Goodman v. Persons Posing as Public Officers Within Colorado State Government Agencies

Filing 63

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 36 MOTION to Dismiss. by Magistrate Judge Kristen L. Mix on 7/10/18. The Court respectfully RECOMMENDS that the Motion 36 be GRANTED and that the Amended Complaint 17 be DISMISSED without prejudice. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01680-RM-KLM
LAURENCE R. GOODMAN,
Plaintiff,
v.
JOHN HICKENLOOPER, and
CYNTHIA COFFMAN,
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [#36]1 (the
“Motion”). Plaintiff filed a Response [#46] in opposition to the Motion [#36]. Defendants
did not file a Reply. Plaintiff proceeds in this matter as a pro se individual.2 Pursuant to 28
U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#36] has been referred to the
undersigned for recommendation. See [#37]. The Court has reviewed the Motion,
Response, the entire case file, and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the

1

“[#36]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.
2

The Court is mindful that it must construe the filings of a pro se litigant liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court is not a pro se litigant's advocate, nor shall the Court “supply additional
factual allegations to round out [a pro se litigant's] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at
1110). In addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern
other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Motion [#36] be GRANTED.
I. Summary of the Case3
On April 6, 2017, Plaintiff was arrested and incarcerated. Am. Compl. [#17] at 6.
Plaintiff suffered a respiratory infection and hearing loss after his arrest. Id. Plaintiff
remains under house arrest with an ankle bracelet. Id.
Plaintiff claims that “there are no public officers currently elected or appointed
anywhere within the State of Colorado who have filed evidence for public scrutiny [of] a
mandated fiduciary bond or recognizance” [sic]. Id. at 1. Consequently, Plaintiff argues
that “those persons posing as state and county public officers defy the will of the People
of Colorado.” Id. Plaintiff further avers that “there are no lawful or valid criminal or civil
cases in the State of Colorado Court system and all the courts in the State of Colorado are
vacant from the Supreme Court on down . . . ; imposters now hold positions in those
courts.” Id. at 2. In total, Plaintiff claims there are 574 imposters holding public office within
Colorado.

Id. at 3.

The two named Defendants, Governor John Hickenlooper

(“Hickenlooper”) and Colorado Attorney General Cynthia Coffman (“Coffman”), are among
those claimed to be imposters. Id. at 1.
The Amended Complaint [#17] contains an unenlightening screed which purports
to set forth the legal basis for Plaintiff’s claims and includes references to the Colorado
Constitution, United States Constitution, 18 U.S.C. § 241, 18 U.S.C. § 242, and 18 U.S.C.
§ 1513. Am. Compl. [#17] at 5-7. For relief, Plaintiff is seeking: (1) that the Court issue an
order declaring all public offices in Colorado to be vacant; (2) that the Court “[r]equire that
3

The well-pleaded allegations of the complaint are accepted as true for purposes of a
motion to dismiss, and reviewed in a light most favorable to the plaintiff. Cannizzo v. Lab Corp. of
Am., No. 07-cv-01214-WDM-KLM, 2007 WL 4617193, at *2 (D. Colo. Nov. 14, 2007) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

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each and every Colorado State Legislature [sic] verify and the Court to be assured that
those persons holding a state public office are constitutionally and statutorily holding those
offices prior to appropriating public funds for any purpose;” (3) that the Court appoint a
“Master” to collect the paychecks of the illegitimate office holders; (4) damages for
“personal damage, property loss and damage to reputation,” plus damages in the amount
of “$10,000 for every day of incarceration, at least $1,000 per day for every day under the
continuing house arrest, and rent and damages from said imposters squatting on
[P]laintiff’s house;” (5) that the Court declare all contracts between Plaintiff and the
“imposters” void; and (6) that the Court order Defendants to “put up an appellate bond . .
. equal to their portion of public appropriations.” Am. Compl. [#17] at 7-8.
Defendants have filed the present Motion [#36] seeking to dismiss the Amended
Complaint [#17] pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
II. Standard of Review
Subject matter jurisdiction may be challenged by a party or raised sua sponte by the
court at any point in the proceeding. Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19,
(1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed.
R. Civ. P. 12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a
facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant
to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United
States, 46 F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a
complaint supported by affidavits or other documents, the Court makes its own factual
findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Id. at 1003.

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Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case
before it. Dismissal of a federal claim for lack of subject-matter jurisdiction “is proper only
when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court,
or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. Cty.
of Oneida, 414 U.S. 661, 666 (1974)). Because “federal courts are courts of limited
jurisdiction,” the Court must have a statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring
subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co.
v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994)).
III. Analysis
Plaintiff refers to alleged violations of the Colorado Constitution, United States
Constitution, 18 U.S.C. § 241, 18 U.S.C. §242, and 18 U.S.C. § 1513. Am. Compl. [#17]
at 5-7. The criminal statutes referenced by Plaintiff are not enforceable by him in this
lawsuit, as no private right of action exists under those statutes. See Diamond v. Charles,
476 U.S. 54, 64-65 (1986). Hence, the authority on which Plaintiff purports to base his
legal claims remains unclear. Moreover, it is likewise unclear whether Plaintiff is suing
Defendants in their official capacities or their individual capacities. See id. at 1. The
Amended Complaint [#17] lists Defendants without their official titles. However, in the
Motion to Dismiss [#36], Defendants list themselves as acting in their official capacities.
In the Response, Plaintiff argues that “[t]he altered caption on [the Motion [#36]] . . . is an

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unsupported assertion by [D]efendants who are not lawfully holding office.” [#46] ¶ 1. For
purposes of this analysis, the Court assumes that Plaintiff is suing Defendants in both their
official capacities and individual capacities.
Defendants argue, among other things, that although Plaintiff’s “ultimate goal is not
entirely clear from the [Amended Complaint [#17]] itself, . . . this case is an attempt to
prevent his state criminal prosecution from going forward.” Motion [#36] at 3. Defendants
further contend that Plaintiff lacks standing to assert his claims.4 Motion [#36] at 6. “[The]
standing doctrine addresses whether, at the inception of litigation, the plaintiff had suffered
a concrete injury that could be redressed by action of the court.” Utah Animal Rights Coal.
v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir. 2004). “To establish Article III
standing, the plaintiff bears the burden of demonstrating the following three elements: (1)
an injury in fact; (2) a causal connection between the injury and the challenged action; and
(3) a likelihood that a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d
1012, 1019 (10th Cir. 2011).
Out of an abundance of caution, the Court addresses both Plaintiff’s request for
relief on behalf of citizens of Colorado and the alleged individual harm he claims to have
suffered. First, in order to determine whether Plaintiff lacks standing, the Court must
consider whether Plaintiff has suffered an injury in fact. Plaintiff alleges that persons are
posing as state and county officers and that those persons are defying “the will of the
People of Colorado and deny the need for their trust.” Am. Compl. [#17] at 1. Plaintiff

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Defendants also argue that: (1) Plaintiff fails to establish that a federal question exists;
(2) the Amended Complaint is barred by the Eleventh Amendment; (3) the Amended Complaint
is barred by the Younger abstention doctrine; and (4) the Amended Complaint does not satisfy the
Twombly pleading standards. Motion [#36] at 5, 11, 12, 13. Because the Court finds that dismissal
is appropriate based on the standing argument, the Court need not address the other arguments.

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asserts that if the “imposters” are allowed to continue serving in their positions there will be
“a massive loss to the entire republic.” Id. at 7. This claim is grand in scale; however,
“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.” Baker v. State, No. 13-cv-01334-PAB-KLM, 2014 WL 624342, at *2 (D.
Colo. Feb. 18, 2014) (quoting Chrisman v. C.I.R., 82 F.3d 371, 373 (10th Cir. 1996)).
Plaintiff claims that the people of Colorado have been denied a republican form of
government, which Plaintiff claims is “a massive loss to the entire republic.” Am. Compl.
[#17] at 7. A loss that affects the entire republic necessarily entails an injury that applies
equally to all citizens of Colorado, and is therefore generalized. See Baker, 2014 WL
624342, at *2. “Even when a plaintiff is sincere and motivated to pursue a case, the court
cannot exercise jurisdiction for generalized grievances.” Id. (quoting Chrisman v. C.I.R.,
82 F.3d 371, 373 (10th Cir. 1996)). Accordingly, the Court has no jurisdiction to consider
Plaintiff’s grievances purportedly brought on behalf of the citizens of Colorado.
Although Plaintiff’s main grievance is generalized, Plaintiff alleges other individual
injuries that are tangible and personal. See id. In the “Injuries” section of the Amended
Complaint [#17], Plaintiff alleges that, through a conspiracy by the FBI as well as the
Sheriffs’ Departments of Denver and Boulder, he was “subjected to torture.” Am. Compl.
[#17] at 6. Plaintiff alleges that he suffered a respiratory infection and hearing loss as a
result of the torture he endured. Id. Being tortured and suffering a respiratory infection as
well as hearing loss are tangible and personal injuries. See Baker, 2014 WL 624342, at
*2. Plaintiff therefore satisfies the injury prong of standing to the extent that he brings
claims for individual relief.

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The Court now turns to Plaintiff’s allegations of causation regarding his alleged
individual injuries. “To demonstrate causation, [the plaintiff] must show that his injury is
‘fairly traceable’ to the defendants’ actions.” Habecker v. Town of Estes Park, Colo., 518
F.3d 1217, 1225 (10th Cir. 2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). Article III’s causation burden requires “proof of a substantial likelihood that the
defendant’s conduct caused plaintiff’s injury in fact.” Id. (quoting Nova Health Systems v.
Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005)). Speculative inferences are not enough to
meet the Article III causation burden. See id. “Moreover, where ‘the independent action
of some third party not before the court’ . . . was the direct cause of the plaintiff’s harm,
causation may be lacking.” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,
41-42 (1976)).
As Defendants note in the Motion [#36], Plaintiff does not allege that the torture he
allegedly suffered and his subsequent injuries were caused by Defendants. Am. Compl.
[#17] at 6. Plaintiff instead states that the torture was part of a conspiracy by Joseph Pelle,
Patrick Firman, and “alleged” FBI agents. Id. None of these individuals are named parties
in the Amended Complaint [#17] and thus, Plaintiff’s tangible and personal injuries were
allegedly caused by third parties not before the court. See Habecker, 518 F.3d at 1225.
An injury due to a third party’s actions does not defeat standing, but it does make it
substantially more difficult to establish that the injury was the consequence of a named
defendant’s actions. Id. (citing Warth v. Seldin, 422 U.S. 490, 504-505 (1975)). Manifestly,
significant speculation is required to create any link between Defendants, the alleged nonparties’ actions, and Plaintiff’s alleged injuries. As stated above, Plaintiff does not allege
that his tangible and personal injuries were caused by Defendants’ actions. Am. Compl.

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[#17] at 6. Except for a brief mention of the Attorney General, Defendant Coffman, the only
public officers mentioned in the “Injuries” section of the Amended Complaint [#17] are the
non-parties mentioned above, as well as two judges and one attorney.5 Id. at 6-7. The
only wrong Plaintiff accuses Defendant Coffman of in the “Injuries” section, and indeed the
entire Amended Complaint [#17], is that she failed to file a fiduciary bond. Id. at 7. It would
require an inferential leap by the Court to find that Plaintiff has sufficiently alleged that
Defendants orchestrated the conspiracy that he alleges was the cause of his injuries. See
Habecker, 518 F.3d at 1225. As already stated, speculative inferences are not enough to
meet the Article III causation burden. Id. The Court therefore finds that Plaintiff has not
satisfied the causation prong of standing.
Because Plaintiff has failed to adequately allege that Defendants’ actions were the
cause of his injuries, he has therefore failed to establish standing. See Jordan, 654 F.3d
at 1019.
IV. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion
[#36] be GRANTED and that the Amended Complaint [#17] be DISMISSED without
prejudice. See Harrison v. United States, 329 F. App’x 179, 182 (10th Cir. 2009) (citing
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218-1219 (10th Cir. 2006)) (holding that
claims dismissed for lack of subject matter jurisdiction should be dismissed without
prejudice).
IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen

5

Plaintiff does not mention Governor Hickenlooper, the other Defendant, at all in the
“Injuries” section of the Amended Complaint. [#17] at 6-7.

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(14) days after service of this Recommendation to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. A
party’s failure to serve and file specific, written objections waives de novo review of the
Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91
F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this Recommendation must
be both timely and specific to preserve an issue for de novo review by the District Court or
for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996).

Dated: July 10, 2018

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