Opinion
Civil Action No. 18-cv-01930-WJM-STV
05-13-2019
ERIC ST. GEORGE, Plaintiff, v. CITY OF LAKEWOOD, COLORADO, DEVON TRIMMER, a/k/a DEVON MYERS, JASON MAINES, JEFF LARSON, and DAN McCASKY, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants' Motion to Dismiss [#30] ("Defendants' Motion"), Plaintiff's Motion to Strike [#56], and Plaintiff's Motion to Censure [#58]. All three Motions have been referred to this Court. [#37, 57, 59] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, this Court DENIES Plaintiff's Motion to Strike and Motion to Censure and respectfully RECOMMENDS that Defendants' Motion be GRANTED. I. BACKGROUND
The facts are drawn from the allegations in Plaintiff's Third Amended Complaint [#14-1], including those asserted in the Affidavit submitted with the Third Amended Complaint [#14-2], which must be taken as true when considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
On July 31, 2016, at approximately 9:00 p.m., a female escort arrived at Plaintiff's residence in Lakewood, after being contacted by Plaintiff through a website known for advertising prostitutes and sex workers. [#14-2 at 1-2] Based upon the advertised price of $220 for one hour of service, Plaintiff had placed $220 in cash on the kitchen counter, which the escort took upon her arrival. [Id. at 2] After thirty minutes of the one-hour service, the escort announced her intent to leave. [Id. at 3] Plaintiff demanded a return of his money, and the escort refused, pushing Plaintiff and exiting the residence. [Id.] Fearing that he was being robbed and that the escort may have a pimp waiting in the parking lot, Plaintiff armed himself with a small handgun. [Id.] When the escort was within a few feet of her vehicle, she turned and confronted Plaintiff with a can of mace. [Id.] Plaintiff raised his arm overhead and fired a round into the air. [Id.] Plaintiff then lowered his arm and took aim at the escort, who fled. [Id. at 3-4] Plaintiff left and went to a restaurant for dinner and drinks. [Id. at 4]
Shortly after the incident occurred, the escort contacted the Lakewood Police Department ("LPD") through a 911 call. [Id.] The escort told LPD that Plaintiff had fired two shots, one in the air and one at the escort. [Id.] According to Plaintiff, the escort lied about the second shot as Plaintiff only fired his weapon once into the air. [Id.] Plaintiff was not aware at the time that the escort had made this call to the police, but he "did anticipate that a neighbor might contact police to report the sound of a gunshot, or might report excessive noise to neighborhood management." [Id.]
LPD officers responded to Plaintiff's residence at 10:13 p.m. [Id. at 5] LPD deliberately parked marked vehicles in a location that could not be observed from Plaintiff's residence. [Id.] Plaintiff returned home from dinner at approximately 11:15 p.m. [Id.] He did not see the police vehicles and was not contacted by the police. [Id.]
At 12:17 a.m. on August 1, 2016, LPD Agent Eric Brennan called Plaintiff's cell phone. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] At 12:20 a.m., Agent Brennan called again. [Id.] Though the caller ID was blocked, Plaintiff nonetheless answered the phone. [Id.] Agent Brennan identified himself as an agent with the LPD and instructed Plaintiff to come outside and talk to the police. [Id.] Plaintiff opened the front door, looked outside, and did not see any LPD officers. [Id.] LPD officers did not call out or announce their presence. [Id. at 6]
At 12:23 a.m., LPD officers made a third phone call to Plaintiff. [Id.] Once again, the caller ID was blocked, and Plaintiff did not answer. [Id.] One minute later, Sergeant Nathan Muller called Plaintiff. [Id.] The Caller ID was blocked, but Plaintiff nonetheless answered the call. [Id.] Sergeant Muller identified himself as a sergeant with the LPD, said that his "friends" were in the backyard of Plaintiff's residence and could see Plaintiff through the window. [Id.] Sergeant Muller told Plaintiff to come outside to talk to the police. [Id.] Sergeant Muller has reported that Plaintiff was upset, unsettled, and paranoid, and that Plaintiff did not believe that the call was from an LPD officer. [Id.]
At 12:30 a.m., LPD officers placed a fifth call to Plaintiff. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] Plaintiff, unarmed, exited his residence into his backyard. [Id. at 6-7] LPD Sergeant Jason Maines radioed that Plaintiff had exited his residence and looked tentative. [Id.] Sergeant Maines has reported that he was waiting for Plaintiff to take additional steps away from the house so that Sergeant Maines could grab him. [Id. at 7] Instead, Plaintiff retreated inside his home. [Id.]
