Opinion
Civil Action 22-cv-00545-CMA-KLM
01-09-2022
JIMMY JONES, Plaintiff, v. BRIAN REIS, individually and in his official capacity as Sergeant Deputy for Archuleta County Sheriff's Office, CHRIS VAN WAGENEN, individually and in his official capacity as Patrol Deputy for Archuleta County Sheriff's Office, MARSHALL CURRIER, individually and in his official capacity as tow truck operator for J.R. Towing, UNKNOWN DOES 1-6, individually and in their official capacities as employees for Archuleta County Sheriff's Office/Detention Facility, RICHARD VALDEZ, individually and in his official capacity as Sheriff of Archuleta County, Colorado, EDWARD WILLIAMS, individually and in his official capacity as Commander of Archuleta County Detention Facility, UNKNOWN DOE 7, individually and in his/her official capacity as Evidence Technician for Archuleta County Sheriff's Office, TRACEY WOODROW, individually and in her official capacity as Evidence Technician for Archuleta County Sheriff's Office; J.R. TOWING, INC., and COUNTY OF ARCHULETA, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Motion to Dismiss [#5] filed by Defendant Brian Reis (“Reis”) (the “Reis Motion”) and the Motion to Dismiss [#6] filed by Defendants Chris Van Wagenen (“Van Wagenen”), Unknown Does 1-6, Richard Valdez (“Valdez”), Edward Williams (“Williams”), Unknown Doe 7, and Tracey Woodrow (“Woodrow”) (collectively, the “Sheriff Defendants”), and County of Archuleta (“County”) (collectively “the Archuleta County Defendants') (the “Archuleta County Defendants' Motion”). Plaintiff filed Responses [#8, #9] in opposition to the Motions [#5, #6] and Defendants filed Replies [#15, 16]. The Motions [#5, #6] have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#13, #14]. The Court has reviewed the Motions, the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully recommends that the Reis Motion [#5] be granted and that the Archuleta County Defendants' Motion be denied as to the due process claim asserted against Defendants Woodrow and Unknown Doe 7 but otherwise granted.
“[#5]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's electronic case filing and management system (CM/ECF). This convention is used throughout this Recommendation.
Defendants Marshall Currier (“Currier”), the alleged tow truck operator, and J.R. Towing, Inc. are not parties to these Motions.
All well-pled facts from the Complaint [#1] are accepted as true and viewed in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
Jimmy Jones (“Plaintiff”) was driving in his “private vehicle” through Pagosa Springs on March 7, 2021, at approximately 3:00 p.m. Compl. [#1] ¶ 16. Plaintiff was pulled over by Defendants Van Wagenen and Reis who were in an Archuleta County Sheriff's Office vehicle. Id. ¶¶ 17-19. When Plaintiff asked what crime he committed, Van Wagenen informed Plaintiff that he was not displaying proper registration on his vehicle. Id. ¶ 21. Plaintiff replied that this was not a crime and requested to continue traveling. Id. ¶ 22. Van Wagenen and Reis did not allow Plaintiff to continue but requested that he provide them with “papers.” Id. ¶ 23. Plaintiff declined to hand over his papers (which the Court infers to be his identifying papers, including his driver's license), instead simply stating his name. Id. ¶¶ 24-26. In fact, Plaintiff admits that he was driving without his driver's license or any other identifying information. See id., ¶ 26. Reis demanded Plaintiff exit the vehicle so he could place him under arrest for “failure to identify.” Id. ¶ 25. Reis then “forced Plaintiff out of Plaintiff's vehicle and placed Plaintiff under arrest, handcuffing Plaintiff's wrists behind his back. Id.
Reis again requested Plaintiff's driver's license. Plaintiff responded that his license was probably in his wallet but that Reis did not have a warrant. Compl. [#1] ¶ 30. Reis replied that he did not need a warrant, and proceeded to search Plaintiff's person. Reis found Plaintiff's wallet in one of Plaintiff's pockets and seized the wallet without Plaintiff's permission. Plaintiff was then forced to sit on the sidewalk in full view of the people driving and walking by. Id. ¶¶ 30-32.
Reis and Van Wagenen began to examine the car and could not read the VIN because there was dust covering the plate. Compl. [#1] ¶¶ 33-34. Plaintiff told Reis and Van Wagenen that he had a bill of sale signed by the previous owner, as well as a copy of the title signed over to Plaintiff, which he referred to as “Proof of Rightful Ownership.” Id. ¶ 35. Reis and Van Wagenen refused to allow Plaintiff to retrieve these documents, but pulled the documents from the car at Plaintiff's direction along with what appeared to be Plaintiff's proof of insurance. Id. ¶¶ 36-37. Several minutes later a tow truck arrived, and when Plaintiff inquired about this, he was told that his insurance had expired. Plaintiff disputes this fact, as he was positive that his insurance was current, causing Plaintiff “to be at a loss for words as to why the claim of lapsed insurance was being made.” Id. ¶¶ 38-39. Plaintiff's handcuffs were then removed, and he was allowed to retrieve items from the car before it was “seized and impounded.” Id. ¶¶ 40-42.
Van Wagenen and Reis informed Plaintiff that by failing to display proper registration and by operating a motor vehicle with expired insurance, he had broken Colorado law. Compl. [#1] ¶ 44. They presented Plaintiff with a document delineating these citations and asked him to sign, informing him that the refusal to sign would result in imprisonment. Id. ¶¶ 45-46. Reis and Van Wagenen refused Plaintiff's request to verify that he had valid insurance. Accordingly, Plaintiff refused to sign the “fraudulent document” falsely claiming that Plaintiff did not have insurance. Id. ¶ 45. Van Wagenen, “visibly agitated from what Plaintiff believes was Plaintiff's refusal to sign a fraudulent document,” began placing Plaintiff under arrest. Id. Plaintiff was arrested, handcuffed, and transported to the jail (which Plaintiff identifies simply as “another location”). Id. ¶¶ 46-48.
