Richeson v. Weiser

Filing 20

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Michael E. Hegarty on August 1, 2022. Accordingly, the Court respectfully recommends that Defendant's Motion [filed June 22, 2022; ECF 8 ] be granted without leave to amend. The Court directs the Clerk of the Court to reassign this case to a District Judge pursuant to D.C. Colo. LCivR 40.1(a). (csarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-01370-MEH
DAVID A. RICHESON,
Plaintiff,
v.
PHILIP J. WEISER, in his official capacity as the
Attorney General for Colorado,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff David A. Richeson, a pro se litigant, alleges constitutional rights violations by
Defendant. ECF 1 at 4. He brings claims pursuant to 42 U.S.C. § 1983 in his Complaint against
Defendant in his official capacity as Colorado State Attorney General for violations of the
Fourteenth Amendment. Id. Before the Court is Defendant’s Motion to Dismiss (“Motion”). ECF
8. The Motion is fully briefed, and the Court does not find that oral argument will materially assist
in its adjudication. As set forth below, the Court respectfully recommends granting the Motion
without leave to amend.
FACTUAL BACKGROUND
The following are factual allegations (as opposed to legal conclusions, bare assertions, or
conclusory allegations) made by Plaintiff in his Complaint, which are taken as true for analysis
under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff alleges he was designated as “incapacitated” by Colorado State and El Paso
County, Colorado “in or around . . . 2010.” ECF 1 at 4. As stated, this occurred “via court actions

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lacking . . . due process.” Id. Plaintiff purports this caused “significant torts,” including losing his
home, “business address,” and a “[c]ontinu[al] deprivation of rights” to his person. Id. The Court
is uncertain if Plaintiff is making a state tort law claim or if all his claims are under Title 42 U.S.C.
§ 1983 (“Section 1983”). Plaintiff also leaves unclear what role Defendant played and how there
was a due process violation.
In his Complaint, Plaintiff references a Colorado House Bill 1 (“Bill”) that “would mandate
. . . currently lacking fundamental due process.” Supposedly, the Bill affirms there was a due
process violation to his person. Id. It is unclear if Plaintiff is including the Bill as factual support
for his allegations.
The Court notices Plaintiff’s past federal lawsuit that may be based upon similar, if not the
same, factual allegations. Richeson v. United States, No. 20-cv-02086-LTB-GPG, 2020 WL
9432913 (D. Colo. Nov. 3, 2020); see also Richeson v. United States, 849 F. App’x 726, 728 (10th
Cir. 2021). That action concerned a claim against the United States under the Federal Torts Claim
Act. Id.
In that lawsuit, Magistrate Judge Gallagher ordered Plaintiff to amend his complaint twice
for failure to state a claim. Id. All versions of Plaintiff’s complaint only made conclusory
allegations of general wrongdoing, and none stated supporting facts. Id. Ultimately, Magistrate
Judge Gallagher recommended dismissal on those grounds, and the District Court judge agreed.
Id. Plaintiff appealed that judgment to the Tenth Circuit Court of Appeals, which affirmed the
lower court’s dismissal. Richeson v. United States, 849 F. App’x 726, 728 (10th Cir. 2021). In his
appeal brief from that prior suit, Plaintiff claimed he was labeled “‘incapacitated’ . . . at the federal

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Colorado HB 22-1271 was a bill in state legislature that did not pass. Plaintiff, representing
himself, testified in support of the bill. He does not state this in his Complaint, but the Court
reviewed the bill and its history, making this observation on its own.
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or State of Colorado level.” Brief for Petitioner-Appellant at *6, Richeson, 849 F. App’x 726 (10th
Cir. Feb. 1, 2021).
Plaintiff filed this action on June 1, 2022. Plaintiff asks for monetary damages in the
amount of $4,500,000. ECF 1 at 5.
LEGAL STANDARDS
I.

Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency

of the plaintiff’s complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 2008). “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.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of
a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 680. Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state
a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Plausibility refers “‘to the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will

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vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011).
Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case
in a complaint, the elements of each alleged cause of action may help to determine whether the
plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1192.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more
than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,”
so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” the complaint has made an allegation, “but it has not shown that the
pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II.

Treatment of Pro Se Complaint
A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
“Th[e] court, however, will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on plaintiff’s behalf.” Smith v. United States, 561 F.3d 1090,
1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)).
The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff’s

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failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738
F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is
qualified in that it is not “the proper function of the district court to assume the role of advocate
for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
DISCUSSION
I.

Due Process Claim
Complaints serve two purposes: (1) to give the opposing parties fair notice of the grounds

for the claims against them; and (2) to show how the plaintiff would be entitled to relief if the
allegations were proven true. Monument Builders of Greater Kansas City, Inc. v. American
Cemetery Ass’n of Kan., 891 F.2d 1473, 1480 (10th Cir. 1989). That is why Rule 8 requires
complaints to contain: “(1) a short and plain statement of the grounds for the court’s jurisdiction .
. .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3)
a demand for relief sought.” Fed. R. Civ. P. 8(a). The philosophy of Rule 8(a) is reinforced by Rule
8(d)(1), which provides that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1). Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and
brevity by the federal pleading rules. As a result, prolix, vague, or unintelligible pleadings violate
the requirements of Rule 8. The Court explains below why Plaintiff fails to meet the elements
required to state a Section 1983 theory and the other legal defects that bar it.
A.

Failure to State a Section 1983 Due Process Claim
Plaintiff brings claims pursuant to Section 1983 (ECF 1 at 3), the vehicle by which he can

sue a state actor for an alleged constitutional violation. Gonzaga Univ. v. Doe, 536 U.S. 273, 283
(2002). For Section 1983 purposes, Defendant is the state itself when sued in his official capacity.

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Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (explaining that state officials are
the state itself for official capacity claims). In official capacity suits, a “‘policy or custom’ must
have played a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(quoting Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 654 (1978)). To properly assert a
Section 1983 theory, Plaintiff’s Complaint must show a direct causal link between Defendant and
the alleged violation. Specifically, Plaintiff must show that the alleged violation is a result of a
policy or custom.
Plaintiff claims the due process violation occurred when he was designated as
“incapacitated.” ECF 1 at 4. Yet the Complaint omits any supporting facts for this, nor does it show
the requisite direct causal relationship to bring suit. Id. Even when construed liberally, conclusory
allegations, such as the ones in Plaintiff’s Complaint, do not entitle a pro se litigant to an action.
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992).
The Court and Defendant are not obligated to speculate what Plaintiff’s assertations or supporting
factual allegations are. Ultimately, Plaintiff’s conclusory allegations fail to state a Section 1983
claim.
B.

The Statute of Limitations bars the Section 1983 Claim
In the State of Colorado, Section 1983 claims must commence “two years from the time

the cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); see also
Carbajal v. McCann, 808 F. App’x 620, 633 (10th Cir. 2020). A claim accrues when the defendant
committed the wrong and the plaintiff suffered the injury. Colby v. Herrick, 849 F.3d 1273, 1279
(10th Cir. 2017). This action commenced in June 2022 when Plaintiff filed his Complaint;
however, it is based on events “in or around . . . 2010.” Id. at 1, 4. Therefore, the statute of
limitations expired in 2012, and this action is ten years late. Fogle, 435 F.3d 1258.

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In his Response, Plaintiff argues that his claim is not time barred due to a “continuing
offense.” ECF 14 at 2. Under the continuing violation doctrine, “one violation continues when ‘the
conduct as a whole can be considered as a single course of conduct.’” Sierra Club v. Oklahoma
Gas & Elec. Co., 816 F.3d 666, 672 (10th Cir. 2016) (quoting Birkelbach v. SEC, 751 F.3d 472,
479 n. 7 (7th Cir. 2014)). In other words, the continual ill effects from the original violation are
not actionable; there must be a continuation of illicit conduct. Mata v. Anderson, 635 F.3d 1250,
1253 (10th Cir. 2011) (explaining the difference between continual ill effects from the original
violation and continual unlawful acts). Therefore, Plaintiff cannot bring this claim as the
Complaint only contains allegations of continual ill effects.
II.

Eleventh Amendment Sovereign Immunity
In his Motion, Defendant asserts immunity from Plaintiff’s lawsuit. The Eleventh

Amendment provides “[t]he Judicial power . . . shall not be construed to extend to any suit in law
. . . commenced or prosecuted against one of the United States by Citizens of another State.” U.S.
Const. amend. XI. In general, a state may not be sued in federal court for damages. Ambus v.
Granite Bd. of Educ., 975 F.2d 1555, 1560 (10th Cir. 1992). That immunity extends to state
officials sued in their official capacity. Id. (finding that the Eleventh Amendment bars suit unless
the state waives immunity); see also Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013)
(explaining that the Eleventh Amendment bars suits when state officials are sued, in their official
capacity, for damages). Accordingly, Defendant enjoys Eleventh Amendment immunity. Crone v.
Dep’t of Human Servs., No. 11-cv-02270-WJM-CBS, 2012 WL 5832438, at *9 (D. Colo. Oct. 5,
2012). The claims should be dismissed without prejudice pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction. Id.

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III.

Tort Claim
Plaintiff mentions “significant torts” in his Complaint; however, he leaves unclear if he

intends to bring an additional tort law claim. ECF 1 at 4. If so, the Colorado Government Immunity
Act (“CGIA”) may apply. Colo. Rev. Stat. § 24-10-101 through 120. The CGIA protects public
entities from tort claims absent an express waiver of sovereign immunity. Colo. Rev. Stat. § 2410-105(1). A plaintiff has the burden of showing an express waiver. Medina v. State, 35 P.3d 443,
452 (Colo. 2001). Plaintiff has not met this burden, and therefore failed to state a CGIA tort law
claim.
IV.

No Leave to Amend
Finding that Plaintiff has unsuccessfully pleaded his claim, the Court now turns to the issue

of whether to recommend dismissal of the claims with or without prejudice. In cases involving pro
se litigants, the Tenth Circuit has found that courts should dismiss with leave to amend where there
is a possibility that the litigant can correct the defect in the pleading. Reynoldson v. Shillinger, 907
F.2d 124, 126 (10th Cir. 1990). Dismissal without prejudice is preferable where the deficiencies
are “likely the result of an untutored pro se litigant’s ignorance of special pleading requirements.”
Id. It is notable however, that these litigants “are not insulated from the rule that dismissal with
prejudice is proper for failure to state a claim.” Fleming v. Coulter, 573 F. App’x 765, 769 (10th
Cir. 2014). This is especially true where the litigant cannot succeed on the alleged facts. Id.
During his past lawsuit, Plaintiff was ordered to amend his complaint twice due to
conclusory allegations and no supporting facts. Richeson, 2020 WL 9432913, at *2. The same
pleading defect is present in this lawsuit, and Plaintiff failed to plausibly allege his claims. There
is little reason to believe that Plaintiff would be successful on a future amendment. See Oxendine
v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“We have stated that ‘[d]ismissal of a pro se

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complaint for failure to state a claim is proper only where . . . it would be futile to give him an
opportunity to amend.’” (quoting Perkins, v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.
1999)). As such, the Court recommends Plaintiff’s claims against Defendant be dismissed with
prejudice.
CONCLUSION
Accordingly, the Court respectfully recommends that Defendant’s Motion [filed June 22,
2022; ECF 8] be granted without leave to amend. 2 The Court directs the Clerk of the Court to
reassign this case to a District Judge pursuant to D.C. Colo. LCivR 40.1(a).
Dated at Denver, Colorado, this 1st day of August, 2022.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party’s failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings and legal
conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991)).
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