Opinion
Civil Action 21-cv-01278-NRN
01-05-2022
DAVEON ARTEZ ROGERS, Plaintiff, v. BILL ELDER and CY GILLESPIE Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' AMENDED MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) AND 12(b)(6) (Dkt. # 22)
N. Reid Neureiter, United States Magistrate Judge
This 42 U.S.C. § 1983 prisoner civil rights case is before the Court pursuant to an Order (Dkt. #23) issued by Judge Raymond P. Moore referring Defendants Bill Elder (“Elder”) and Cy Gillespie's (“Gillespie”) (collectively “Defendants”) Amended Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. #22.) Plaintiff Daveon Rogers' response to the Motion to Dismiss was due on November 3, 2021 (see Dkt. #21, Courtroom Minutes, setting response deadline.) Mr. Rogers said he filed something mid-October, but the Court has not received any response. Regardless, the Court heard argument on the subject motion on November 22, 2021, and Mr. Rogers appeared at the hearing and made oral argument in opposition to the subject motion. (See Dkt. #24, Courtroom Minutes). 1
The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is RECOMMENDED that the subject motion be GRANTED.
Unless otherwise noted, all allegations are taken from Mr. Rogers' Complaint (Dkt. #1) and are presumed to be true for the purposes of this motion to dismiss. Any citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
I. Mr. Rogers' Amended Complaint
Mr. Rogers was a pretrial detainee being held at the El Paso County Criminal Justice Center (“CJC”) when he contracted COVID-19 in October 2020 and again in April 2021. Mr. Rogers was 31 years old at the time, and suffered from asthma and effects of long-term cigarette use.
He experienced several COVID-19 symptoms, including splitting headaches, chest pains, chest tightness, difficulty breathing, shortness of breath, cough, fever, chills, sleep problems, joint pain, muscle pain, confusion, and flu-like symptoms.
Defendant Elder is the El Paso County Sheriff. Defendant Gillespie is the CJC Warden. Mr. Rogers alleges that in their individual and official capacities, Defendants are liable for unconstitutional conditions of confinement and being deliberately indifferent to his serious medical needs, in violation of Fourteenth and Eighth Amendments. He also asserts two claims under the Colorado Constitution.
Mr. Rogers' Complaint is 49 pages long and contains 104 numbered paragraphs, along with 15 requests for injunctive relief and money damages. His pleading is nearly 2 identical to several legal complaints that have been filed in this District. See Le Chiffre v. Elder, et al., 21-cv-01196-RBJ-SKC; Papol v. Elder, et al., 21-cv-01300-SKC; Jones v. Elder, et. al., 21-cv-00925-PAB-NRN; and Griffith v. Elder, et al., 21-cv-01756-NRN.
Defendants now move to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
LEGAL STANDARDS
I. Pro Se Litigants
Mr. Rogers proceeds pro se. Accordingly, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (the court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion to Dismiss Under Rule 12(b)(6) 3
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1198. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the Court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained 4 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
III. Motion to Dismiss Under Rule 12(b)(1)
Rule 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 proceeding 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. See Id. at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing5
a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Id. at 1002-03 (citations omitted).
ANALYSIS
Defendants seek dismissal on several grounds. First, they argue that Mr. Rogers' claims for injunctive relief are moot. Second, they argue the Court should apply the “first-to-file” rule and decline to exercise jurisdiction over this case. Third, Defendants contend that Mr. Rogers' Amended Complaint seeks injunctive relief on behalf of himself and all CJC detainees, which is improper because Mr. Rogers proceeds pro se and can only seek relief for himself, not others. Fourth, Defendants assert that Mr. Rogers has failed to state a cognizable constitutional violation and that the Colorado Constitution does not give rise to an individual cause of action for damages. Fifth, Defendants argue that they are entitled to qualified immunity. Finally, Defendants claim that Mr. Rogers cannot maintain claims against them in their official capacities because he has not plausibly alleged municipal liability. The Court will first explain why the first to file rule is inapplicable to this case before turning to Defendants remaining arguments.
