Opinion
Civil Action 23-cv-1175-RM-STV
11-09-2023
DIANNA GRACE REUTER, Plaintiff, v. THE CITY OF MONTROSE POLICE DEPARTMENT, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak, United States Magistrate Judge
This matter comes before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Motion”). [#33] The Motion has been referred to this Court. [#34] This Court has carefully considered the Motion and related briefing, the entire 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 First Amended Complaint (the “Complaint”) [#26], which the Court accepts as true at this stage of the proceedings. 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)).
This action arises out of an encounter between Plaintiff and officers from the City of Montrose's Police Department. [See generally #26] At some unspecified time, Plaintiff invited several police officers inside her home. [#26 at 11-13] She was thereafter arrested for a crime she did not commit. [Id. at 3-4, 12-13] The underlying charges appear to arise from a dispute between neighbors, including Mariah Noel Strong. [Id. at 4, 6, 11] Plaintiff was falsely charged for placing something in Strong's mailbox, “outside of legal mail.” [Id. at 4, 12] Plaintiff, however, did not “place” anything in Strong's mailbox, Plaintiff sent a “bill” to Strong by legal mail - inside an addressed envelope with adequate prepaid postage [Id.] Plaintiff maintains the charges are a product of Strong's false allegations. [Id.]
Plaintiff also alleges that Strong had previously damaged Plaintiff's property and repeatedly harassed and physically threatened her. [Id. at 4-5] In response, Plaintiff called the police and Defendant, the Montrose Police Department, “ignore[ed] Plaintiff's calls.” [Id.]
Plaintiff, proceeding pro se, filed suit in in Montrose County Court on April 13, 2023. [#6] Defendant removed this case on May 10, 2023. [#1] Plaintiff amended her Complaint on June 22, 2023. [##21-1; 26] Plaintiff's operative Amended Complaint asserts several claims for relief under 42 U.S.C. § 1983. [#26 at 2-3] Specifically, Plaintiff alleges Defendant violated her Fourth, Fourteenth, Sixth, Ninth, Thirteenth, and Eighth Amendment rights. [See generally #26] Plaintiff also asserts a claim under unspecified “federal [d]iscrimination [a]cts.” [Id. at 5] The Complaint seeks monetary damages and various forms of injunctive relief. [Id. at 4, 6, 10-11, 14-15]
On July 10, 2023 Defendant filed the instant Motion, seeking to dismiss each claim. [#33] Plaintiff has responded to the Motion [#35 and Defendant has filed a reply [#37].
On July 17 2023, Plaintiff filed a response, entitled “Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiff's Amended Complaint.” [#35] That same day, Plaintiff filed a second, identical response named, “Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiff's Amended Complaint.” [#36] The Court will cite to Docket No. 35 as Plaintiff's Response to the Motion.
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). 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 proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
B. Federal Rule of Civil Procedure 12(b)(6)
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.” 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 of 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).
C. Pro Se Litigants
“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). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
In its Motion, Defendant argues: (1) the Court must abstain from deciding Plaintiff's claims pursuant to Younger v. Harris, 401 U.S. 37 (1971) [#33 at 4-6]; (2) the Complaint fails to state any claims against the Montrose Police Department, as a municipal entity [id. at 6-8]; and (3) the Complaint fails to plausibly plead any facts indicating that Plaintiff's constitutional rights were violated [id. at 8-12]. The Court addresses each argument in turn.
A. Younger Abstention
Defendant argues that the Court must abstain from deciding Plaintiff's claims pursuant to Younger v. Harris, 401 U.S. 37 (1971). [#33 at 4-6] The Court disagrees.
A court lacks jurisdiction under the Younger abstention doctrine when there is an ongoing state court proceeding, the state court provides an adequate forum for raising the federal claims, and the proceedings fall within one of the three “exceptional circumstances” identified in New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 368 (1989). Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 81-82 (2013); see also Makeen v. Colorado, No. 14-cv-3452-WJM-CBS, 2016 WL 8470186, at *4-5 (D. Colo. Sept. 16, 2016). “Younger abstention is jurisdictional” and thus must be addressed “at the outset.” D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228-29 (10th Cir. 2004).
