IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02337-MJW

TYRON DUANTE SMALL,

Plaintiff,

v.

DETECTIVE JEFF HUDDLESTON;

DETECTIVE MARC CHACON; and

OFFICER DANIEL THOMPSON,

Defendants.

ORDER ON

DEFENDANTS’ MOTION TO DISMISS THIRD AMENDED PRISONER COMPLAINT

(Docket No. 51),

PLAINTIFF’S MOTION REQUESTING SETTLEMENT HEARING (Docket No. 45),

AND

PLAINTIFF’S MOTION REQUESTING DISCOVERY (Docket No. 60).

 

MICHAEL J. WATANABE

United States Magistrate Judge

Initially, this case was before this court pursuant to an Order Referring Case

(Docket No. 22) issued by Judge Robert E. Blackburn on January 26, 2012. On June

26, 2012, the parties filed consent to the jurisdiction of a magistrate judge (Docket No.

56). Pursuant to 28 U.S.C § 636(c), Judge Blackburn entered an order assigning the

case for all purposes to this court (Docket No. 67). The case was reassigned on July

10, 2012 (Docket No. 58).

PLAINTIFF’S ALLEGATIONS

Pro se plaintiff Tyron Small asserts the following in his Third Amended Complaint

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1

 Plaintiff is currently incarcerated in the Colorado Department of Corrections on an

unrelated matter.

(Docket No. 43). In February or March of 2009, an alleged rape victim accused plaintiff

of raping her. Plaintiff claims that defendant Detective Marc Chacon and defendant

Officer Daniel Thompson had been investigating plaintiff in another matter and had

referred plaintiff’s name to defendant Detective Jeff Huddleston. As part of his

investigation into the rape allegations, Detective Huddleston was responsible for

interviewing the alleged victim and other witnesses. Eventually plaintiff was arrested,

brought to trial, and acquitted.1 Plaintiff makes two claims pursuant to 42 U.S.C. § 1983

in his complaint.

Plaintiff’s first claim is for “deprivation of life and liberty” and “indefinite standards

of enforcement.” Plaintiff claims he was arrested without probable cause thereby

resulting in a false arrest and violations of his due process rights.

Plaintiff’s second claim is for municipal liability. Plaintiff requests compensatory

and punitive money damages, as well as the expungement of his sexual assault case. 

PENDING MOTION

Now before the court is Defendants’ Motion to Dismiss Third Amended Prisoner

Complaint (Docket No. 51). Defendant argues plaintiff’s federal claims are barred by

the applicable statutes of limitations. Defendant also argues that each claim should be

dismissed for failure to state a claim and qualified immunity.

The court has carefully considered the Third Amended Complaint (Docket No.

43), the motion to dismiss (Docket No. 51), plaintiff’s response (Docket No. 59), and

defendants’ reply (Docket No. 63). In addition, the court has taken judicial notice of the

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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 orders.

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

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

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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)

(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

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(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

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).

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2

 Because plaintiff’s arrest was warrantless, plaintiff necessarily argues that he was

imprisoned without legal process. Accordingly, plaintiff’s claim is one for false arrest or

imprisonment. If plaintiff had been arrested pursuant to a warrant, he would necessarily have to

argue that he was imprisoned pursuant to a legal but wrongful process. In such circumstances,

plaintiff’s claim would be most closely analogous to a claim of malicious prosecution. See

Lopez v. Prince, No. 11-cv-02352, 2012 WL 3277178, at *4-6 (D. Colo. Aug. 9, 2012), for a

detailed discussion of the distinction between false arrest/imprisonment and malicious

prosecution. 

Statute of Limitations

Section 1983, under which plaintiff brings his claims, creates a cause of action

for “the deprivation, under color of state law, of a citizen’s rights, privileges, or

immunities secured by the Constitution and the laws of the United States.” Ledford v.

Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quotation marks and citations omitted). 

Under Tenth Circuit law, § 1983 suits are analogous to, but distinct from, tort claims

because they “ultimately rest on the Constitution, not on state (or federal) common law.” 

Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).

The statute of limitations for a § 1983 claim is dictated by the personal injury

statute of limitations in the state in which the claim arose. Wallace v. Kato, 549 U.S.

384, 387 (2007). In Colorado, that period is two years. See C.R.S. § 13-80-102;

Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994). While state law determines the

statute of limitations period, federal law governs when the action accrues. Kripp v.

Luton, 466 F.3d 1171, 1175 (10th Cir. 2006).

Reading plaintiff’s complaint liberally, plaintiff’s first claim can be fairly

characterized as a Fourth Amendment claim similar to a tort claim of false arrest or

imprisonment.2 The statute of limitations for a claim of false arrest or imprisonment

“begin[s] to run . . . when the alleged false imprisonment ends.” Wallace, 549 U.S. at

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3

 The certified copy of plaintiff’s ROA was attached to defendants’ Motion to Dismiss. 

The court has discretion to consider the ROA since its contents are alleged in plaintiff’s

complaint and it is integral to plaintiff’s claims. See Prager v. LaFaver, 180 F.3d 1185, 1189

(10th Cir. 1999).

4

 The court agrees with defendants that the earlier case (11-cv-00493-BNB) filed by

plaintiff on February 28, 2011 does not relate to the current matter. “A separately filed claim, as

opposed to an amendment or a supplementary pleading, does not relate back to a previously

filed claim.” Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir. 2000). Accordingly, the February

28, 2011 filing date of the earlier claim is not relevant to the statute of limitations determination

in this matter.

389 (internal quotation marks omitted). In a case such as this, false imprisonment ends

when the imprisonment becomes “pursuant to [legal] process - when, for example, he is

bound over by a magistrate or arraigned on charges.” Id. 

The certified copy of the Register of Actions (“ROA”)3

 for plaintiff’s case,

2009CR2115 (El Paso County District Court), indicates that plaintiff was arraigned and

pleaded not guilty on July 23, 2009. Accordingly, the statute of limitations for plaintiff’s

claim of false arrest/imprisonment ran on July 23, 2011. Plaintiff’s original complaint

was not filed until September 6, 2011.4

 As such, plaintiff’s false arrest/imprisonment

claim was not timely and must be dismissed.

Similarly, plaintiff’s claim for municipal liability is time barred. The only acts that

plaintiff alleges give rise to municipal liability are those made pursuant to plaintiff’s false

arrest/imprisonment claim; plaintiff has not alleged some separate incident of a

constitutional violation that would support a claim for municipal liability. Indeed plaintiff

does not identify the specific government policy or custom which resulted in his false

arrest/imprisonment. See Ulibarri v. City & Cnty. of Denver, 742 F. Supp. 2d 1192,

1219 (D. Colo. 2010) (citing Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658,

690-91 (1978)) (stating that municipal liability “accrues only where the action alleged to

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be unconstitutional executes or implements a governmental policy or custom”). As

such, the latest possible time plaintiff’s claim for municipal liability could have accrued

was at the same time his claim for false arrest/imprisonment did. Therefore, plaintiff’s

claim for municipal liability was not timely and must be dismissed. 

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Defendants’ Motion to Dismiss Third Amended Prisoner

Complaint (Docket No. 51) is GRANTED insofar as plaintiff’s claims are barred by the

applicable statute of limitations. The court enters final judgment dismissing this action

and all claims therein with prejudice. It is further

ORDERED that plaintiff’s Motion Requesting a Settlement Hearing with Listed

Defendants (Docket No. 45) is DENIED AS MOOT. It is further

ORDERED that plaintiff’s Request for Limited Pre-Discovery to Present as

Exhibits (Docket No. 60) is DENIED AS MOOT. 

Date: August 23, 2012 s/ Michael J. Watanabe 

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge

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