I. First to File Rule
“The ‘first-to-file' rule is a doctrine of federal comity, intended to avoid conflicting decisions and promote judicial efficiency, that generally favors pursuing only the first- 6 filed action when multiple lawsuits involving the same claims are filed in different jurisdictions.” Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1299 (Fed. Cir. 2012). Under the first to file rule, “the first federal district court which obtains jurisdiction of parties and issues should have priority and the second court should decline consideration of the action until the proceedings before the first court are terminated.” Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965); see also O'Hare Int'l Bank v. Lambert, 459 F.2d 328, 331 (10th Cir. 1972) (“It is well established in this Circuit that where the jurisdiction of a federal district court has first attached, that right cannot be arrested or taken away by proceedings in another federal district court.”); Keymer v. Mgmt. Recruiters Int'l, Inc., 169 F.3d 501, 503 n.2 (8th Cir. 1999) (“The first-filed rule gives priority, when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction in order to conserve judicial resources and avoid conflicting rulings.”). The rationale for the rule is that “[t]he simultaneous prosecution in two different courts of cases relating to the same parties and issues ‘leads to the wastefulness of time, energy and money.'” Cessna, 348 F.2d at 692 (quoting Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)). District courts have “an ample degree of discretion” when considering and applying the first to file rule. Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84 (1952).
To determine whether to apply the rule to a given case, a court considers three factors: “(1) the chronology of events, (2) the similarity of the parties involved, and (3) the similarity of the issues or claims at stake.” Cochran v. Hewlett-Packard Co., No. 20-cv-01235-RM-MEH, 2021 WL 826007, at *3 (D. Colo. Mar. 4, 2021) (citation and quotation marks omitted). “[T]he first to file rule is not entitled to ‘mechanical 7 application.'” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir. 1982). Rather, it is “to be applied in a manner best serving the interests of justice.” Keymark Enters., LLC v. Eagle Metal Prods., 2008 WL 4787590, at *3 (D. Colo. Oct. 30, 2008) (internal quotation marks omitted).
Defendants argue that Court should decline to exercise jurisdiction over this case under the first to file rule. Defendants identify Weikert v. Elder, 20-cv-03646-RBJ, where Judge Brooke R. Jackson entered a stipulated preliminary injunction (“SPI”) addressing COVID-19 protocols at the CJC, as the first case filed. However, Judge Jackson dismissed that action with prejudice on October 5, 2021. Accordingly, the first to file rule, which applies to parallel, pending lawsuits, see Cessna Aircraft, 348 F.2d at 692 (requiring a second court to “decline consideration of the action until the proceedings before the first court are terminated”) (emphasis added), is inapposite and not grounds for dismissal.
II. Mootness and Injunctive Relief
“The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974)) (internal quotation marks and further citation omitted). A federal court may not render advisory opinions nor “decide questions that cannot affect the rights of litigants in the case before them.” Id. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). A court's judgments must resolve “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id. (citation omitted). 8 “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). The party asserting mootness carries the “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to resume. Id.
A claim for injunctive relief is moot when (1) the issues presented are no longer “live, ” or (2) the parties lack a legally cognizable interest in the outcome. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)) (internal quotation marks and citation omitted). A claim for equitable relief is moot “absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). With respect to a request for injunctive relief, the plaintiff's “susceptibility to continuing injury is of particular importance-‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.'” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (emphasis in original) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Finally, the Tenth Circuit recognizes that a prisoner's claim for injunctive relief is moot if he or she is no longer subjected to the conditions complained of in the pleading. Id. at 1028 (citing Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)). 9
At a hearing on September 29, 2021, Mr. Rogers advised the Court that he had been transferred from the CJC to the Colorado Territorial Correctional Facility (“CTCF”). (See Dkt. #21). These are two entirely separate penological institutions that are controlled by separate governmental entities. Accordingly, he is no longer subject to the complained-of conditions of confinement and his requests for injunctive relief are moot and should be dismissed.
Defendants also argue that the Amended Complaint should be dismissed because Mr. Rogers purports to bring a class action (i.e., “injunctive relief for himself and all detainees in CJC”), which he cannot do as a pro se litigant. Mr. Rogers' claims for injunctive relief, whether brought on behalf of himself or others, are moot. Moreover, this is obviously not grounds to dismiss Mr. Rogers' requests for money damages, which is discussed below. Therefore, the Court will not address this argument.
