Carlson v. Town of Mountain Village, Colorado et. al

Filing 137

ORDER by Chief Judge Philip A. Brimmer on 3/25/2019, re: 72 MOTION to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(B)(6) of Defendants Town of Mountain Village and Chris Broady is GRANTED; 75 MOTION to Dismiss the Secon d Amended Complaint by Defendant Brian Y. Carlson is GRANTED; 125 Defendants Town of Mountain Village, Colorado, Chris Broady and Brian Y. Carlson's Joint Motion to Supplement Their Motions to Dismiss is DENIED as moot. ORDERED that plaintiff's claims against defendants Brian Carlson, Chris Broady, and the Town of Mountain Village are DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-02887-PAB-STV
JULIE CARLSON,
Plaintiff,
v.
TOWN OF MOUNTAIN VILLAGE, COLORADO,
ANTHONY MORABITO,
CHRIS BROADY,
KIP ALBANESE,
NATHAN SANTOS,
TOM HALPER,
CHRIS WHITE,
JOSHUA M. KLIMASEWISKI,
ALISIA KLIMASEWSKI,
COLLEEN MAHONEY,
TELLURIDE R-1 SCHOOL DISTRICT, in its local capacity,
VIRGINIA ACHTER,
BRIAN Y. CARLSON,
APEX CONSTRUCTION, LLC, a Colorado Limited Liability Company,
CONNECT SKIS, LLC, a Colorado Limited Liability Company,
JOHN DOE DEFENDANTS ONE THROUGH FIVE,
MARY DOE DEFENDANTS ONE THROUGH FIVE, and
DOE INSTITUTIONAL DEFENDANTS ONE THROUGH FIVE,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion to Dismiss Second Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) of Defendants Town of Mountain Village
and Chris Broady [Docket No. 72] and Defendant Brian Y. Carlson’s Motion to Dismiss

Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
[Docket No. 75].
I.

BACKGROUND
This case arises out of the breakdown of the marriage between plaintiff and

defendant Brian Carlson (“Carlson”). Plaintiff alleges that, due to “an unlawful and
extortionate conspiracy . . . organized and implemented by her former husband,” she
was wrongfully jailed and otherwise prevented from having contact with her children.
Docket No. 68 at 12, ¶ 10. 1 For purposes of this order, the Court only considers those
allegations relevant to defendants Carlson, the Town of Mountain Village, Colorado
(“Town”), and Chris Broady (“Broady”), the Town’s Chief of Police.
On the evening of December 3, 2013, Carlson accused plaintiff of child abuse,
felony burglary, trespassing, sexual assault, and theft in or near their home in Mountain
Village, a resort town located in San Miguel County, Colorado. Id. at 4, 18, 34, ¶¶ 4B,
35-36, 123. 2 Carlson “just made up” these charges in order to put plaintiff in jail. Id. at
38, ¶¶ 137-38. The charges were supported by an unlawfully notarized arrest affidavit
signed by defendant Anthony Morabito, at the time a police officer for the Town. Id. at
13, ¶¶ 12-13. Broady was the Chief of Police. Id. at 4-5, ¶ 4D. Plaintiff was arrested

1

The Second Amended Complaint consists of 336 paragraphs of factual
allegations spread across 74 pages. Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires that a complaint contain “a short and plain statement of the claim.”
However, the Court finds plaintiff’s allegations sufficiently intelligible to resolve the
motions to dismiss. The Court assumes plaintiff’s allegations are true in considering
the motions to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).
2

Although the complaint identifies 16 Boulders Way as the home plaintiff shared
with Carlson, the complaint describes 14 Boulders Way as the alleged crime scene.
See Docket No. 68 at 18, ¶¶ 35-36.
2

that evening. Id. at 27, ¶ 83. At the time of her arrest, plaintiff was on probation in
Jefferson County, Colorado for a driving under the influence conviction in 2011. Id. at
16, ¶ 27. Plaintiff remained in custody after her arrest. Id. at 18, ¶ 35.
On May 1, 2014, plaintiff pled guilty to a probation violation in Jefferson County,
based on the charges filed against plaintiff in San Miguel County. Id. at 39, ¶ 144. The
District Court for Jefferson County, Colorado sentenced plaintiff to one year in the
county jail. Id., ¶ 145. In early June, 2014, plaintiff entered an Alford plea in the San
Miguel County case. Id. at 28, ¶ 90. 3 On August 16, 2014, plaintiff was released from
custody. Id. at 18, ¶ 35.
On January 22, 2017, Carlson falsely reported to law enforcement that plaintiff
was intoxicated. Id. at 64-65, ¶ 291. Plaintiff was arrested for alleged intoxication in
violation of a protection order. Id. at 65, ¶ 293. Though this charge was ultimately
dismissed, the arrest triggered another probation revocation in Jefferson County, which
led to plaintiff’s incarceration from May 25 to October 10, 2017. Id. at 45-46, 65,
¶¶ 182, 293. On December 30, 2017, defendants Kip Albanese and Nathan Santos,
who are police officers employed by the Town, arrested plaintiff at a restaurant. Id. at
5, 53, ¶¶ 4E, 4F, 230. The officers – along with defendant Tom Halper, a deputy
marshal in the nearby town of Telluride – “used brutal and entirely unnecessary
physical force to deal with [plaintiff].” Id. at 5, 54, ¶¶ 4G, 235. The officers’ conduct

3

The complaint is inconsistent as to the date of plaintiff’s guilty plea. Compare
Docket No. 68 at 28, ¶ 90 (giving a guilty plea date of June 14, 2014) with Docket No.
68 at 28-29, ¶ 92 (guilty plea date of June 24, 2014). The complaint also does not
explain what charges she pled guilty to.
3

was “abetted” by Broady, who “failed to exercise even remotely competent command
supervision.” Id. at 54, ¶ 236.
On December 3, 2017, plaintiff filed this action. Docket No. 1. In the Second
Amended Complaint, plaintiff asserts five claims for relief: (1) damages for violations of
the Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”), 18 U.S.C.
§§ 1961-1968; (2) equitable relief for violations of RICO; (3) damages and forfeiture of
property under the Colorado Organized Crime Control Act (“COCCA”), Colo. Rev. Stat.
§§ 18-17-106 et seq.; (4) damages under the Civil Rights Acts of 1871, 42 U.S.C.
§§ 1981-1988; and (5) injunctive relief. Id. at 74-81, ¶¶ 337-361.
Defendants Carlson, the Town, Broady, Kip Albanese, Nathan Santos, Colleen
Mahoney, Telluride School District R-1, and Tom Halper have filed or joined motions to
dismiss. Docket Nos. 72, 75, 101, 106, 124, 125, 129. Def endants Morabito, Joshua
Klimasewski, Alisia Klimasewiski, Virginia Achter, Apex Construction, LLC, and Connect
Skis, LLC have not entered appearances. Only the motions filed by Carlson, the Town,
and Broady are before the Court at this time. Docket Nos. 72, 75.
II.

STANDARD OF REVIEW
A.

Fed. R. Civ. P. 12(b)(1)

A motion under Fed. R. Civ. P. 12(b)(1) is a request for the Court to dismiss a
claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 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). W hen the Court lacks subject matter jurisdiction
over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City and

4

Cty. of Denver, No. 11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept. 24,
2012).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). T he
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., 343
F.3d 1282, 1296 (10th Cir. 2003).
B.

Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
5

innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration m arks
omitted ).
C. The Rooker-Feldman doctrine
“It is a fundamental precept that federal courts are courts of limited jurisdiction.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts “must
have a statutory basis for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105,
1111 (10th Cir. 1994). Section 1257(a) of United States Code, Title 28 provides that
only the Supreme Court – not lower federal courts – has jurisdiction to review “[f]inal
judgments or decrees” rendered by a state court. See 28 U.S.C. § 1257(a); Suasnavas
v. Stover, 196 F. App’x 647, 652 n.3 (10th Cir. 2006) (unpublished).
The Rooker-Feldman doctrine derives from the statutory bar in 28 U.S.C.
§ 1257(a). See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Suasnavas, 196 F.
App’x at 652 n.3. In Rooker, the Supreme Court concluded that federal district courts
“could [not] entertain” litigation that sought to overturn a state court judgment because
Congress vested only the Supreme Court with that authority. Rooker, 263 U.S. at 416;
Mayotte v. U.S. Bank Nat’l Ass’n, 880 F.3d 1169, 1173 (10th Cir. 2018). The Supreme
Court has cautioned that Rooker-Feldman applies in the “limited circumstances” where
“the losing party in state court file[s] suit in federal court after the state proceedings
end[], complaining of an injury caused by the state-court judgment and seeking review
6

and rejection of that judgment.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 291 (2005). “[A]n element of the claim must be that the state court wrongfully
entered its judgment.” Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir.
2012) (applying Exxon Mobil, 544 U.S. at 284).
In a recent decision, the Tenth Circuit distinguished cases governed by RookerFeldman, where a federal court is jurisdictionally barred from hearing the case, from
cases governed by the preclusion doctrine, where a federal court is not jurisdictionally
barred from hearing the case, but the claims might fail because they are subject to
either issue or claim preclusion. See Mayotte, 880 F.3d at 1174-75. As the Tenth
Circuit explained, “[w]hat is prohibited under Rooker-Feldman is a federal action that
tries to modify or set aside a state-court judgment because the state proceedings
should not have led to that judgment.” Id. at 1174. For example, if the federal case
“alleged that a defect in the state proceedings invalidated the state judgment,” the case
would be jurisdictionally barred under Rooker-Feldman. Id. at 1174-75. However, a
claim seeking relief that is “inconsistent” with the state court judgment is “the province
of preclusion doctrine.” Id.
III.

ANALYSIS
Defendants argue that the Rooker-Feldman doctrine deprives the Court of

subject-matter jurisdiction over this case. Docket No. 72 at 6-9; Docket No. 75 at 4-6.
The Court addresses Rooker-Feldman “before turning to the merits of the case”
because it implicates the Court’s subject matter jurisdiction. PJ ex rel. Jensen v.
Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010). T he Court “independently consider[s]

7

each claim against the backdrop of the Rooker-Feldman doctrine.” Flanders v.
Lawrence (In re Flanders), 657 F. App’x 808, 814 (10th Cir. 2016) (unpublished).
A.

The First and Second Claims (RICO)
1.

Rooker-Feldman Doctrine

Defendants argue that plaintiff’s claims are barred by the Rooker-Feldman
doctrine because her claims “attempt[] to challenge the results of several prior state
court criminal cases.” Docket No. 72 at 7. Defendants contend that, to grant plaintiff
relief, the Court would need to conclude that “the state court proceeding s were infected
by a purportedly illegal scheme.” Id.
The Court does not agree that plaintiff’s RICO claims are barred by RookerFeldman. The core of plaintiff’s RICO claims is that Carlson, her ex-husband,
conspired with the other defendants to have plaintiff arrested in December 2013. See
Docket No. 68 at 27, ¶ 83 (describing plaintiff’s arrest and subsequent imprisonment as
“the heart of this case”). The basis for her arrest may have already been litigated in
state court proceedings. However, “[a]ttempts merely to relitigate an issue determined
in a state case are properly analyzed under issue or claim preclusion principles, rather
than Rooker-Feldman.” In re Miller, 666 F.3d 1255, 1261 (10th Cir. 2012). Plaintif f
does not request that the Court vacate her state convictions and her claimed relief is
not predicated on the Court invalidating rulings or orders of a state judge. See Mayotte,
880 F.3d at 1174-75. Although her requested relief – an award of money damages
based on the consequences of her convictions – would “presumably conflict with the
judgment of conviction,” that inconsistency “implicates preclusion rather than the
Rooker-Feldman doctrine.” See Cowan v. Hunter, 2019 WL 413745, at *2 (10th Cir.
8

Feb. 1, 2019) (citing Mayotte, 880 F.3d at 1174-75). Accordingly, the Rooker-Feldman
doctrine does not apply.
2.

Failure to State a Claim

Plaintiff brings claims under RICO for money damages and equitable relief.
Docket No. 68 at 74-76, ¶¶ 337-45. In order to state a claim under RICO, plaintiff must
allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity.” See Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010). “A pattern of
racketeering activity must include at least two predicate acts.” Gillmor v. Thomas, 490
F.3d 791, 797 (10th Cir. 2007) (quotation omitted). The Court finds that plaintiff has
failed to adequately allege a pattern of racketeering because, even if she adequately
alleges two predicate acts, the complaint “fails to allege sufficient continuity to sustain a
RICO claim.” Hall v. Witteman, 584 F.3d 859, 867 (10th Cir. 2009).
To establish a pattern of racketeering activity, a plaintiff must show that (1) the
racketeering predicates are “related” and (2) they “amount to or pose a threat of
continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239
(1989). This second “continuity” requirement refers “either to a closed period of
repeated conduct, or to past conduct that by its nature projects into the future with a
threat of repetition.” Id. at 241. In evaluating continuity, courts consider (1) the duration
of the related predicate acts, and (2) the “extensiveness” of the RICO enterprise’s
scheme, with the goal of “achieving a natural and commonsense result.” Resolution
Trust Corp. v. Stone, 998 F.2d 1534, 1543-44 (10th Cir. 1993). An alleg ed racketeering
scheme “directed at one individual with no potential to extend to other persons or
entities” does not satisfy the continuity requirement. SIL-FLO, Inc. v. SFHC, Inc., 917
9

F.2d 1507, 1516 (10th Cir. 1990) (recognizing that, “[i]n enacting the RICO statute,
‘Congress was concerned . . . with long-term criminal conduct’” (quoting Northwestern
Bell, 492 U.S. at 242)); see also Pagel v. Wash. Mut. Bank, Inc., 153 F. App’x 498, 502
(10th Cir. 2005) (unpublished) (“In this circuit, it is well established that a single scheme
to accomplish one discrete goal, directed at a finite group of individuals, with no
potential to extend to other persons or entities, rarely will suffice to establish a threat of
continuing racketeering activity.”).
The Court finds that plaintiff’s complaint fails to establish continuity. Plaintiff
alleges that the goal of the RICO enterprise is to “alienat[e] [plaintiff] from [her children],
rendering her unable to earn a living.” See Docket No. 68 at 65, ¶ 293. 4 The complaint
alleges no other “persons or entities” targeted by the enterprise. See SIL-FLO, 917
F.2d at 1516. The complaint also lacks any indication that the alleged enterprise has
any “potential” to extend to other persons or entities. See Pagel, 153 F. App’x at 502.
Plaintiff is, according to the complaint, the only target of the alleged scheme. As in
Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545 (10th Cir. 1992), “[p]laintiff[]
allege[s] what is actually a closed-ended series of predicate acts constituting a single
scheme . . . to establish a discrete goal [alienation and financial destruction of plaintiff]

4

Although plaintiff frames the enterprise’s goal slightly differently throughout the
complaint, the allegation that the enterprise seeks to injure plaintif f specifically by
separating her from her children and preventing her from earning a living does not
change. See, e.g., Docket No. 68 at 10, ¶ 4(P)(ii) (asserting the purpose of the
enterprise as providing technology equipment for “Carlson’s relentless campaign”
against plaintiff); id. at 22, ¶ 57 (describing “Carlson’s long-running related enterprise”
of “us[ing] false criminal charges” to create the perception that plaintiff is “unfit to be the
mother of [her children]”); id. at 67, ¶ 303 (describing a “deliberate undertaking to
render [plaintiff] homeless, unemployed, unable to earn a living, and, if possible, jailed
indefinitely”).
10

directed at a finite group of individuals [plaintiff] ‘with no potential to extend to other
persons or entities,’” which is insufficient to establish continuity. 972 F.2d at 1556
(quoting SIL-FLO, 917 F.2d at 1516). Plaintiff’s response brief offers only a conclusory
sentence suggesting that the complaint meets the continuity requirement. See Docket
No. 81 at 17 (describing the complaint as an “elaborate and detailed explication of the
continuity . . . of the RICO” claims). As plaintiff fails to satisfy the continuity
requirement, she fails to allege that defendants are engaged in “the type of activity that
RICO was enacted to address.” Id. Accordingly, both of plaintiff’s RICO claims must be
dismissed as to movants.5
B.

The Third Claim (COCCA)

The Colorado Organized Crime Control Act, Colo. Rev. Stat. § 18-17-101 et
seq., “was modeled after the federal RICO Act . . . and is generally interpreted
according to the same principles, unless Colorado courts have expressly construed the
state statute otherwise.” Tara Woods Ltd. P’ship v. Fannie Mae, 731 F. Supp. 2d 1103,
1126 (D. Colo. 2010). 6 In People v. Chaussee, 880 P.2d 749 (Colo. 1994), the
Colorado Supreme Court rejected the application of the RICO “continuity” requirement
to COCCA claims, concluding that “a pattern of racketeering activity can be established
. . . by proving at least two acts of racketeering activity . . . that are related to the
conduct of the enterprise.” 880 P.2d at 757-58.

5

Because plaintiff fails to plausibly allege a pattern of racketeering activity, the
Court does not reach the other arguments offered by defendants in support of their
motions to dismiss. See Docket Nos. 72, 75.
6

For the same reasons discussed in Section III.A.1, the Court concludes that it
has jurisdiction to hear plaintiff’s COCCA claim.
11

Defendants Town and Broady argue that the complaint does not allege that they
participated in any predicate acts or conducted an enterprise. Docket No. 72 at 10-11.
Regardless of their participation, the Court finds that plaintiff does not plausibly allege
the existence of an “enterprise” within the meaning of COCCA. “‘Enterprise’ means any
individual, sole proprietorship, partnership, corporation, trust, or other leg al entity or any
chartered union, association, or group of individuals, associated in fact although not a
legal entity, and shall include illicit as well as licit enterprises and governmental as well
as other entities.” Colo. Rev. Stat. § 18-17-103(2). An enterprise is “an entity separate
and apart from the pattern [of racketeering] in which it engages,” and its existence is
proven “by evidence of an ongoing organization . . . and by evidence that the various
associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583
(1981); see also Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Kozeny, 115 F. Supp. 2d
1210, 1227 (D. Colo. 2000) (applying federal case law construing RICO to COCCA).
The enterprise must “function as a continuing unit with an existence beyond that
necessary to commit the predicate acts and have an identity distinct from that of the
individual [d]efendants.” Nat’l Union, 115 F. Supp. 2d at 1227. Plaintiff’s complaint
alleges that the “enterprise” is defendants’ use of two businesses, Connect Skis, LLC
and Apex Construction, LLC, to conduct “a continual and relentless cam paign of
[harassment and surveillance] of [plaintiff], for the purpose of intimidating her.” Docket
No. 68 at 8-9, ¶ 4 O(vi); see also Docket No. 81 at 18. However, the complaint is
devoid of any “evidence that the various associates [of the enterprise] function as a
continuing unit.” See Turkette, 452 U.S. at 583. Broady and the Town, for example,
are mentioned in the complaint only in relation to two discrete incidents: plaintiff’s
12

December 2013 and December 2017 arrests. Plaintiff does not allege that Broady and
the Town are part of any “ongoing organization” or have any affiliation with Carlson’s
businesses, other than conclusory statements that Broady “co-participated” in some of
Carlson’s actions. See Docket No. 68 at 25; see also Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (noting that the pleading rules “do[] not unlock the doors of discovery for
a plaintiff armed with nothing more than conclusions”). The only consistent “associate”
of the alleged enterprise is Carlson. Accordingly, plaintiff’s COCCA claim must fail as to
the Town and Broady.
Plaintiff’s claim against Carlson is deficient because, even assuming that
Carlson’s businesses can be considered to be an “enterprise,” plaintif f fails to allege
“conduct” of an enterprise. To satisfy the “conduct” requirement, plaintiff must allege
that Carlson “conducted the affairs of the enterprise rather than simply conducting the
defendant’s own affairs.” See George v. Urban Settlement Servs., 833 F.3d 1242,
1249 (10th Cir. 2016). Those allegations are absent here. Plaintiff’s complaint pleads
only that Carlson conducted his own affairs, using “information technology” provided by
his business. See, e.g., Docket No. 68 at 9-10, 24, ¶¶ 4P, 66 (alleging that Carlson
used the equipment to harass and “destroy” plaintiff, his ex-wife); see also Davit v.
Davit, 366 F. Supp. 2d 641, 656 (N.D. Ill. 2004) (observing that the purpose of the civil
RICO act is not to relitigate “divorce, probate, and family law matters”).7 Because there
is no plausible allegation that Carlson conducted the affairs of an enterprise rather than

7

The complaint does allege generally that Carlson’s business have been
“operated . . . as an unlawful enterprise,” but fails to identify anyone other than Carlson
who operated them. See Docket No. 68 at 44, ¶ 175.
13

his own affairs, the complaint fails to state a COCCA claim against Carlson.8 The Court
will dismiss plaintiff’s Third Claim against movants.9
C.

The Fourth Claim (42 U.S.C. §§ 1981-88)

Plaintiff claims damages under the Civil Rights Acts of 1871, 42 U.S.C. §§ 198188. Plaintiff’s response clarifies that her claims are brought under § 1983. See Docket
No. 81 at 18. Section 1983 “provides a remedy against any person who, under color of
state law, deprives another of rights protected by the Constitution.” Ellis ex rel. Estate
of Ellis v. Ogden City, 589 F.3d 1099, 1101 (10th Cir. 2009). As an initial m atter,
plaintiff offers no explanation of how Carlson could be liable under § 1983, as he is a
private citizen not acting under color of state law. See 42 U.S.C. § 1983; Benavidez v.
Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“The mere furnishing of information to
police officers does not constitute joint action under color of state law which renders a
private citizen liable under §§ 1983 or 1985.”). Even if there were joint action, there is
no reference to 42 U.S.C. §§ 1981-88 in the complaint that plausibly relates to Carlson.
As to the Town or Broady, the only reference to the Civil Rights Acts that
plausibly relates to them is plaintiff’s December 30, 2017 arrest by defendants Tom

8

Plaintiff’s COCCA claim is also facially deficient, as plaintiff fails to designate
which of the four sections of Colo. Rev. Stat. § 18-17-104 she alleges that the
defendants violated. See Ambraziunas v. Bank of Boulder, 846 F. Supp. 1459, 146465 (D. Colo. 1994) (dismissing COCCA case without prejudice for failure to plead claim
with particularity).
9

Plaintiff’s Fifth Claim seeks preliminary and permanent injunctive relief based
on defendants’ alleged violations of RICO and COCCA. See Docket No. 68 at 79,
¶ 357. This claim, too, fails because plaintiff has failed to state a claim under either
RICO or COCCA.
14

Halper, Kip Albanese, and Nathan Santos. 10 See id. at 53-55, ¶¶ 230-245. Plaintiff
alleges that these individuals “used brutal and entirely unnecessary physical force to
deal with [plaintiff].” Id. at 54, ¶ 235. As review of this claim does not implicate a statecourt judgment, the Court has jurisdiction. See Exxon Mobil, 544 U.S. at 291. Plaintiff
claims that the conduct of Albanese and Santos, who are officers employed by the
Town, “was abetted by [d]efendant Broady, who failed to exercise even remotely
competent command supervision.” See id. at 54, ¶ 236.
Given that plaintiff does not plausibly allege that Broady personally participated
in plaintiff’s arrest, the Court construes her claim as a suit against Broady in his official
capacity. A suit against a government official in his official capacity is a suit against the
entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-66
(1985). Therefore, plaintiff’s claim against Broady is properly analyzed as a suit against
the Town. See Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991), aff’d, 986 F.2d
1429 (10th Cir. 1993) (“Under Colorado law municipalities and counties, not their
various subsidiary departments, exist as ‘bodies corporate and politic’ empowered to
‘sue and be sued.’”) (citing Colo. Rev. Stat. §§ 31-15-101(1)(a) and (b) and 30-11101(1)(a)).
When a claim under 42 U.S.C. § 1983 is asserted against a municipality, courts
analyze “(1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if
so, whether the city is responsible for that violation.” Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). For the city to be responsible for the violation, the
10

There is also a reference to the Civil Rights Acts related to conduct by
defendants Colleen Mahoney and the Telluride R-1 District. See Docket No. 68 at 5253, ¶¶ 222-28.
15

plaintiff must show “1) the existence of a municipal policy or custom and 2) a direct
causal link between the policy or custom and the injury alleged.” Mocek v. City of
Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (internal quotations omitted).
Plaintiff’s complaint contains no allegation that a “municipal policy or custom” led to any
alleged constitutional violation. Therefore, plaintiff’s § 1983 claim against the Town and
Broady fails.11
As plaintiff’s Fourth Claim does not allege a claim for which relief can be granted,
the Court will grant defendants Carlson, Broady, and the Town’s motions to dismiss as
to the Fourth Claim.
IV.

CONCLUSION
For the reasons set forth above, it is
ORDERED that the Motion to Dismiss Second Amended Complaint Pursuant to

Fed. R. Civ. P. 12(b)(6) of Defendants Town of Mountain Village and Chris Broady
[Docket No. 72] is GRANTED. It is further
ORDERED that Defendant Brian Y. Carlson’s Motion to Dismiss Plaintiff’s
Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [Docket
No. 75] is GRANTED. It is further

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Plaintiff’s citation to Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010),
which purports to establish a “right to litigate her § 1983 claims in this Court,” cannot
save her claim. See Docket No. 81 at 16-17. The holding of Cohen is that “a petitioner
who has no available remedy in habeas, through no lack of diligence on his part, is not
barred” from pursuing a 42 U.S.C. § 1983 claim. Cohen, 621 F.3d at 1317. Plaintiff
here is not a habeas petitioner. Even if she were, her complaint would still be legally
infirm, as it fails to allege any “municipal policy or custom” that led to any alleged
constitutional violation. See Mocek, 813 F.3d at 933.
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ORDERED that plaintiff’s claims against defendants Brian Carlson, Chris
Broady, and the Town of Mountain Village are DISMISSED WITH PREJUDICE
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
ORDERED that Defendants Town of Mountain Village, Colorado, Chris Broady
and Brian Y. Carlson’s Joint Motion to Supplement Their Motions to Dismiss [Docket
No. 125] is DENIED as moot.

DATED March 25, 2019.
BY THE COURT:

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

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