Prescott v. Valdez et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge S. Kato Crews
Civil Action No. 1:21-cv-03252-SKC
JASON AARON PRESCOTT,
Plaintiff,
v.
RICHARD VALDEZ, et al.
Defendants.
ORDER & RECOMMENDATION RE: DEFENDANTS’
PARTIAL MOTION TO DISMISS [DKT.7.]
Plaintiff Jason Prescott brought this action pursuant to 42 U.S.C. § 1983,
asserting the Sheriff of Archuleta County, his deputies, and the Board of County
Commissioners violated Plaintiff’s constitutional rights when they conspired with
Plaintiff’s wife to have him arrested and to have his children removed from his
custody. [Dkt. 1.]
Defendants filed a partial motion to dismiss the claims against the Board of
County Commissioners and Defendants Lattin, H. Brown, Smith, and Civiletto.
Defendants also seek dismissal of Plaintiff’s fourth claim for extreme and outrageous
conduct. [Dkt. 7.] The Court has reviewed the Complaint, the Motion and related
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briefing, and the applicable law. No hearing is necessary. For the following reasons,
the Court RECOMMENDS the Motion be GRANTED.1
STANDARD OF REVIEW
A. 	Rule 12(b)(1)
Federal courts, as courts of limited jurisdiction, must have a statutory basis
for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994)
(citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Further, the Court
has a duty to consider its own subject matter jurisdiction sua sponte. Fed. R. Civ. P.
12(h)(3).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a
complaint for lack of subject matter jurisdiction. The determination of a court’s
subject-matter jurisdiction is a question of law. Madsen v. United States ex rel. U.S.
Army, Corps of Eng’rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking
jurisdiction cannot render judgment but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah
Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). “The burden of establishing
subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao,
296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)).
1 Because the parties did not file their paperwork regarding consent to magistrate
judge jurisdiction, and because the time for doing so has passed, the case will be
redrawn to a presiding District Judge.
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B. 	Rule 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may
dismiss a complaint for “failure to state a claim upon which relief can be granted.”
See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must
“accept as true all well-pleaded factual allegations . . . and view these allegations in
the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-
25 (10th Cir. 2010) (internal citations omitted). But the Court is not “bound to accept
as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). 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.” Id. at 678 (internal quotation marks omitted).
ANALYSIS
A. 	Board of County Commissioners of Archuleta County & Defendants
Lattin, H. Brown, Smith, and Civiletto.
Defendants seek dismissal of the Board of County Commissioners because it is
a separate governmental entity from the Sheriff, and therefore, is not liable for the
Sherriff’s actions or those in his employment. Defendants also argue Plaintiff has
failed to allege a policy, practice, or custom for which the Board could be held
independently liable under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658 (1978). [Dkt. 7 at pp.2-6.] Defendants are correct, and Plaintiff concedes as much
in his Response. [Dkt. 13.] Bristol v. Bd. of Cnty. Comm’rs of Cnty. of Clear Creek, 312
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F.3d 1213, 1219 (10th Cir. 2002) (“Under the Colorado constitution, the County
Sheriff is a distinct position, separate from the Board of County Commissioners.”).
Regarding Defendants Lattin, H. Brown, Smith, and Civiletto, Defendants
correctly observe the Complaint fails to allege any actions taken by these individuals
personally. Escobar v. Reid, 668 F.Supp.2d 1260, 1290 (D. Colo. 2009) (To maintain a
§ 1983 claim, the plaintiff must allege facts showing the defendant was “personally
involved in the decisions leading to [the plaintiff’s] mistreatment.”). Plaintiff again
concedes the issue. [Dkt. 13 at p.2.]
The only dispute between the parties is whether the dismissal of these
Defendants should be with or without prejudice. However, because Defendants did
not raise arguments regarding the futility of amendment, the Court concludes
dismissal without prejudice is appropriate. See Brereton v. Bountiful City Corp., 434
F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a
complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend
would be futile.”) (emphasis added).
B. 	Extreme and Outrageous Conduct
In the Complaint, Plaintiff appears to assert a claim of extreme and outrageous
conduct under 42 U.S.C. § 1983. Defendants correctly observe, however, that extreme
and outrageous conduct is not a cognizable constitutional claim, and therefore, it is
not appropriately asserted under section 1983. Hous. Auth. of Kaw Tribe of Indians
of Oklahoma v. City of Ponca City, 952 F.2d 1183, 1188 (10th Cir. 1991) (citing
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617–18 (1979)) (“[S]ection
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1983 does not provide any substantive rights at all but only creates a remedy for the
violation of substantive rights guaranteed by the Constitution.”).
In his Response, Plaintiff admits this issue, but argues his claim is not brought
pursuant to section 1983. He maintains it is asserted as a tort claim under Colorado
common law. [Dkt. 13.] Accepting this characterization, and because the Defendants
are 	inarguably public employees, 	Plaintiff’s 	claim 	is, 	therefore, 	subject 	to 	the
requirements of the Colorado Governmental Immunity Act (CGIA). Castaldo v. Stone,
192 F. Supp. 2d 1124, 1139 (D. Colo. 2001) (“There is no dispute that the Sheriff
Defendants are public employees under the CGIA.”); Garcia v. Chamjock, No. 11-cv-
00263-PAB-MEH, 2012 WL 638145, at *2 (D. Colo. Feb. 27, 2012) (claims for
outrageous conduct are subject to the CGIA notice requirements).
Under the CGIA, public employees are granted immunity from tort claims that
arise out of an act or omission occurring during the performance of duties and within
the scope of employment. Colo. Rev. Stat § 24–10–118(2)(a). Prior to asserting a claim,
a plaintiff must comply with the notice requirements of the CGIA, which provide in
pertinent part:
Any person claiming to have suffered an injury by a public entity or by
an employee thereof while in the course of such employment, whether
or not by a willful and wanton act or omission, shall file a written notice
as provided in this section within one hundred eighty-two days after the
date of the discovery of the injury, regardless of whether the person then
knew all of the elements of a claim or of a cause of action for such injury.
Compliance with the provisions of this section shall be a jurisdictional
prerequisite to any action brought under the provisions of this article,
and failure of compliance shall forever bar any such action. . .
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Colo. Rev. Stat. § 24-10-109(1). This notice provision applies when, as here, federal
courts hear Colorado tort claims under supplemental jurisdiction. Renalde v. City &
County of Denver, 807 F.Supp. 668, 675 (D. Colo. 1992).
“Colorado courts strictly construe section 24-10-109(1) and consistently hold
that ‘[c]omplying with the notice of claim [as set forth in section 24–10–109(1)] is a
jurisdictional prerequisite to suit.’” Aspen Orthopaedics & Sports Med., LLC v. Aspen
Valley Hosp. Dist., 353 F.3d 832, 839 (10th Cir. 2003) (quoting Gallagher v. Bd. of
Trs. for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002)). They also hold that a plaintiff
must plead compliance with the CGIA’s notice provisions in the complaint to avoid
dismissal. See Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766,
769 (Colo. App. 2000) (“[A] claimant must allege in his or her complaint that the
claimant has complied with the jurisdictional prerequisite of filing of a notice of
claim.”) (citations omitted).
This Court has carefully reviewed the Complaint; it does not include any
allegation of compliance with the CGIA’s notice provision, nor any allegations that
could be liberally construed as alleging such compliance. [Dkt. 1.] “When a plaintiff
fails to plead compliance with the CGIA, and a court addresses the case in the context
of a motion to dismiss, the court must accept as a matter of ‘fact’ that the plaintiff
failed to comply with the notice provisions.” Aspen Orthopaedics & Sports Med., LLC,
353 F.3d at 840. “This lack of compliance, then, is a jurisdictional issue.” Id.
Consequently, the Court recommends dismissal without prejudice of Plaintiff’s
claim for extreme and outrageous conduct. Eagar v. Drake, 829 F. App’x 878, 885
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(10th Cir. 2020) (“Dismissals for lack of jurisdiction are without prejudice because the
court, having determined that it lacks jurisdiction over the action, is incapable of
reaching a disposition on the merits of the underlying claims.”).
* 	* 	*
For the foregoing reasons, the Court ORDERS this case to be drawn to a
presiding District Judge.
The 	Court 	RECOMMENDS 	the 	Partial 	Motion 	to 	Dismiss 	[Dkt. 	7.] 	be
GRANTED and the claims be dismissed without prejudice.2
Dated: September 23, 2022.
BY THE COURT:
S. Kato Crews
United States Magistrate Judge
2 Be advised the parties have 14 days after service of this recommendation
to serve and file any written objections to obtain reconsideration by the
District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party
filing 	objections 	must 	specifically 	identify 	those 	findings 	or
recommendations to which the objections are made. The District Court
need not consider frivolous, conclusive, or general objections. A party’s
failure 	to 	file 	such 	written 	objections 	to 	proposed 	findings 	and
recommendations contained in this report may bar the party from a de novo
determination 	by 	the 	District 	Judge 	of 	the 	proposed 	findings 	and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28
U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the
proposed findings and recommendations within 14 days after being served
with a copy may bar the aggrieved party from appealing the factual findings
and legal conclusions of the Magistrate Judge that are accepted or adopted
by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
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