Opinion
Civil Action No. 19-cv-03416-RBJ-NYW
08-03-2020
BRANDON BAKER, Plaintiff, v. WELLS FARGO BANK, N.A., and BLUE FEDERAL CREDIT UNION, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Blue Federal Credit Union's Motion to Dismiss Plaintiff's Complaint [ECF No. 1] ("Blue FCU's Motion to Dismiss" or "Motion") [#30, filed February 14, 2020] that was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated December 19, 2019, [#8], and the Memorandum dated February 19, 2020, [#32]. This court has reviewed the Parties' briefing [#31, #42], the entire docket, and the applicable case law and finds that oral argument will not materially assist in the resolution of this matter. Being fully advised of the premises, this court respectfully RECOMMENDS that Blue FCU's Motion to Dismiss be GRANTED.
BACKGROUND
Plaintiff Brandon Baker ("Plaintiff" and "Mr. Baker") initiated this action on December 4, 2019 by filing a pro se Complaint against Wells Fargo, N.A. ("Wells Fargo") and Blue Federal Credit Union ("Blue FCU") (collectively, "Defendants"). [#1]. Plaintiff alleges that he was a member/customer of "Defendant(s) Bank(s) for 9-12 years (depending on accounts), with no issues until abruptly ended in Aug through October of 2017, after applying for an account and loans" and that his personal accounts were closed within 60 days. See, e.g., [id. at ¶¶ 5-6]. Though not entirely clear, it appears that Plaintiff alleges that Blue FCU took such actions because of Mr. Baker's involvement with cannabis [id. at ¶ 39] in violation of his First Amendment rights; in retaliation of his exercise of his First Amendment rights; and in doing so, discriminated against him based on his religious beliefs. See e.g., [id. at ¶¶ 7, 10].
Because Mr. Baker proceeds pro se, this court liberally construes his papers and arguments. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt him from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
Plaintiff also filed a separate action in in the District Court for Larimer County, Colorado, captioned Baker v. Wells Fargo et al, that was ultimately removed to the United States District Court for the District of Colorado under case number 20-cv-00012-RBJ-NYW and consolidated with this action. [#13, #18].
When this court quotes from Mr. Baker's filings, it does so without regarding to any grammatical or clerical mistakes, and without the use of [sic].
Plaintiff asserts claims of "religious discrimination," invoking the First Amendment of the federal and Colorado Constitutions ("Count I") [id. at 7]; "failure to accommodate Plaintiff's banking/loan needs based solely because of his religious beliefs/creed/practices," ("Count II") [id. at 8]; "disparate treatment" in violation of his First Amendment rights under the federal and Colorado Constitutions ("Count III") [id.]; and retaliation in violation of his First Amendment rights under the federal and Colorado Constitutions ("Count IV"), [id. at 9]. He invoked federal jurisdiction "pursuant to all statutes and jurisdictions related to civil rights claims at federal level i.e 3 CCR 708-1; C.R.A. 1991 (Pub. L. 102-166; 29 CFR 1605; 42 USC 1981; and 42 U.S.C. § 2000 et al." [Id . at ¶ 1].
On December 9, 2019, Plaintiff filed an "Addendum to Pro Se Complaint" to add an "Opening of the complaint and signature block" but did not add any additional factual allegations or identify any other causes of action. [#4].
Pursuant to the Civil Practice Standards of the Honorable R. Brooke Jackson, the presiding judge in this matter, both Wells Fargo and Blue FCU filed letters informing the court that they respectively intended to file motions to dismiss. [#21, #25]. Wells Fargo indicated that dismissal or a stay was appropriate, based on its theory that Mr. Baker was bound to seek any relief from Wells Fargo through arbitration. [#21]. Blue FCU indicated its intent to file a motion to dismiss based on Plaintiff's failure to state a cognizable claim. [#25]. Judge Jackson then ordered Plaintiff to advise the court whether he would agree to arbitration with Wells Fargo, and granted leave to Blue FCU to file a motion to dismiss. [#27]. This instant Motion followed. [#30].