After Plaintiff returned inside his home, Sergeant Muller again called Plaintiff's cell phone. [Id.] Sergeant Muller told Plaintiff that he was with the police and that there were police outside. [Id.] Plaintiff, having not seen the police on his previous trips outside, told Sergeant Muller "you aren't (out) there." [Id.] Sergeant Muller told Plaintiff to come out with nothing in his hands, to which Plaintiff responded, "I have something in my hands." [Id.] In response to Plaintiff's comment, Agent Brennan aired on the radio that Plaintiff was being threatening on the phone. [Id.]
Plaintiff, believing somebody was impersonating a police officer and was luring Plaintiff outside, grabbed a shotgun and once again exited the door leading to the backyard. [Id. at 8] Plaintiff loudly pumped the action of his shotgun, ejecting a shell to the ground. [Id.] Agent Devon Trimmer aired by radio, "Did you hear that gun rack?" [Id.]
At this point, Agent Trimmer and Sergeant Maines hid behind a truck. [Id.] Sergeant Maines eventually moved behind some foliage while Sergeant Muller and Agent Brennan positioned themselves on the west end of Plaintiff's residential building. [Id.] Plaintiff began to walk from the backyard to the front of the building. [Id. at 9] Sergeant Maines radioed, "Alright [Agent Trimmer], he's coming [e]ast, he is walkin' fast, straight towards you." [Id.] Agent Trimmer observed Plaintiff walking through a communal driveway between two apartment buildings, with his weapon pointed downward in the "low ready" condition. [Id. at 10] Agent Trimmer then shot Plaintiff in the leg. [Id.] In the approximately seven minutes between Plaintiff exiting his home and Agent Trimmer shooting Plaintiff, none of the LPD officers announced a warning. [Id. at 8-10]
After being shot, Plaintiff returned fire on Agent Trimmer. [Id. at 10] Plaintiff retreated north and Agent Trimmer fired a second round at Plaintiff, missing Plaintiff. [Id.] Plaintiff again returned fire. [Id.] Agent Trimmer then fired a third shot at Plaintiff, missing him. [Id. at 11] Sergeant Maines, who was hidden behind a bush near one of the apartment buildings, activated a flashlight under the barrel of his handgun and aimed it at Plaintiff. [Id.] Plaintiff, still not realizing any of the individuals were police officers, fired at Sergeant Maines. [Id.]
Plaintiff then retreated to his residence where he called 911. [Id. at 11-12] LPD officers entered the front door, and Plaintiff fired a shot into the ceiling. [Id. at 13] Plaintiff was then taken into custody at 1:00 a.m. [Id.] At the time of the incident, LPD officers did not have in their possession an arrest warrant for Plaintiff. [Id.]
On July 30, 2018, Plaintiff filed the instant action. Plaintiff's Third Amended Complaint alleges numerous federal and state causes of action. [See generally # 14, 14-1] On December 3, 2018, United States Senior District Judge Lewis T. Babcock issued an Order to Dismiss in Part and to Draw Case. [#17] As a result of Judge Babcock's Order, Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1]
On January 31, 2019, Defendants moved to dismiss all of Plaintiff's remaining claims. [#30] Plaintiff has responded to Defendants' Motion [#50, 54], and Defendants filed a reply [#55]. On April 15, 2019, Plaintiff moved to strike Defendants' reply. [#56] One week later, Plaintiff filed his Motion to Censure, which is nearly identical to the Motion to Strike but seeks sanctions for statements made in Defendants' reply brief. [#58] On May 6, 2019, Defendants filed their response to the Motion to Strike. [#60]
II. STANDARD OF REVIEW
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate for any claim over which the Court lacks subject matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). When reviewing a facial attack on subject matter jurisdiction, the Court "presume[s] all of the allegations contained in the amended complaint to be true." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." In deciding a motion under Rule 12(b)(6), a court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Id. (quoting Twombly, 550 U.S. at 556). The Court's ultimate duty is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant." Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Following Judge Babcock's Order to Dismiss in Part and to Draw Case [#17], Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1] Defendants have moved to dismiss each of these claims. [#30] The Court addresses each claim below.
A. Excessive Force Claims
Plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by Agent Trimmer, in violation of Plaintiff's Fourth Amendment rights. [#14-1, 54 at 1] "Section 1983 provides a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law." Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV.
"[C]laims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989). "The reasonableness of the use of force is evaluated under an 'objective' inquiry that pays 'careful attention to the facts and circumstances of each particular case.'" Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: "[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. "The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure." Mendez, 137 S. Ct. at 1546 (quotation omitted). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396.
In Defendants' Motion, the individual Defendants contend that they are entitled to qualified immunity. [#30 at 7-12] "Qualified immunity 'protects government officials 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.'" Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) that the right at issue was "clearly established" at the time of the defendant's alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).
The requirement that the right be clearly established presents a "demanding standard" intended to ensure the protection of "all but the plainly incompetent or those who knowingly violate the law." District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established. In the Fourth Amendment context, the result depends very much on the facts of each case, and the precedents must squarely govern the present case.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has "not yet decided what precedents—other than [its] own—qualify as controlling authority for purposes of qualified immunity." Wesby, 138 S. Ct. at 591 n.8. The Tenth Circuit, however, has stated that "[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the 'clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'" Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has "repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Wesby, 138 S. Ct. at 590 (quotation omitted). "[T]he 'specificity' of the rule is especially important in the Fourth Amendment context." Id. (quotation omitted).
1. Agent Trimmer
Plaintiff claims that Agent Trimmer used excessive force when she shot Plaintiff. [#14-1 at 6] In analyzing Agent Trimmer's use of force, the Court must look to the reasonableness of her actions. As the Tenth Circuit recently explained:
"In determining the reasonableness of the manner in which a seizure is effected, '[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" [Scott v. Harris, 550 U.S. 372, 383 (2007)] (quoting United States v. Place, 462 U.S. 696, 703 [] (1983)). This balancing test "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 [] (emphasis added). And our balancing must always account "for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 397 []. Ultimately, "the inquiry is always whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force." [Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)].Pauly v. White, 874 F.3d 1197, 1214-15 (10th Cir. 2017), cert. denied, 138 S. Ct. 2650 (2018). Here, weighing the three Graham factors, the Court concludes that Agent Trimmer did not use excessive force and that there was therefore no constitutional violation.
a. The First Graham Factor
The first Graham factor looks to the severity of the crime at issue. 490 U.S. at 396. Here, the underlying crime being investigated was undoubtedly serious. The escort reported to police that Plaintiff had made illicit sexual contact with her and that he had fired two gunshots, the second one aimed at her. [#14-2 at 4] Thus, the first Graham factor weighs in favor of Agent Trimmer.
Although Plaintiff maintains that the sexual contact was consensual and that he had only fired a single shot into the air [#14-2 at 3-4], the reasonableness of Agent Trimmer's conduct must be determined based upon "what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). Plaintiff contends that the escort knew her statement to the police was not true, but he does not allege any facts available to Agent Trimmer at the time that would have put her on notice that that the escort was providing false information. [See #14-2 at 4]
b. The Second Graham Factor
The second Graham factor asks whether the suspect posed an immediate threat to the safety of the officers or others. 490 U.S. at 396. This factor "is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer's use of force." Pauly, 874 F.3d at 1216 (quotation omitted). Because Agent Trimmer used deadly force, her use of force is only justified if she had "probable cause to believe that there was a threat of serious physical harm to [herself] or to others." Estate of Larsen, 511 F.3d at 1260 (quotation omitted). In assessing the degree of threat facing officers, the Tenth Circuit considers four non-exclusive factors. These include:
"Deadly force is such force that create[s] a substantial risk of causing death or serious bodily harm." Clark v. Bowcutt, 675 F. App'x 799, 806 (10th Cir. 2017) (emphasis omitted) (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009)). The Tenth Circuit has applied the reasonable use of deadly force standard where the plaintiff was shot but survived. Havens v. Johnson, 783 F.3d 776, 781-82 (10th Cir. 2015). Plaintiff alleges that Agent Trimmer's gunfire was intended to kill him [#14-1 at 6], and Defendants' Motion does not dispute that Agent Trimmer's gunfire constituted deadly force [#30 at 9, 11].
(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.Id. The Court assesses each factor in turn.
i. The First Larsen Component
The first Larsen factor asks the Court to consider whether the officers ordered the suspect to drop his weapon and the suspect's compliance with police commands. 511 F.3d at 1260. Plaintiff argues that nearly six minutes elapsed between the time he exited the residence and pumped the action of his shotgun and when Agent Trimmer fired shots at him—plenty of time for the officers to identify themselves and tell Plaintiff to drop his weapon. [#14-2 at 8; #54 at 7] Plaintiff ignores the fact, however, that officers had placed six telephone calls to Plaintiff and several times had identified themselves as police officers. [#14-2 at 5-7] Immediately prior to Plaintiff exiting his residence with the shotgun, Sergeant Muller told Plaintiff to exit the residence without anything in his hands. [Id. at 7] Plaintiff ignored this instruction, told the officers he would have something in his hands, and exited with the shotgun. [Id. at 7-8]
Plaintiff argues that he disobeyed the command, because he had not seen any police cars or officers outside when he had previously exited his residence and thus allegedly did not believe the phone calls were actually coming from LPD officers. [#14-2 at 8] Plaintiff, however, does not allege that he asked the officers on the phone to prove their identity or attempted to call 911 to confirm their identity. Nor does Plaintiff explain why he suddenly would have believed the officers had they announced their identity outside in the dark after he exited the residence. Regardless, the Court must analyze the situation "from the perspective of a reasonable officer on the scene." Estate of Larsen, 511 F.3d at 1260.
Reasonable officers on the scene would have no reason to believe that Plaintiff would yield to their commands on this occasion when he blatantly ignored their earlier command. To the contrary, given that Plaintiff had just directly ignored the command to exit the building without anything in his hands and instead exited with a shotgun, officers may have feared calling out to Plaintiff and thereby identifying their location to the potential shooter. Although the officers did not tell Plaintiff to drop his weapon, Plaintiff's defiance of the officers' earlier order to exit without anything in his hands renders the first Larsen component, at best, neutral to Plaintiff's position.
ii. The Second Larsen Component
The second Larsen factor asks whether any hostile motions were made with the weapon towards the officers. 511 F.3d at 1260. Here, the incident occurred in the middle of the night. [#14-2 at 9-10; see also Estate of Larsen, 511 F.3d at 1260 (relying on the events occurring late at night as one factor supporting a conclusion that the officer acted reasonably)] The LPD officers were acting on a report that Plaintiff had earlier shot at an escort. [#14-2 at 4; see also Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009) (relying, in part, on fact that suicidal individual had earlier in the evening threatened his wife as one factor supporting reasonableness of officers' actions)] After the officers arrived on the scene, Plaintiff was observed to be "upset," "unsettled," and "paranoid," and Sergeant Muller reported to the other officers that Plaintiff was "threatening on the phone." [Id. at 6, 7] Plaintiff ignored officers' instructions to come outside with his hands empty, and instead exited armed with a shotgun and then loudly pumped the action of the shotgun, ejecting a live shell onto the ground. [#14-2 at 8] Plaintiff then quickly walked from the backyard to the front side of the building—toward where Agent Trimmer was positioned—with the shotgun in the low-ready position. [Id. at 9-10] A reasonable officer could interpret these actions as hostile. Indeed, it is just this type of "tense, uncertain, and rapidly evolving situation" in which courts "do not like to second-guess [the officers] using the 20/20 hindsight found in the comfort of a judge's chambers." Phillips v. James, 422 F.3d 1075, 1084 (10th Cir. 2005). Accordingly, the Court concludes this second Larsen component favors a finding of reasonableness.
iii. The Third Larsen Component
The third Larsen factor looks to the distance separating the officers and the suspect. 511 F.3d at 1260. Here, neither the Third Amended Complaint nor the Affidavit submitted therewith describe the exact distance between Plaintiff and Agent Trimmer when Agent Trimmer fired her weapon. The Affidavit acknowledges, however, that Plaintiff was walking quickly from the backyard to the front side of the building—toward where Agent Trimmer was positioned—with his shotgun in the low-ready position. [#42-2 at 9-10] Given the lack of specific information about distance, this third component is, at best, neutral for Plaintiff's position.
iv. The Fourth Larsen Component
The fourth Larsen factor looks to the manifest intention of the suspect. Here, Plaintiff ignored commands to come out with his hands empty, allegedly because he did not believe that LPD officers were actually the ones outside. [#14-2 at 7-8] Rather than act to confirm the identity of the officers or seek police assistance for the purported threat he believed to await him outside, Plaintiff instead armed himself and exited the residence. [Id.] He then loudly pumped the action of the shotgun, ejecting a live shell onto the ground. [Id. at 8] He was walking quickly around the building with the shotgun in the low-ready position. [Id. at 9-10] A reasonable officer faced with this situation could conclude that Plaintiff was manifesting his intent to harm the officers. Thus, this fourth component supports Agent Trimmer.
v. Conclusion
After weighing the Larsen factors, and considering the entirety of the situation facing Agent Trimmer based on the information available to Agent Trimmer at the time, the Court concludes that the second Graham factor favors a finding of reasonableness.
c. The Third Graham Factor
The third Graham factor asks whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396. Here, while not entirely clear from the Third Amended Complaint, it may be that the LPD officers did not initially intend to arrest Plaintiff but, instead, only wanted to talk to Plaintiff about the events from earlier that evening. [#14-2 at 7 (stating that police told Plaintiff they wanted him to come outside to talk); id. at 13 (stating that LPD officers did not have in their possession an arrest warrant for Plaintiff)]. Thus, his refusal to come outside may not have been an active resistance to arrest or an attempt to evade arrest by flight. See Pauly, 874 F.3d at 1221-22 (finding that factor favored plaintiffs where officers went to residence after threat to others was over and without probable cause to make an arrest).
Contrary to Plaintiff's contention that any distinguishing facts between Pauly and the instant case "weigh in favor of Plaintiff" [#54 at 7], there are numerous distinguishing facts that make the finding of excessive force in Pauly inapplicable here. In Pauly, the police officers responding to a 911 call regarding a "drunk driver" spoke to the women who placed the call after the alleged offender had fled the scene. Pauly, 874 F.3d at 1203. The alleged offender had neither brandished nor fired a weapon at the women. [Id.] Although the officers all agreed that there was neither probable cause to arrest the alleged offender nor any exigent circumstances at the time, they nonetheless went to the alleged offender's home "to make sure nothing else happened" and to find out if he was intoxicated. Id. at 1203-04. Here, by contrast, the LPD officers arrived at Plaintiff's residence in response to the escort's 911 call reporting that Plaintiff had shot at her and thus exigent circumstances and/or probable cause to arrest Plaintiff may have been present. Further, in Pauly, the officers actively approached the residence with flashlights shining toward the residence without identifying themselves until they were close to the door, id. at 1204, whereas, here, the officers made telephone contact with Plaintiff upon their arrival and did not advance toward the door to his home. Importantly, in Pauly, "[b]efore [the alleged offender] could call 911," the officers yelled "[w]e're coming in," causing the occupants of the residence to believe they were being invaded and to arm themselves. Id. at 1204-05. After the alleged offender stepped partially out of the back door to fire a couple of warning shots, one of the officers shot the other occupant of the house after he opened a window and pointed a handgun in the direction of the officer's covered position. Id. at 1205. Here, Plaintiff had plenty of time to call 911 to confirm the identity of the officers who called him, the officers did not attempt to enter Plaintiff's residence, and Plaintiff was shot after he voluntarily left his residence and quickly walked around the building toward Agent Trimmer with a shotgun in the low-ready position.
Nonetheless, by exiting the residence with a shotgun, and pumping that shotgun, Plaintiff did disobey the command to exit without anything in his hands. Courts in similar circumstances have found such refusals to favor the officer when evaluating the third Graham factor. Dixon v. Ga. Dep't of Pub. Safety, No. 2:14-CV-47, 2018 WL 1863060, at *5 (S.D. Ga. April 18, 2018) (finding third Graham factor supported officer where suspect refused directive to drop gun); Jacobs v. Alam, No. 15-10516, 2017 WL 3616487, at *7 (E.D. Mich. Aug. 23, 2017) (same); Lookabill v. City of Vancouver, No. 13-5461-RJB, 2015 WL 3796352, at *10 (W.D. Wash. June 18, 2015) (finding third Graham factor favored officer where suspect was told to stop and drop the gun, and suspect put gun in pocket and ignored other instructions); Osei v. Brooks, No. 11-CV-01135-PAB-KMT, 2013 WL 1151619, at *9 (D. Colo. Mar. 19, 2013) (finding third Graham factor favored officers where plaintiff "did not attempt to flee . . . [but] disobeyed the orders and commands given by the police officers"). Drawing all reasonable inferences in favor of Plaintiff, given the uncertainty in the Third Amended Complaint regarding the LPD officers' intent with respect to arresting Plaintiff, the third Graham factor slightly favors Plaintiff.
d. Conclusion
As detailed above, the first and second Graham factors clearly favor Agent Trimmer. While the third factor may slightly favor Plaintiff, it is insufficient to overcome the other two factors. This is especially true given that the second factor, which soundly favors Agent Trimmer, "is undoubtedly the most important . . . factor in determining the reasonableness of an officer's use of force." Pauly, 874 F.3d at 1216 (quotation omitted)
Ultimately, the Court must review Plaintiff's excessive force claims under a standard of objective reasonableness, "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Here, it was the middle of night, and the officers were investigating an allegation that Plaintiff had fired two shots, one of them at an individual. Over the phone, on several occasions, the officers identified themselves. Sergeant Muller asked Plaintiff to come outside with his hands empty. Plaintiff, who appeared upset, unstable and paranoid, instead armed himself with a shotgun. Plaintiff then exited the residence, dispelled a shotgun shell, and began walking quickly with the shotgun in the ready position. Under these circumstances, the Court cannot conclude that Agent Trimmer's decision to discharge her firearm, striking Plaintiff's leg, was unreasonable. Accordingly, the Court respectfully RECOMMENDS that Plaintiff's excessive force claim against Agent Trimmer be DISMISSED WITH PREJUDICE.
Because the alleged facts do not support a finding of excessive force, the deficiencies cannot be cured by amendment and the Court thus recommends dismissal with prejudice.
2. Sergeant Maines, Chief McCasky, and the City of Lakewood
Plaintiff also brings three claims related to his excessive force claim against Agent Trimmer. These claims include a failure to intervene and prevent excessive force claim against Sergeant Maines, a supervisory liability claim against Chief McCasky, and a municipal liability claim against the City of Lakewood. [See generally #14-1; #54 at 1-2] Plaintiff's failure to intervene and prevent claim against Sergeant Maines fails because it presupposes the use of excessive force by Agent Trimmer, and the facts alleged by Plaintiff do not support a finding of excessive force by Agent Trimmer. See Rose v. City of Lafayette, No. 05-CV-00311WD, 2007 WL 485228, at *6 (D. Colo. Feb. 12, 2007) (rejecting failure to intervene claims upon finding no underlying constitutional violation). Likewise, Plaintiff's failure to allege an unconstitutional use of force by Agent Trimmer necessarily renders inadequate Plaintiff's supervisory and municipal liability claims. See Schabow v. Steggs, No. 16-cv-02232-RBJ-KLM, 2018 WL 1557257, at *10 (D. Colo. March 30, 2018) (dismissing municipal liability claims where plaintiff failed to allege an underlying constitutional claim); Mundell v. Bd. of Cty. Comm'rs of Saguache Cty., No. 05-cv-00585-REB-MJW, 2007 WL 128805, at *4 (D. Colo. Jan. 12, 2007) ("[C]laims of municipal liability and supervisory liability for failure to train under Section 1983 presuppose the existence of an underlying constitutional claim" and, as a result, fail when the underlying constitutional claim fails.). Accordingly, the Court respectfully RECOMMENDS that Plaintiff's excessive force claims against Sergeant Maines, Chief McCasky, and the City of Lakewood be DISMISSED WITH PREJUDICE.
See Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) ("[A] law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983.")
Because the Court finds that the deficiencies in Plaintiff's underlying excessive force claim against Agent Trimmer cannot be cured by amendment, the Court also recommends dismissal with prejudice of Plaintiff's related excessive force claims against Sergeant Maines, Chief McCasky, and the City of Lakewood.
B. Due Process Claims
Plaintiff also brings due process claims against each Defendant. The genesis of Plaintiff's due process claims is not entirely clear, but they appear to be premised on two theories: (1) Plaintiff was denied due process of law because Defendants did not follow LPD policies [#14-1 at 7-8, 11-12, 14-16, 18-19, 20-21], and/or (2) Plaintiff was denied due process during his criminal proceedings because Defendants perjured themselves or withheld evidence [id. at 7, 12, 14-15, 18]. The Court addresses each theory below.
To the extent Plaintiff's due process claims are premised on Defendants' failure to follow LPD policies, that claim fails. Even assuming Defendants' alleged violations of LPD policies could somehow give rise to a due process claim, the Third Amended Complaint contains only conclusory statements concerning the manner in which Defendants supposedly violated LPD policies. To the extent the Third Amended Complaint provides any detail about the policy violations, it fails to state a claim. For example, the Third Amended Complaint states that Agent Trimmer violated certain LPD regulations by engaging in an unreasonable use of force, and that Sergeant Maines violated regulations by failing to prevent Agent Trimmer's excessive use of force. [#14-1 at 7, 12; see also id. at 21 (claiming the City of Lakewood violated Plaintiff's due process rights by failing to prevent Agent Trimmer's use of excessive force)] But, as detailed above, the facts alleged by Plaintiff do not support a finding that Agent Trimmer engaged in an unreasonable use of force. As a result, the alleged excessive use of force cannot form the basis for either a policy violation or a due process claim. Accordingly, the Court respectfully RECOMMENDS that Plaintiff's due process claims premised on Defendants' use of excessive force in violation of LPD policies be DISMISSED WITH PREJUDICE.
The Tenth Circuit has held that law enforcement's violation of its own policies does not state a constitutional claim. See, e.g., Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) ("To the extent [plaintiff] seeks relief for alleged violations of state statutes and prison regulations, however, he has stated no cognizable claim under § 1983."); Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (finding allegation that sheriff failed to adhere to his own policies insufficient to state a constitutional claim, because "failure to adhere to administrative regulations does not equate to a constitutional violation"). Plaintiff's reliance on Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd., is misplaced as that case involved the Colorado Court of Appeals' review of state agency action to determine whether it was arbitrary and capricious and thus did not involve the application of federal due process principles. 360 P.3d 186, 188 (Colo. App. Mar. 26, 2015).
The Court recommends dismissal with prejudice because the deficiencies cannot be cured by amendment.
To the extent Plaintiff's due process claims are premised on Defendants' alleged perjury or withholding of evidence in Plaintiff's criminal trial, that claim is precluded by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a prisoner's claim for damages is not cognizable under Section 1983 if a judgment in the plaintiff's favor would imply the invalidity of his conviction or sentence, unless the conviction or sentence already has been overturned or otherwise invalidated. 512 U.S. at 486-87. In other words, if the prisoner's success in the Section 1983 suit for damages "would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence." Muhammad v. Close, 540 U.S. 749 (2004) (per curiam). Here, to the extent Plaintiff claims that his due process rights were violated because Defendants perjured themselves in the trial that led to Plaintiff's convictions, or withheld evidence at that trial, such claims are barred by Heck. Glaser v. City & Cty. of Denver, 557 F. App'x 689, 701 (10th Cir. 2014) ("To the extent [plaintiff] alleges that defendants deprived him of his right to a speedy and fair trial, committed perjury, and withheld exculpatory evidence in connection with his prosecution, a judgment in his favor on these allegations would necessarily imply the invalidity of his conviction."); Ames v. Oklahoma, 158 F. App'x 114, 117 (10th Cir. 2005) (affirming dismissal of false imprisonment claim premised on defendants' false testimony, planted evidence, and destruction of evidence as barred by Heck).
Although asserted as due process claims, in various places, Plaintiff appears to characterize these claims as ones for malicious prosecution. [See, e.g., #14-1 at 8, 12 (referring to "illicit prosecution"); #54 at 13 ("To further their malicious prosecution, . . . [individual Defendants] made materially false statements against him as created inculpatory evidence, and hid the exculpatory."); #56 at 3 ("The 42 USC § 1983 Civil Rights claims for malicious prosecution of the Plaintiff . . . are currently ripened").] However, "the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be the Fourth Amendment's right to be free from unreasonable seizures." Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (quotation omitted). To the extent Plaintiff intended to assert claims for malicious prosecution under the Fourth Amendment based upon Defendants' alleged perjury and withholding of evidence, the Court's Heck analysis is equally applicable to those claims. See Miller v. Spiers, 339 F. App'x 862, 868 (10th Cir. 2009) (holding that Heck may operate to bar plaintiff's malicious prosecution claim for charges that were dismissed to the extent "the lawsuit would then impugn the validity of [the charges on which he was convicted]"). In addition, the individual Defendants would be entitled to qualified immunity on the malicious prosecution claims as the Tenth Circuit has recognized that the law is not clearly established in this Circuit regarding whether a malicious prosecution claim may proceed when there is probable cause for one, but not all, of the offenses charged. See Van De Weghe v. Chambers, 569 F. App'x 617, 620 (10th Cir. 2014).
To the extent Plaintiff premises his due process claim on allegations that Defendants violated regulations related to truthfulness, integrity, and ethics by perjuring themselves at trial [#14-1 at 7, 12, 14], this claim likewise would imply the invalidity of the state conviction, and is therefore barred by Heck.
