Kaplan v. Archer

• Decision Date: 03 July 2012
• Docket Number: Civil Action No. 11-cv-02094-PAB-CBS
• Parties: MARC HARRIS KAPLAN, Plaintiff, v. MICHELLE L. ARCHER, in her official and individual capacity, KARLA JEAN HANSEN, in her official and individual capacity, KIRK STEWART SAMELSON, in his official and individual capacity, HAROLD BUTTS, in his official and individual capacity, TERRY MAKETA, in his official and individual capacity, JOHN W. HICKENLOOPER, in his official and individual capacity, DAN MAY, in his official and individual capacity, WILLIAM TRUJILLO, in his official and individual capacity, and JOHN W. SUTHERS, in his official and individual capacity, Defendants.
• Court: U.S. District Court — District of Colorado

MARC HARRIS KAPLAN, Plaintiff,

v. MICHELLE L. ARCHER, in her official and individual capacity,KARLA JEAN HANSEN, in her official and individual capacity,KIRK STEWART SAMELSON, in his official and individual capacity,HAROLD BUTTS, in his official and individual capacity,TERRY MAKETA, in his official and individual capacity,JOHN W. HICKENLOOPER, in his official and individual capacity,DAN MAY, in his official and individual capacity,WILLIAM TRUJILLO, in his official and individual capacity,and JOHN W. SUTHERS, in his official and individual capacity, Defendants.

Civil Action No. 11-cv-02094-PAB-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: July 3, 2012

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on: (1) the "Motion to Dismiss First Amended Complaint by Defendants Hickenlooper, Suthers, Trujillo, Samelson, Hansen, Butts, and Archer" ("State Defendants") (filed December 14, 2011) (Doc. # 23); and (2) "Motion to Dismiss Plaintiff's First Amended Civil Complaint . . ." filed by Defendants Maketa and May ("County Defendants") on December 14, 2011 (Doc. # 25). Pursuant to the Amended Order of Reference dated August 15, 2011 (Doc. # 3) and the memoranda dated December 14, 2011 (Doc. # 24) and December 15, 2011 (Doc. # 26), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Kaplan's "Motion to Strike Defendants['] Motion to Dismiss First Amended Civil Complaint . . ." (filed January 12, 2012) (Doc. # 30) (treated by the court as Mr. Kaplan's Response to Defendants' Motions), Mr. Kaplan's additional submissions (filed on January 23, 2012) (Docs. # 34 and # 37), Defendants' Replies filed on January 23, 2012 (Doc. # 33) and January 26, 2012 (Doc. # 38), and Mr. Kaplan's "Reply to Defendants['] Reply . . . " (filed February 23, 2012) (Doc. # 40). The court has also reviewed the pleadings, the entire case file, the proceedings held onOctober 21, 2011 (see Courtroom Minutes/Minute Order (Doc. # 28)), and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Mr. Kaplan brings this lawsuit in his pro se capacity. Mr. Kaplan sues all of the Defendants in both their individual and official capacities. (See "First Amended Civil Complaint" ("FAC") (Doc. # 19) at 1, 9 of 43). Mr. Kaplan alleges that on March 4, 2011 in El Paso County, Colorado, Defendant Archer, an employee of the Colorado State Patrol, arrested him without probable cause. (See id. at 10-11 of 43). Mr. Kaplan sues Defendant Butts as a supervisor of the Colorado State Patrol, Defendant Trujillo as a Magistrate of the El Paso County Court, Defendant Hansen as a Judge of the El Paso County Court, Defendant Samelson as Chief Judge of the El Paso County Court, Defendant Maketa as a supervisor of the El Paso County Sheriff's Office, Defendant Hickenlooper as the Chief Executive Officer of the State of Colorado, Defendant May as the District Attorney of El Paso County, and Defendant Suthers as the Attorney General of the State of Colorado. (See id. at 11-19 of 43). Mr. Kaplan alleges that in March of 2011, he mailed or filed through court filings Notices "of Status and Constructive Notice and Challenge to Authority ('Notices A & C')" to Defendants Archer, Hickenlooper, Buts, Trujillo, May and Maketa. (See id. at 19-22 of 43; Doc. # 38-1). Mr. Kaplan seeks injunctive, declaratory, and monetary relief. (See Doc. # 19 at 39-41 of 43).

Defendants move to dismiss the FAC pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). Because Mr. Kaplan appears pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a court may not assume that a plaintiff can prove facts that have notbeen alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court's role is not to act as pro se litigant's advocate); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). While pro se pleadings should be construed liberally, that standard does not override a pro se plaintiff's responsibility to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (pro se litigant required to follow the rules of federal and appellate procedure); In re "Santa Barbara Like It Is Today" Copyright Infringement Litigation, 94 F.R.D. 105, 108 (D. Nev. 1982) ("there is a limit to the indulgence of the law and even a pro se complaint is subject to dismissal if the pleading fails to reasonably inform the adverse party of the basis for the cause of action") (citation omitted).