Mr. Baker agreed to arbitrate his claims against Wells Fargo, and therefore, Judge Jackson stayed the case against Wells Fargo pending arbitration. [#29].
Blue FCU forwards four main arguments in its Motion to Dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. First, Blue FCU argues that any claim that Mr. Baker attempts to bring pursuant to the Colorado Constitution fails as a matter of law, because there is not a private right of action. [#30 at 9]. Second, Blue FCU contends that it is not a state actor liable under 42 U.S.C. § 1983, and accordingly, any claims brought by Plaintiff alleging violations of the federal Constitution are also not cognizable. [Id. at 6-8]. Third, Blue FCU argues that Mr. Baker's claims are barred by a two-year statute of limitations. [Id. at 9]. Finally, Blue FCU contends that Mr. Baker's Complaint does not meet the federal pleading standards under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. [Id. at 10]. Blue FCU seeks dismissal with prejudice. [Id. at 12].
In response to the Motion to Dismiss, Mr. Baker contends that "THERE IS NO 1983 claims or Governmental claims THIS IS DISCRIMINATION, FAILURE TO ACCOMMODATE, DISPARATE TREATMENT AND RETALIATION THROUGH RELIGIOUS DISCRIMINATION IN CONTRACTS." [#31 at 1 ¶ 1]. Mr. Baker also argues "Plaintiff's claims mimic EEOC, ECOA, FHA, Fair Banking and Lending and other discrimination laws some what, but could not find any actual direct federal statutes so he filed in state and federal courts for the violations within 2 years (for safety, even though the contract and such related SOL are 3 years)." [Id. at 2 ¶ 3]. Mr. Baker further argued that "This is a case of breach of banking contracts/fair-banking practices via discrimination, disparate treatment, failure to accommodate, retaliation and such BASED ON RELIGION ... PLUS civil damages to personal property and reputation of the Plaintiff throughout December 2017." [Id. at 3 ¶ 6]. Mr. Baker also argues that his claims cannot be barred by the statute of limitations because his claims could not have accrued in 2017 when his accounts were still open, and in any case, the applicable statute of limitations is three years, not two years. [Id. at 2 ¶ 3].
On Reply, Blue FCU argued that "Plaintiff's confession that Blue FCU is not 'violating civil rights related to § 1983 claims' requires resolution of all of his claims in Blue FCU's favor because § 1983 is the vehicle by which he would have to assert any of his claims. He has admitted that he cannot maintain suit against Blue FCU." [#42 at 2]. In addition, Blue FCU continues to press the four bases discussed above for dismissal. See generally [#42]. And Blue FCU specifically advocates that Plaintiff's Complaint should be dismissed with prejudice because amendment would be futile. [#42 at 5].
LEGAL STANDARDS
I. Subject Matter Jurisdiction
Although neither side raise any concerns regarding the court's subject matter jurisdiction, federal courts are courts of limited jurisdiction and, as such, "are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction." The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014), even in the absence of a challenge from any party, 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006).
Analysis of subject matter jurisdiction may proceed facially or factually, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). When considering whether the operative pleading facially sets forth sufficient facts to establish subject matter jurisdiction, the court takes the allegations in the Complaint as true. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)). The burden of establishing jurisdiction rests with the party asserting jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
II. Pleading of a Cognizable Claim
"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." Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). "The complaint does not need detailed factual allegations, but the factual allegations must be enough to raise a right to relief above the speculative level." Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1234 (10th Cir. 2020) (internal quotation marks omitted).
Rule 8(a) of the Federal Rules of Civil Procedure requires a pleading to provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and requires only that a complaint contain enough factual details to render the entitlement to relief plausible, Jones v. Needham, 856 F.3d 1284, 1292 (10th Cir. 2017). But courts in this District have observed that "context matters" and ""[f]air notice under Rule 8(a)(2) depends on the type of case." Carrado v. Daimler AG, No. 17-CV-3080-WJM-SKC, 2018 WL 4565562, at *3 (D. Colo. Sept. 24, 2018) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)).