Plaintiff attempts to avoid Heck by arguing that he was acquitted of second degree attempted murder against the escort, first degree attempted murder against Agent Trimmer, and first degree attempted murder against Sergeant Maines. [#56 at 3] According to Plaintiff, Heck does not bar his Section 1983 claim insofar as it relates to those acquitted charges. [Id. at 3-4] As part of the same trial, however, Plaintiff was found guilty of numerous other counts, including the lesser included offenses of second degree attempted murder and two counts of assaulting a police officer with a weapon. See Appendix A to this Recommendation (Judgment of Conviction and Disposition Record from Colorado v. St. George, No. 2016CR002509, Jefferson County, Colorado District Court). Plaintiff's allegations of perjury and the withholding of evidence relate primarily to Defendants' testimony about Plaintiff's actions after he exited his residence with the shot gun, including testimony that Plaintiff fired his weapon before Agent Trimmer fired the shot that wounded Plaintiff. [#14-1 at 7, 12, 14-15, 18] Because a finding that Defendants perjured themselves or withheld evidence with respect to their testimony about Plaintiff's actions toward Agent Trimmer and the other LPD officers necessarily would undermine Plaintiff's convictions for second degree attempted murder and assaulting a police officer, Heck bars Plaintiff's claims premised on Defendants' alleged perjury and withholding of evidence. See Cottle v. Gillespie, No. 2:10-CV-00271-JCM-(PAL), 2010 WL 5477410, at *1 n.1 (D. Nev. Dec. 30, 2010) (finding that where plaintiff had been convicted of some charges and acquitted of others, if the "allegations of false statements relate to the charges on which he has been convicted, then success on those counts would necessarily imply the invalidity of his conviction"); Jackson v. Cty. of Nassau, No. 07-cv-245 (JFB)(AKT), 2010 WL 1849262, at *3 (E.D.N.Y. May 6, 2010) ("Despite plaintiff's acquittal on several counts, Heck v. Humphrey applies to plaintiff's lawsuit because plaintiff's claims and arguments are not focused around particular charges or counts of which he was acquitted; rather, his claims against the County are based upon alleged violations by Officer Hughes and Detective Comiskey that affected his trial in general."). Accordingly, the Court respectfully RECOMMENDS that Plaintiff's due process claims premised on alleged perjury and withholding of evidence by Defendants at Plaintiff's criminal trial be DISMISSED WITHOUT PREJUDICE with leave to refile should Plaintiff's criminal conviction be overturned.
The Court takes judicial notice of the proceedings in the criminal action. "[F]acts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment." Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). "This includes another court's publicly filed records 'concerning matters that bear directly upon the disposition of the case at hand.'" Hodgson v. Farmington City, 675 F. App'x 838, 841 (10th Cir. 2017) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)).
C. State Tort Claims
Plaintiff also asserts various state tort claims against all Defendants. A district court may decline to exercise supplemental jurisdiction over a claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. 1367(c)(3); see also Gaston v. Ploeger, 297 F. App'x 738, 746 (10th Cir. 2008) (concluding that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over a plaintiff's remaining state-law negligence claims and stating that "we have repeatedly recognized that this is the preferred practice"). Because the Court recommends that all of Plaintiff's federal claims be dismissed, the Court further RECOMMENDS that the Court decline to exercise jurisdiction over Plaintiff's state tort claims and that those claims be DISMISSED WITHOUT PREJUDICE to bringing such claims in state court. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (holding "[n]otions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary," and such notions support a refusal to exercise supplemental jurisdiction over state law claims when the federal claims have been dismissed (quotation omitted)); Fitzgerald v. Corrs. Corp of Am., No. 08-cv-01189-CMA-KMT, 2009 WL 1196127, at *5 (D. Colo. Apr. 30, 2009) ("[T]he Tenth Circuit has indicated that if federal claims are dismissed before trial, as in the instant case, leaving only issues of state law, the Court should decline to exercise jurisdiction over the state claims."), amended on other grounds by, 2009 WL 1765672 (D. Colo. June 22, 2009).
D. Plaintiff's Motion to Strike and Motion to Censure
Finally, Plaintiff has moved to strike Defendants' reply [#56] and seeks to censure Defendants based upon certain assertions made in Defendants' reply [#58]. Plaintiff contends that the statements in the reply are lacking in factual accuracy and were submitted in bad faith. [#56 at 1; #58 at 1] The Court has reviewed Defendants' reply and does not believe that any sanction is warranted. The facts are largely drawn from Plaintiff's Affidavit submitted with the Third Amended Complaint. Moreover, Plaintiff addressed the perceived inaccuracies and improper arguments in both his Motion to Strike and his Motion to Censure, and the Court has considered Plaintiff's counterarguments. Accordingly, the Motion to Strike and the Motion to Censure are DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff's Motion to Strike [#56] and Motion to Censure [#58] and respectfully RECOMMENDS that:
1. Defendants' Motion to Dismiss [#30] be GRANTED;DATED: May 13, 2019
2. All excessive force claims be DISMISSED WITH PREJUDICE;
3. Plaintiff's due process claim premised on any excessive force be DISMISSED WITH PREJUDICE;
4. Plaintiff's due process claim premised on perjury and withholding of evidence by Defendants be DISMMISSED WITHOUT PREJUDICE with leave to refile should Plaintiff's criminal conviction be overturned; and
5. Plaintiff's state law claims be DISMISSED WITHOUT PREJUDICE with leave to refile in state court.
Within fourteen days after service of a copy of this 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); Griego v. Padilla (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. 2121 East 30th Street, 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 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) (holding that the district court's decision to review Magistrate Judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of Magistrate Judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the Magistrate Judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge