Opinion
Civil Action 18-cv-00935-CMA-KLM
07-09-2021
DAVID WAYNE ROBINSON, Plaintiff, v. MIKE GALLEGOS, HANA S. RUIZ, DAVID BRIGGS, SGT. LUSK, SGT. S.P. ZARNOW, and CAPTAIN JAIME KAFATI, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix United States Magistrate Judge
This matter is before the Court on Defendants' Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1), Or Alternatively, to Stay Pursuant to the Younger Doctrine [#52](the “Motion to Dismiss”) and Plaintiff's Motion to Supplement Pleading to Amended Complaint [#60] (the “Motion to Supplement”). Plaintiff filed a Response [#54] objecting to the Motion to Dismiss [#52] and Defendants filed a Reply [#55]. Defendants filed a Response [#62] to the Motion to Supplement [#60]. Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motion to Dismiss [#52] and the Motion to Supplement [#60] have been referred to the undersigned for a recommendation regarding disposition [#53, #61]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion to Dismiss [#52] be GRANTED, and that the Motion to Supplement [#60] be DENIED.
“[#52]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's electronic case filing and management system (CM/ECF). This convention is used thorough the Recommendation.
I. Summary of the Case
Plaintiff, who proceeds in this case pro se, commenced this action on May 20, 2018, through the filing of a Prisoner Complaint [#1] and an Amended Prisoner Complaint [#16]. Plaintiff alleges a violation of his civil rights pursuant to 42 U.S.C. § 1983 related to his arrest and the search and impoundment of his vehicle by the Denver Police Department on February 27, 2018. The case was stayed and administratively closed pending disposition of Plaintiff's criminal case in state court by Order [#19] of July 17, 2018.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
As to Plaintiff's criminal case, on August 10, 2018, Plaintiff was found guilty of burglarizing a building in violation of C.R.S. § 18-4-203(1), a class 4 felony, and possession of burglary tools in violation of C.R.S. § 18-4-205(1), a class 5 felony. See Motion to Dismiss [#52-3]. Plaintiff filed a Notice of Appeal challenging his conviction on November 20, 2018. See Motion to Dismiss [#52-4]. That appeal remains pending in the Colorado Court of Appeals. Id.
The Court found in its Order [#19] staying the case that the Court should abstain from exercising jurisdiction over the action based on the Younger abstention doctrine due to the pending criminal proceedings. See Id. at 4-10, 12. Plaintiff filed a Notice of Appeal [#28] of this stay in the Tenth Circuit on March 16, 2020. The appeal was dismissed on June 19, 2020. See [#32, #33].
On January 2, 2020, Plaintiff filed a Motion to Reopen and Reconsider Case [#27], asserting that “[a]ll cases - charges - complaints - indictments - informations have been dismissed and there is nothing pending.” Id. at 1. Based on this representation, the Court granted the Motion to Reopen [#27] and reopened the case by Order [#34] of June 29, 2020. This representation appears to have been false, as there is a pending appeal of Plaintiff's criminal case in state court, and Defendants assert that this case was reopened prematurely. The case was reopened and Plaintiff was directed in that Order [#34] to file an amended complaint on the court-approved form. Id. at 3. In compliance with that Order [#34], Plaintiff filed a Second Amended Prisoner Complaint [#35] on July 16, 2020, asserting various claims again related to his arrest and the search and impoundment of his car.
The Court is very concerned with Plaintiff's apparent misrepresentation, which has not only caused the Court to devote time and energy to Plaintiff's contentions, but also required Defendants to expend unnecessary time and resources to refute Plaintiff's accusations and seek relief from the Court. Plaintiff is warned that making false statements to the Court is perjury, punishable by fines, criminal contempt of court, imprisonment, and other potential court-issued sanctions, and that such future conduct by Plaintiff will not be tolerated. See Fed. R. Civ. P. 11(b)(1) and (c) (stating that “by presenting to the court a . . . written motion, . . . an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . it is not presented for any improper purpose, . . . and the factual contentions have evidentiary support. . .[, ]” and allowing sanctions if the rule is violated); 18 U.S.C. § 1623 (addressing false declarations before the court). While the Court recognizes that Plaintiff is proceeding without an attorney, this “does not excuse a litigant from the obligation to proceed truthfully in the prosecution of his or her case.” Makeen v. Comcast of Colorado X, LLC, No. 09-cv-02595-WYD-MEH, 2011 WL 71426, at *1 (D. Colo. Jan. 7, 2011). Any further misrepresentations will result in the imposition of sanctions. See id.
