Brown v. Shoe et al
Filing
40
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 7/10/18 re 18 MOTION to Dismiss Pursuant toF.R.C.P. 12(b)(6). IT IS HEREBY RECOMMENDED that the Motion 18 be GRANTED.IT IS FURTHER RECOMMENDED that the Complaint 1 be DISMISSED with prejudice in part and without prejudice in part. IT IS RECOMMENDED that the Complaint 1 be dismissed with prejudice withrespect to Plaintiff's federal law claims. IT IS RECOMMENDED that the Complaint 1 be dismissed without prejudice with respect to Plaintiff's state law claims. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-03038-RM-KLM
WESLEY R. BROWN,
Plaintiff,
v.
BECKY SHOE, Supervisor for Colorado Bureau of Investigations Insta Check Unit,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to
F.R.C.P. 12(b)(6) [#18]1 (the “Motion”). Plaintiff, who is proceeding pro se,2 filed a
Response [#23] in opposition to the Motion [#18]. Defendant did not file a reply. Pursuant
to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#18] has been referred
to the undersigned for a recommendation regarding disposition. See Memorandum [#19].
The Court has reviewed the Complaint [#1], the Motion [#18], the Response [#23], the
entire case file, and the applicable law, and is sufficiently advised in the premises. For the
1
[#18] is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s electronic case filing and management system
(CM/ECF). This convention is used throughout this Recommendation.
2
The Court must construe liberally the filings of pro se litigants. 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 should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the 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, pro se litigants must follow the same procedural rules that govern other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#18] be
GRANTED.
I. Summary of the Case
In short, Plaintiff is suing Defendant in her official capacity based on her denial of
Plaintiff’s application to purchase a firearm.3 Compl. [#1] at 3. Plaintiff is a homeless, fourtime-convicted felon with paranoid schizophrenia. Id. at 3, 15. On November 20, 2015,
Plaintiff tried to purchase a revolver and was denied. Id. at 3, 13. On December 1, 2015,
Plaintiff appealed the decision and was denied again because of his prior felony convictions
and mental health adjudication. Motion [#18] at 1; Pl. Ex. to Compl. [#1-10] at 6-7.
Consequently, Plaintiff filed a complaint (“first complaint”) in Civil Action No. 15-cv-02730MEH. The Court dismissed the action for lack of jurisdiction and Plaintiff appealed. The
Tenth Circuit Court of Appeals affirmed the Court’s ruling but remanded the case for
dismissal without prejudice. Brown v. Shoe, 703 F. App’x 665, 667-68 (10th Cir. 2017).
Plaintiff filed this suit on December 15, 2017, asserting claims under 42 U.S.C. §
1983. Compl. [#1] at 4. Plaintiff asserts seven claims challenging the constitutionality of
various federal and state laws preventing felons and people adjudicated as having mental
health issues from buying and possessing firearms. Id. at 4. Plaintiff directs only two of
his seven claims at Defendant: (1) Plaintiff “sues Defendant . . . because he seeks
declaratory and injunctive relief to prevent future denials of firearm transfers,” and (2)
Plaintiff alleges that he has not been adjudicated as “a mental defective” and therefore the
police should not consider his mental health issues when assessing his firearm application.
3
All well-pled facts from the Complaint [#1] are accepted as true and viewed in the light
most favorable to Plaintiff. See Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
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Id. at 13-15.
Defendant filed the present Motion arguing that the claims against her are barred
under the theories of res judicata and collateral estoppel and that the claims should be
dismissed because they were filed outside the applicable statute of limitations. Motion
[#18] at 3-8. In his Response, Plaintiff argues that his claims are not barred by the statute
of limitations because (1) it should have tolled on June 3, 2016 (when he filed his Notice
of Appeal with the Tenth Circuit Court of Appeals in 15-cv-02730-MEH and paid his filing
fee) and restarted when the Appellate Court remanded the case back to the District Court,
and (2) extraordinary circumstances prevented him from filing within the statute of
limitations. Response [#23] at 12.
II. Standard of Review
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 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, 570 (2007)). That is, a complaint must include “enough facts
to state a claim to relief that is plausible on its face.” TON Services, Inc. v. Qwest Corp.,
493 F.3d 1225, 1235 (10th Cir. 2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Moreover, “[a] pleading that offers labels and conclusions or a formulaic recitation of the
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elements of a cause of action will not do. Nor does the complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Id. (citations omitted).
“Dismissing a claim under Rule 12(b)(6) on the basis of an affirmative defense is
only proper where that defense is clear from the face of the complaint. Martinez v. City &
Cty. of Denver, No. 08-CV-01503-PAB-MJW, 2010 WL 1380529, at *3 (D. Colo. Mar. 31,
2010). “[R]ule 12(b)(6) is a proper vehicle for dismissing a complaint that, on its face,
indicates the existence of an affirmative defense such as noncompliance with the limitations
period.” See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 n.3 (10th Cir.1999)
(abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002); see also Cosgrove v. Kansas Dept. of Social and Rehabilitation Services, 332 F.
