IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02276–REB–KMT

RAUL TRETO,

Plaintiff,

v. 

BOULDER COUNTY, 

Defendant.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This case comes before the court on Defendants’ “Motion to Dismiss Amended

Complaint.” (Doc. No. 28, filed Oct. 3, 2012.) Pursuant to D.C.COLO.LCivR 7.1C and Fed. R.

Civ. P. 6(d), Plaintiff had until October 27, 2012 to file a response. No response was filed on or

before that date. Accordingly, this matter is ripe for the court’s review and recommendation. 

PROCEDURAL BACKGROUND

Plaintiff’s original Title VII Complaint was filed on August 30, 2011. (Doc. No. 1

[hereinafter “Original Complaint”].) On January 4, 2012, this court entered a Recommendation

that Defendant’s prior Motion to Dismiss (Doc. No. 12) be granted. (Doc. No. 19 [hereinafter

“Recommendation”.) Therein, the court noted that Plaintiff’s Original Complaint was far from a

model of clarity and, in fact, bordered on being incomprehensible. (Id. at 2.) Based on the

allegations in the Original Complaint, it appeared that, at some unspecified time and date,

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Plaintiff reported a sexual assault by an unnamed aggressor. (Orig. Compl. at 3-4.) Plaintiff

alleged that the “Department Supervisor at Facilities Management” favored the unnamed

aggressor because “he is of Anglosagon [sic] origen [sic]” and because Plaintiff is “not a

homosexual.” (Id. at 4.) Plaintiff maintained that the Department Supervisor discriminated

against him “by only listening to the agressors [sic] story.” (Id.) Finally, Plaintiff alleged that

after no one listened to his story, his supervisor instead “retaliated wrote me up finally was

fireded [sic].” (Id. at 5.) Based on these facts, Plaintiff’s Original Complaint asserted that

Defendant discriminated against him based on his race, sex, color, national origin, and “family

based department” in violation of Title VII. (Id. at 2.) 

In the Recommendation, the court concluded that Plaintiff’s Original Complaint was

properly dismissed because Plaintiff failed to state a claim for discrimination, retaliation, or

hostile work environment under Title VII. (See generally Recommendation.) Nevertheless, the

court found that the deficiencies in his Original Complaint were largely the result of Plaintiff’s

failure to set forth the facts supporting his claims. (Id. at 9.) The court further noted that if and

when Plaintiff set forth those facts, he may have an arguable claim. (Id.) See also Whitney v.

New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997) (Dismissal of a pro se plaintiff’s complaint

for failure to state a claim “is appropriate only where it is patently obvious that the plaintiff

could not prevail on the facts alleged, and allowing [him] an opportunity to amend [his]

complaint would be futile.”). As such, the court recommended that Plaintiff be permitted an

opportunity to cure the deficiencies noted it the Recommendation. (Id. at 9-10.)

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 Indeed, Plaintiff specifically “ask[s] the court to please consider this amend in my

complain [sic] against Boulder County.” (Am. Compl..) 

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On August 24, 2012, District Judge Robert E. Blackburn issued an order adopting this

court’s Recommendation. (See Doc. No. 25, filed Aug. 24, 2013.) Accordingly, Judge

Blackburn dismissed Plaintiff’s Original Complaint without prejudice and granted Plaintiff a

brief time, through September 21, 2012, to file an amended complaint consistent with this court’s

recommendation. (Id. at 2-3.) 

On September 19, 2012, Plaintiff filed a one-page document, which, although styled as a

letter, the court construes to be Plaintiff’s Amended Complaint.1

 (Doc. No. 26 [Am. Compl.].) 

Defendant timely filed its Motion to Dismiss on October 3, 2013. (See Mot. Dismiss.)

LEGAL STANDARDS

A. Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, “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); see also

Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint “to less

stringent standards than formal pleadings drafted by lawyers”). 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)

(citations omitted). 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

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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) (a 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”).

B. Rule 12(b)(1) – Lack of Subject Matter Jurisdiction

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. Rather, it calls for a determination that the court lacks authority to

adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the

complaint. 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). The burden of establishing subject matter jurisdiction is on the party

asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A

court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it

becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909; see also McAlester v.

United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (“Subject matter jurisdiction may

be challenged by a party or raised sua sponte by the court at any point in the proceeding.”). The

dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.

2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that

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dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice

is a disposition on the merits which a court lacking jurisdiction may not render).

