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Keough v. Packard

United States District Court, D. Colorado

August 25, 2014

CHRISTOPHER KEOUGH, Plaintiff,
v.
SGT. BENITA PACKARD, THE CITY AND COUNTY OF DENVER, COLORADO, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant Sergeant Benita Packard ("Packard") and Defendant The City and County of Denver, Colorado's ("Denver" and collectively, with Packard, "Defendants") Motion to Dismiss [#29][1] (the "Motion"). The Motion is referred to the undersigned for recommendation regarding disposition [#30]. Plaintiff filed a Response to the Motion [#36]. Defendants filed a Reply [#39]. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#29] be GRANTED.

I. Summary of the Case

On November 6, 2013, Plaintiff filed the Amended Complaint (the "Complaint"), asserting six[2] claims against Defendants. Am. Compl. [#27] ¶¶ 29-57. Plaintiff brings First Amendment retaliatory prosecution and arrest claims against Defendant Packard. Id. ¶¶ 29-38. In addition, Plaintiff brings Fourth Amendment claims of wrongful detention, false imprisonment, and malicious prosecution against Defendant Packard. Id. ¶¶ 39-48. Plaintiff brings a municipal liability claim (" Monell claim") against Defendant Denver. Id. ¶¶ 49-57. Plaintiff seeks compensatory damages, punitive damages, equitable relief, interest, costs, expert witness fees, reasonable attorney fees, "and any other and further relief that this Court shall deem just and proper." Id. ¶ 57. Plaintiff brings his claims under 42 U.S.C. § 1983 and asserts that this Court has jurisdiction pursuant to 42 U.S.C. § 1983. Id. ¶ 4.

Plaintiff alleges that, "[o]n August 1, 2011, [he] identified a one-of-a-kind [b]ackpack, that had been earlier stolen from his storage facility, being carried by a person on the street whom he did not know." Id. ¶ 13. According to Plaintiff, he "called the police and confronted the person wearing the backpack, whom he later learned was named Jeffrey Sinton [("Sinton")]." Id. Plaintiff asserts that he "demanded" that Mr. Sinton return his backpack to him. Id. ¶ 14. Plaintiff maintains that, in response to his demand, Mr. Sinton shoved Plaintiff. Id. Plaintiff avers that "[t]he confrontation was then immediately concluded by a third party who jumped into the fray and punched [Plaintiff] in the face." Id.

Plaintiff asserts that "[p]olice arrived and investigated the incident [(the "Incident")]." Id. ¶ 15. Plaintiff alleges that "Officer Bart Stark [("Stark")] suspected that although [Plaintiff] was the only person with physical injuries, [he] might have been the aggressor of the [I]ncident because he first confronted [Mr. Sinton]." Id. According to Plaintiff, "Officer Stark could not adduce enough evidence to establish probable cause... [and thus] refused to take a police report." Id. Plaintiff asserts that "Officer Stark concluded that there was insufficient probable cause to make any arrests based upon the reports of the [I]ncident from witnesses." Id. ¶ 18. Plaintiff maintains that Mr. Sinton "refused' to be a witness against [him]." Id. According to Plaintiff, "Mr. Sinton was eventually arrested on an unrelated petty offense warrant that was outstanding." Id.

Plaintiff alleges that he "was upset, because he knew that at least one witness had lied about the [I]ncident, he did not cause the circumstances under which he was punched in the face, and that police would not complete a police report or otherwise investigate." Id. ¶ 16. According to Plaintiff, he "wanted a police report to be taken to address the matter in civil court, or to otherwise demonstrate that the [I]ncident [had] occurred and was investigated by police." Id. ¶ 17.

Plaintiff asserts that "[a]fter the [I]ncident, [he] went to Denver Police Department District Six [("District Six")], where he believed [O]fficer Stark was stationed." Id. ¶ 19. Plaintiff alleges that he "asked for the supervising sergeant on duty, so that he could make a complaint about Officer Stark." Id. ¶ 20. According to Plaintiff, "the Denver Police Department, including [District Six][, ] has a citizen complaint procedure that requires citizen complaints to go through formal channels, beginning with a supervisor or sergeant." Id. ¶ 21.