In making this determination, the "court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff." Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
ANALYSIS
I. Subject Matter Jurisdiction.
Because a federal court cannot assume subject matter jurisdiction, see Colo. Outfitters Ass'n v. Hickenlooper ("Colorado Outfitters II"), 823 F.3d 537, 543 (10th Cir. 2016), this court first considers whether it possesses subject matter jurisdiction over this action. In Response to Blue FCU's Motion to Dismiss, Mr. Baker is clear that he is not asserting a claim pursuant to § 1983 and concedes that Blue FCU is "not [a] government entit[y] nor are they . . . violating civil rights related to 1983 claims." [#31 at 1]. Therefore, the court looks to the other bases for jurisdiction Mr. Baker alleged in the Complaint.
In his Complaint, Plaintiff asserts jurisdiction "pursuant to all statutes and jurisdictions related to civil rights claims at federal level i.e 3 CCR 708-1; C.R.A. 1991 (Pub. L. 102-166; 29 CFR 1605; 42 USC 1981; and 42 U.S.C. § 2000 et al." [#1 at 1 ¶ 1]. The court considers each in turn as they relate to the court's subject matter jurisdiction.
Code of Colorado Regulations. As an initial matter, 3 CCR 708-1 refers to regulations within the Code of Colorado Regulations that relate to charges filed before the Colorado Civil Rights Commission. See 3 CCR 708-1. Plaintiff cites no, and this court could not independently find any, authority to suggest that the Code of Colorado Regulations or alleged violations of the Code of Colorado Regulations can form the basis of federal subject matter jurisdiction.
42 U.S.C. § 1981. Plaintiff next refers to the Civil Rights Act of 1991, Pub. L. 102-166, 42 U.S.C. § 1981. Section 1981 "guarantees equal rights under the law to all persons within the jurisdiction of the United States. Subsection (a) of the statute specifically enumerates the following rights as protected: the right to "make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property." Creek Red Nation, LLC v. Jeffco Midget Football Ass'n, Inc., 175 F. Supp. 3d 1290, 1294-95 (D. Colo. 2016) (citing 42 U.S.C. § 1981(a)). The Creek Red Nation court further explains that "Subsection (c) provides that the rights enumerated in subsection (a) are protected against impairment by nongovernmental discrimination and impairment under color of State law." Id. (citing 42 U.S.C. § 1981(c)) (internal quotations omitted).
An alleged violation of § 1981 confers subject matter jurisdiction over an action pursuant to 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."). But "[t]he purpose of § 1981 is to prevent discrimination against an individual on the basis of his or her race or ethnic background." Olguin v. Lucero, 87 F.3d 401, 404-05 (10th Cir. 1996). Indeed, courts have recognized that § 1981 "protects only against racial discrimination and does not protect against discrimination on the basis of religion, gender, or any other category." Burrell v. Armijo, Case No. 02-cv-542/WJ/DJS, 2007 WL 9662636, at *3 (D.N.M. Mar. 3, 2007) (citing Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1387 n.7 (10th Cir. 1991)). See also Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609, 107 S. Ct. 2022, 2026, 95 L. Ed. 2d 582 (1987) ("Although § 1981 does not itself use the word 'race,' the Court has construed the section to forbid all 'racial' discrimination in the making of private as well as public contracts."
Here, Mr. Baker asserts no allegations of racial discrimination. [#1]. Instead, his Complaint and his Response to Blue FCU's Motion to Dismiss plainly and repeatedly assert religious discrimination. [#1, #33]. Therefore, while the Complaint refers to 42 U.S.C. § 1981, there is no assertion of racial discrimination to support federal jurisdiction under that statute.
42 U.S.C. § 2000. Mr. Baker also identifies 42 U.S.C. § 2000 et seq. and its implementing regulation, 29 C.F.R. 1605, as a basis for jurisdiction. But Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits religious discrimination in employment, and does not apply to conduct outside the employment context. There are no allegations that Mr. Baker was in any type of employment relationship with Blue FCU, but rather, a commercial banking relationship. [#1, #33]. Accordingly, neither Title VII nor its implementing regulation can form the basis of federal subject matter jurisdiction for this action.