The first and third Younger prongs are met here. Plaintiff is the named defendant in an ongoing criminal case in Montrose County Court (the “State Proceeding”). [#33-1]And, state criminal prosecutions are one of the “exceptional circumstances” that preclude federal review. Sprint Commc'ns, 571 U.S. at 78; Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019) (“For the purposes of Younger, state criminal proceedings are viewed as a traditional area of state concern.” (quotation omitted))
In ruling upon a Rule 12(b)(6) motion, the Court may take judicial notice of “documents and docket materials filed in other courts.” Brickert v. Deutsche Bank Nat'l Tr. Co., 380 F.Supp.3d 1127, 1133 n.1 (D. Colo. 2019) (quoting Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014)).
Regarding the second prong, however, the Court is unable to determine whether the State Proceeding gives Plaintiff an adequate opportunity to raise her federal claims. Generally, a plaintiff has an adequate opportunity to raise federal claims in state court “unless state law clearly bars the interposition of the [federal statutory] and constitutional claims.” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999) (alteration in original) (quoting Moore v. Sims, 442 U.S. 415, 425-26 (1979)). But courts have held that if a plaintiff's federal claim is separate from the state case, including when it cannot be raised as an affirmative defense to a criminal prosecution, Younger does not apply. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975) (finding that because the legality of the pretrial detention, raised in plaintiff's § 1983 suit, “could not be raised in defense of the criminal prosecution,” Younger did not bar the federal suit); Habich v. City of Dearborn, 331 F.3d 524, 531 (6th Cir. 2003) (holding Younger did not bar jurisdiction where the issues in federal court “could neither be proven as a part of the state case-in-chief nor raised as an affirmative defense” in the state criminal proceedings).
Here, the Court simply cannot determine whether the State Proceeding relates to the same arrest and detention that Plaintiff references in the Complaint. The Complaint is wholly lacking in details or factual support from which the Court could reasonably infer that the State Proceeding is related to the allegations in the Complaint. And the two dates cited in the Complaint-the May 26, 2022 mailing of the letter to Strong and the May 29, 2022 date that Strong allegedly made her false allegation [#26 at 4]-post-date the May 25, 2022 commencement of the State Proceeding [#33-1 at 8], and thus presumably cannot form the basis for the State Proceeding. Thus, at this time, and without sufficient information or argument from either party, the Court cannot conclude that Plaintiff could raise her constitutional claims related to a wrongful arrest following the alleged mail-related incident, in the State Proceeding alleging assault. [See generally ##26; 33-1] Accordingly, the Court finds that the Younger abstention doctrine does not bar Plaintiff's claims.
The Complaint alternately lists some of these dates as occurring in May 2023 [#26 at 4], but the Court presumes that to be a typographical error since Plaintiff commenced this matter in April 2023 [#6].
In the Complaint, Plaintiff appears to allege claims which may relate to a pending state court proceeding. [#26 at 5-6] Nonetheless, it is far from clear that those allegations relate to the State Proceeding, as the judicial officers appear to be different. [Compare #26 at 5 (referencing Judge Benjamin Morris) with #33-1 at 1 (listing the judicial officer as Laura E.H. Harvell)] To the extent Plaintiff is seeking relief from this Court which intrudes into an ongoing state criminal proceeding-a proceeding which gives Plaintiff an adequate opportunity to raise her federal claims-those claims are barred pursuant to Younger. The Complaint is simply too vague, however, for the Court to draw that conclusion in resolving this Motion.
B. Municipal Liability
Defendant argues the Court should dismiss all claims for relief because the Montrose Police Department (“MPD”) is not a proper party to this suit. [#33 at 6-8] The Court agrees.