On August 13, 2020, Magistrate Judge Gallagher issued a Recommendation of United States Magistrate Judge [#40], recommending that the Second Amended Prisoner Complaint [#35] be dismissed in part and drawn to a presiding judge in part. Plaintiff objected to the Recommendation [#40]. See [#41]. By Order [#43] of September 3, 2020, the Court overruled Plaintiff's objection, adopted the Recommendation [#40], and ordered reassignment of the case. On November 9, 2020, Defendants filed the instant Motion to Dismiss [#52]. Defendants contend that, contrary to Plaintiff's previous representation that “nothing remains pending” in state court related to his criminal action (see [#27] at 1), Plaintiff's conviction remains pending before the Colorado Court of Appeals. Motion to Dismiss [#52] at 2. Accordingly, Defendants argue that Plaintiff's Second Amended Prisoner Complaint [#35] should be: (1) dismissed pursuant to Fed.R.Civ.P. 12(b)(1) due to lack of jurisdiction pursuant to the Younger doctrine, which bars federal claims that would interfere with pending state court actions directly related to the present action; or (2) stayed pursuant to the Heck rule, which defers a cause of action for damages in a § 1983 suit unless the criminal conviction is reversed. Motion to Dismiss [#52] at 2; see Younger v. Harris, 401 U.S. 37 (1971); Heck v. Humphrey, 512 U.S. 447, 489-90 (1994). On May 21, 2021, Plaintiff filed the Motion to Supplement [#60], which alleges further support for an exception from Younger abstention. Id.
II. Standard of Review
The Motion to Dismiss [#52] is filed pursuant to Fed.R.Civ.P. 12(b)(1). Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, as here, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id. Thus, the evidence that is attached to the Motion to Dismiss [#52] and Response [#54] may be considered by the Court.
III. Analysis
A. Motion to Dismiss [#52]
1. Younger Abstention
Defendants contend that the Younger abstention doctrine requires the Court to decline to exercise jurisdiction in this case because adjudication of Plaintiff's claims would interfere with his pending state court appeal regarding his criminal proceedings, which resulted in Plaintiff's arrest and the search and impoundment of his vehicle. As Defendants note, the arrest and subsequent events involving Plaintiff's vehicle are the subject of the claims in the present action. Motion to Dismiss [#52] at 5. While the Court previously addressed the Younger doctrine in connection with its Order [#19] initially staying the case, the Court now addresses it in connection with Defendant's request in the Motion [#52] that the case again be stayed or that it be dismissed.
“Under the Younger abstention doctrine, federal courts should not ‘interfere with state court proceedings by granting equitable relief - such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings -' when a state forum provides an adequate avenue for relief.” Weitzel v. Div. of Occupational & Prof'l Licensing of the Dep't of Commerce of the State of Utah, 240 F.3d 871, 875 (10th Cir. 2001) (quoting Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999)). “Younger abstention is non-discretionary; the district court must abstain once the conditions are met, absent extraordinary circumstances.” Id. (internal quotations omitted). The Tenth Circuit Court of Appeals has stated the conditions for abstention as follows:
A federal court must abstain from exercising jurisdiction when: (1) there is an ongoing state criminal, civil, or administrative proceeding; (2) the state court provides an adequate forum to hear the claims raised in the federal complaint; and (3) the state proceedings “involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.”Amanatullah v. State Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (quoting Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997)).
