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Smith v. Havard

United States District Court, Tenth Circuit

December 18, 2013

KEVIN SMITH, Plaintiff,



This case arises from an incident in which Plaintiff Kevin Smith alleges he was tased two times without provocation by Officer Carla Harvard while she was providing off-duty security at a bar.[1] Plaintiff also alleges that Defendant Harvard arrested him and fabricated facts to substantiate his prosecution for assault on a police officer. According to Plaintiff, Defendant Harvard conspired with employees of the bar to tell police that Plaintiff attacked her with a blow to the chest. One of those employees told police that a video recording of the incident did not capture the altercation. But later, a copy of the video surfaced showing key parts of the incident and the charges against Plaintiff were dismissed. This lawsuit followed.

This matter is before the Court on the October 4, 2013 Recommendation by United States Magistrate Judge Craig B. Shaffer that Defendants City and County of Denver and Officer Carla Harvard's Motion to Dismiss (Doc. # 36) be granted in part and denied in part. (Doc. ## 51, 53.) The Recommendation is incorporated herein by reference. See 28 U.S.C. ยง 636(b)(1)(B); Fed.R.Civ.P. 72(b). Judge Shaffer also ruled that Defendants' Motion to Stay Discovery (Doc. # 40) should be granted in part and denied in part. (Doc. # 53 at 50.) On October 25, 2013, Defendants filed an objection to Judge Shaffer's Recommendation and discovery ruling. (Doc. # 56.)


In an oral ruling, Magistrate Judge Shaffer recommended that Defendants' Motion to Dismiss be denied as to the malicious prosecution and conspiracy claims but granted as to the municipal liability claim. Specifically, Judge Shaffer found persuasive Pierce v. Gilchrist, 359 F.3d 1278 (10th Cir. 2004) and concluded that Plaintiff properly asserted a claim under the Fourth and Fourteenth Amendments for malicious prosecution. He determined, however, that Plaintiff's municipal liability claim was conclusory, and therefore could not survive Fed.R.Civ.P. 12(b)(6) scrutiny.

The Court has conducted a de novo review of this matter, including reviewing all relevant pleadings, the Recommendation, and Plaintiff's objection thereto. Based on this de novo review, the Court concludes that Judge Shaffer's Recommendation is correct and is not called into question by Plaintiff's objection.


1. Magistrate's Recommendation

"When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

2. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) tests the formal sufficiency of a complaint. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). A complaint will survive such a motion if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). For a motion to dismiss, "[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a complaint does not "suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "The court's function on a Rule 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 a relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).


Defendant Harvard first argues that Plaintiff's claim for malicious prosecution should be dismissed because his allegations are insufficient to make a cognizable ...

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