C. Rule 12(b)(6) – Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 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)

(2007). “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 v.

Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “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, 129 S. Ct. 1937, 1949 (2009) (citing 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 conclusion, bare

assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the factual

allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the

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allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at

1950.

Notwithstanding, 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 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, 129 S. Ct. at 1940. 

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. at 1949 (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.’” Iqbal,129 S. Ct. at 1949

(citation omitted). 

ANALYSIS

Plaintiff’s Amended Complaint completely fails to cure any of the deficiencies noted in

the Recommendation. The Amended Complaint does not refer in any way to Title VII, or

otherwise state that Plaintiff was discriminated against, retaliated against, or subjected to a

hostile work environment based on any of the protected categories outlined in Title VII. Thus,

Plaintiff’s Amended Complaint fails to state a claim for relief under Title VII. Nasious v. Two

Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (“to state a claim in federal

court, a complaint must explain what each defendant did to him or her; when the defendant did

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 The court cannot exercise diversity jurisdiction over Plaintiff’s negligence claim as

Plaintiff is a citizen of the State of Colorado (See Orig. Compl. at 6) and Boulder County is a

political subdivision of the State of Colorado. See 28 U.S.C. § 1332 (“The district courts shall

have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs, and is between . . . citizens of different

states.”); Illinois v. City of Milwaukee, 406 U.S. 91, 97 (1973) (“It is well settled that for

purposes of diversity of citizenship, political subdivisions are citizens of their respective

States.”)

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it; how the defendant’s action harmed him or her, and what specific legal right the plaintiff

believes the defendant violated.”). 

Instead, at best, Plaintiff’s Amended Complaint can be liberally construed to assert a

negligence claim, which arises under state law. (See, e.g., Am. Compl. at 1 (“because of

[various non-parties’] negligence and information misrepresentation in handling of the case I

lived in hale [sic] in that department from January 13, 2008 till [sic] September 13, 2010 until I

decided to go to the police . . . . I decided to bring this to your consideration to show that

because of their negligence Boulder County caused me and my family financial and emotional

hardship and I yet recover from it.”) Absent a claim arising under federal law, however, the

court lacks subject-matter jurisdiction to adjudicate a Plaintiff’s negligence claim.2

 28 U.S.C. §

1331 (“The district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”); Sandles v. Colo. Coalition for the

Homeless, No. 12-cv-00603-BNB, 2012 WL 1320151, at *2 (D. Colo. Apr. 17, 2012) (quoting §

1331) (dismissing state law negligence claim for lack of subject matter jurisdiction because

“state law negligence claims do not arise ‘under the Constitution, laws, or treaties of the United

States.’”)

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Further, even gratuitously assuming that the court could exercise supplemental

jurisdiction over Plaintiff’s negligence claim pursuant to 28 U.S.C. § 1367, based on the Title

VII claims included in his Original Complaint, Plaintiff plainly fails to state a claim for

negligence. But see § 1367(c) (“The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims

over which it has original jurisdiction . . . .”) To state a negligence claim, Plaintiff must allege

the following elements: “(1) the existence of a legal duty to the plaintiff; (2) the defendant

breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach of duty caused

the injury.” Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1015 (Colo. 2006). 

Although Plaintiff’s Amended Complaint may arguably satisfy the second element, insofar as he

alleges that the individual most familiar with the alleged sexual assault was never questioned,

Plaintiff has not set forth facts demonstrating that Defendant owed Plaintiff a legal duty or that

the breach of that duty caused Plaintiff’s injury. (See Am. Compl. at 1.) Accordingly, Plaintiff’s

negligence claim fails to state a claim upon which relief can be granted. 

Altogether, for the foregoing reasons, the court finds that Defendant’s Motion to Dismiss

is properly granted. 

WHEREFORE, for the foregoing reasons, the court respectfully 

RECOMMENDS that Defendants’ “Motion to Dismiss Amended Complaint” (Doc. No.

28) be GRANTED and Plaintiff’s Amended Complaint (Doc. No. 26) be DISMISSED. The

court further 

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RECOMMENDS that the District Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that

any appeal from this recommendation would not be taken in good faith and therefore in forma

pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369

U.S. 438 (1962). Thereafter, if Plaintiff files a notice of appeal he also must pay the full $455.00

appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days of the court’s final order in accordance with Fed.

R. App. P. 24.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings 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); 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. One Parcel of Real Prop.

Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

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decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal

the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

Dated this 15th day of March, 2013.

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