Under the first element for Younger abstention, Defendants contend that Plaintiff's traffic stop, subsequent arrest, search and impoundment of his vehicle resulted from an outstanding warrant relating to criminal felony charges of which Plaintiff was later convicted. They further assert that the conviction is currently on appeal in the Colorado Court of Appeals. Motion to Dismiss [#52] at 6. Accordingly, Defendants assert that there is an ongoing state criminal proceeding in which Plaintiff may raise his claims surrounding his arrest and the search and impoundment of his vehicle.
Plaintiff contends, on the other hand, that the Younger doctrine is inapplicable because this action is not related to his arrest or convictions for felony burglary and possession of burglary tools which are currently on appeal in state court. Response [#54] at 1. Instead, Plaintiff claims that Defendant Gallegos initiated a traffic stop and arrest on a “pretense.” Id. Plaintiff states that the first reason given for the stop was an air freshener hanging from the mirror, and then “Officer Gallegos decide[d] to create/initiate an arrest with no probable cause.” Id. While Plaintiff acknowledges that the written statements of the officers indicated that the stop was due to unreadable license plates and driving under restraint, Plaintiff asserts that those charges did not provide probable cause for the subsequent search and impoundment of his vehicle. Id. at 2. Further, Plaintiff asserts that his arrest was for refusing to provide identification. Id. at 7. These charges were, according to Plaintiff, not pursued by law enforcement or were dismissed. Id.
Defendants counter that consideration of the merits of the issues raised in Plaintiff's claims is unwarranted due to the Court's lack of jurisdiction. Reply [#55] at 4 (citing D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228-29 (10th Cir. 2004)). However, the Court must consider Plaintiff's claims to determine whether they are related to the state court appeal. This necessarily involves consideration of some of the issues raised in Plaintiff's claims, including his arguments regarding the invalidity of the traffic stop, arrest, and subsequent proceedings. These issues are, however, analyzed solely in connection with whether Younger abstention applies, and do not constitute a finding on the merits of Plaintiff's claims.
It is undisputed that Plaintiff's traffic stop revealed an arrest warrant for him due to his failure to appear in state court on felony criminal charges for burglary and possession of burglary tools. Order to Stay [#19] at 6; Second Am. Compl. [#35] at 18; Motion to Dismiss [#52-1]. It is also undisputed that if Plaintiff was arrested in connection with this warrant, Plaintiff's claims arising from the arrest and subsequent search and impoundment of his vehicle are related to the state court proceeding.
Plaintiff contends that the warrant was not discovered until after his arrest and the search, when the police actually learned his true identity. Response [#54] at 4. Plaintiff thus disputes that he was arrested in connection with the warrant and contends that his arrest was illegal, relying on People v. Martinez, 200 P.3d 1053 (Colo. 2009). Response [#54] at 14. In Martinez, an officer subjected the defendant to an investigatory stop that was not based on reasonable suspicion, and the court found this constituted an illegal seizure. Id. at 1055, 1059. The officers discovered the defendant's identity after the defendant was illegally seized, and his subsequent arrest on an outstanding warrant was therefore illegal. Id.
Martinez is distinguishable from this case. Here, the facts and evidence attached to the Motion to Dismiss [#52] and Response [#54], which the Court may consider as discussed in Section II, supra, show that Defendants subjected Plaintiff to an investigatory stop upon observing Plaintiff driving with an illegible license plate, a traffic infraction under Colorado law. See C.R.S. § 42-3-202 (2021). Plaintiff himself admits that the traffic stop was initiated due to this issue. See Second Am. Compl. [#35] at 2. The police reports that Plaintiff attaches to his Response [#54] support a finding that the search of Plaintiff's vehicle did not occur until after Defendants discovered Plaintiff's identity and the outstanding arrest warrant for felony burglary. Response [#54-1]. While Plaintiff argues to the contrary regarding the timing of his arrest, the Court is not required to take Plaintiff's assertions and averments as true in connection with the Rule 12(b)(1) determination, and the Court may rely on matters outside the pleadings to make factual determinations, as discussed previously. Therefore, for purposes of the Motion to Dismiss [#52], the Court finds that Plaintiff's arrest on February 27, 2018, and the resulting events that gave rise to the claims in this case, arose because of a warrant for criminal charges that are pending disposition in state court. Accordingly, this case is related to a pending state court proceeding, and the first condition for Younger abstention is satisfied.
