IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02421-REB-MJW

ALEMAYEHU GETACHEW,

Plaintiff,

v.

7-ELEVEN, INC.,

Defendant.

RECOMMENDATION ON

DEFENDANT 7-ELEVEN, INC.’S MOTION TO DISMISS (Docket No. 10),

PLAINTIFF’S MOTION REQUESTING AN IMMEDIATE INJUNCTION (Docket No.

61),

AND

DEFENDANT 7-ELEVEN, INC.’S MOTION TO DISMISS OR FOR OTHER

SANCTIONS FOR PLAINTIFF’S REFUSAL TO PARTICIPATE IN DISCOVERY

(Docket No. 75).

ORDER ON

PLAINTIFF’S MOTION TO AMEND HIS COMPLAINT BY ADDING JURY TRIAL

(Docket No. 40),

PLAINTIFF’S MOTION TO AMEND HIS COMPLAINT BY CORRECTING THE

CAPTION (Docket No. 41),

PLAINTIFF’S MOTION REQUESTING SANCTIONS (Docket No. 62),

PLAINTIFF’S MOTION REQUESTING THE PRESIDING JUDGE TO MAKE A

DETERMINATION (Docket No. 67),

DEFENDANT’S 7-ELEVEN, INC’S MOTION FOR SANCTIONS (Docket No. 72),

AND

PLAINTIFF’S MOTION REQUESTING SANCTIONS (Docket No. 77).

 

MICHAEL J. WATANABE

United States Magistrate Judge

This case is before this court pursuant to an Order Referring Case (Docket No. 9)

issued by Judge Robert E. Blackburn on October 6, 2011.

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1

 Although originally named as a defendant in this matter, Google was dismissed on

March 14, 2012 (Docket No. 45).

PLAINTIFF’S ALLEGATIONS

Pro se plaintiff Alemayehu Getachew asserts the following in his Complaint

(Docket No. 1). On November 26, 2002, plaintiff filed a complaint in this court against

defendant 7-Eleven, Inc. for employment discrimination. See Getachew v. 7-Eleven,

No. 02-cv-02218-RPM-PAC (D. Colo.). The case was dismissed on December 14,

2004 after Judge Richard P. Matsch granted defendant’s motion for summary judgment. 

Plaintiff unsuccessfully appealed Judge Matsch’s decision. See Getachew v. 7-Eleven,

151 Fed. Appx. 626 (10th Cir. 2005).

Plaintiff alleges that, beginning in or before 2006, defendant retaliated against

plaintiff for filing the 2002 lawsuit. Specifically, plaintiff alleges that a copy of Judge

Matsch’s December 14, 2004 order (the “2004 Order”) was posted on the internet by

defendant. Plaintiff further claims that one of the results for a Google1

 search of his

name is the 2004 Order. Accordingly, plaintiff alleges that by “making this information

easily accessible,” defendant essentially gave plaintiff “a negative job reference to hiring

managers without those managers even asking,” thus hindering plaintiff’s employment

opportunities. Plaintiff makes the following claims against defendant:

Claim One asserts retaliation under the Civil Rights Act, 42 U.S.C. § 1981. 

Plaintiff claims that by posting the 2004 Order in retaliation for the 2002 lawsuit,

defendant significantly affected plaintiff’s ability to obtain employment.

Claim Two asserts discrimination based on race under the Civil Rights Act, 42

U.S.C. § 1981. Plaintiff claims defendant’s actions caused a denial of his rights to make

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and enforce employment contracts with other employers.

Claim Three asserts that defendant violated the Thirteenth Amendment’s

prohibition against involuntary servitude due to the working conditions plaintiff faced

while employed by defendant.

Claim Four asserts defendant was negligent in posting the 2004 Order on the

internet.

Claim Five asserts intentional infliction of emotional distress due to the positing of

the 2004 Order on the internet. 

PENDING MOTION

Now before the court for a report and recommendation is Defendant 7-Eleven,

Inc.’s Motion to Dismiss (Docket No. 10). Defendant argues plaintiff’s claims are barred

by the applicable statutes of limitations. Defendant also argues that each claim fails to

state a claim upon which relief may be granted.

The court has carefully considered the Complaint (Docket No. 1), the motion to

dismiss (Docket No. 10), and plaintiff’s response (Docket No. 16). In addition, the court

has taken judicial notice of the court’s file, and has considered the applicable Federal

Rules of Civil Procedure and case law. The court now being fully informed makes the

following findings of fact, conclusions of law, and recommendations.

Under Rule 12(b)(1), a court may dismiss a complaint for “lack of jurisdiction over

the subject matter.” Fed. R. Civ. P. 12(b)(1). The burden of establishing subject matter

jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co.,

495 F.2d 906, 909 (10th Cir. 1974). Motions to dismiss pursuant to Rule 12(b)(1) take

two forms. First, a party may attack the facial sufficiency of the complaint, in which case

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the court must accept the allegations of the complaint as true. Holt v. United States, 46

F.3d 1000, 1002-03 (10th Cir. 1995). Second, if a party attacks the factual assertions

regarding subject matter jurisdiction through affidavits and other documents, the court

may make its own findings of fact. See id. at 1003. A court’s consideration of evidence

outside the pleadings will not convert the motion to dismiss to a motion for summary

judgment under Rule 56. See id.