II. Factual and Procedural Background

On March 4, 2011, Defendant Archer, a Colorado State Patrol Trooper, arrested Mr. Kaplan for, inter alia, driving under the influence of alcohol in violation of Colo. Rev. Stat. § 42-4-1301(a), prohibited use of a weapon in violation of Colo. Rev. Stat. § 18-12-106(1)(d), and resisting arrest in violation of Colo. Rev. Stat. § 18-8-103, all misdemeanors under Colorado law. (See Exhibit A to State Defendants' Motion (Doc. # 23-1) at 1-2 of 16).¹ On September 21, 2011, a jury found Mr. Kaplan guilty of all charges in El Paso County Case Number 2011M001544 (the "Criminal Case"). (See Exhibit D to State Defendants' Motion (Doc. # 23-1) at 11-13 of 16). Defendant Hansen, the judge in the Criminal Case, sentenced Mr. Kaplan to 180 days in jail and fined him $1,308.00. (See id.).

While the Criminal Case was pending, Mr. Kaplan filed three petitions for writ of habeas corpus in state court in case numbers 11cv315, 11cv174, and 11SA223, all of which were dismissed. (See Exhibit B to State Defendants' Motion (Doc. # 23-1) at 4-9 of 16). Mr. Kaplan also filed two suits in the U.S. District Court for the District of Colorado. One suit is the instant action. The other suit sought to remove the Criminal Case from El Paso County Court to federal court. On August 12, 2001, District Judge Brimmer ordered the suit dismissed and directed the Clerk of the Court to "file this matter as a criminal case." (See People v. Kaplan, No. 11-cv-02093-PAB (Exhibit C to State Defendants' Motion (Doc. # 23-1) at 10 of 16). On August 12, 2011, Judge Brimmer "summarily remanded" the case "to the County Court of El Paso County, Colorado, where it is filed as Case No. 2011M1544." (See People v. Kaplan, No. 11-cv-02093-PAB, at Doc. # 2).

On September 29, 2011, Mr. Kaplan petitioned the Colorado Supreme Court for a writ of habeas corpus in case number 11SA274. The Supreme Court denied the petition on October 4, 2011. (See Exhibit E to State Defendants' Motion (Doc. # 23-1) at 14 of 16). On October 6, 2011, Mr. Kaplan filed a notice of appeal of the Criminal Case. (See El Paso County Court Case Number 11cv358 (Exhibit to State Defendants' Motion (Doc. # 23-1) at 16 of 16))).

III. Analysis

Mr. Kaplan alleges that this lawsuit is brought pursuant to "28 U.S.C. §§ 2201(a), 2202, 2283, 1331, 1343(3) and 1651," as well as 18 U.S.C. §§ 3332(a), 1961-1964, 1957(a), and 666. (See FAC (Doc. # 19) at 4-6 of 43). It appears that Mr. Kaplan is alleging that his arrest was without probable cause and that his subsequent prosecution was part of a conspiracy by the Defendants, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and constituting "Depr[i]vation of Liberties." (See Doc. # 19 at 26-34 of 43).

A. Fed. R. Civ. P. 8

Defendants argue that the FAC should be dismissed for failure to meet the pleading requirements of Rule 8. Fed. R. Civ. P. 8(a) states that a complaint shall contain a "short and plain statement of the claim showing that the pleader is entitled to relief." This pleading requirement is intended to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) 9internal quotation marks and citation omitted). See also Blinder & Robinson Co. v. SEC, 748 F.2d 1415, 1419 (10th Cir. 1984) ("a plaintiff must state a compensable claim for relief that details the facts forming the basis for the claim"). The information provided by the pleader must be adequate to set forth the basis of his claim "as distinguished from a bare averment that he wants relief and is entitled to it." See 5 Federal Practice and Procedure Civ. 3d § 1215. When a complaint does not comply with Rule 8, the district court has the authority to dismiss the complaint. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1161 (10th Cir. 2007) ("[T]o be sure, a failure to satisfy Rule 8 can supply a basis for dismissal: Rule 41(b) specifically authorizes a district court to dismiss an action for failing to comply with any aspect of the Federal Rules of Civil Procedure."). "A dismissal without prejudice under Rule 8 is within the sound discretion of the trial court." Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992) (citations omitted).

The FAC is 43 pages long and consists of 89 Paragraphs with numerous subparts. Mr. Kaplan appears to allege that his prosecution was part of a...