Diversity Jurisdiction. Mr. Baker concedes that his "claims mimic EEOC, ECOA, FHA, Fair Banking and Lending and other discrimination laws some what, but could not find any actual direct federal statutes so he filed in state and federal courts . . ." [#33 at 2 ¶ 3] (emphasis added). As noted, he makes clear in his Response that he is not pursuing claims for violations of his religious rights guaranteed by the First Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983. [#33 at 1]. Therefore, the court examined the Complaint to determine whether Mr. Baker asserted facts sufficient to support invocation of diversity jurisdiction. However, he fails to do so.
Pursuant to 28 U.S.C. § 1332(a), "[t]he 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":
(1) citizens of different states;
(2) citizens of a State and citizens or subjects of a foreign state
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
It is well established that "[t]he party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter." Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Because Mr. Baker has not sustained his burden, this court respectfully RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Doing so is not a determination on the merits of the case; rather, it is a decision that the court lacks the authority to adjudicate the action. 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). Thus, dismissal without prejudice is appropriate. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1217 (10th Cir. 2006) (observing that once a court determines it lacks subject matter jurisdiction to make any determination of the merits of the underlying claim, it must dismiss without prejudice).
II. Cognizable Claims
Because this court proceeds by Recommendation, this court now turns to Blue FCU's arguments under Federal Rule of Civil Procedure 12(b)(6) that Mr. Baker has failed to state any cognizable claims, should the presiding judge find that Mr. Baker has established subject matter jurisdiction. Blue FCU first argues that any claim that Mr. Baker attempts to bring pursuant to the Colorado Constitution fails as a matter of law, because there is not a private right of action. [#30 at 9]. Second, Blue FCU contends that it is not a state actor liable under 42 U.S.C. § 1983, and accordingly, any claims brought by Plaintiff alleging violations of the federal Constitution are also not cognizable. [Id. at 6-8]. Third, it argues that Mr. Baker's claims are barred by a two-year statute of limitations. [Id. at 9]. Finally, Blue FCU contends that Mr. Baker's Complaint does not meet the federal pleading standards under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. [Id. at 10].
Sufficiency of Pleading. Though argued last in sequence by Blue FCU, this court first addresses the sufficiency of Plaintiff's Complaint as clarified by Plaintiff's Response to Blue FCU's Motion to Dismiss. While a plaintiff cannot amend his operative pleading by statements made in response to a motion to dismiss, see Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227, 1230 (D. Colo. 2010), nothing bars him from conceding certain claims. Here, Plaintiff insists that "there is no 1983 claims or Governmental claims." [#33 at 1 ¶ 1]. Taking that statement at face value, it is unclear what causes of action Mr. Baker is asserting.
Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), but "context matters" and "[f]air notice under Rule 8(a)(2) depends on the type of case." Carrado v. Daimler AG, No. 17-CV-3080-WJM-SKC, 2018 WL 4565562, at *3 (D. Colo. Sept. 24, 2018) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)). Upon review of the Complaint, the court finds that Plaintiff satisfies the "low bar" of Rule 8. See Freeman v. Ocwen Loan Servicing, LLC, No. 3:12CV27/RV/CJK, 2012 WL 1020374, at *1 (N.D. Fla. Feb. 24, 2012). Plaintiff alleges, for example, that he "was knowingly and intentionally treated unfavorably and discriminated against by Wells Fargo/Blue Federal Credit Union because of ONLY his religious participation," [#1 at ¶ 24], and "Wells Fargo/Blue Credit Union failed to accommodate Plaintiff's banking/loan needs based solely on his religious beliefs," [id. at ¶ 29]. Such plain statements provide Blue FCU with fair notice of what this case is about. Additionally, "motions to dismiss for failure to comply with Rule 8's pleading requirements and motions for more definite statements are rarely granted." Sweet v. Topeka Metro. Transit Auth., No. CIV. A. 89-4019-S, 1989 WL 59057, at *1 (D. Kan. May 11, 1989).
