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Brasche v. City of Walsenburg

January 26, 2006


The opinion of the court was delivered by: Judge Robert E. Blackburn


The matters before me are (1) County Defendants' Motion to Dismiss [#14], filed May 25, 2005; (2) Motion to Dismiss [#23], filed June 14, 2005; (3) Motion for Sanctions under F.R.C.P. 11 [#8], filed May 16, 2005; and (4) Motion for Sanctions Under F.R.C.P. 11 [#22], filed June 14, 2005.*fn1 I grant the motions to dismiss with respect to plaintiff's section 1983 claim, but decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims, which I remand to the state court.

I deny the motions for sanctions.*fn2


I have subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction).


When ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I must determine whether the allegations set forth in the complaint, if true, are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993); see also Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."), cert. denied, 123 S.Ct. 1908 (2003). Thus, Rule 12(b)(6) requires dismissal if, taking all well-pleaded facts as true and construing them in the light most favorable to plaintiff, it is clear that he can prove no set of facts entitling him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Rocky Mountain Helicopters, Inc., v. Bell Helicopter Textron, Inc., 24 F.3d 125, 128 (10th Cir. 1994).


Plaintiff David Allen Brasche, Jr., a minor, is the surviving child of Serina Lynn Ortega ("Ortega"), who was murdered in her home on July 6, 2003, by plaintiff's father, David Allen Brasche, Sr. ("Brasche"). At the time of the murder, Brasche was the subject of three outstanding warrants "related to domestic violence charges, restraining orders and probation violations." (Complaint at 4, ¶ 19.) Plaintiff alleges that the individual defendants, all Huerfano County law enforcement officers, knew Brasche "either by prior contact or by family relationship." (Id. at 4, ¶ 23.) He contends that defendants violated Ortega's right to substantive due process by failing to execute the warrants implicating Brasche.*fn3 He also has alleged state law claims of willful and wanton conduct, wrongful death, and civil conspiracy. Because the section 1983 claim is the sole basis supporting federal jurisdiction in this case, I address it first.

Defendants argue that plaintiff cannot assert a claim for violation of Ortega's substantive due process rights based on the facts alleged in the complaint because they had no duty to protect Ortega from violence at Brasche's hands. The seminal case in this regard is DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), in which the Court held that the substantive protections of the Due Process Clause do not require the states to shield individuals from privately inflicted harms:

[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. . . . Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Id., 109 S.Ct. at 1003-04 (internal citations and footnote omitted).*fn4 An exception to this general principle, on which plaintiff seeks to rely, is the state-created or enhanced danger exception. Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995), cert. denied, 116 S.Ct. 924 (1996); Sanders v. Board of County Commissioners of County of Jefferson, Colorado, 192 F.Supp.2d 1094, 1107-08 (D. Colo. 2001).*fn5 The Tenth Circuit has adopted a five-factor test for determining whether the state-created or enhanced danger exception applies:

1) whether plaintiff was a member of a limited and specifically definable group;

2) whether defendant's conduct put plaintiff at substantial risk of serious, ...

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