Apodaca v. City of Lakewood
| Decision Date | 23 February 2016 |
| Docket Number | Civil Action No. 15-cv-00007-RM-KLM |
| Parties | JOSE M. APODACA, Plaintiff, v. CITY OF LAKEWOOD COLORADO (Municipality), LAKEWOOD POLICE DEPARTMENT, KEVIN PALETTA, (Chief of Police), in his individual and official capacities, ZBIGNIEW RICHARD KOSIK, (Police Officer), in his individual and official capacities, and ALICIA HARRIS, (Police Officer), in her individual and official capacities, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants City of Lakewood, Colorado (the "City"), the Lakewood Police Department (the "Police Department"), and Kevin Paletta's ("Chief Paletta") (collectively, "Defendants") Motion to Dismiss Claims Pursuant to Fed. R. Civ. P. 12(b)(6) [#43]1 ("Motion"). Plaintiff, proceeding pro se,2 filed a Response to the Motion [#53] and Defendants filed a Reply to Plaintiff's Response [#66]. Plaintiff then fileda Surreply entitled Response to Motion to Dismiss [#70] ("Surreply").
In addition, numerous other motions are pending before the Court: Plaintiff's Motion to Compel Information [#47]; Defendants' Motion to Stay Discovery [#50]; Plaintiff's Motion for Extension of Time to Properly Respond to Motions [#68]; Plaintiff's Motion Requesting Court to Direct U.S. Marshal's Office to Serve Summons at Employment for Alicia Harris [#72]; Plaintiff's Motion for Leave to Amend Pleadings [#76]; Plaintiff's Motions to Strike Motion to Dismiss [#85, #86]; and Plaintiff's Motion for Status Update [#89].
Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), these pending Motions have been referred to the undersigned. See Orders Referring Motions [#44, #48, #51, #69, #73, #79, #87, #90, #92]. The Court has reviewed the Motions, the Response, the Reply, and Surreply, the relevant law, and the entire case file, and is advised in the premises. For the reasons stated below, the Court RECOMMENDS that Defendants' Motion to Dismiss [#43] be GRANTED and that, additionally, that all claims against Defendant Harris be DISMISSED for lack of service. Further, given the Court's recommendation, the Court RECOMMENDS that the Motion for Leave to Amend Pleadings [#76] be DENIED, and DENIES as moot the Motions to Compel Information [#47], to Stay Discovery [#50], to Direct U.S. Marshal's Office to Serve Summons [#72], to Strike Motion to Dismiss [#85, #86], and for Status Update [#89].3 Lastly, the Court GRANTS Plaintiff'sMotion for Extension of Time [#68] and considers Plaintiff's Surreply [#70] filed after Defendants' Reply.4
Plaintiff Jose Apodaca, an inmate in the Sterling Correctional Facility, filed this civil action on January 2, 2015. See generally Compl. On March 10, 2015, Plaintiff filed a Second Amended Complaint [#12], and, subsequently, was granted leave to file a Third Amended Complaint [#35], which he filed on May 5, 2015.
Plaintiff alleges that he was subjected to excessive force during the course of his arrest on January 5, 2013 by two officers of the Lakewood Police Department, Defendants Kosik and Harris. Third Am. Compl. [#35] at ¶ 18. Plaintiff claims that he was forcefully thrown to the ground by Defendant Kosik and, when he was then handcuffed and placed into the officers' police cruiser, Defendant Kosik inflicted a number of injuries on him by striking him on his legs and feet with a police baton. Id. at ¶¶ 18-19. Plaintiff states that, although he requested medical attention while he was being arrested and placed in the cruiser, all such requests were disregarded by Defendants Kosik and Harris. Id. Plaintiff alleges that as a result he suffered severe injuries on his face, legs, and wrists. Id. at ¶ 20.
Plaintiff thus filed this action pursuant to 42 U.S.C. § 1983 alleging the following causes of action: (1) equal protection violations against Defendant Harris in her individual and official capacities; (2) use of excessive force and violation of due process of lawagainst Defendant Kosik in his individual and official capacities; (3) deprivation of medical attention and equal protection violations against Defendants Kosik and Harris, in their individual and official capacities; and (4) fiduciary duty violations, due process violations, and equal protection violations against Defendant Kevin Paletta, Chief of Police.5 Id. at ¶¶ 8-12.
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); Fed. R. Civ. P. 12(b)(6) (). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact 'to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (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 misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a factual allegation has been stated, "but it has not show[n] that the pleader is entitled to relief," as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S. at 679 ().
Plaintiff first named Defendant Harris in his Second Amended Complaint [#12], alleging that Defendant Harris is a police officer for the City of Lakewood and that her address is: Lakewood Police Dept., 420 Allison Parkway, Lakewood, CO 80226. Second Am. Compl. [#12] at 2. When the Court accepted the filing of the Third Amended Complaint, the Court also ordered the United States Marshal's Service to effect service on Defendants because Plaintiff is proceeding in forma pauperis. Minute Order [#34] at 1; see Order Granting 28 U.S.C. § 1915 Motion [#5] at 1. However, on May 11, 2015, theSummons directed to Defendant Harris was returned unexecuted with a notation that she "is no longer employed with Lakewood Police Department." Process Receipt and Return [#40] at 1. The Court then sua sponte issued an Order to Show Cause on May 14, 2015 [#41] ordering that Plaintiff show cause as to why this Court should not recommend that the case against Defendant Harris be dismissed pursuant to Fed. R. Civ. P. 4(m).
On June 1, 2015, Plaintiff responded to the Court's Order to Show Cause stating that "Plaintiff's incarceration prevents him from obtain[in]g or having any access to private information from [Defendant Lakewood Police Department]" and thus requested that the Court provide assistance. Response to OSC [#46]. Plaintiff also filed a Motion to Compel Information on the same date, requesting that the Court compel Defendant Lakewood Police Department to provide Defendant Harris' last known address. Motion to Compel [#47]. In response, Defendants argue that the Motion to Compel is premature, as no discovery has been conducted in this case nor has the Court set a scheduling conference. Response to Motion to Compel [#49] at 2-3. Defendants further argue that even were Plaintiff able to effect service on Defendant Harris, that any claims against her would be subject to dismissal because they were filed after the two-year statute of limitations. Id. at 3-4.
The Court agrees with Defendants, and finds that Plaintiff has not established good cause for his failure to provide sufficient information to allow the U.S. Marshals Service to effectuate service of the Third Amended Complaint on Defendant Harris. While Fed. R. Civ. P. 4(c) requires that the Court effect service for plaintiffs proceeding in forma pauperis, Plaintiff must provide sufficient information for the Court to do so. See Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289, at *6 (D. Colo. May 9, 2008) (unpublisheddecision). Here, Defendant Harris could not be located at the address provided by Plaintiff, and Plaintiff does not explain whether he undertook any effort to locate an address for Defendant Harris. That is, of course, aside from the numerous motions he has since filed requesting that the Court provide assistance in locating Defendant Harris - requests that were made despite the Court's explanation in its Order to Show Cause that "it is not up to the Clerk of the Court or the United States Marshals Service to search for [defendant's] current address." OSC [#41] (quoting Karp v. Garrett, No....
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