Plaintiff also contends that the warrant which provided the basis for his arrest did not grant the officers the authority to search and impound his vehicle. Response [#54] at 4-5. Plaintiff misunderstands the law. As part of their “community caretaking functions, ” officers are authorized to remove a vehicle from any public or private place when the driver of the vehicle is taken into custody, deeming the vehicle to be “[an] obstruction[] to traffic or [a] public nuisance[].” Laidley v. City and County of Denver, 798 F.Supp.2d 1193, 1202-03 (D. Colo. 2011) (citing South Dakota v. Opperman, 428 U.S. 364, 369 (1976)); Denver Rev. Muni. Ord. 54-811(16). Further, as an exception to the warrant requirement of the Fourth Amendment, police may search a vehicle in their custody or that they are about to impound. United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003). Such searches are not considered investigative, but rather, administrative, as the searches serve to preserve the owner's property while in police custody. Id. Here, the Denver Police Department asserts it conducted an inventory search of Plaintiff's vehicle incident to his arrest, acting in accordance with police regulations, and stopped the search upon discovering potentially incriminating evidence. See Response [#54-8]; Denver Rev. Muni. Ord. 54-811(16). If true, such a search and inventory stop would arguably be legal. Consideration of whether the Denver Police Department's authority to search Plaintiff's vehicle was proper is well within the state court's capacity to adjudicate.
As to the second condition required for abstention, Defendants assert, and the Court agrees, that the state court provides an adequate forum for resolution of Plaintiff's constitutional claims. See Motion to Dismiss [#52] at 7. While Plaintiff argues that “[t]he fictitious claim of a felony being committed resulted in the tow of the automobile and taking of my property and it barred a hearing[, ]” denying him due process, this contention could have been raised in the underlying state proceeding. Moreover, the fact that Plaintiff was denied a hearing in state court is unrelated to the federal constitutional claims.
As the Court previously found in the Order to Stay [#19], Plaintiff had the opportunity to raise his constitutional claims during his criminal trial in state court, including claims relating to the circumstances leading up to and encompassing his arrest and vehicle impoundment. Moreover, Plaintiff also has the opportunity to raise his allegations again in his pending appeal, thus providing no basis for his contention that his allegations will not be afforded full consideration by the state court. Order to Stay [#19] at 8; see Kugler v. Helfant, 421 U.S. 117, 124 (1975) (noting that “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for a vindication of federal constitutional rights”); see also Robb v. Connolly, 11 U.S. 624, 637 (1884) (state courts have an obligation “to guard, enforce, and protect every right granted or secured by the constitution of the United States . . .”). Plaintiff has not identified anything that has changed since this Court previously found that the state court is an adequate forum to address Plaintiff's claims. Order to Stay [#19] at 7-8.
Additionally, a favorable outcome for Plaintiff regarding the claims in his Second Amended Complaint [#35] could impact Plaintiff's pending state court criminal proceedings, creating a potential conflict between the state and federal courts. See generally Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) (a federal court should abstain from the exercise of its jurisdiction if the issues may be resolved either by trial on the merits in state court or by other state procedures). By way of example, Claim Six seeks damages for an unlawful taking under the Fifth Amendment for the impoundment of Plaintiff's vehicle. Second Am. Compl. [#35] at 6. Plaintiff's vehicle was impounded incident to his arrest pursuant to the felony warrant. Response [#54-11]. A favorable outcome for Plaintiff on this claim has the potential to undermine the state court proceedings regarding Plaintiff's arrest, and further, the claim as a whole is within the state's capacity to adjudicate. Consequently, the second condition for Younger abstention is met.
The third condition for Younger abstention is satisfied because, as both Plaintiff and Defendants recognize, the State of Colorado indisputably has an important interest in enforcing its criminal laws in the state's courts. Motion to Dismiss [#52] at 7; Response [#54] at 10. “[S]tate control over criminal justice [is] a lynchpin in the unique balance of interests . . . described as ‘Our Federalism.'” See In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (citing Younger, 401 U.S. at 44).