Under Rule 8(a)(2), a pleading must contain “a short and plaint statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to

dismiss pursuant to Rule 12(b)(6) alleges that the complaint fails “to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6) if it does not plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do . . . .” Id. at 555 (citations

omitted). “Factual allegations must be enough to raise a right to relief above the

speculative level.” Id. “[A] plaintiff must ‘nudge [] [his] claims across the line from

conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere

metaphysical possibility that some plaintiff could prove some set of facts in support of

the pleaded claims is insufficient; the complaint must give the court reason to believe

that this plaintiff has a reasonable likelihood of mustering factual support for these

claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)

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(quoting Twombly, 550 U.S. at 570).

The Tenth Circuit Court of Appeals has held “that 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.’” Khalik v. United Air Lines, 671 F.3d

1188, 1191 (10th Cir. 2012). The court has further “noted that ‘[t]he nature and

specificity of the allegations required to state a plausible claim will vary based on

context.’” Id. The court thus “concluded the Twombly/Iqbal standard is ‘a middle

ground between heightened fact pleading, which is expressly rejected, and allowing

complaints that are no more than labels and conclusions or a formulaic recitation of the

elements of a cause of action, which the Court stated will not do.’” Id.

For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must

accept all well-pled factual allegations in the complaint as true and resolve all

reasonable inferences in the plaintiff’s favor. Morse v. Regents of the Univ. of Colo.,

154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow, 84 F.3d 1226, 1231-32

(10th Cir. 1996). However, “when legal conclusions are involved in the complaint ‘the

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to [those] conclusions’ . . . .” Khalik, 671 F.3d at 1190 (quoting Ashcroft v.

Iqbal, 556 U.S. 662 (2009)). “Accordingly, in examining a complaint under Rule

12(b)(6), [the court] will disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.” Id.

Plaintiff is proceeding pro se. The court, therefore, reviews his pleadings and

other papers liberally and holds them to a less stringent standard than those drafted by

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attorneys. Trackwell v. United States Government, 472 F.3d 1242, 1243 (10th Cir.

2007). See Haines v. Kerner, 404 U.S. 519, 520-21 (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). 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 Whitney v. New Mexico, 113 F.3d 1170,

1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to

round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf); Drake v.

City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not

“construct arguments or theories for the plaintiff in the absence of any discussion of

those issues). “The plaintiff's pro se status does not entitle him to application of

different rules.” Wells v. Krebs, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010).

Statute of Limitations

Claim One is a retaliation claim brought pursuant to 42 U.S.C. § 1981 and Claim

Two is a discriminatory contractural inference claim brought pursuant to 42 U.S.C. §

1981(b). These claims are subject to a four-year statute of limitations. See Jones v.

R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); 28 U.S.C. § 1658(a). The

statute of limitations begins to run “when the plaintiff knows or has reason to know of

the existence and cause of the injury which is the basis of his action.” Alexander v.

Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (“In particular, a civil rights action

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2

 Plaintiff’s argument as to a continuing violation is without merit. “A continuing violation

is occasioned by continual unlawful acts, not by continual ill effects from the original violation.” 

Bergman v. United States, 751 F.2d 314, 317 (10th Cir. 1984). Plaintiff’s Complaint contains no

allegations of retaliatory actions by defendant other than the posting of the 2004 Order.

accrues when [the] facts that would support of cause of action are or should be

apparent.”). Plaintiff’s Complaint plainly states that the action which is the basis for

Claim One and Claim Two is the posting of the 2004 Order on the internet; plaintiff

states that “the heart of this case” is the posting of the 2004 Order. Indeed, every ill

effect complained of by plaintiff in Claim One and Claim Two is the consequence of the

posting of the 2004 Order. 

Plaintiff states that the retaliation, in the form of posting the 2004 Order, began

“in or before 2006.” It necessarily follows that plaintiff became aware of the posting, and

the applicable statute of limitations began to run, at that time.2 Assuming the 2004

Order was posted on the last day of 2006, the statute of limitations ran, at the latest, on

December 31, 2010. Plaintiff’s Complaint was not filed until September 14, 2011. 

Consequently, the court finds that Claim One and Claim Two are time barred and

should be dismissed.

Claim Three is a involuntary servitude claim brought pursuant to the Thirteenth

Amendment, and by implication, the Thirteenth Amendment’s enabling statute, 18

U.S.C. § 1584. Unlike Claim One and Claim Two, the statute of limitations for Claim

Three is not determined by 28 U.S.C. § 1658(a) since 18 U.S.C. § 1584 was enacted

prior to 1991. See Jones, 541 U.S. at 382. Because 18 U.S.C. § 1584 does not specify

a statute of limitations, and 28 U.S.C. § 1658(a) is inapplicable, the court must look to

the most closely analogous statute of limitations under state law. See E.E.O.C. v. W.H.

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Braum, Inc., 347 F.3d 1192, 1197 (10th Cir. 2003) (“Where Congress creates a cause

of action without specifying the time period within which it may be brought, courts may

infer that Congress intended the most analogous state statute of limitations to apply.”);

see also Manliguez v. Joseph, 226 F. Supp. 2d 377, 385 (E.D.N.Y. 2002) (looking to

state law to determine the statute of limitations under 18 U.S.C. § 1584); Townsend v.

Treadway, No. 6500, 1974 WL 1256, at *3 (M.D. Tenn. Mar. 2, 1973) (looking to state

law to determine the statute of limitations under 18 U.S.C. § 1584).

The court’s research indicates that the Tenth Circuit has not made a

determination as to which Colorado law is most closely analogous to 18 U.S.C. § 1584. 

Indeed, few court’s have addressed the issue with respect to any state. However, the

court agrees with the reasoning in Manliguez. There, the court found that a 18 U.S.C. §

1584 claim was most analogous to the New York statute for personal injury claims, a

statute which had previously been found to be analogous to other federal civil rights

claims. Manliguez, 226 F. Supp. 2d at 385. In so finding, the court reasoned that the

state false imprisonment statute was less analogous because it did not address the

plaintiff’s “forced labor or its constitutional implications.” Id. This court agrees with such

reasoning. Accordingly, the court finds that Colorado’s two-year statue of limitations for

personal injury actions is applicable. See C.R.S. § 13-80-102.

Plaintiff’s Complaint states that the conditions he was subjected to by defendant

occurred in “mid-2001.” Further, plaintiff indicates that he was fired by defendant

sometime in 2002. Accordingly, the statute of limitations for plaintiff’s 18 U.S.C. § 1584

claim ran, at the latest, sometime in 2004. Consequently, the court finds that Claim

Three is time barred and should be dismissed.

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Claim Four asserts that defendant was negligent in posting the 2004 Order. In

Colorado, a two-year statute of limitations applies to tort actions such as negligence. 

See C.R.S. § 13-80-102(1)(a). A cause of action of negligence accrues “on the date

both the injury and its cause are known or should have been known by the exercise of

reasonable diligence.” C.R.S. § 13-80-108(1).

As explained above, plaintiff discovered the posting of the 2004 Order sometime

before the end of 2006. Accordingly, the statute of limitations for Claim Four ran by the

end of 2008. Consequently, the court finds that Claim Four is time barred and should

be dismissed.

Finally, Claim Five asserts that defendant intentionally inflicted emotional distress

on plaintiff due to the posting of the 2004 Order. In Colorado, the tort of intentional

infliction of emotional distress has a two-year statute of limitations. See C.R.S. § 13-80-

102(1)(a). A cause of action of intentional infliction of emotional distress accrues “on

the date both the injury and its cause are known or should have been known by the

exercise of reasonable diligence.” C.R.S. § 13-80-108(1). 

 As explained above, plaintiff discovered the posting of the 2004 Order

sometime before the end of 2006. Accordingly, the statute of limitations for Claim Five

ran by the end of 2008. Consequently, the court finds that Claim Five is time barred

and should be dismissed.

WHEREFORE, for the foregoing reasons, it is hereby

RECOMMENDED that Defendant 7-Eleven, Inc.’s Motion to Dismiss (Docket No.

10) be GRANTED insofar as each of plaintiff’s claims are barred by the applicable

statute of limitations and plaintiff’s complaint be dismissed in its entirety. It is further

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RECOMMENDED that plaintiff’s Motion Requesting an Immediate Injunction

(Docket No. 61) be DENIED AS MOOT. It is further 

RECOMMENDED that Defendant 7-Eleven, Inc.’s Motion to Dismiss or for Other

Sanctions for Plaintiff’s Refusal to Participate in Discovery (Docket No. 75) be DENIED

AS MOOT. It is further

ORDERED that plaintiff’s Motion to Amend His Complaint by Adding Jury Trial

(Docket No. 40) is DENIED AS MOOT. It is further

ORDERED that plaintiff’s Motion to Amend His Complaint by Correcting the

Caption (Docket No. 41) is DENIED AS MOOT. It is further

ORDERED that plaintiff’s Motion Requesting Sanctions (Docket No. 62) is

DENIED. It is further

ORDERED that plaintiff’s Motion Requesting the Presiding Judge to Make a

Determination (Docket No. 67) is DENIED AS MOOT. It is further

ORDERED that Defendant’s 7-Eleven, Inc’s Motion for Sanctions (Docket No.

72) is DENIED. It is further

ORDERED that plaintiff’s Motion Requesting Sanctions (Docket No. 77) is

DENIED.

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

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within fourteen (14) days after being served with a copy. The District Judge need

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).

Date: August 8, 2012 s/ Michael J. Watanabe 

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge

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