Plaintiff arrived at the jail on March 7, 2021 at approximately 3:30 pm. See Compl. [#1] ¶ 49. He was held there until March 9, 2021 at approximately 3:30 pm. Id. Plaintiff alleges that Defendants Van Wagenen, Reis, Valdez, Williams, and Unknown Does 1-6 held him against his will. Id.
In the early morning of March 8, 2021, Plaintiff demanded to go before a judge and was told by an Unknown Doe that he would be able to do so that day. Compl. [#1] ¶ 50. However, before he was brought to a judge, Defendants Valdez and Williams arrived at Plaintiff's cell and requested that he sign “paperwork.” Id. ¶ 51. Plaintiff refused to do so, claiming that his rights had been violated and a false claim was made in the paperwork.
Williams then told Plaintiff that he was “going to be here for a while.” Id. ¶ 52. Over the next day and a half, various Unknown Does came to Plaintiff's cell to photograph Plaintiff, record Plaintiff's fingerprints, and request that he sign “papers,” but he “declined to selfincriminate.” Id. ¶ 53. Plaintiff contends that the Unknown Does who approached him each informed him that unless he complied with their requests, he would be denied access to a judge and held indefinitely. Id. Plaintiff was denied access to a judge on March 8, 2021 and in the morning of March 9, which Plaintiff believes was due to his exercise of his right not to self-incriminate. Plaintiff was ultimately brought before a judge at 3:00 pm on March 9th, 2021 and released shortly thereafter at around 3:30 p.m. Id. 54-56.
On March 7, 2021, Defendants Van Wagenen and Reis signed a Vehicle Impoundment Record which stated that Plaintiff's vehicle was impounded for “No Registration (expired)” and “No Insurance.” Compl. [#1] ¶ 57. On March 8, 2021, a Towed Vehicle Summary was entered in the Archuleta County Sheriff's Office by Unknown Doe 7, stating that Plaintiff's vehicle was “ABANDONED.” Id. ¶ 59. On or about March 21, 2021, Defendant Woodrow falsified and executed a Motor Vehicle Bill of Sale, selling Plaintiff's vehicle. In that document, Woodrow claimed the sale was of an “abandoned vehicle.” Id. ¶ 59.
After Plaintiff was released, he established contact with the towing company, the previous owner of his vehicle, and the new owner who had bought the vehicle in connection with the Motor Vehicle Bill of Sale. Compl. [#1] ¶¶ 60-62. The towing company claimed to Plaintiff that it could not establish contact with the previous owner, i.e., the person who had sold the car to Plaintiff. The previous owner claims, on the other hand, that after it received a letter from the Sheriff's Office about the car, the owner contacted the towing company and the Archuleta County Sheriff's Office to confirm that the owner sold the vehicle to Plaintiff. Id. ¶¶ 60-61. Plaintiff then located the new owner of the vehicle, and claims he retrieved his bill of sale for the car and proof of current insurance in the car's center console. Id. ¶¶ 62-63.
As a result of these events, Plaintiff, who is proceeding pro se in this matter,asserts four claims pursuant to 42 U.S.C. § 1983. Thus., Plaintiff alleges a violation of the Fourth Amendment in connection with the stop, search of his person, and seizure and impoundment of his vehicle without a warrant on March 7, 2021 by Reis and Van Wagenen. See Compl. [#1] at ¶¶ 70-73. Second, Plaintiff alleges that he was deprived of his rights under the Fifth Amendment and the Due Process Clause by being taken into custody and held without his will, not being immediately taken before a judge, and by the sale of his vehicle. Id., ¶¶ 74-84. Third, it is averred that Defendants violated Plaintiff's right to be free from “cruel and unusual punishment” under the Eighth Amendment when he was forced to remain in jail after a warrantless arrest. Id., ¶¶ 85-87. Finally, Plaintiff alleges that he was subject to a deprivation of his Ninth Amendment rights by being compelled to comply with unconstitutional “demands.” Id. at ¶¶ 88-90.
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [a] plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Defendants move, pursuant to Fed.R.Civ.P. 12(b) and 8, to dismiss Plaintiff's claims in their entirety. The Archuleta County Defendants seek dismissal on the following grounds: (1) Plaintiff has not brought proper claims against the County; (2) Plaintiff fails to allege personal participation or involvement in the case by Defendants Sheriff Valdez or Detention Commander Williams; (3) Plaintiff's claims for violations of the Fourth, Fifth, Eighth and Ninth Amendments fail to state a claim for relief; and (4) the individual Defendants are entitled to qualified immunity. See Archuleta Cnty. Defs.' Mot. [#6] at 621. Similarly, Defendant Reis asserts that Plaintiff's allegations fail to state a plausible claim for relief for any violation of constitutional rights, and that Reis is entitled to qualified immunity. See, e.g., Reis Motion [#5] at 2.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations” (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks omitted).
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that [the] 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 [the] plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, “[t]he court's function on a 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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
Rule 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677-78. The pleading standard of Rule 8 does not require “'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). The complaint “must state the basis for the claim asserted[,]” and allegations of conclusion or opinion are not sufficient” when unsupported by facts. Coopersmith v. Supreme Court, State of Colo., 465 F.2d 993, 994 (10th Cir. 1972). The purpose of a complaint “is to give opposing parties fair notice of the basis of the claim against them so that they may respond to the complaint, and to apprise the court of sufficient allegations to allow it to conclude, if the allegations are true, that the claimant has a legal right to relief.” Monument Builders of Greater Kansas City, Inc. v. Am. Cemetery Ass'n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989).
C. Qualified Immunity
Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities for monetary damages. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982) (“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate).
The Supreme Court has stated that “[f]or executive officials in general . . . our cases make plain that qualified immunity represents the norm.” Harlow, 457 U.S. at 807. Thus, a government official is entitled to qualified immunity in “[a]ll but the most exceptional cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997). In assessing qualified immunity, the Court may first examine whether the Complaint asserts a violation of federal law, i.e., a violation of his constitutional rights, under Rule 12(b)(6). Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003). Thus, the Court turns to that issue.
III. Analysis
A. Claims Against the Individual Defendants
1. Official Capacity Claims
To the extent the Sheriff Defendants are sued in their official capacity for monetary damages, this is, “in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998); Monell, 436 U.S. at 692. Accordingly, these claims are deemed to be claims against the Archuleta County Sheriff's Office (“ACSO”), and the Court recommends that these claims be dismissed without prejudice based on the Eleventh Amendment. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (finding that the court could consider this issue sua sponte even when it was not raised by the Defendants).
Plaintiff also sues Defendants for injunctive relief, i.e., seeking a court order that Defendants immediately cease and desist violating his constitutional rights. Compl. [#1] ¶ 98. While an official capacity claim for injunctive relief seeking prospective relief is not barred by the Eleventh Amendment, Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989), Plaintiff has been released and he has not alleged any continuing violations of federal law. Johns, 57 F.2d at 1552. Accordingly, Plaintiff's request for injunctive relief against the individual Defendants in their official capacities is also barred by the Eleventh Amendment. Id.
Based on the foregoing, the Court recommends that Plaintiff's official capacity claims against the individual Defendants be dismissed without prejudice for lack of subject matter jurisdiction. Miller v. Executive Director of CDOC, No. 20-cv-02321-PAB-KMT, 2021 WL 1409550, at *2 (D. Colo. Mar. 24, 2021).
2. Individual Capacity Claims
a. Fourth Amendment Claims
Plaintiff claims that his Fourth Amendment rights were violated when Defendants Reis and Van Wagenen subjected Plaintiff to an unreasonable search and seizure of Plaintiff's person and private property in connection with the traffic stop which he alleges was without probable cause and without a warrant. Complaint [#1] at 16. Plaintiff further alleges that the acts and omissions of Defendants J.R. Towing and the County of Archuleta “led to the violation of Plaintiff's right to be free from unreasonable search and seizure of person and property.” Id. at 17. The Court infers that this allegations relates to the impoundment of the vehicle and subsequent sale of Plaintiff's vehicle. The moving Defendants argue that the claims premised on the Fourth Amendment fail to state a claim upon which relief can be granted. See Reis Motion [#5] at 3-6; Archuleta County. Defs.' Motion [#6] at 16-18.
The Court does not address the actions of J.R. Towing or Currier, the tow truck operator, because the Motions to Dismiss were filed by other Defendants and do not address that issue. .
Turning to the Court's analysis, “[t]he Fourth Amendment guarantees a person's right to be free from ‘unreasonable searches and seizures.'” United States v. Frazier, 30 F.4th 1165, 1172 (10th Cir. 2022) (quoting U.S. CONST. amend. IV). In full, this amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV.
“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.'” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (quotation omitted); see also United States v. Muhtorov, 20 F.4th 558, 592 (10th Cir. 2021). “In assessing reasonableness, [the Court] examine[s] the totality of the circumstances.” Muhtorov, 20 F.4th at 602 (citing Samson v. California, 547 U.S. 843, 848 (2006)). This means that a Fourth Amendment search “must be reasonable in its scope and manner of execution.” Maryland v. King, 569 U.S. 435, 448 (2013).
A traffic stop invokes Fourth Amendment protections. “Generally, so long as law enforcement has probable cause to believe that a traffic violation has occurred, the decision to stop an automobile is reasonable.” Caler v. Brown, No. 13-cv-02093-PAB-DW, 2014 WL 4783387, at *3 (D. Colo. Sept. 25, 2014) (citing Whren v. United States, 517 U.S. 806, 810 (1996)); see also United States v. Cortez, 449 U.S. 411, 417-18 (1981) (holding that “[u]nder the Fourth Amendment, law enforcement officers may make brief investigatory stops, including stopping a vehicle, when the stop is justified by “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”). Here, while Plaintiff expressed that he did not commit a crime (Complaint [#1] ¶ 22), Plaintiff also acknowledged that he was told he was stopped for failing to display proper registration. Id. ¶¶ 21-22. Plaintiff does not aver that he, in fact, had proper registration. Under C.R.S. § 42-3-121(1)(a), it is unlawful to operate a motor vehicle that is not registered and does not display the number plates issued for the vehicle for the current year. Defendants therefore had an objective and particularized basis for suspecting Plaintiff of criminal activity. Accordingly, the Court finds that the Complaint fails to adequately allege that the initial stop of Plaintiff's vehicle by Reis and Van Wagener was unreasonable under the Fourth Amendment.
While Plaintiff argues that his private vehicle was not required to display valid registration because Defendants did not have a reasonable articulable suspicion that Plaintiff was using his vehicle “in the production of income or to transport persons or property” (see Response [#9] at 911), the Court finds no merit to this argument given the clear language of § 42-3-121(1)(a) requiring valid registration. See also Halik v. Brown, No. 19-cv-02354-NYW, 2022 WL 672486, at *2 (D. Colo. Mar., 7, 2022) (stating that a violation of § 42-3-121(1)(a) is a “class B traffic infraction”).
Plaintiff also contends that he was not required to produce his driver's license without a warrant and that Reis's search and seizure of his wallet was thus unreasonable. See Compl. [#1] ¶¶ 23-30. The Court first rejects the argument that Plaintiff did not have to produce his driver's license. An “officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation.” United States v. Arango, 912 F.2d 441, 446 (10th Cir.1990). In addition, Colo. Rev. Stat. § 42-2-115(2) provides that any person who has been issued a driver's license and operates a motor vehicle in Colorado shall produce such license to any peace officer who so requests, if the peace officer reasonably suspects the person is or is about to commit a traffic violation. Colo. Rev. Stat. § 16-3-103 similarly provides that “[a] peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions.” This type of request is intended to gather information related to the traffic stop, is minimally intrusive, and is permissible under the Fourth Amendment. See United States. v. Frazier, 30 F.4th 1165, 1179 (10th Cir. 2022); United States v. Malone, 10 F.4th 1120, 1123 (10th Cir. 2021).
Plaintiff avers, however, that he “was never in possession of a driver's license or identifying document issued by the Colorado department of revenue, the only forms of identification Plaintiff had a legal obligation to present when asked for identification by peace officers.” Compl. [#1] ¶ 26. However, Colo. Rev. Stat. § 42-2-101 prohibits any person from operating a motor vehicle on a highway in Colorado unless he possesses a valid driver's license and has that license in his immediate possession. Based on the foregoing, Defendants Reis and Van Wagenen were authorized by statute to request Plaintiff's identification after stopping him for failure to properly display his registration. When Plaintiff refused to produce his identification, Defendants had further probable cause to believe Plaintiff had committed a crime and therefore had probable cause to arrest him. By Plaintiff's own admission in his Complaint, he was not in possession of a driver's license and thus could not legally operate his vehicle. See, e.g., Caler, 2014 WL 4783387, at *3 (stating that under Colorado law, driving without a license is a class 2 misdemeanor under § 42-2-101(10), and that “law enforcement officers have statutory authority to arrest an individual ‘whom the officer observes committing a misdemeanor'”) (quoting People v. Meredith, 736 P.2d 562, 564 (Colo. 1988)); see also United States v. Rubio-Sepulveda, 237 F.Supp.3d 1116, 1123 (D. Colo. 2021).
The Court notes that Plaintiff also asserts in his Response [#9] that Defendants Reis and Van Wagenen “seized Plaintiff's out of state license from Plaintiff's pocket and promptly returned it the next day.” Id. at 7. This allegation was, however, made for the first time in the Response and is not properly considered. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (holding that a plaintiff “cannot amend [the] complaint by adding factual allegations in response to” a motion to dismiss) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)). Plaintiff also seeks to prove numerous of his allegations through evidence such as a “supplemental narrative” by Van Wagenen, body camera footage, or surveillance video. See, e.g., Response [#9] at 7. This is also improper. The Court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint. Jojola, 55 F.3d at 494.
To the extent Plaintiff's allegations could be deemed to complain about his handcuffing in connection with the arrest or that Plaintiff was embarrassed or humiliated, the Court also finds no merit to these claims. Plaintiff alleges no facts by which the Court could find that the arrest was made “in ‘an extraordinary manner, unusually harmful to [his] privacy or ... physical interests.'” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (finding no violation of the Fourth Amendment where the plaintiff was arrested for a misdemeanor traffic offense, handcuffed, and taken to the local police station in a manner that the plaintiff alleged was inconvenient and humiliating).
While Plaintiff asserts that he was threatened with imprisonment unless he signed a fraudulent document stating that he lacked insurance, this does not constitute a violation of the Fourth Amendment since Defendants had valid grounds to arrest Plaintiff. The Court further notes that Colo. Rev. Stat. § 42-4-1707(6) states that where a defendant is “eligible to be issued a summons and complaint or a penalty assessment notice for a . . . misdemeanor traffic offense and if the defendant does not possess a valid Colorado driver's license, the defendant, in order to secure release, must receive information on the penalty assessment notice or summons and complaint that directs the defendant to appear at a specified county court at a specified time and place in the event the penalty and surcharges are not paid. . . .” (emphasis added) Thus, while Plaintiff may take issue with the content of the document at issue (the citation or summons), there was no Fourth Amendment violation in connection with Defendants' attempt to give Plaintiff the document and have him sign it. Indeed, this was required by law for him to be released.
Plaintiff also alleges Reis completed a search of Plaintiff's person after arresting him, and “seized the wallet from plaintiff without Plaintiff's permission.” Compl. [#1] ¶¶ 30-31. Plaintiff avers that Reis searched for the wallet in Plaintiff's pocket after Plaintiff told Reis, upon questioning, that his driver's license was probably in his pocket. Id. “The general rule is that incident to a lawful arrest, a search without a warrant may be made of portable personal effects in the immediate possession of the person arrested.” United States v. Simpson, 453 F.2d 1028, 1031 (10th Cir. 1972). The Simpson court held under this rule that the defendant's wallet in his pocket could be searched incident to his arrest. Id. In fact, the Tenth Circuit has “on several occasions held that a search of the arrestee's wallet is ....valid.” United States v. Gay, 623 F.2d 673, 675 (10th Cir. 1980) (citing United States v. Gardner, 480 F.2d 929 (10th Cir. 1973) and Simpson, 453 F.2d at 1031). “A search incidental to a valid arrest may have as one of its purposes the discovery of objects or things which constitutes evidence that the person arrested has committed a crime.” Simpson, 453 F.2d at 1031. The Complaint therefore fails to sufficiently allege that the search of Plaintiff and his wallet incident to his arrest was invalid.
The Court next turns to Plaintiff's averment that the vehicle search was unreasonable because the officers did not have a warrant. Compl. ¶ 71. However, as the Reis Motion [#5] notes, the only search that occurred per the Complaint [#1] was when “Plaintiff offered to look on and instruct as Defendant Van Wagenen looked through the center console of Plaintiff's Vehicle” to find Plaintiff's “Proof of Rightful Ownership” of the vehicle. Id. ¶ 36. Plaintiff further avers as to this issue that the ”Proof of Rightful Ownership” was retrieved “at Plaintiff's direction.” Id. Plaintiff's own allegation indicates he consented to that search, precluding any claim of a Fourth Amendment violation. See United States v. Carson, 793 F.2d 1141, 1157-58 (10th Cir. 1986) (“A search conducted pursuant to voluntary consent is one of the specifically established exceptions to the technical requirements of the Fourth Amendment.”).
Finally, as to the impoundment of the vehicle, the Court also finds that this was valid and that Plaintiff has failed to state a Fourth Amendment violation. It is settled law that when a driver of a car is arrested, the police must decide what to do with the car. United States v. Woodford, 5 F.4th 1148, 1150 (10th Cir. 2021). “Leaving the car where it is might sometimes lead to its vandalism or theft[,]” and “impoundment may sometimes be necessary for public safety.” Id. (citing South Dakota v. Opperman, 428 U.S. 364, 369 (1976)). In fact, the Supreme Court has held that “[t]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge” and falls within what are considered “community caretaking functions” of law. Opperman, 428 U.S. at 368-369.
Here, Plaintiff does not aver or suggest that the deputies' decision to impound the vehicle was a pretext for searching for evidence of criminal activity. See United States v. Kendall, 14 F.4th 1116, 1123 (10th Cir. 2021). Instead, Plaintiff avers only in a conclusory fashion that seizing and impounding the car “did not further a valid community care-taking function, and was therefore unreasonable under the circumstances.” Compl. [#1] ¶ 42, The Court disagrees. Plaintiff was arrested and the Complaint [#1] indicates that his vehicle was parked on a public road. See id. ¶ 41. There is no indication that there was someone else (such as a passenger) who was available to drive the car and remove it from the road. See Kendall, 14 F.4th at 1123. Having weighed the relevant factors, the Court finds that the Complaint fails to adequately allege any reasonable alternatives to impoundment or that the decision to impound was unreasonable. Id.
Based on the foregoing, the actions alleged by the Plaintiff were lawful and do not amount to an unconstitutional search or seizure under the Fourth Amendment. As Plaintiff has not alleged a valid constitutional violation under the Fourth Amendment, Defendants are entitled to qualified immunity as to this claim. Accordingly, the Court recommends that Defendants' Motion [#6] be granted as to Plaintiff's claims based on the Fourth Amendment.
b. Fifth and Fourteenth Amendment Claims
Plaintiff contends that Defendants Reis and Van Wagenen violated his due process rights under the Fourteenth Amendment and his Fifth Amendment right not to self-incriminate by “seizing Plaintiff's person and property in absence of probable cause and without legal warrant,” “threatening Plaintiff with imprisonment unless he signed a fraudulent document” (the citation); and failing to take Plaintiff directly before a judge after a warrantless arrest. Compl. [#1] ¶¶ 75-77. Plaintiff further alleges that Defendants Valdez, Williams, and Unknown John Does 1-6 violated his Fifth Amendment rights by denying him access to a judge based on his exercise of the right not to self-incriminate, and by holding Plaintiff without probable cause or a warrant. Id. ¶¶ 78-80. Finally, Plaintiff alleges that Defendants Van Wagenen, Reis, Currier, Unknown Defendant 7, Woodrow, and J.R. Towing violated his rights by “seizing and disposing of Plaintiff's private property [his vehicle] and using the proceeds for public use without justly compensating Plaintiff.” Id. ¶¶ 81-82.
Because this claim relies on both the Due Process Claim and the Fifth Amendment, the Court addresses them both in this section.
The Court first addresses the allegations in this claim as to Reis and Van Wagenen. Claims concerning “the period of time between an unlawful arrest and the institution of legal process form one constitutional claim under the Fourth Amendment.” Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008). Plaintiff's allegations against Reis and Van Wagenen are limited to the traffic stop, Plaintiff's arrest, the impoundment of the vehicle, and his transportation to the jail. Plaintiff has provided no authority, and the Court has found none, that these claims impact Plaintiff's due process rights or rights under the Fifth Amendment.
To the extent Plaintiff asserts that Reis and Van Wagenen violated his rights by threatening imprisonment (and sending him to jail) because he refused to sign a “fraudulent document” indicating that he did not have insurance (Complaint [#1] ¶¶ 4446), this appears to be a claim under the Fifth Amendment. The Fifth Amendment to the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. However, Plaintiff has failed to state a claim as to this issue. “A violation of the constitutional right against selfincrimination generally only occurs if one has been compelled to be a witness against himself in a criminal case.” Chavez v. Martinez, 538 U.S. 760, 770 (2003) (holding that coercive interrogation by police could not be basis for § 1983 claim, as no violation of the Fifth Amendment's self-incrimination clause occurs until compelled statements are used in a criminal trial). While the Fifth Amendment also “privileges [a person] not to answer official questions put to [them] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [them] in future criminal proceedings[,]' the danger of self-incrimination must be “'real and appreciable,' as opposed to ‘imaginary and unsubstantial.].'” United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016) (quotation omitted). Thus, the protection afforded under the Fifth Amendment “'must be confined to instances where a witness has reasonable cause to apprehend danger from a direct answer.'” Id. (quotation omitted). u
Here, Plaintiff' has not pled facts from which the Court can infer that his refusal to sign a document falsely stating that he lacked insurance on his car could have given him reasonable cause to apprehend the danger of self-incrimination, particularly since he alleges that he did in fact have insurance. See Compl. [#1] ¶ 11. Plaintiff further alleges that this fact could be independently verified. Id. Accordingly, based on Plaintiff's own allegations, he would have been able to show that the document was false, and the document could not have led to self-incrimination in any criminal proceeding. Additionally, the Complaint [#1] does not allege that Plaintiff faced any criminal charges related to expired insurance on his vehicle. Accordingly, Plaintiff has not stated a Fifth Amendment claim based on these allegations. For the same reason, Plaintiff's claim that other Defendants, including Valdez and Williams, came to his cell demanding that he sign paperwork (Complaint [#1] ¶ 51) fails to state a claim under the Fifth Amendment.
The Court next addresses Plaintiff's allegations that Defendants Valdez, Williams, and Unknown John Does 1-6 violated his rights by denying him access to a judge based on his exercise of the right not to self-incriminate (for refusing to sign the paperwork they asked for), and for holding Plaintiff without probable cause or a warrant. Compl. [#1] ¶¶ 78-80. The Court also finds that these allegations fail to state a claim upon which relief can be granted and are, furthermore, governed by the Fourth Amendment. According to Plaintiff's allegations, he was held for only 48 hours before he was released following his arrest. Compl. [#1] ¶¶ 49, 66. Thus, Plaintiff was arrested at approximately 3:30 p.m. on March 7, 2021, and saw a judge at 3:00 p.m. on March 9, 2021. See id. at ¶ 49, 55. He was apparently released at 3:30. See id. at ¶ 49. The Fourth Amendment requires that an individual who is arrested for a crime without a warrant, whether for a misdemeanor or a felony, as here, is entitled to a review by a neutral magistrate or judge within 48 hours. See Atwater v. City of Lago Vista, 532 U.S. 318, 352 (2001); Cnty. of Riverside v. 500 U.S. 44, 58 (1991). By Plaintiff's own averments, he received review by a judge within the time required by the U.S. Constitution.
Finally, the Court turns to the claim that Archuleta County Defendants Van Wagenen, Reis, Unknown Defendant 7, and Woodrow violated Plaintiff's rights by “seizing and disposing of Plaintiff's private property [his vehicle] and using the proceeds for public use without justly compensating Plaintiff.” Id. ¶¶ 81-82. This claim implicates Plaintiff's right not to be deprived of property without due process of law. See U.S. CONST. amend. V, §1 (forbidding a state from depriving “any person of life, liberty, or property, without due process of law”). “Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). “[T]o prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible . . . interest.” Id.
Here, as to Defendants Van Wagenen and Reis, the Court finds that Plaintiff has not alleged facts from which the Court can infer their personal participation in this action. To pursue a claim, or claims, against a defendant under 42 U.S.C. § 1983, a plaintiff must establish that each defendant personally participated in the alleged violations of his rights. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Here, while Reis and Van Wagenen are alleged to have called the tow truck for the impoundment of Plaintiff's vehicle, there are no allegations in the Complaint suggesting they were involved in the actions which led to the sale of the car. See Compl. [#1] ¶¶ 59-63, 67. While Plaintiff's claim lumps them in with the Defendants who were alleged to have been involved in those actions, this is not sufficient to demonstrate personal participation. See Ashcroft, 556 U.S. at 676 (holding with respect to 42 U.S.C. § 1983 claims that “...a plaintiff must plead that each Government-official defendant, through the official's own individual action, has violated the Constitution”) emphasis added); see also Harris v. Morales, 69 F.Supp.2d 1319, 1323 (D. Colo. 1999) (“Conclusory, non-specific, and generalized allegations of constitutional deprivations are not sufficient” to establish personal involvement) (citing Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993)). Accordingly, the Court recommends that the Reis Motion [#5] be granted as to this claim, and that the Archuleta County Defendants' Motion [#6] be granted as to this claim as to Defendant Van Wagenen.
However, Plaintiff has alleged the personal participation of Unknown John Doe 7 and Woodrow in the alleged unlawful sale of Plaintiff's car. Thus, Plaintiff alleges that Unknown Doe 7 entered a Towed Vehicle Summary stating that the vehicle was “ABANDONED.” Compl. [#1] ¶ 58. Plaintiff further alleges that Defendant Woodrow “falsified and executed a Motor Vehicle Bill of Sale, in which Woodrow claimed the sale of Plaintiff's vehicle was a ‘sale of abandoned vehicle.'” Id. ¶ 59. Defendants did not address these allegations or offer any argument as to why they are not sufficient to state a due process claim. Accordingly, it is recommended that the Archuleta County Defendants' Motion [#6] be denied as to this claim against Unknown Doe 7 and Woodrow. While the Court makes no definitive determination of this issue since it was not adequately briefed, it notes that these allegations, accepted as true for purposes of the Motions [#5, #6] could plausibly demonstrate a due process violation in connection with the taking of Plaintiff's property. See, e.g., Miller v. Yard, Nos. CIV 10-171 WPJ/LFG and 09-1124 BB/WP, 2012 WL 13081440 (D.N.M. Feb. 27, 2012) (holding in the context of forfeiture that where the defendant still held legal title to his vehicles, he had an enforceable property interest in them to which he was entitled to due process before they were permanently taken from him).
Based on the foregoing, the Court recommends that the Reis Motion [#5] be granted as to the claim against Reis. The Court recommends that the Archuleta County Defendants' Motion [#6] be granted in part and denied in part as to these claims. Specifically, it is recommended that the Motion [#6] be granted as to Defendant Van Wagenen, and denied as to Defendants Unknown Doe 7 and Woodrow. Finally, it is recommended that Defendants Reis and Van Wagenen be granted qualified immunity as to this claim, as Plaintiff has failed to allege a constitutional violation as to them.
c. Eighth Amendment
Plaintiff alleges that his Eighth Amendment rights were violated by his seizure, holding him against his will, and denying him access to a judge because he was exercising his right to avoid self-incrimination. Compl. [#1] ¶ 86. As Plaintiff was a pretrial detainee, this claim is properly analyzed under the Fourteenth Amendment, not the Eighth Amendment. Colbruno v. Kessler, 927 F.2d 1155, 1162 (10th Cir. 2019). Here, however, Plaintiff's allegations have already been addressed in connection with his other claims. Moreover, Plaintiff does not state a claim related to his conditions of confinement. The same deliberate indifference standard of an Eighth Amendment claim is applied to a Fourteenth Amendment claim. Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020). Plaintiff has not alleged any condition of confinement that is “'sufficiently serious' to constitute a deprivation of constitutional dimension” relevant to the objective component. Id. at 989-90. Plaintiff also has not alleged that prison officials were aware of facts from which an inference could be drawn that a substantial risk of harm existed, and that they actually drew that inference” relevant to the subjective component. Id.
Accordingly, the Court recommends that Plaintiff's Eighth Amendment claim be dismissed, and that the individual Defendants be granted qualified immunity as to this claim.
d. Ninth Amendment
The Ninth Amendment claim avers that “[b]y attempting to force Plaintiff in complying with demands that Plaintiff had no legal obligation to comply with, by threat of imprisonment and continued imprisonment, Defendants Van Wagenen, Reis, Valdez, Williams, and Unknown Does 1-6 subjected Plaintiff to the violation of Plaintiff's right to not comply with unconstitutional demands.” Compl. [#1] ¶¶ 89-90. The Court recommends that this claim be dismissed, as “'[t]he Ninth Amendment is not an independent source of individual rights; rather, it provides a rule of construction that [the Court] appl[ies] in certain cases.'” Homes v. Town of Silver City, 826 Fed.Appx. 678, 681-82 (10th Cir. 2020) (quoting Jenkins v. Comm'r, 483 F.3d 90, 92 (2d Cir. 2007)). Accordingly, a claim for a violation of the Ninth Amendment is improper. Id.
B. Official Capacity/Municipal Liability Claims
1. Claims Against County of Archuleta
The Court next addresses the municipal liability claims against the County. As an initial matter, “[i]n federal court, a municipal entity's ‘[c]apacity to sue or be sued is determined by the law of the state where the court is located.'” Chavez v. Bd. of Cnty. Commissioners of Lake County, Colorado, 426 F.Supp.3d 802, 809 (D. Colo. 2019) (quotation omitted). As the Archuleta County Defendants highlight, Colorado law provides that “all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be, ‘[t]he board of county commissioners of the county of [X].” See Motion [#6] at 6 (quoting Colo. Rev. Stat. § 30-11-105). Here, Plaintiff sued the County rather than the Board of County Commissioners of Archuleta County. Plaintiff acknowledges that he failed to properly name this Defendant, but argues that he “wishes to sue the County under the Monell doctrine.”
The Court agrees with the Archuleta County Defendants that even if the County were properly named in the Complaint [#1], Plaintiff's claim against the County is subject to dismissal for failure to state a claim for relief. See Motion [#6] at 7-11. First, there are no allegations that the County, through its Commissioners, violated any of Plaintiff's constitutional rights. To the extent Plaintiff sues the County for the actions of the Archuleta County Sheriff's Department or its deputies or employees, the County is not liable for their actions. “'[T]he sheriff is a public entity separate and apart from the Board[,]” and the County is not liable for the sheriff or his deputies' actions under a theory of respondeat superior. Chavez, 426 F.Supp.3d at 809 (citing Tungent v. Bd. Of Cnty. Commissioners of Delta County, 992 P.2d 650, 651 (Colo.App. 1999)). In Colorado, the Sheriff, and not the Board of County Commissioners (or the County itself), is liable for the alleged actions of a deputy sheriff. See Tungent, 992 P.2d 650.
Plaintiff argues, however, in his Response [#9] that he wishes to assert a Monell claim against the County. Id. at 8. This claim also fails to state a claim upon which relief can be granted. Monell establishes, in pertinent part, that “[l]ocal governing bodies can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell, 436 U.S. at 690 (emphasis added). In order to establish municipal liability under Monell, a plaintiff must show (1) that a municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010); Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). Thus, “[w]here a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 405 (1997).
See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).
Here, the Court has found, as discussed previously, that Plaintiff failed to state a constitutional violation as to the majority of the Archuleta Defendants (other than Woodrow and Unknown Doe 7). Further, Plaintiff fails to establish that a municipal policy or custom was the moving force beyond any constitutional violation. The Complaint [#1] does not allege or refer to any policy, custom, or practice of the County, let alone allege facts from which the Court could reasonably infer that a policy was the moving force behind the alleged constitutional violations. While Plaintiff asserts in his Response [#9] that the County has a “history of customs and practices of violating the civil liberties of the people[,]” Id. at 8, Plaintiff may not attempt to amend the complaint through adding factual allegations in response to a motion to dismiss, as discussed earlier. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015). Further, to the extent that Plaintiff argues that this history of customs and practices of violating civil liberties will be supported by evidence and witness testimony of violations of rights, this is improper to defeat a motion to dismiss. On a motion to dismiss, the Court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint. Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).
Finally, Plaintiff's assertion as to the history of customs and practices of the County is conclusory and is thus insufficient. See, e.g., Welch v. Saunders, No., 2016 WL 8577463, at * (D. Colo. May 26, 2016) (holding that the plaintiff's “bald allegations' in support of Monell claim were conclusory, and that “conclusory allegations are inadequate to allege a policy, practice or custom for Monell purposes”). Plaintiff does not explain what the customs and practices actually were which violated any civil liberties, what civil liberties were impacted by these customs and practices, or how these customs and practices were the moving force behind the alleged violation of Plaintiff's constitutional rights. In fact, Plaintiff alleges that the actions were the results of the Sheriff Defendants, not the County. See, e.g., Compl. [#1]. To the extent Plaintiff believes that the County somehow has authority to control the Sheriff or his employees who may have violated a policy or practice, this argument is without merit as previously explained. Accordingly, the Monell doctrine does not provide a basis of liability.
Based on the foregoing, the Court recommends that Plaintiff's claim against the County should be dismissed for failure to state a claim for relief, and the Archuleta County Defendants' Motion [#6] should be granted as to this issue.
2. Claims against Sheriff Valdez and Detention Commander Williams
The Court previously recommended dismissal of the claims against Defendants Valdez and Williams in their individual capacity. To the extent Plaintiff is suing Defendant Valdez in his supervisory capacity as the Sheriff and Defendant Williams as “Commander of the Jail[,]” Plaintiff has also not demonstrated “an affirmative link between the supervisor's conduct and the constitutional deprivation.” Holland ex. re. Overdorff v. Harrington, 268 F.3d 1178, 1187 (10th Cir 2001). To the extent they are sued in their official capacity, “an action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998); Monell, 436 U.S. at 692. Accordingly, the official capacity claims against Valdez and Williams are deemed to be claims against the Archuleta County Sheriff's Office (“ACSO”). Again, to assert such a claim against a governmental entity, Plaintiff must allege that: (1) his constitutional rights were violated; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation(s). Brown, 520 U.S. at 404. Here, Plaintiff fails to allege any policy or custom of the ACSO or of Valdez or Williams, or that such a policy or custom was the moving force behind any constitutional deprivation Plaintiff may have experienced.
Accordingly, the Court recommends that the Motion [#6] be granted to the extent that it seeks dismissal of Defendants Valdez and Williams in their supervisory capacity. C. Whether the Claims Should Be Dismissed With or Without Prejudice
Finally, the Court considers whether the claims it has recommended dismissal of (other than the official capacity claims against the individual Defendants for which the Court lacks subject matter jurisdiction) should be dismissed with or without prejudice. “[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, “dismissal [with prejudice] of a pro se complaint for failure to state a claim is proper . . . 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.” Garcia v. Webster, No. 09-cv-03024-CMA-KLM, 2011 WL 109076, at *1 (D. Colo. Jan. 11, 2011) (citing Oxendine v. Kaplan, 241 F.2d 1272, 1275 (10th Cir. 2001); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).
Here, having carefully considered the facts of this case, the Court believes that it is obvious Plaintiff cannot prevail on the facts of this case and it would be futile to provide an opportunity to amend the complaint. Accordingly, it is recommended that the claims against the Sheriff Defendants in their individual capacities and the municipal/supervisory liability claims be dismissed with prejudice.
IV. Conclusion
Based upon the foregoing, IT IS HEREBY RECOMMENDED that the official capacity claims against the individual Defendants be dismissed without prejudice for lack of subject matter jurisdiction.
IT IS FURTHER RECOMMENDED that the Reis Motion [#5] be GRANTED, that Reis be granted qualified immunity as to the claims asserted against him in his individual capacity, and that all claims against Reis in his individual capacity be DISMSSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that the Archuleta County Defendants' Motion [#6] be GRANTED IN PART AND DENIED IN PART. Specifically, it is recommended that the Motion [#6] be DENIED as to the due process claim against Defendants Woodrow and John Doe 7, and GRANTED as to all other claims. It is further recommended that the claims against Defendants Van Wagenen, Unknown Does 1-6, Valdez, and Williams, in their individual capacities, and the municipal liability/supervisory claims against the County of Archuleta, Valdez, and Williams, be DISMISSED WITH PREJUDICE. Further, it is recommended that Van Wagenen, Unknown Does 1-6, Valdez, and Williams be granted qualified immunity as to the claims against them in their individual capacity.
IT IS FURTHER ORDERED that Defendants Currier and J.R. Towing, Inc. remain in the case, as the Motions [#5, #6] did not address the due process claim or other claims asserted against them.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this 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., 73 F.3d 1057, 1060 (10th Cir. 1996).