Nevertheless, the court finds that Mr. Baker fails to plausibly allege a claim, as required by Rule 12(b)(6). In his Response, Mr. Baker disclaims the assertion of any federal constitutional claims in his Response. [#33 at 1]. And as discussed above, none of the identified bases for jurisdiction appear viable. See Analysis Section I, supra. Therefore, while Mr. Baker's factual allegations may be considered "short and plain statements," he has failed to identify cognizable legal causes of action. Indeed, Mr. Baker himself concedes that "Plaintiffs claims mimic EEOC, ECOA, FHA, Fair Banking and Lending and other discrimination laws some what, but could not find any actual direct federal statutes so he filed in state and federal courts for the violations within 2 years (for safety, even though the contract and such elated SOL are 3 years)." [Id. at 3 ¶ 3]. While this court appreciates Mr. Baker's candor and difficulties as a pro se litigant, it may not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted). It is not the role of either the court or Blue FCU to sort through a complaint in order to construct a cause of action for the Plaintiff. See Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 371-72 (10th Cir. 1989). Accordingly, this court respectfully RECOMMENDS that the Complaint be DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(6).
Colorado Constitution. Moreover, it is clear that a claim for religious discrimination pursuant to the First Amendment to the Colorado Constitution is not viable as a matter of law. Colorado does not have a corollary to the federal statute, 42 U.S.C. § 1983, to address violations of the Colorado Constitution. Further, "where other adequate remedies exist, the Colorado Supreme Court has held that there is no implied remedy for a violation of the Colorado Constitution." Sandberg v. Englewood, Colo., 727 F. App'x 950, 964 (10th Cir. 2018) (quoting Board of Cty. Comm'rs of Douglas Cty. v. Sundheim, 926 P.2d 545, 553 (Colo. 1996) (internal quotations omitted). Mr. Baker may only pursue a claim for a violation of the First Amendment of the Colorado Constitution if that provision is distinct from the federal First Amendment. Sandberg, 727 F. App'x at 965.
The Colorado Supreme Court has held that "It is a primary principle of the Federal Establishment Clause and our own Preference Clause jurisprudence that one religious denomination cannot be preferred over another; nor can government favor religion over non-religion or non-religion over religion." State v. Freedom From Religion Found., Inc., 898 P.2d 1013, 1019 (Colo. 1995). In interpreting Colorado's Preference Clause, the Supreme Court has looked to the Establishment Clause of the First Amendment of the federal Constitution, and the jurisprudence construing the Establishment Clause. Id. Indeed, the Colorado Supreme Court has "seen no need to depart from the path cut by the United States Supreme Court for Establishment Clause cases." Id.
Accordingly, this court finds that any claim based on violation of the Preference Clause of the First Amendment of the Colorado Constitution is not cognizable, given the fact that it is not distinct from a violation of the Establishment Clause of the First Amendment of the United States Constitution. Thus, any such claim as reflected in Counts I-IV should be DISMISSED WITH PREJUDICE.
A dismissal with prejudice of a complaint that fails to state a claim under Rule 12(b)(6) is appropriate only when "granting leave to amend would be futile." Due to heightened concerns when a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Brereton, 434 F.3d at 1219; Oxendine v. Kaplan, 241 F.3d, 1272, 1275 (10th Cir. 2001); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citations omitted) ("[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint."). Here, however, because Mr. Baker's claims arise from his allegations of religious discrimination, such claims under the Colorado Constitution are not viable as a matter of law and no additional or different pleading would change that analysis.
Federal Constitution. In Response to Blue FCU's Motion to Dismiss, Mr. Baker concedes that Blue FCU is "not [a] government entit[y] nor are they color of law nor are they violating civil rights related to 1983 claims." [#31 at 1]. But it is axiomatic that the First Amendment prohibits governmental, not private, preferences as related to religion:
To state a claim under § 1983, Plaintiff must allege deprivation of a right secured by the Constitution or laws of the United States and that the deprivation was committed "under color of state law." See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)).