App’x 463, 467 (10th Cir.2009) (unpublished) (“[T]he statute of limitations is an affirmative
defense, and to dismiss a claim pursuant to Rule 12(b)(6) on this basis it must be clear
from the face of the complaint that the claims are time-barred.”).
III. Analysis
Defendant argues that the claims against her should be dismissed because they
were filed outside the applicable statute of limitations. Motion [#18] at 6. The Complaint
[#1] does not explicitly address the statute of limitations. Plaintiff’s Response seems to
argue that (1) the statute of limitations began running when he filed the first complaint; (2)
it should have tolled on the day he filed and paid for his appeal until the Court of Appeals
remanded the case; and (3) that his alleged exceptional circumstances merit equitable
tolling. Response [#23] at 12. The Court first examines the proper statute of limitations,
then determines whether the statute of limitations was tolled.
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A.
Statute of Limitations
Actions brought pursuant to 42 U.S.C. § 1983 are subject to the general personal
injury limitation period of the state in which the action arose. Hunt v. Bennett, 17 F.3d
1263, 1265 (10th Cir. 1994). In Colorado, the limitation on a personal injury claim brought
pursuant to Section 1983 is two years. See COLO. REV. STAT. § 13–80–102(1)(g) (2014)
(creating a two-year limitation period for “[a]ll actions upon liability created by a federal
statute where no period of limitation is provided in said federal statute” and for “[a]ll other
actions of every kind for which no other period of limitation is provided”); Blake v. Dickason,
997 F.2d 749, 750 (10th Cir. 1993) (applying COLO. REV. STAT. § 13–80–102 to a § 1983
claim).
However, federal law rather than state law determines when a cause of action
accrues. See Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968
(10th Cir. 1994). Pursuant to federal law, “[t]he statute of limitations begins to run when the
plaintiff knows or has reason to know of the existence and cause of the injury which is the
basis of his action.” Id. at 969. That is, “[a] civil rights action accrues when facts that would
support a cause of action are or should be apparent.” Fratus v. Deland, 49 F.3d 673, 675
(10th Cir. 1995) (citations omitted).
Defendant argues that the statute of limitations began running either on November
20, 2015—the day Plaintiff attempted to purchase a gun but was denied—or on December
1, 2015—when Defendant denied Plaintiff’s appeal. Motion [#18] at 7. To the extent
Plaintiff addresses this issue, he seems to argue that the statute of limitations began
running on December 16, 2015, the day he filed his first complaint in Civil Action No. 15-cv-
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2730-MEH. Response [#23] at 12.
The statute of limitations begins running when the plaintiff knows or should know
about his injury, not when a plaintiff files his complaint. See Indus. Constructors Corp., 15
F.3d at 968 (emphasis added). At the latest, Plaintiff should have known about his injury
on December 1, 2015; therefore, his deadline to file a timely complaint under the two-year
statute of limitations was December 1, 2017. See COLO. REV. STAT. § 13–80–102(1)(g)
(2014). Plaintiff filed his Complaint [#1] on December 15, 2017, which is outside the two
year statute of limitations regardless of whether the statute of limitations began running on
November 20, 2015, or December 1, 2015. Compl. [#1].
Accordingly, the Court finds that the statute of limitations began running no later than
December 1, 2015, and, in the absence of any exception, Plaintiff’s lawsuit is untimely.
B.
Statutory Tolling and the Savings Statute
Plaintiff argues that the statute of limitations should have tolled during the appellate
process on his first lawsuit, 15-cv-02730-MEH. Response [#23] at 11-12.
“[W]hen a statute does not specifically allow for the tolling of a statute of limitations
during the pendency of a prior action, a party cannot deduct from the period of the statute
of limitations applicable to his case the time consumed by the pendency of an action in
which he sought to have the matter adjudicated, but which was dismissed without prejudice
as to him.” Bynum v. Municipality, City & Cty. of Denver, 550 F. App’x 560, 562 (10th Cir.
2013) (citing King v. W. R. Hall Transp. & Storage Co., 641 P.2d 916, 920 (Colo. 1982)).
Therefore, because COLO. REV. STAT. § 13–80–102 does not permit deducting litigation
time from the statute of limitations, Plaintiff’s argument fails. See generally Compl. [#1];
See COLO. REV. STAT. § 13–80–102; Glaser v. City & Cty. of Denver, Colo., 557 F. App’x
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689, 699 (10th Cir. 2014).
Additionally, although neither party addressed COLO. REV. STAT. § 13–80–11 (the
“savings statute,”) the Court notes that a plaintiff has ninety days from the termination of
an original action that was dismissed because of lack of jurisdiction or improper venue to
file a new case based on the same cause of action. COLO. REV. STAT. § 13–80–111(1).
A plaintiff may file anytime within the ninety-day time frame irrespective of when the statute
of limitations expires. Id. This statute applies to actions brought in both federal and state
courts. COLO. REV. STAT. § 13–80–111(2). All of Plaintiff’s claims in 15-cv-02730-MEH
were dismissed because of lack of jurisdiction, thus the savings statute applied to these
claims. See generally Brown v. Shoe, 703 F. App’x 665 (10th Cir. 2017); COLO. REV. STAT.
§ 13–80–111(1). However, the statute does not save Plaintiff’s claims here. The Court of
Appeals dismissed Plaintiff’s previous case on July 25, 2017, giving Plaintiff until October
23, 2017 to file his Complaint [#1]. Because Plaintiff filed the Complaint [#1] on December
15, 2017, the savings statute does not revive Plaintiff’s claims.
Accordingly, the Court finds that the statute of limitations was not tolled during any
portion of the pendency of Plaintiff’s prior lawsuit in 15-cv-02730-MEH, and that the savings
statute does not apply.
C.
Equitable Tolling
“Equitable tolling may save a plaintiff’s claims from a statute of limitations defense,
but, under Colorado law, courts rarely apply the doctrine.” Escobar v. Reid, 668 F. Supp.
2d 1260, 1272 (D. Colo. 2009) (citing Noel v. Hoover, 12 P.3d 328, 330 (Colo. App. 2000)).
Courts only equitably toll a statute of limitations (1) when the defendant’s wrongful acts
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prevented the plaintiff from filing within the appropriate time, or (2) when exceptional
circumstances prevented the plaintiff from filing within the statute of limitations. Dean
Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096-97 (Colo. 1996).
Neither party argues that Defendant’s behavior prevented Plaintiff from filing his
lawsuit by December 1, 2017, thus the Court restricts its analysis to whether exceptional
circumstances equitably tolled the statute of limitations. See generally Compl. [#1]; Motion
[#18].
Plaintiff fails to provide any explicit or compelling allegations that exceptional
circumstances prevented him from filing this case within the statute of limitations. See
generally Compl. [#1]. Plaintiff alleges that his inability to pay the filing fee for the
Complaint [#1] rises to the level of extraordinary circumstances because it “took him at
least four months to save for filing and service of process.”4 Response [#23] at 11-12.
However, circumstances only rise to the level of extraordinary when they “make it
impossible for the plaintiff to file his or her claims within the statutory period . . . .” Hartman,
911 P.2d at 1097. Therefore, the inability to fund a lawsuit does not rise to the level of
extraordinary. See generally Hanger v. Abbott, 73 U.S. 532 (1867) (finding extraordinary
circumstances tolling the statute of limitations when the Civil War forced southern courts
to close); Seattle Audubon Soc’y v. Robertson, 931 F.2d 590 (9th Cir. 1991) (applying
equitable tolling when a lower court enforced an unconstitutional statute, preventing the
plaintiff from filing within the appropriate statute of limitations), rev’d on other grounds, 503
U.S. 429, (1992); Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947) (holding that the
4
Plaintiff’s request to proceed in forma pauperis in 15-cv-02730-MEH was denied. Plaintiff
did not apply to proceed in forma pauperis in this case.
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plaintiff’s internment in Japan during World War II tolled the statute of limitations on his
claim that arose shortly before his internment because he lacked access to the courts).
The Court therefore finds that Plaintiff did not adequately assert exceptional
circumstances, thus the Court finds that equitable tolling due to exceptional circumstances
is inappropriate in this case. See generally Compl. [#1].
Thus, the Court respectfully recommends that the Motion [#18] be granted and that
the federal claims in Plaintiff’s Complaint [#1] be dismissed with prejudice.5
Plaintiff also asserts state law claims. See generally Compl. [#1]. Generally, the
Court may exercise jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(a).
However, the Court may decline to exercise supplemental jurisdiction over a state law claim
where it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. §
1367(c)(3). It is proper for a federal court to decline to exercise supplemental jurisdiction
over state law claims where the court’s basis for exercising jurisdiction over the case was
pursuant to a federal question on which the court grants a dispositive motion, and where
the court would not have diversity jurisdiction over the parties. See Koch v. City of Del City,
660 F.3d 1228, 1248 (10th Cir. 2011).
Accordingly, the Court recommends that supplemental jurisdiction be declined over
Plaintiff’s state law claims and that these claims be dismissed without prejudice. See
5
The dismissal of an action pursuant to Rule 12(b)(6) is a resolution on the merits and is
ordinarily prejudicial. Brierly v. Schoenfeld, 781 F.2d 838 (10th Cir. 1986) (affirming a district court
decision to dismiss with prejudice an action brought under 42 U.S.C. § 1983). However, due to
heightened concerns when the plaintiff is proceeding pro se, dismissal with prejudice is only
appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.” Oxendine, 241 F.3d at 1275. As noted above,
the Court finds that allowing Plaintiff to refile his Complaint [#1] would be futile.
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Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (stating that where
supplemental jurisdiction is declined over state law claims, those claims must be dismissed
without prejudice).
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY RECOMMENDED that the Motion [#18] be GRANTED.
IT IS FURTHER RECOMMENDED that the Complaint [#1] be DISMISSED with
prejudice in part and without prejudice in part.
IT IS RECOMMENDED that the Complaint [#1] be dismissed with prejudice with
respect to Plaintiff’s federal law claims.
IT IS RECOMMENDED that the Complaint [#1] be dismissed without prejudice
with respect to Plaintiff’s state law claims.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have
fourteen (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
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F.3d 1057, 1060 (10th Cir. 1996).
Dated: July 10, 2018
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