Fox v. Washington County Justice Center et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00256-CYC
MICKIE LEE FOX,
Plaintiff,
v.
BENT COUNTY COLORADO, a municipality;
KIOWA COUNTY COLORADO, a municipality;
TONI JONES, a Deputy Sheriff Bent County; and
DR. JANE DOE, Kiowa County Hospital Doctor;
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
This matter is before the Court on the Motion to Dismiss Bent County and Kiowa
County. ECF No. 151. Each county defendant argues that it should be dismissed from this case
under Federal Rule of Civil Procedure 12(b)(1) because it is improperly named. The defendants
also argue that dismissal is appropriate under Rule 12(b)(6). The plaintiff filed no response to the
motion even after the Court sua sponte granted him an extension of his deadline and warned him
that failing to respond “will result in the Court deciding the motion without the benefit of the
plaintiff’s point of view.” ECF No. 159. Because these defendants have been improperly named,
the motion is granted.
BACKGROUND
The Court previously summarized some of the facts of this case in its Order dismissing
the claim against Dee Lyons. Fox v. Lyons, No. 23-cv-00256-CYC, 2025 WL 1927982 (D. Colo.
July 14, 2025). Below, the Court provides a brief recitation of additional facts relating to the two
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county defendants. According to the plaintiff’s Sixth Amended Complaint, on October 29, 2022,
he was arrested by the Kiowa County Sheriff’s Department and detained in the Bent County
Detention Facility, which contracts with Kiowa County to provide detention services. ECF No.
116 at 6, 9. The plaintiff informed a deputy that he suffers from a blood disorder that requires
him to take Xeralto to prevent blood clotting and death. Id. at 6–7. As a result, the deputy
transported the plaintiff to the Kiowa County Hospital for a medical evaluation prior to booking
him into the detention facility. Id. at 7. Defendant Dr. Jane Doe ran tests and made a medical
determination. Id. at 8. According to the plaintiff, this determination was based on the cost of the
treatment. Id. at 8–9. He further alleges that Dr. Jane Doe “conspired with Bent County
authorities to avoid costly medical care,” which resulted in physical injury to the plaintiff. Id. at
10. The plaintiff was eventually transported back to the Bent County Detention Facility and was
held there for two days without receiving the anticoagulant medication. Id. at 13. He developed
painful blood clots in his right leg and discoloration in both legs. Id. at 13–14.
As a result, pursuant to 42 U.S.C. § 1983, id. at 4, the plaintiff brings a Fourteenth
Amendment claim against defendant “Bent County Colorado, a municipality” and defendant
“Kiowa County Colorado, a municipality.” Id. at 1, 15–20. The plaintiff maintains that there was
a municipal policy or practice causing his injuries, id. at 18, and that the sheriffs of each county
ratified the policy or practice, disregarding the harm that would result therefrom. Id. at 19–20.
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ANALYSIS
Defendants “Bent County Colorado” and “Kiowa County Colorado” argue, among other
things, that this Court lacks jurisdiction over the claims asserted against them because they are
improperly named parties. ECF No. 151 at 1 n.2, 6. Even after the Court sua sponte extended the
plaintiff’s deadline to respond to this motion, ECF No. 159 at 1, resulting in the plaintiff having
more than two months to respond, the plaintiff failed to do so. That concedes the argument. Est.
of Blodgett v. Correct Care Sols., LLC, No. 17-cv-02690-WJM-NRN, 2018 WL 6528109, at *7
(D. Colo. Dec. 12, 2018).
The argument is also correct. “Federal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As such, they “are duty
bound to examine facts and law in every lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc’y v. Kane Cnty., Utah, 632 F.3d 1162, 1179 n.3 (10th
Cir. 2011) (Gorsuch, J., concurring). A party challenging a court’s subject matter jurisdiction can
seek dismissal under Federal Rule of Civil Procedure 12(b)(1). Davis ex rel. Davis v. United
States, 343 F.3d 1282, 1294 (10th Cir. 2003). Dismissing under Rule 12(b)(1) is not a judgment
on the merits, but only a determination that the court lacks authority to hear the matter.
Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). “The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R.
Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted). The moving party may seek
dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) in two forms: (1) facial
attack or (2) factual challenge. Equal Emp. Opportunity Comm’n v. ‘Murica, LLC, 694 F. Supp.
3d 1356, 1361 (D. Colo. 2023). Where, as here, the moving party is “facially attack[ing] the
complaint’s allegations as to the existence of subject matter jurisdiction,” courts will accept a
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complaint’s allegations as true. Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072,
1074 (10th Cir. 2004). The Sixth Amended Complaint cannot withstand that attack.
Under Colorado law, any suit against a county must be brought in the name of “The
board of county commissioners of the county of . . . .” Colo. Rev. Stat. § 30-11-105. “‘This
statutory provision provides the exclusive method by which jurisdiction over a county can be
obtained. An action attempted to be brought under any other designation is a nullity, and no valid
judgment can enter in such a case.’” Gonzales v. Martinez, 403 F.3d 1179, 1182 n.7 (10th Cir.
2005) (quoting Calahan v. Jefferson Cnty., 429 P.2d 301, 302 (Colo. 1967)). In short, “[f]ailure
to correctly name a county bars a court’s jurisdiction over the county.” Murphy v. Marlow, No.
24-cv-01504-CNS-TPO, 2025 WL 1309866, at *2 (D. Colo. May 6, 2025) (dismissing “all
claims against Kiowa County pursuant to Colo. Rev. Stat. § 30-11-105”); see Griffith v. El Paso
Cnty., 129 F.4th 790, 832–36 (10th Cir. 2015) (concluding that because “El Paso County” was
improperly named, the district court lacked jurisdiction to consider the merits of the Rule
12(b)(6) analysis).
Because these defendants are improperly named as “Bent County Colorado” and “Kiowa
County Colorado,” the Court lacks jurisdiction to consider the claims against them. Ellis v. Mesa
Cnty., No. 22-cv-00965-SKC-SBP, 2025 WL 684029, at *7 (D. Colo. Feb. 5, 2025),
recommendation adopted, 2025 WL 837800 (D. Colo. Mar. 18, 2025). As a result, the Court
must dismiss the claims against defendants “Bent County Colorado” and “Kiowa County
Colorado” for lack of jurisdiction. Griffith, 129 F.4th at 832–36.
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CONCLUSION
For the foregoing reasons, the Motion to Dismiss Bent County and Kiowa County, ECF
No. 151, is GRANTED, and the plaintiff’s claims against these defendants are DISMISSED
without prejudice.
Entered and dated this 28th day of October, 2025 at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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