacities are
DISMISSED WITH PREJUDICE;

8.

Plaintiff’s remaining claims are DISMISSED WITHOUT PREJUDICE;

9.

Plaintiff’s claims as to Does 1–100 are DISMISSED WITHOUT PREJUDICE; and

10.

Plaintiff’s claims as to Defendant James Rebitski are DISMISSED WITHOUT
PREJUDICE for failure to effect proper service within 120 days as required by
Fed. R. Civ. P. 4(m).
Dated this 2nd day of March, 2016.
BY THE COURT:

William J. Martínez
United States District Judge
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