II. Individual Capacity Claims
Mr. Rogers' first two claims are brought pursuant to 42 U.S.C. § 1983, which provides that “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” Section 1983 creates a “species of tort liability” that provides relief to persons deprived of rights secured to them by the Constitution. Carey v. Piphus, 435 U.S. 247, 253 (1978) (quotations omitted). 10
Mr. Rogers asserts claims under the Fourteenth and Eighth Amendments. However, as Defendants point out, Mr. Rogers was a pretrial detainee during the relevant period. Therefore, the Eighth Amendment does not apply. See Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985) (“[T]he Eighth Amendment does not apply until after an adjudication of guilt.”). “Nevertheless, pretrial detainees are in any event entitled to the degree of protection against denial of medical attention which applies to convicted inmates. Thus it is proper to apply a due process standard which protects pretrial detainees against deliberate indifference to their serious medical needs.” Id. In short, Mr. Rogers' § 1983 claims are duplicative, and will be discussed together.
“‘In prison-conditions cases [the culpable] state of mind is one of deliberate indifference to inmate health or safety.'” Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The test for deliberate indifference contains both objective and subjective components. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). First, the plaintiff must show that objectively, the harm he complains of is “sufficiently serious” to merit constitutional protection. Id. Second, the plaintiff must establish that the defendant was subjectively aware of the substantial risk to the plaintiff's health or safety and acted in purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835; see also Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (cautioning that that “an inadvertent failure to provide adequate medical care” does not rise to a constitutional violation). Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839). “Given the difficulty in proving an official's state of mind, the subjective component may be proven through circumstantial evidence, and courts ‘may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.'” Peoples v. Long, 20-cv-02116-RBJ-NYW, 2020 WL 9076288, at *10 (D. Colo. Dec. 16, 2020) (quoting Hope v. Pelzer, 536 U.S. 730, 738 (2002)).
Defendants argue that they are entitled to qualified immunity on Mr. Rogers' § 1983 claims. In suits brought against officials in their individual capacities, officials may raise the defense of qualified immunity. 11 Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). The doctrine of qualified immunity protects government officials from individual liability in the course of performing their duties so long as their conduct does not violate clearly established constitutional or statutory rights. Washington v. Unified Gov't of Wyandotte Cnty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has asserted a defense of qualified immunity, the burden shifts to the plaintiff who must establish that (1) the defendant violated a right, and (2) the right was clearly established. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “In their discretion, courts are free to decide which prong to address first in light of the circumstances of the particular case at hand.” Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (quotation omitted). The Court agrees that Defendants are entitled to qualified immunity on Plaintiff's individual capacity claims because Mr. Rogers has not plausibly alleged a constitutional violation.
In order to maintain an individual capacity claim under § 1983, a plaintiff must establish a defendant's personal or supervisory liability. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Mr. Rogers seems to assert that both Defendants are liable, personally and as supervisors, for the unconstitutional conditions at CJC. It seems obvious that Defendants cannot be personally liable for Mr. Rogers contracting COVID-19. There are no allegations that these individuals were actually aware of Mr. Rogers' medical vulnerabilities or knew that there was a substantial risk in October 2020 or April 2021 that Mr. Rogers specifically-as opposed to the general inmate population-was at risk of catching the virus.
As to supervisory liability, the Court will assume but not decide for the purposes of this motion that prison officials know the risk of COVID-19 and Mr. Rogers' exposure 12 to virus is sufficiently serious to satisfy the objective prong of the deliberate indifference analysis. However, Mr. Rogers fails to allege that either Defendant acted “in purposeful disregard” to COVID-19. Mr. Rogers alleges that Defendants: provided detainees with only one cloth mask, rather than N95 or surgical masks; failed to enforce mask-wearing by detainees or CJC employees; used the National Guard testing protocol, which was insufficient because it does not separate tested inmates; failed to quarantine new detainees; did not protect “medically vulnerable” detainees; restricted detainees' ability to access to the kiosk to submit medical kites; failed to provide a “healthy and balanced diet” or proper nutritional supplements; failed to provide detainees adequate time outside their cells; and did not follow CDC guidelines. However, what many of these allegations actually indicate is that the CJC was actively grappling with how to deal with a public health crisis of unprecedented magnitude. For example, masks were provided and detainees were being tested. As Magistrate Judge Kato S. Crews recently explained:
Plaintiff alleges he was given a cloth mask upon his entry at the Jail and was restricted to his cell, ostensibly to reduce mingling in general population between inmates. These factual allegations undermine any conclusory averments that Defendants knew of and disregarded an excessive risk to Plaintiff's health and safety. See Nellson v. Barnhart, 454 F.Supp.3d 1087, 1095 (D. Colo. 2020) (“A lack of social distancing in the law library and communal restrooms . . . does not demonstrate that defendants have disregarded the risk of COVID-19”); Simmermaker v. Trump, No. 20-cv-01671-KMT, 2021 WL 915985, at *4 (D. Colo. Mar. 10, 2021) (the inability to maintain social distancing while using computer terminals or telephones or when interacting with their cellmates does not demonstrate defendants disregarded the risk of COVID-19); Grinis v. Spaulding, 459 F.Supp.3d 289, 292 (D. Mass. 2020) (“These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”); Chunn v. Edge, 465 F.Supp.3d 168, 203 (E.D.N.Y. 2020) (a prison's measures to combat COVID-19 “indicate that prison officials are trying, very hard, to protect13
inmates against the virus and to treat those who have contracted it, and belie any suggestion that prison officials have turned the kind of blind eye and deaf ear to a known problem that would indicate deliberate indifference.”)[.]Sheppard v. Jefferson Cty. Sheriff's Off. Det. Facility, No. 20-cv-03373-CMA-SKC, 2021 WL 3934390, at *4 (D. Colo. Aug. 10, 2021), report and recommendation adopted, 2021 WL 3931221 (D. Colo. Sept. 2, 2021).
Moreover, Mr. Rogers does not link any of these alleged failures to him contracting COVID-10 or receiving inadequate medical attention afterwards. Nor does he allege facts sufficient to infer that Defendants were aware that CJC detainees (or staff) were not properly wearing masks or receiving the appropriate vitamins and nutrients to maintain “a healthy and robust immune system.”
In sum, Mr. Rogers has not alleged that Defendants violated his constitutional rights. Defendants are therefore protected from suit by qualified immunity.
III. Municipal Liability Claims
As explained in the section above, Mr. Rogers' Amended Complaint fails to plausibly allege a constitutional violation. Therefore, the Court also recommends the Defendants' motion regarding Mr. Rogers' official capacity claims be granted. See Lindsey v. Hyler, 918 F.3d 1109, 1117 (10th Cir. 2019) (“[a] municipality may not be held liable for the actions of its employees if those actions do not constitute a violation of a plaintiff's constitutional rights.”) (citation omitted).
IV. State Constitutional Claims
For the reasons stated above, Mr. Rogers' § 1983 claims should be dismissed. Mr. Rogers' remaining claims are brought under the Colorado Constitution, and so are subject to the Court's exercising supplemental jurisdiction, which is discretionary. See 14 28 U.S.C. § 1367(c). The Tenth Circuit has “generally held that ‘[i]f federal claims are dismissed before trial, leaving only issues of state law, the federal court should decline to the exercise of jurisdiction by dismissing the case without prejudice.'” Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (quoting Bauchman v. W. High Sch., 132 F.3d 542, 549 (10th Cir. 1997)). “Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Therefore, the Court recommends that the entirety of Mr. Rogers' Complaint (Dkt. #1) be dismissed without prejudice. See Borandi v. All. for Sustainable Energy, LLC, No. 13-cv-02026-RM-MJW, 2015 WL 2448321, at *4 (D. Colo. May 21, 2015) (declining to exercise supplemental jurisdiction over state law claims and counterclaims, noting that such claims can be refiled in state court).
RECOMMENDATION It is hereby RECOMMENDED that Defendants Bill Elder and Cy Gillespie's Amended Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Dkt. #22) be GRANTED and that Plaintiff's Complaint (Dkt. #1) be DISMISSED WITHOUT PREJUDICE.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need 15
not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (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). 16