Security Management and Integration Company of Washington et al v. Board of County Commissioners of the County of El Paso County, Colorado, The

Filing 37

ORDER ADOPTING NOVEMBER 20, 2017 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. ORDERED: 1.The Magistrate Judges Recommendation 32 is ADOPTED in its entirety; 2. The Defendant's Motion to Dismiss 18 is GRANTED; 3. Plaintiff's C omplaint 6 is DISMISSED WITHOUT PREJUDICE; and 4. The Clerk shall enter judgment in favor of Defendant and against Plaintiff and shall terminate this case. The parties shall bear their own costs, by Judge William J. Martinez on 3/26/2018. (dhans, ) (Main Document 37 replaced on 3/26/2018) (dhans, ). (Main Document 37 replaced on 3/26/2018) (dhans, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1016-WJM-KMT
MIQUEL S. AVERY, and
CECIL AVERY,
Plaintiffs,
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO
COUNTY, COLORADO,
Defendant.

ORDER ADOPTING NOVEMBER 20, 2017 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the November 20, 2017 Recommendation of
United States Magistrate Judge Kathleen M. Tafoya (“Recommendation”) (ECF No. 32)
that Defendant’s “Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(1)” (ECF No. 18) (“Motion to Dismiss”) be granted. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b).
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 Know n as 2121 East 30th St.,

73 F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently 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.
A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A plaintiff bears the burden
of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495
F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Rule 12(b)(1) is proper
when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site
Services, LLC v. Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).
When a court’s subject matter jurisdiction is challenged, the court may review
materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss
into a motion for summary judgment. Davis ex rel. Davis v. U.S., 342 F.3d 1282, 1296
(10th Cir. 2003) (stating that “when a party challenges the allegations supporting
subject-matter jurisdiction, the ‘court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts’”
(quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United
States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt, 46 F.3d at 1003.
Further, the Court is mindful of Plaintiffs’ pro se status, and accordingly reads
their pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972);
Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court,

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however, cannot act as advocate for Plaintiffs, who still must comply with the
fundamental requirements of the Federal Rules of Civil Procedure. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).
II. BACKGROUND
In their Amended Complaint (ECF No. 6) (“Complaint”), Plaintiffs claim that
On April 16, 2016, an El Paso County Court entered a
judgment that prohibited the [D]efendant from destroying
[P]laintiffs’ property described as “modular structures”
located on Date Street in Colorado Spring[s], Colorado. []On
March 14, 2017, the [D]efendant entered Plaintiffs’ property
and destroyed all 32 items under the authority of El Paso
Ordinance 06-02 which is a rubbish ordinance. On 13 April
2017, [P]laintiffs received a report from Defendant attorney
for the cost of $109,500 as a result of the destruction of
Plaintiffs’ property. Defendant seeks to recover[] this cost
[by] attaching it to [Plaintiffs’] property tax bill without the
authority of law/ Plaintiffs believe that the Ordinance 06-02
did not authorize the County of El Paso to declare [Plaintiffs’]
property rubbish, remove, and destroy the modular
structures, trailers, heating and air conditioning units.
(ECF No. 6 at 3.) Plaintiffs challenge these actions pursuant to 42 U.S.C. § 1983 ( id. at
7), claiming violations of their Fifth and Fourteenth Amendment rights (id. at 11).
In its Motion to Dismiss, filed on August 14, 2017, Defendant presents facts
about the state court proceeding that Plaintiffs failed to mention in their Complaint. As
Plaintiffs claim, the state court originally did not authorize disposal of the modular
components and trailers. (ECF No. 18-8 at 1.) However, Plaintiffs failed to mention
that the state court later granted Defendant’s Motions for Summary Judgment and
Default Judgment and ordered Plaintiffs to remove all of the modular components

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including any debris and/or rubbish within thirty days. (ECF Nos. 18-11, 18-12, 18-13,
18-14, 18-15.) When Plaintiffs failed to comply with the state court’s orders, Defendant
issued two notices informing Plaintiffs that it would be seeking an administrative warrant
to abate the nuisance. (ECF Nos. 18-22, 18-23.) Plaintif fs did not respond, so
Defendant filed for a Verified Application for Administrative Entry and Seizure Warrant,
which the state court granted on March 13, 2017 (“W arrant”). (ECF Nos. 18-24, 18-25.)
In the Warrant, the state court noted that the property at issue constituted “rubbish”
under El Paso County ordinance 06-02. (ECF No. 18-25.) 1 The state court determined
that “it [was] unsafe to attempt to remove the modular components as whole sections[,]
and in order to remove them safely they may be demolished on site and disposed of
according to law. The [c]ourt [took] further notice of safety concerns raised by the El
Paso County Sheriff’s Department, the El Paso County Environmental Division, and the
El Paso County Engineer, thus the modular components are a public safety hazard.”
(Id. ¶ 11.) Accordingly, the state court granted the Warrant and ordered the following:
The El Paso County Sheriff's Office is by this warrant
authorized to assist the El Paso County Board of County
Commissioners, acting through employees of El Paso
County and any agent of a private trash, waste disposal, or
demolition/debris removal company needed for this purpose,
in the entry upon the properties identified as 4375 Date
Street (further identified as El Paso County Parcel Nos.

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“The violations consist of scattered rubbish on the property, including, but not
necessarily limited to, litter, debris, junk, garbage, trash, human refuse, furniture, appliances,
bedding, remnant construction materials, abandoned or junk equipment, and specifically the
dilapidated modular components which constitute objects likely to injure any person or create a
traffic hazard, have been discarded or abandoned, and any combination of debris, junk,
remnant construction materials, metal, glass, plastic and equipment. The Court notes these
violations are visible as shown in Exhibit 1 of Plaintiffs’ Motion, and further notes there is likely
more inside of the properties.” (ECF No. 18-25 ¶ 3.)

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6326203039 and 6326203002) 4375 Date Street, w ith legal
descriptions of LOT 35 BLK 3 PARK VISTA ADD, EX PT TO
CITY BY BK 6602-357 and LOT 34 BLK 3 PARK VISTA
ADD and seizing the items listed in paragraph 3 which
constitute “rubbish” above, to include the modular
components, within ten (10) days following the date of this
Warrant, during any time of the day or night. Seizure of any
items constituting rubbish may be done by any method
practicable, such as demolishing on site, removing, and then
disposing according to law. Plaintiff, its employees and
contractors, are authorized to fence off the subject
properties during the course of removal for safety reasons.
Entry authorized by this warrant is limited to the persons,
employees, and agents described herein and limited to the
purposes described herein so that the property no longer
violates El Paso County Ordinance 06-02 and the nuisance
is abated. The El Paso County Sheriff’s Office is specifically
granted the authority to remove any persons from the
properties who are not authorized to be present on the
subject property and/or who may interfere with the execution
of this Order.
(Id. at 4 (internal emphasis omitted).) The Defendant executed the Warrant and mailed
to Plaintiffs a final invoice for the associated costs of executing the Warrant to provide
Plaintiffs with an opportunity to either pay or enter into an approved payment plan.
(ECF No. 18-27.) Plaintiffs did not respond to the invoice, and the state court entered a
order for entry of judgment for assessment. (ECF No. 18-28.)
III. ANALYSIS
Defendant’s Motion to Dismiss articulates three bases for dismissing Plaintiffs’
Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
First, Defendant contends that Plaintiffs’ claims lack subject matter jurisdiction
because they are barred by the Rooker-Feldman Doctrine. (ECF No. 18 at 8.) The
Rooker-Feldman Doctrine “bars any ‘action in federal court that alleges an injury

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‘inextricably intertwined’ with a state court decision, such that success in the f ederal
court would require overturning the state court decision.’” Wideman v. Colorado, 242 F.
App’x 611, 613–14 (10th Cir. 2007) (quoting Epps v. Creditnet, Inc., 320 F.3d 756,
758–59 (7th Cir.2003).).
Second, Defendant claims that Plaintiffs lack standing to bring this action. (ECF
No. 18 at 11.) At all relevant times subject to this action, Security Management and
Integration Company (“SMIC”) owned the 16 modular units. (Id.) “By SMIC’s own
admission, Cecil Avery has never had a property interest in either the modular units or
any of the real property at issue in this case or the state case, nor was he a named
party in the state case.” 2 (ECF No. 18 at 12; see also ECF No. 18-4 at 2.) Moreover,
SMIC admitted in state court that Miquel Avery does not have any property interest in
the modular components. (ECF No. 18 at 12.) Therefore, Defendant contends, neither
Cecil Avery nor Miquel Avery have had or do have any legal property interest in the
modular components that are the subject of the claims set forth in the Complaint. (Id.)
According to Defendant, “[i]t appears then, based on Plaintif fs’ attempt to bring suit in
the name of SMIC, then subsequently [dismissing] SMIC, that Plaintiffs are actually
filing this action on behalf of SMIC; however, because neither Plaintiff has a personal
property interest in the modular components, they both lack standing to sue on behalf
fo SMIC. (Id.)
Defendant’s third basis relies on Defendant’s immunity under the Colorado
Governmental Immunity Act. (Id. at 13.) According to Defendant, a “civil suit may only

2

Cecil Avery is the President of SMIC.

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be brought against a public entity when the legislature has specifically waived immunity
as defined in C.R.S. § 24-10-106(1)(a)–(h). None of the activities alleged by Plaintiffs
in the Amended Complaint fall within those specified waivers.”
In their “Plaintiff Objection to Motion for Dismissal” (ECF No. 30) (“Response”),
Plaintiffs fail to address any of the three arguments that Defendant presented in its
Motion to Dismiss.
Judge Tafoya considered the arguments raised in the briefs before her and
recommended that Defendant’s Motion to Dismiss be granted pursuant to the RookerFeldman Doctrine. According to Judge Tafoya, “Plaintiffs’ claimed injury flows directly
from the state court’s order authorizing [Defendant] to hire a contractor to destroy and
remove the modular structures, related structures, and debris. Further, the state court
issued the judgment in the amount of $109,500. If this court were to grant the relief
Plaintiffs seek, it would inherently overrule the state court order authorizing
[Defendant’s] actions and would disrupt enforcement of the state court judgment, as if
the court had declared it void.” (ECF No. 32 at 9–10.) Judge Tafoya noted that,
“[u]nder the Rooker-Feldman Doctrine, federal courts, other than the Supreme Court,
lack jurisdiction to review, reverse, or grant relief from a final state court judgment.” (Id.
at 10.) Furthermore, Judge Tafoya also determined that “[i]n light of this
recommendation, it is not necessary to address [Defendant’s] additional bases for
dismissal.” (Id.)
Plaintiffs timely filed their “Objections to Migistrate [sic] Judge Proposed Finding
and recommendations” (ECF No. 33) (“Objection”). In it, Plaintiffs address the Rooker-

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Feldman Doctrine for the first time. (ECF No. 33 at 4.)
The Court considered the parties’ briefs and Judge Tafoya’s Recommendation
and adopts Judge Tafoya’s Recommendation in its entirety. Although Plaintiffs
eventually considered the Rooker-Feldman Doctrine in their Objection, in the Tenth
Circuit, “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996). Because this argument is waived, the Court finds that Plaintiffs’ Objection is
not sufficiently specific. 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(b) 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 in order to accept the recommendation.”). The
Court concludes that the Magistrate Judge’s analysis was thorough and sound, and that
there is no clear error on the face of the record.
IV. CONCLUSION
For the reasons set forth below, the Court ORDERS as follows:
1.

The Magistrate Judge’s Recommendation (ECF No. 32) is ADOPTED in its
entirety;

2.

The Defendant’s Motion to Dismiss (ECF No. 18) is GRANTED;

3.

Plaintiffs’ Complaint (ECF No. 6) is DISMISSED WITHOUT PREJUDICE; and

4.

The Clerk shall enter judgment in favor of Defendant and against Plaintiffs, and

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shall terminate this case. The parties shall bear their own costs.
Dated this 26th day of March, 2018.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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