Opinion
Civil Action 23-cv-03233-SKC-STV
06-28-2024
BERNARD KENNETH RIVERS, JR., Plaintiff, v. RACHAEL ERICKSON; POLLY BROCK; STEVEN BERNARD; and STATE OF COLORADO, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak Magistrate Judge
This matter is before the Court on Defendants' Motion to Dismiss [#13] (the “Motion”). The Motion has been referred to this Court. [#16] This Court has carefully considered the Motion and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Complaint (the “Complaint”) [#1], which must be taken as true when considering the Motion. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Plaintiff brings six claims against various Defendants. [#1 at 6-14] All of Plaintiff's claims appear to be brought under 42 U.S.C. § 1983, alleging violations of Plaintiff's Fourteenth Amendment rights.[Id. at 6 (“Plaintiff brings this suit pursuant to Title 42 U.S.C. § 1983 for violations of the Fourteenth Amendment[] of the federal Constitution.”)] The Court provides the factual background for each claim in turn.
While the Complaint references certain state laws and judicial directives, Plaintiff does not appear to assert any cause of action under Colorado law. To the extent that Plaintiff attempts to bring state law claims, such claims are unintelligible and do not satisfy the pleading requirements of Federal Rule of Civil Procedure 8. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining that, to state a claim in federal court, a plaintiff's complaint must address: (1) “what each defendant did to him”; (2) “when the defendant did it”; (3) “how the defendant's action harmed” the plaintiff; and (4) “what specific legal right the plaintiff believes [each] defendant violated.).
A. Claim One
In Claim One, Plaintiff alleges that “Weld County Clerk of Court Rachael Erickson . . . fabricated evidence about attorney Kenneth Barker in appeal case 23CA1443.” [Id. at 6] “Specifically, [Ms.] Erickson fabricated evidence that [Mr.] Barker is not a licensed attorney, and she did not include his ‘registration bar number', like other attorneys.” [Id. at 6-7] Plaintiff alleges that he was deprived of “an accurate record,” and that the “act deprived Plaintiff his right to procedural due process.” [Id. at 6-8] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 14]
B. Claim Two
In Claim Two, Plaintiff alleges that “Weld County Clerk of Court Rachael Erickson . . . fabricated evidence about attorney Kenneth Barker's address in appeal case 23CA1443.” [Id. at 8] Specifically, Ms. Erickson “used the incorrect address of 116 North College Avenue, Suite 6, Fort Collins, CO,” despite the fact that a registry in a different action “shows mail returned as recent as October 20, 2023, and going back to April 23, 2021, from the 116 North College Avenue address.” [Id. at 8-9] Plaintiff alleges that this act “deprived [Plaintiff] his right to procedural due process and equal protection of the laws.” [Id. at 8] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 15]
C. Claim Three
In Claim Three, Plaintiff alleges that, “[o]n or around December 7, 2021, the COLORADO COURT OF APPEALS used employee Chief Justice Steven Bernard to fabricate evidence that he had authority to enter an order by himself.” [Id. at 9] Plaintiff alleges that this act “deprived [Plaintiff] of his right to procedural due process and equal protection of the laws.” [Id.] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 15-16]
D. Claim Four
In Claim Four, Plaintiff alleges that “[o]n or around December 10, 2021, COLORADO COURT OF APPEALS Clerk of Court, Polly Brock . . ., fabricated evidence about [Mr.] Barker's address in appeal case 21CA966.” [Id. at 11] Specifically, Ms. Brock “used an incorrect address.” [Id.] Plaintiff alleges that this act “deprived [Plaintiff] his right to procedural due process and equal protection of the laws.” [Id.] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 16]
E. Claim Five
In Claim Five, Plaintiff alleges that Ms. Brock again used an incorrect address for Mr. Barker “in appeal case 23CA1443.” [Id. at 12] Plaintiff alleges that this act “deprived [Plaintiff] his right to procedural due process and equal protection of the laws.” [Id. at 12] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 1617]
F. Claim Six
In Claim Six, Plaintiff alleges that the State of Colorado “has failed to keep accurate records of address changes for its attorneys.” [Id. at 13] Plaintiff alleges that this failure “puts the public at risk of not being able to bring state appointed attorneys to justice for ineffective assistance, misconduct, fraud upon the court, or any other possible reason.” [Id. at 13] Plaintiff alleges that this failure “depriv[ed] [Plaintiff] protection of . . . due process and equal protection of the laws.” [Id. at 14] As relief, Plaintiff seeks: “[D]eclaratory relief requesting the court orders STATE OF COLORADO to pay monetary damages in the amount of $50,000,000.00;” “prospective injunctive relief for the ongoing violation of federal law;” and punitive damages. [Id. at 17-18]
G. Procedural Background
Plaintiff initiated this action on December 7, 2023. [#1] Defendants filed the Motion before the Court on January 18, 2024, seeking dismissal of the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [##13] Plaintiff included arguments related to the Motion in a January 26, 2024 filing, which the Court will consider as Plaintiff's response. [See #17 (titled “Objection to Motion to Dismiss”)] Defendants filed a reply on February 9, 2024. [#23]
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” 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). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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 Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath or conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
In their Motion to Dismiss, Defendants assert several grounds for dismissal of the Complaint. [#13] Specifically, Defendants argue that: (1) Plaintiff lacks standing to bring his claims; (2) The State of Colorado and the individual Defendants sued in their official capacity are entitled to Eleventh Amendment immunity; (3) the Younger Abstention doctrine bars Plaintiff's claims; (3) the individual Defendants are entitled to absolute judicial immunity; (4) Plaintiff has failed to state a claim; and (5) the individual Defendants are entitled to qualified immunity on Plaintiff's individual-capacity claims. [Id.] Because the Court agrees that Plaintiff has not met his burden to establish that he has standing to assert his claims, which is a jurisdictional defect, the Court does not consider Defendants' alternative arguments.
“Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases' or ‘Controversies.'” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (quoting U.S. CONST. art. III, § 2). “Plaintiffs must demonstrate a personal stake in the outcome in order to assure that concrete adverseness which sharpens the presentation of issues necessary for the proper resolution of constitutional questions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quotations omitted). “Plaintiffs must show they have sustained or are immediately in danger of sustaining some direct injury, and the injury or threat of injury must be real and immediate, not conjectural or hypothetical.” Faustin v. City & Cnty. of Denver, 268 F.3d 942, 947 (10th Cir. 2001). As a result, “[t]o establish standing, plaintiffs must show injury in fact, a causal relationship between the injury and the challenged action of the defendant, and a likelihood that the injury will be redressed by a favorable decision.” Id. “In sum, under Article III, a federal court may resolve only a real controversy with real impact on real persons.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021) (quotation omitted). Plaintiff, as the party invoking federal jurisdiction, “bears the burden of establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Here, Defendants challenge the injury-in-fact requirement. [See #13 at 5-6] Defendants argue that Plaintiff's allegations are conclusory and provide no specifics on how Defendants' alleged actions impacted Plaintiff personally. [Id.] The Court agrees.
“To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quotation omitted). “[T]he injury must affect the plaintiff in a personal and individual way.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011) (quotation omitted). And simply alleging that the Constitution has been violated does not satisfy the requirements of Article III. Valley Forge Christian College v. Americans United for Separate of Church and State, 454 U.S. 464, 485-86 (1982). That is, “assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art[icle] III.” Id. at 483. There must be a “personal injury suffered by [the plaintiff] as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” Id. at 485 (emphasis in original).
Here, Plaintiff's allegations do not suffice to establish that the alleged unconstitutional conduct had any “real impact” on Plaintiff, TransUnion LLC, 594 at 424, or caused him to suffer any “personal injury” besides disagreement with governmental conduct, Valley Forge Christian College, 454 U.S. at 483-85. The Complaint consists of threadbare recitals that: State court clerks provided incorrect information regarding the address of an attorney and did not “include his registration bar number” [#1 at 6-9, 1113]; a state court justice “fabricate[d] evidence that he had authority to enter an order by himself” [id. at 9-11]; and the State of Colorado “has failed to keep accurate record of address changes for its attorneys” [id. at 13-14]. Plaintiff asserts, without significant elaboration, that these actions “deprived Plaintiff his right to procedural due process,” and, in some instances, his right to “equal protection of the laws.” [See #1 at 6-14] But Plaintiff does not allege any concrete harm that he suffered from any of Defendants' actions aside from the fact that the government and its officials did not act how Plaintiff believes they were obligated to act. Similarly, in briefing, the only injury that Plaintiff points to is the denial of “an accurate record of address changes and court records” [#17 at 5], but does not explain how this denial harmed him except by occurring. See Spokeo, Inc., 578 U.S. at 342 (explaining that alleging a “bare procedural violation” of a reporting requirement does not satisfy the demands of Article III because “not all inaccuracies cause harm or present any material risk of harm”). Put differently, Plaintiff merely asserts “a right to a particular kind of Government conduct,” which he alleges “the Government has violated by acting differently.” Valley Forge Christian College, 454 U.S. at 483. This does not satisfy the requirements of Article III. Id.; see also Abdullah v. Paxton, 65 F.4th 204, 210 (5th Cir. 2023) (holding that a plaintiff lacked standing to bring a procedural due process claim when he failed to plead any credible injury or threat of injury to a vested property interest).
It appears possible that Plaintiff believes that the allegedly unconstitutional actions referenced in the Complaint led to adverse rulings against him in the state court actions, thereby leading to a concrete personal injury. This is not clearly alleged in the Complaint or raised in briefing, and the Court declines to make that speculative leap on Plaintiff's behalf. Moreover, claims based on any such assertion, which would appear to challenge a state court's final judgment or interfere with ongoing state court proceedings, would likely be barred by the Rooker-Feldman doctrine or by the Younger abstention doctrine. See Rivers v. State of Colorado, No. 22-CV-2922-WJM-STV, 2023 WL 5310145, at *2-4 (D. Colo. Aug. 17, 2023) (dismissing Mr. Rivers' claims that state court orders or proceedings were void due to evidence fabrication under the Rooker-Feldman doctrine), aff'd, No. 23-1279, 2024 WL 2050286 (10th Cir. May 8, 2024).
With respect to the State of Colorado's allegedly inadequate record-keeping, Plaintiff does allege that the States' actions “put[] the public at risk of not being able to bring state appointed attorneys to justice for ineffective assistance, misconduct, fraud upon the court, or any other possible reason.” [#1 at 13] This brief statement, however, does not allege a concrete injury that is particularized to Plaintiff. It instead alludes to a conjectural injury that may, speculatively, occur to “the public” if the practice continues. Thus, Plaintiff fails to allege any injury that “affect[s] the plaintiff in a personal and individual way.” Ariz. Christian Sch. Tuition Org., 563 U.S. at 134; see also Spokeo, Inc., 578 U.S. at 339 (“To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” (quotation omitted)).
Accordingly, the Court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED, and that the Complaint be DISMISSED WITHOUT PREJUDICE. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction, as it did here, the dismissal must be without prejudice.”).
IV. CONCLUSION
For the reasons stated above, the Court respectfully RECOMMENDS that that the Motion to Dismiss [#13] be GRANTED, and that the Complaint be DISMISSED WITHOUT PREJUDICE.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).