2. Whether an Exception to Abstention Applies
Extraordinary or special circumstances justifying an exception from Younger abstention may be established where a plaintiff demonstrates that he faces an irreparable injury that is both great and immediate. See Younger, 401 U.S. at 46. For example, a plaintiff may overcome the presumption of abstention in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other circumstances where irreparable injury can be shown. Phelps v. Hamilton, 122 F.3d 885, 889 (1997) (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). Plaintiff alleges that the presumption of abstention is overcome in this case because he has demonstrated harassment or prosecution by the Defendants in bad faith without hope of obtaining a conviction. See Response [#54] at 11-12.
To determine whether a prosecution is commenced in bad faith or to harass, Courts examine three factors:
(1) whether it was frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights; and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions.Phelps, 122 F.3d at 889. It is Plaintiff's heavy burden to overcome the bar of Younger abstention. He may not state mere allegations of bad faith or harassment, rather, proof of bad faith or harassment is required. Id. at 890; Phelps v. Hamilton, 59 F.3d 1058, 1066 (10th Cir. 1995).
Regarding the first factor, Plaintiff alleges that Defendants' behavior at the time of the February 27, 2018 traffic stop, subjecting him to an illegitimate arrest, search, and vehicle impoundment, exhibits bad faith and harassment. Response [#54] at 11-12. However, as previously discussed, the evidence suggests that Plaintiff's traffic stop was initiated due to the illegible tags on his vehicle, Response [#54-1]. During the traffic stop, Defendants assert that the officers discovered Plaintiff's arrest warrant for criminal felony charges, and impounded Plaintiff's vehicle incident to his arrest. Id.; see also Denver Rev. Muni. Ord. 54-811(16). They further assert that the search of Plaintiff's vehicle occurred incident to the vehicle's impoundment. Response [#54-1]. The evidence produced by the parties supports these assertions. Because these events are related to Plaintiff's pending state court action, adjudication of the legitimacy of the arrest, search and impoundment is well within the state court's capacity and provide no evidence of bad faith or harassment.
Moreover, the proper focus of the exception analysis rests on whether the prosecution against Plaintiff itself is brought in bad faith, not whether Defendants' behavior constituted harassment. Phelps, 122 F.3d at 889. As stated in the Court's previous Order to Stay [#19], the fact that Plaintiff had to stand trial on criminal charges and that he was subsequently convicted of these charges does not establish great and immediate irreparable injury. See Order to Stay [#19] at 10 (citing Phelps, 122 F.3d at 889 (The “'threat to the plaintiff's federal protected rights' is only irreparable if it ‘cannot be eliminated by . . . defense against a single prosecution.'”) (quoting Younger, 401 U.S. at 46). Plaintiff does not show improper motivation on the part of the prosecution for the charges on which his criminal proceedings are based; in fact, Plaintiff acknowledges that he was aware that he may have had an outstanding warrant due to missing his court appearance for the charges. Second Am. Compl. [#35] at 23. Further, Plaintiff's conviction by a jury demonstrates that the prosecution was not commenced without hope of obtaining a valid conviction. Phelps, 122 F.3d at 889.
As to the second factor, Plaintiff claims that the prosecution against him was commenced in retaliation for exercising his rights to remain silent, to an attorney, to be free from unreasonable searches and seizures, and “to be taken immediately in front of a judge.” Response [#54] at 12. Further, Plaintiff avers that Defendants' alleged statement at the traffic stop that they would “show [Plaintiff] who has authority” separates him into a different class because Plaintiff is not a police officer, public official, or attorney. Id. Plaintiff fails to allege sufficient facts to show that his prosecution for felony burglary was commenced because he exercised his constitutional rights. Plaintiff mistakes what constitutes a suspect class for the purposes of equal protection; his allegations do not demonstrate that the criminal prosecution was motivated by his race or national origin. See Okla. Educ. Ass'n v. Alcoholic Beverage L. Enforcement Comm'n, 889 F.2d 929, 932 (10th Cir. 1989).
With respect to the third factor, Plaintiff again claims that Defendants' actions “constitute harassment and an abuse of prosecutorial discretion.” Response [#54] at 12. In support of his claim, Plaintiff proffers the records of his proceedings in state court for a driving under restraint charge that was ultimately dismissed. Id. at 11. However, the fact that Plaintiff's additional charge for driving under restraint was ultimately dropped supports a conclusion that the prosecution did not abuse its power and that Plaintiff was not subjected to an oppressive number of prosecutions. Response [#54-13]. Further, Plaintiff acknowledged he was aware of his pending charges for felony burglary, the underlying charge for his arrest. Second Am. Compl. [#35] at 23; Motion to Dismiss [#52- 2]. Accordingly, the Court finds that Plaintiff fails to allege sufficient facts to support his claim that his prosecution was the product of harassment, or that he was subjected to multiple oppressive prosecutions.
Additionally, the Court has considered the arguments in the Motion to Supplement [#60] to the extent they bear on the Motion to Dismiss. These arguments do not provide a further basis to justify an exception from Younger abstention and are procedurally improper as Plaintiff did not seek leave to, or justify the need for, what is essentially a surreply. See E.E.O.C. v. Outback Steak House of Florida, Inc., 520 F.Supp.2d 1250, 1260(D. Colo. 2007) (a surreply may be appropriate when a party puts forth new arguments in a reply brief).
As Plaintiff has not sufficiently proven extraordinary circumstances to justify an exception, the Court finds that Younger abstention doctrine applies and the Court lacks jurisdiction to adjudicate Plaintiff's claim. In conformity with this Court's previous findings, all the elements of Younger abstention are met here, without exception. Accordingly, the Court recommends that this case be dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(1). D.L., 392 F.3d 1223, 1228 (10th Cir. 2004) (stating that “Younger abstention is jurisdictional.”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction, . . . the dismissal must be without prejudice.” (citations omitted)).
As the Court recommends that Plaintiff's claims be dismissed pursuant to the Younger abstention doctrine, the Court need not address Defendants' argument in their Motion to Dismiss [#52] that a stay of the case is warranted under the Heck rule.
B. Motion to Supplement
Plaintiff's Motion to Supplement [#60] requests that the Court “apply this supplemental pleading[] based on the facts and in accordance with law.” Id. It further asserts “that a showing of bad faith prosecution presents a narrow exception” to Younger abstention. Id.
In relevant part, Fed.R.Civ.P. 15(d) provides that “[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” Pursuant to Rule 15(d), “trial courts [have] broad discretion to permit a party to serve a supplemental pleading setting forth post-complaint transactions, occurrences, or events.” Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). Leave to supplement a complaint should be given freely, based on the balancing of several factors, including futility, delay, bad faith, dilatory motive, repeated failure to cure deficiencies, and prejudice to the opposing party. Moore v. Reynolds, 153 F.3d 1086, 1116 (10th Cir. 1998) (citing Forman v. Davis, 371 U.S. 178, 181-82 (1962)).
The Court recommends that the Motion to Supplement [#60] the Second Amended Complaint [#35] be denied. Plaintiff does not seek to make allegations about any new transactions or events which have happened since the filing of the Second Amended Complaint [#35]. Instead, the Motion to Supplement [#60] simply reargues why Plaintiff believes Younger abstention should not apply. While the Court has considered the arguments in the Motion to Supplement [#60] in connection with the merits of Motion to Dismiss [#52], the document is not a proper supplemental pleading under Rule 15(d).
IV. Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants' Motion to Dismiss [#52] be GRANTED and this case be DISMISSED WITHOUT PREJUDICE. See Brereton v. Bountiful City Corp.. 434 F.3d 1213, 1218 (10th Cir.2006) (holding that a dismissal for lack of subject matter jurisdiction must be without prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff's Motion to Supplement [#60] be DENIED.
IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this 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. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
BY THE COURT: