Serna v. Denver Police Dep't
| Decision Date | 09 June 2021 |
| Docket Number | Civil Action 21-cv-00789-WJM-MEH |
| Parties | FRANCISCO SERNA, Plaintiff, v. DENVER POLICE DEPARTMENT, and ANSELMO JARAMILLO, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Francisco Serna asserts a claim against Defendants Denver Police Department[1]and Anselmo Jaramillo (together “Defendants”) pursuant to the Agriculture Improvement Act of 2018, Pub. L. 115-334, December 20, 2018 132 Stat 4490 (hereafter, “2018 Farm Bill”) related to the seizure of Plaintiff's hemp plants at the Denver International Airport. Defendants have filed the present motion to dismiss (“Motion”), arguing that the 2018 Farm Bill does not provide a private right of action. Because the Court agrees that Plaintiff fails to state a claim upon which relief can be granted, the Court respectfully recommends granting the Motion.
The following are factual allegations made by Plaintiff in the operative pleading, 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 is a licensed hemp producer in Texas. Compl. § IV. On or about March 16, 2021, at approximately 2:00 p.m., Plaintiff went through security at Denver International Airport. Id. §§ III.A-B. He planned on travelling with thirty-two “plant clones or rooted clippings compliantly produced under Subtitle G of 2018 Farm Bill Act.” Id. § III.C. He had a certificate of compliance for the plants stating that they contained less that 0.3 percent THC. Id. When Plaintiff reached a checkpoint, Officer Jaramillo spoke with another officer and decided to confiscate the plants. Id. Officer Jaramillo told Plaintiff that they had a policy of confiscating any plants above zero percent THC. Id.
Plaintiff alleges that he is making preparations for “the grow season, ” and, if his preparations are not completed in a timely manner, it will prevent a harvest this season. Id. § IV. He requests that the confiscated plants “be kept under permanent light and returned to [him] immediately so that [he] can grow these mother plants to produce the starts necessary for this season's harvest.” Id. In seeking this injunctive relief, Plaintiff has brought this lawsuit pursuant to Section 10114 of the 2018 Farm Bill. Id. § V.
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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (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 679. 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 680.
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.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting 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 1191.
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).
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 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).
As mentioned earlier, Plaintiff's only claim is for injunctive relief under the 2018 Farm Bill.[2]Defendants contend that there is no private right of action under that legislation. Plaintiff's response is two-fold. First, he argues that Defendants' Motion was served beyond the time permitted under Fed.R.Civ.P. 5. Resp. at 3-4. Hence, the Court should deny the Motion as untimely. Second, the 2018 Farm Bill and its legislative history support the notion that a private right of action is provided. Id. at 4-10.
Plaintiff argues that “Defendants' motion must fail” because service of the Motion was completed three days past the due date. Resp. at 3-4. Defendants filed their Motion on the docket on April 23, 2021. ECF 20. In a Notice of Errata filed on April 27, 2021, Defendants asserted that, “[d]ue to an administrative error, ” the Motion was not emailed to Plaintiff until April 26, 2021. ECF 23. Citing Fed.R.Civ.P. 5 and D.C.Colo.LCivR 5.1(d), Plaintiff contends that service was untimely, and, as such, the Motion should be denied. Resp. 3-4.
Plaintiff's argument fails for three reasons. First, Defendants did not fail to meet the deadline to respond to the Complaint. Defendants timely filed the Motion on the docket on April 23, 2021. When a document “is filed in CM/ECF, it is served electronically under Fed.R.Civ.P. 5.” D.C.Colo.LCivR 5.1(d). Plaintiff's desire to receive the Motion by email indicates he was willing to accept service electronically. Second, even though Plaintiff did not receive the Motion by email until three days later, Plaintiff has not demonstrated prejudice from this delay. Plaintiff did not seek an extension of time to respond, even though Defendants' counsel “told Mr. Serna that an extension of time would not be opposed.” Reply at 2. Third, Plaintiff's response is itself technically untimely. The Court ordered Plaintiff to file his response on or before May 19, 2021. ECF 22. Plaintiff attempted to file his response on that date; however, he did so by emailing the document to Judge Martinez's chambers. Reply, Exh. A. Although Judge Martinez advised Plaintiff to contact the Clerk's Office about properly filing the response, Plaintiff did not actually file it until May 24, 2021 (five days later than the deadline). If the Court held Defendants liable for their administrative error, then the Court would also need to hold Plaintiff accountable for his. The simpler and just course of action is for the Court to accept both parties' filings and consider the merits of the arguments presented.
The Court begins with the notion that, “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id. “[W]here the text and structure of a...
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