Plaintiff has sued a single entity-the MPD. [##6, 26]The MPD is not a proper suable entity. “Title 42 U.S.C. § 1983 provides a cause of action against ‘[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.'” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alterations in original) (quoting 42 U.S.C. § 1983). Accordingly, a plaintiff may only bring suit against a “person” within the meaning of § 1983. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The MPD is not a suable person under § 1983 because it does not “exist as a separate legal entity,” independent of the City of Montrose. Stump v. Gates, 777 F.Supp. 808, 815 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993); see also Farrand v. Douglas Cnty. Sheriff Dep't, No. 09-CV-01266-BNB, 2009 WL 3698412, at *1 (D. Colo. Nov. 4, 2009) (finding the plaintiff could “not sue Defendant Douglas County Sheriff's Department because the sheriff's department is not a separate entity from Douglas County and, therefore, is not a person under 42 U.S.C. § 1983”); Lancaster v. Windsor Police Sgt. Straightline, No. 15-cv-02852-GPG, 2016 WL 852863, at *3 (D. Colo. Mar. 4, 2016) (“Plaintiff may not sue the Weld County Sheriff and Weld County Jail because these entities are not ‘persons' subject to suit under 42 U.S.C. § 1983.”).
The original Complaint clearly named the MPD as the sole Defendant. [#6] The Amended Complaint does not specifically identify a Defendant [see generally #26] though it does acknowledge that “Defendant” removed the matter to this Court [id. at 2]. Because the MPD was the Defendant who removed this matter [#1], the Court assumes that the Amended Complaint continues to identify the MPD as the sole Defendant, despite its frequent use of the term “Defendants” (plural).
This conclusion is consistent with Colorado state law. “The law of the state in which the district court sits governs the capacity of a governmental entity to sue or to be sued.” White v. Utah, 5 Fed.Appx. 852, 853 (10th Cir. 2001) (citing Fed.R.Civ.P. 17(b)). “Under Colorado law[,] municipalities and counties, not their various subsidiary departments”-such as the MPD-“exist as ‘bodies corporate and politic' empowered to ‘sue and be sued.'” Stump, 777 F.Supp. at 816 (citing Colo. Rev. Stat. §§ 30-11-101(1)(a), 31-15-101(1)(a)-(b)); see also Lewis v. Denver Fire Dep't, No. 09-cv-0004-RBJ-MJW, 2013 WL 24279, at *5 (D. Colo. Jan. 2, 2013) (same). Accordingly, the Court respectfully RECOMMENDS that all claims against the MPD be DISMISSED WITH PREJUDICE. The Court Recommends dismissal with prejudice because Plaintiff cannot cure this defect by amendment.
C. Pleading Deficiencies
Plaintiff alleges Defendant violated her Fourth, Fourteenth, Sixth, Eighth, Ninth, and Thirteenth Amendment rights. [#26 at 3-14] Plaintiff also asserts a claim under unspecified “federal [d]iscrimination [a]cts.” [Id. at 5] Defendant argues the Court should independently dismiss all claims because the Complaint fails to state a claim. [#33 at 812] The Court agrees and will address the deficiencies in each claim.
Because the Court issues only a Recommendation, and it is therefore possible that the district court will disagree with this Court's analysis in Section III.B., the Court independently evaluates Defendant's alternative arguments for dismissal.
1. Fourth Amendment
Plaintiff appears to assert a claim for false arrest under the Fourth Amendment. [#26 at 3 (“Defendants[ ] violated Plaintiff's Fourth Amendment rights by seizing her.”)] Defendant argues that Plaintiff's Fourth Amendment claim must be dismissed because Plaintiff's allegations are conclusory. [#33 at 8-9] The Court agrees.
A false arrest violates the Fourth Amendment when a person is arrested without probable cause. See, e.g., Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.2012). Plaintiff's allegations that: “Probable cause did not exist” [#26 a 4] and “Defendants used its police power to tower over Plaintiff without cause” [id. at 3] are nothing more than conclusory and speculative statements. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] formulaic recitation of the elements of a cause of action will not do.”); Shimomura v. Carlson, 17 F.Supp.3d 1120, 1127 (D. Colo. 2014), aff'd, 811 F.3d 349 (10th Cir. 2015) (“Allegations that are purely conclusory are not entitled to be assumed true.”) Plaintiff fails to intelligibly explain the facts and circumstances surrounding the arrest, clearly allege the crime with which she was charged, or explain how Defendant lacked probable cause to arrest her for that crime. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Fourth Amendment claim.
2. Fourteenth Amendment
Plaintiff alleges that her substantive and procedural due process rights were violated under the Fourteenth Amendment, and in addition she alleges an “equal protection” violation. [#26 at 6] Defendant argues that Plaintiff's Fourteenth Amendment claim must be dismissed because the basis of Plaintiff's claim is the false arrest, more properly analyzed under the Fourth Amendment. [#33 at 10] The Court agrees.
The Complaint is lacking in sufficient details or factual support from which the Court could infer the basis of a Fourteenth Amendment claim. It appears Plaintiff's procedural and substantive due process claims stem from the unlawful arrest. [See #26 at 6] “[W]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273-74 (1994) (quotation omitted) (finding that the plaintiff, who argued that he had a liberty interest to be free of criminal prosecution without probable cause, should have made a Fourth Amendment, not Fourteenth Amendment, claim). The same rationale applies to procedural due process claims. Shimomura v. Carlson, 17 F.Supp.3d 1120, 1129 (D. Colo. 2014), aff'd, 811 F.3d 349 (10th Cir. 2015) (finding Plaintiff failed to state a claim under the Fourteenth Amendment where the basis of Plaintiff's procedural due process claim mirrored his false arrest claim.)
Regarding the equal protection claim, Plaintiff alleges: “Plaintiff was repeatedly harmed by Defendants without equal protection” [#26 at 6]; and “Defendants' did not provide Plaintiff equal protection under the law; including, but not limited to, ignoring Plaintiff's calls for help when some neighbors repeatedly threatened her and repeatedly harassed her and repeatedly damaged her property” [id at 5]. “One who alleges [ ] an equal protection violation has the burden of proving the existence of purposeful discrimination causing an adverse effect.” Ashaheed v. Currington, 7 F.4th 1236, 1250 (10th Cir. 2021) (quotation omitted). Plaintiff fails to plausibly allege any facts that could lead to an inference of discrimination. See Robbins, 519 F.3d at 1247 (“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.”). Indeed, it is not even clear to the Court on what basis Plaintiff claims discrimination (i.e., race, gender, ethnicity, religion), or whether Plaintiff is attempting to define herself as a class-of-one. As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Fourteenth Amendment claim.
3. Sixth Amendment
Plaintiff alleges she was provided ineffective assistance of counsel, in violation of her Sixth Amendment rights. [#26 at 6] Defendant argues that Plaintiff “does not make any relevant allegations against the Montrose Police Department.” [#33 at 3] The Court agrees.
The Complaint appears to conflate conduct attributable to Defendant with certain unnamed individuals who are not part of this suit. [#26 at 6] Moreover, the Complaint does not explain how any assistance of counsel is attributable to the MPD. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each defendant did to [the plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right [the plaintiff] believes the defendant violated.”). As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Sixth Amendment claim.
4. Eighth Amendment
Plaintiff alleges Defendant made “libelous and slanderous statements,” which amount to cruel and unusual punishment in violation of the Eighth Amendment. [#26 at 7] Defendant argues that Plaintiff's allegations do not amount to a constitutional violation. [#33 at 12] The Court agrees.
To make out a claim for cruel and unusual punishment under the Eighth Amendment, a plaintiff must show that punishment has been imposed which included “elements of severity, arbitrary infliction, unacceptability in terms of contemporary standards, or gross disproportion.” Johnson v. Erickson, No. CIV 08-1126 JH/LFG, 2009 WL 10706933, at *7 (D.N.M. Aug. 31, 2009), report and recommendation adopted, 2009 WL 10706932 (D.N.M. Oct. 8, 2009) (quoting Ingraham v. Wright, 430 U.S. 651, 658 (1977)). Plaintiff has failed to allege any facts demonstrating that any of these elements were present. Moreover, assuming Plaintiff's claim is based on facts surrounding her arrest, this is more appropriately analyzed under the Fourth Amendment's prohibition against unreasonable searches and seizures. Id.; see also Geddes v. Weber Cnty., No. 20-4083, 2022 WL 3371010, at *4 (10th Cir. Aug. 16, 2022) (explaining that the Fourth Amendment applies to excessive force claims related to the initial arrest whereas the Eighth Amendment applies to excessive force claims of a convicted prisoner). The Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Eighth Amendment claim.
5. Ninth Amendment
Plaintiff alleges Defendant violated her Ninth Amendment right when Defendant “did not defend Plaintiff's property rights . . . [and] did not permit Plaintiff's peaceful and quiet enjoyment of Plaintiff's property.” [#26 at 7] Defendant argues Plaintiff cannot pursue a claim for an alleged violation of the Ninth Amendment in a suit under § 1983. [#33 at 11] The Court agrees.
“The Ninth Amendment is not an independent source of individual rights; rather, it provides a rule of construction that [courts] apply in certain cases.” Holmes v. Town of Silver City, 826 Fed.Appx. 678, 681-82 (10th Cir. 2020) (citing Jenkins v. Comm'r, 483 F.3d 90, 92 (2d. Cir. 2007)). “As such, [Plaintiff] cannot pursue a claim for an alleged violation of the Ninth Amendment in a suit under § 1983.” Id. As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Ninth Amendment claim.
6. Thirteenth Amendment
Plaintiff alleges that Defendant violated her Thirteenth Amendment rights by “enslaving Plaintiff,” where “Plaintiff involuntarily served jail time[, and] Plaintiff was not paid for involuntarily serving time in jail.” [#26 at 7] Defendant argues Plaintiff's allegations do not amount to a constitutional violation. [#33 at 11-12] The Court agrees.
The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. The Amendment was intended to prohibit all forms of involuntary labor. See Slaughter-House Cases, 83 U.S. 36, 69 (1872) (“The word servitude is of larger meaning than slavery.”). And the Supreme Court has defined involuntary servitude to mean “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” United States v. Kozminski, 487 U.S. 931, 952 (1988). Plaintiff has failed to allege any facts demonstrating that any of these elements were present. Moreover, to the extent Plaintiff was convicted of a crime, the Tenth Circuit has held that the “amendment's restriction on involuntary servitude does not apply to prisoners.” Ruark v. Solano, 928 F.2d 947, 949-50 (10th Cir. 1991), overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Thirteenth Amendment claim.
7. Federal Discrimination Acts
Plaintiff alleges that Defendant violated unspecified “federal [d]iscrimination [a]cts.” [#26 at 5] In support of this claim, Plaintiff alleges that: a local judge in Montrose asked her to move during a hearing; “[t]olerance and diversity may not be shared policies by Defendants' industry culture;” “Plaintiff did not belong in Jail;” “Plaintiff is innocent;” and “Defendants' did not provide Plaintiff equal protection under the law; including, but not limited to, ignoring Plaintiff's calls for help when some neighbors repeatedly threatened her and repeatedly harassed her and repeatedly damaged her property.” [Id.] These allegations are, again, lacking in details or factual support from which the Court could infer the basis of a discrimination claim. Robbins, 519 F.3d at 1247 (10th Cir. 2008) (“[I]f [the allegations] 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.” (quotation omitted)). Critically, Plaintiff does not allege how she was treated differently from any other group or individual. See, e.g. Ashaheed, 7 F.4th at 1249-50); Webb v. Swensen, 663 Fed.Appx. 609, 614 (10th Cir. 2016). As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's discrimination claim.
III. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Motion”) [#33] be GRANTED and Plaintiff's Amended Complaint be DISMISSED WITH 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).