Kessling v. Barker

Decision Date23 July 2012
Docket NumberCivil Action No. 11-cv-02192-REB-CBS
PartiesMARJORIE A. KESSLING, and TRENTON H. PARKER, Plaintiffs, v. BRUCE T. BARKER, individually and in his official capacity, STEPHANIE ARRIES, individually and in her official capacity, BETHANY SALZMAN, individually and in her official capacity, GARY SCHWARTZ, individually and in his official capacity, NICK MEAGHER, individually, JOHN COOK, individually and in his official capacity, and THE WELD COUNTY COMMISSIONERS, individually and in their official capacities, Defendants.
CourtU.S. District Court — District of Colorado

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on the "Motion to Dismiss Plaintiffs' Amended Complaint (ECF No. 14) Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1)" filed by Defendants Barker, Arries, Salzman, Schwartz, Cook, and "the Weld County Commissioners" on December 30, 2011 (Doc. # 16). Pursuant to the Order of Reference dated August 24, 2011 (Doc. # 2) and the memorandum dated December 30, 2011 (Doc. # 17), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, "Plaintiffs' Answer to Defendants' Motion to Dismiss Amended Complaint - Conspiracy & Trespass" ("Response") (filed February 21, 2012) (Doc. # 23), Defendants' Reply (filed March 6, 2012) (Doc. # 24), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Proceeding pro se, Plaintiffs filed their original Complaint on August 22, 2011. (See Doc. # 1). They filed their Amended Complaint on December 9, 2011. (See Doc. # 14). The Amended Complaint is entitled "Amended Civil Rights Complaint for Violations of Plaintiffs' Fourth and Fourteenth Amendment Rights." (See id.). Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983 and supplemental jurisdiction. (See Doc. # 14 at 2 of 6). Plaintiffs allege that they

are seeking relief for damages against Defendants Barker, Arries, Salzman, Schwartz, Maegher, and Cook for conspiring together to conducting an unauthorized and illegal search and seizure of and on the Defendants ranch property (Agricultural land pursuant to C.R.S. 39-1-102(1.6), located at Weld County Road 8 and 35 in Weld County Colorado. Defendants Barker, Arries, Salzman unlawful acts took place on September 29, 2009, in violation of the Plaintiffs IV and XIV Amendment rights and in violation of Colorado's Constitution, Article II, Bill of Rights, Section 7 (Search/Seizure); and Colorado's Criminal Code - C.R.S. - 18-4-415 (Use of photographs, video tapes or film) and C.R.S. - 18-4-502 (First Degree Criminal Trespass), and C.R.S. 18-4-503 (Second Degree Criminal Trespass). Plaintiffs further allege that on or about September 5, 2009, Defendant Cook, along with his deputies, conducted an unlawful video filming of the Defendants personal and private property in violation of The Defendants IV Amendment rights and in violation of C.R.S. 18-4-415 when Defendant Cook sent a deputy to video tape the offices and equipment in the back area of the ranch without permission or lawful authority to do so. [Sic].

(See Doc. # 14 at 2 of 7). Plaintiffs also seek "declaratory and other injunctive relief." (See id. at 5 of 6).

Plaintiffs sue all of the Defendants in both their individual and official capacities. (See id. at 1 of 6). Plaintiffs sue Defendant Barker in his capacity as the Weld County, Colorado County Attorney, Defendant Arries in her capacity as an Assistant Weld County Attorney, Defendant Salzman in her capacity as an employee of the Weld County Building and Zoning Department, Defendant Schwartz in his capacity as a supervisor with the Weld CountyAnimal Control unit, Defendant Maegher in his capacity as a private citizen, Defendant Cook in his capacity as the Sheriff of Weld County, and "The Weld County Commissioners" in their capacity as "the administrative heads of Weld County and the employers and supervisors of Defendants Barker, Arries and Salzman." (See id.).

II. Standard of Review

Defendants move to dismiss the AC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). Defendants' argument that certain of Plaintiffs' claims fail to state a claim within one of the waivers of immunity contained within the Colorado Governmental Immunity Act ("CGIA"), Colo. Rev. Stat. § 24-10-106, constitutes a challenge to subject matter jurisdiction. See Douglas v. City and County of Denver, 203 P.3d 615, 617 (Colo. App. 2008) ("Whether a claim is barred on grounds of immunity under the CGIA is a question of subject matter jurisdiction and is properly addressed under C.R.C.P. 12(b)(1).").

Fed. R. Civ. P. Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the plaintiff to frame "a complaint with enough factual matter (taken as true) to suggest" that he orshe is entitled to relief. Twombly, 550 U.S. at 556. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. "Rule 8(a)'s mandate, that plaintiffs 'provide a short and plain statement of the claim showing that the pleader is entitled to relief,' has been incorporated into . . . the . . . 12(b)(6) inquir[y]." U.S. ex rel Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1171 (10th Cir. 2010). The "requirement of plausibility serves . . . to inform the defendants of the actual grounds of the claim against them." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).

Because Plaintiffs appear pro se, the court reviews their "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 not been 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").

III. Analysis

Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983 and supplemental jurisdiction. (See Doc. # 14 at 2 of 6, ¶ 8). Section 1983 provides a civil cause of action for individualswho are deprived of "any rights, privileges, or immunities secured by the Constitution and laws" by a person acting "under color of law." Adickes v. SH Kress & Co., 398 U.S. 144, 147, 150 (1970). Section 1983 does not create any substantive rights; rather, it creates only a remedy for violations of rights secured by federal statutory and constitutional law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 616-18 (1979). "In order to successfully state a cause of action under section 1983, [Plaintiffs] must allege . . . the deprivation of a federal right and that the alleged action was taken under color of state law." Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1265 (10th Cir. 1998) (internal quotation marks and citation omitted).

A. Defendant Maegher

Fed. R. Civ. P. 4(m) provides that the court shall dismiss an action without prejudice as to any defendant who has not been served within 120 days of the filing of the action:

"[i]f a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Defendant Maegher was named in this case upon its initial filing on August 22, 2011. As of this date, more than eleven months has passed since the filing of the case and the record before the court indicates that Defendant Maegher has not been served with a summons or complaint in this action. To date, Defendant Maegher has not filed with the Clerk of the Court a signed waiver of service or appeared in the case. Plaintiffs have not requested or shown good cause for an extension of time to serve Defendant Maegher.

A court cannot obtain personal jurisdiction over a party without proper service of process. See Murphy Brothers, Inc v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) ("Before a . . . court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.") (citation omitted); Oklahoma Radio Associates v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992) ("Rule 4 service of process provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over...

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