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.U.S. CONST. amend. I; Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (observing that the right to freedom of religion in violation of the First Amendment is "not protected against private infringement"). And there are no allegations in the Complaint, nor argument from Mr. Baker in Response to the Motion to Dismiss, that Blue FCU is a state actor. See [31, #33]. Thus, to the extent that Plaintiff bases Counts I-IV on the First Amendment of the United States Constitution, any such claim as reflected in Counts I-IV should be DISMISSED WITHOUT PREJUDICE.
See supra n.6. Although this court recommended that any claims premised on the First Amended of the Colorado Constitution be dismissed with prejudice, the analysis is slightly different here. Other courts in this District have recognized that "[t]he Tenth Circuit has held that banks generally do not operate under color of state law," Silva v. US Bank, Nat'l Assoc., 294 F. Supp. 3d 1117, 1131 (D. Colo. 2018), report and recommendation adopted sub nom. Silva v. US Bank, Nat'l Assoc. as Tr. under Pooling & Serv. Agreement dated as of Feb. 1, 2007, No. 17-CV-1529-WJM-KLM, 2018 WL 10561514 (D. Colo. Mar. 19, 2018); Ramsey v. Citibank, N.A., No. 10-cv-02653-WYD-CBS, 2011 WL 4485922, at *9-10 (D. Colo. July 28, 2011), report and recommendation adopted, No. 10-CV-02653-WYD-CBS, 2011 WL 4485918 (D. Colo. Sept. 28, 2011), aff'd, 475 F. App'x 711 (10th Cir. 2012) (finding that plaintiff's challenge to legal merits of defendant banks' eviction efforts was insufficient to transform banks into state actors); Elliott v. May, 122 F. App'x 944, 946 (10th Cir. 2004) (finding that plaintiff failed to show that defendants, including a bank, "who are private entities, were acting under 'color of state law'"). Here, Mr. Baker's allegations appear to arise from the ordinary course of applying for and holding accounts and loans. See [#1]. In that case, Mr. Baker's claims appear precluded as a matter of law based on the case law as set forth above. But this court is cognizant that Mr. Baker proceeds pro se, and Blue FCU moved for (and this court recommends) dismissal based on Plaintiff's own admission and his failure to set forth sufficient facts to establish that Blue FCU was a state actor, not a finding that under any circumstance, Blue FCU could never be a state actor (however unlikely). Because the Tenth Circuit has long suggested that dismissal without prejudice is preferable, Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990), this court thus declines to recommend dismissal with prejudice as requested by Blue FCU.
Statute of Limitations. Finally, this court passes briefly upon Blue FCU's arguments that Plaintiff's claims are barred by the statute of limitations and are not adequately pleaded under Rule 8(a) the Federal Rules of Civil Procedure. A statute of limitations argument ordinarily is presented as an affirmative defense; however, the issue may be resolved on a Rule 12(b)(6) motion only where the application of the limitations period "is apparent on the face of the complaint." Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir. 2008) (citing Aldrich v. McCulloch Properties., Inc., 627 F.2d 1036, 1041 & n.4 (10th Cir. 1980)). Here, given this court's other Recommendations, Plaintiff's Response, and the lack of clarity of what specific causes of action Plaintiff attempts to assert, this court declines to recommend dismissal on statute of limitations grounds.
CONCLUSION
For the reasons set forth above, this court respectfully RECOMMENDS that:
(1) Blue Federal Credit Union's Motion to Dismiss Plaintiff's Complaint [#30] be GRANTED, and this action be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or for failure to state a cognizable claim pursuant to Rule 12(b)(6), with the caveat that any claim brought pursuant to the Colorado Constitution is DISMISSED WITH PREJUDICE as a matter of law.DATED: August 3, 2020
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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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 of fact, conclusions of law, 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) (District Court's 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"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, 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).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge