Canody v. United States

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
PartiesJANELLE N. CANODY, Plaintiff, v. THE UNITED STATES, Defendant.
Docket NumberCivil Action No. 20-cv-00753-CMA-KLM
Decision Date08 February 2021


Civil Action No. 20-cv-00753-CMA-KLM


February 8, 2021



This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [#16]1 (the "Motion"). Plaintiff, who proceeds in this matter pro se,2 filed a Response [#21] in opposition to the Motion [#16], Defendant filed a Reply [#29], Plaintiff filed a Supplemental Brief [#33], and the Defendant filed a Response to the Supplemental Brief [#42].3 Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil

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Procedure 72(a) and (b), the Motion [#16] has been referred to the undersigned for a recommendation. See [#15]. The Court has reviewed the Motion [#16], Response [#21], Reply [#29], Supplemental Brief [#33], Response to Supplemental Brief [#42] the entire case file and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#16] be GRANTED and the case be DISMISSED WITHOUT PREJUDICE.

I. Background

Plaintiff filed this lawsuit on March 18, 2020, asserting claims related to the shooting death of her father at the Rainbow Falls camping area in Pike National Forest. See Compl. [#1]. Thus, on July 3, 2015, Plaintiff Janelle Canody was camping at the Rainbow Falls Campground in the Pike National Forest with her husband, Chris Cordova, and her father, Glenn Martin. Compl. [#1] at 8. At some point during the day, Chris Cordova notified two Forest Service employees "that he could hear active target shooting occurring in close proximity to his camping area." Id. at 7. The Forest Service employees did not stop the shooting. Id. at 8. "Less than an hour later . . . Glenn Martin was shot by an errant bullet and died[.]" Id. Plaintiff "was not personally present at the crime scene" and did not witness her father's death. Id. at 9. Although Plaintiff acknowledges that the Forest Service "did not shoot the gun that killed [Mr.] Martin," she alleges that they "allow[ed] the circumstances for the bullet that killed him" by virtue of their "inadequate enforcement and negligence to a danger" that was reported to them. 7; see also 9 (alleging Mr. Martin's death "could have been avoided" had the Forest Service exercised "due diligence" by "adequate[ly] monitoring . . . the campground, stopping the target

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shooting and enforcing the gun prohibition laws"). The person who shot Plaintiff's father was never found, and Plaintiff asserts "the homicide case is still unsolved." Id. at 8.

As to the Rainbow Falls area at issue, Defendant provides a Declaration of Dave Condit who is employed by the U.S. Forest Service. See Decl. [#16-1].4 Mr. Condit explains that the Rainbow Falls camping area is "undeveloped, not marked, and dispersed throughout an area of approximately 2500 acres, along many miles of roads and through rough terrain." Id. at 3.5 The area is located within the Pike National Forest and is part of the Pikes Peak Ranger District ("District"). Id. The District encompasses over 230,000 acres of National Forest Land and is managed by about 30 Forest Service Employees. Id. On busy weekends, Mr. Condit states that the District can expect over 100,000 visitors. Id. Rainbow Falls is considered an off-highway vehicle and trail use area. Id. It includes hundreds of camping sites that are not marked, and no fees or permits are required to use the camping sites. Id.

Shooting is prohibited in "the roads and trails that are generally accessed from the Rainbow Falls Trailhead," but this prohibition does not include the adjacent forest land. Condit Decl. [#16-1] at 4. There are no fences, signs, or distinguishing features

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separating the Rainbow Falls shooting-closure area from the adjacent public and private land. There is, however, signage on the Rainbow Falls trailhead "that alerts visitors to gun-use restrictions that apply to the area[,] . . . [which] was up at the time of the incident" in July 2015. Id. For example, a three-panel kiosk at the Rainbow Falls Trailhead parking lot alerts visitors to gun-use restrictions and provides a map showing the areas where shooting is prohibited. Id.

Because of the proximity of lawful shooting areas to the Rainbow Falls area, the Forest Service and local law enforcement receive frequent complaints about gun fire from Rainbow Falls visitors. Condit Decl. [#16-1] at 6-7.6 Much of the gun fire that can be heard in the Rainbow Falls area is from guns being fired from lawful shooting areas. Id. at 7. Plaintiff notes that Defendant's exhibits demonstrate that the Rainbow Falls campground is surrounded quite extensively by non-shooting areas, see Response [#21] at 1-2, but it is undisputed that shooting areas are also located nearby. As Mr. Condit explains, "[t]here are numerous areas where shooting is particularly common around the Rainbow Falls recreation area[,]" such as the Turkey Tracks dispersed shooting site located directly across the road to the west of the Rainbow Falls area. . . ." Condit Decl. [#16-1] and Attachments 1 and 2).

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Turning to Plaintiff's claims, Plaintiff first asserts a claim of negligence under the Federal Tort Claims Act "due to breach of duty of USDA Forest Rangers employee's failure to enforce prohibition laws against target shooting within the Pike National Forest . . . [which] lead [sic] to the death of plaintiff's father, which in turn led to plaintiff [sic] psychological injury." Compl. [#1] at 6. Plaintiff alleges that the Forest Service employees were negligent because "the gun laws were not enforced with reasonable efforts" when they failed to stop the nearby shooting that Mr. Cordova alerted them to. Id. at 7. Plaintiff also argues that the Forest Service should have warned users of the Rainbow Falls area that illegal shooting is known to occur. Supp. Brief [#33] at 4-5. In her second claim, Plaintiff challenges the same conduct but asserts that Defendant, as a landowner under the Colorado Premises Liability Act, breached its duty to Plaintiff's father as an invitee. Id. at 8. Specifically, Plaintiff asserts that Defendant "fail[ed] to exercise the reasonable care and authority to protect against the dangers of which [Defendant] knew of and enforce the shooting regulations within the Pike National Forest." Id. at 8.

On September 13, 2017, Plaintiff alleges that she was diagnosed by a therapist with "[a]nxiety with [p]anic [d]isorder and [s]evere [d]epression" due to her father's death in 2015. Compl. [#1] at 5. "Plaintiff began her process of request for administrative claim injury on June 10th, 2018[,]" which is within the "2 year accrual time frame to file a claim[.]" Id. at 6. On September 24, 2019 Plaintiff received a letter from the U.S. Department of Agriculture Office of General Counsel "stating that plaintiff's claim was being denied and that plaintiff may file suit against the United States in an appropriate U.S. District Court" within six months. Id.

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Defendant seeks to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(1) and (6). See Motion [#16] at 2. Defendant argues that that the Court lacks subject-matter jurisdiction over the claims and that Plaintiff fails to state a claim for relief. Id.

II. Legal Standard

A. Rule 12(b)(1)

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. 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); 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)).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide

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discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on "evidence outside the pleadings" to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

B. Rule 12(b)(6)

Rule 12(b)(6) tests "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)). "[P]lausibility 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...

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