Plaintiff alleges that Defendant "Packard cut off [Plaintiff] while he was explaining [what happened during the Incident] and rudely told [him] that she was not going to listen to [him] any more." Id. ¶ 22. According to Plaintiff, Defendant Packard "said she would not investigate or discipline her officer." Plaintiff avers that Defendant Packard "threatened that if [he] did not give up on his complaint, she would charge him with a crime and arrest him." Id. Plaintiff asserts that he "insisted that the complaint go through formal channels and be investigated." Id. ¶ 23. Plaintiff maintains that Defendant Packard "became further upset that [he] insisted on further investigation.... [and she] responded with intent to punish, assert arbitrary authority and dissuade [him] from making a citizen complaint." Id. ¶¶ 23-24. According to Plaintiff, Defendant Packard "seized [Plaintiff] by ordering him to remain in a confined room [(the "Room")] for approximately 30 minutes, under threat that if he left he would be charged with resisting arrest (or a like charge) and then she charged [him] with assault and disturbing the peace." Id. ¶ 24.

Plaintiff alleges that "[w]hile [he] was seized, [Defendant] Packard spoke to Mr. Sinton and claimed to elicit evidence from him that supported criminal charges against [him] for assault and disturbing the peace." Id. ¶ 41. Plaintiff asserts that Defendant "Packard improperly pressured and/or persuaded Mr. Sinton to become a witness against [him] in order to assist her in asserting false charges against [him] in retaliation for [his] complaint." Id. ¶ 36. Plaintiff maintains that "Mr. Sinton provided no more information [to Defendant Packard] than had already been disclosed to Officer Stark, previously." Id. ¶ 42.

According to Plaintiff, "Defendant Packard knowingly and intentionally charged [him] with the crimes of assault and disturbing the peace in retaliation for [his] speech and criticism through [District Six's] complaint procedures." Id. ¶ 37. Plaintiff asserts that Defendant Packard "submitted false information regarding the underlying crimes to the District Attorney responsible for charging [him] [with] assault and disturbing the peace." Id. ¶ 44.

Plaintiff asserts that "[a] criminal case was brought against [him] as a result of the representations made by [Defendant] Packard." Id. ¶ 45. According to Plaintiff, "the District Attorney could not adduce sufficient evidence to prosecute [him]." Id. ¶ 46. Plaintiff avers that "the charges had to be dismissed and were dismissed in [his] favor." Id. ¶¶ 28, 46.

Plaintiff alleges that his "original complaint was never further investigated." Id. ¶ 26. Plaintiff asserts that he "had to go to a different police station in order to file a complaint that the complaint submitted to [Defendant] Packard had been ignored." Id. According to Plaintiff, "there have been other incidents where citizens were threatened, dissuaded or otherwise told not to continue with complaints and criticisms [once] they complained to supervisors about officer misconduct." Id. ¶ 53. Plaintiff avers that Defendants "have participated in other incidents where citizen complaints have been denied without investigation, deterred at the complaint stage and/or officers have retaliated against those who have submitted complaints." Id. ¶ 27. Plaintiff maintains that Defendant "Packard was a final decision-maker for [Defendant Denver] regarding the [District Six] complaint procedure... and the decisions related to the arrest and charging of [Plaintiff]." Id. ¶ 50. According to Plaintiff, Defendant Packard's "decisions represent the decisions of [Defendant Denver]." Id.

Plaintiff alleges that "[t]his is not the first time that Defendant... Packard has made decisions for [District Six] to conceal evidence, hide the truth, or arbitrarily suspend police department procedures to achieve results that she desired at the expense of justice." Id. ¶ 51. Plaintiff avers that "[i]n February, 2012, [Defendant Packard] concealed evidence and refused to charge a woman after a lower-ranking officer attempted to arrest the woman for a DUI." Id. Plaintiff asserts that "there have been other incidents, of which [Defendant Denver] has knowledge, where Defendant... Packard and other officers have acted with reckless disregard for the rights of suspects and citizens, including other incidents of evidence tampering and retaliation for expression of citizen's [sic] First Amendment rights and have not been sufficiently disciplined to refrain from such conduct." Id. ¶ 52.

Plaintiff alleges that Defendant Denver "has given insufficient training and discipline to effectively cause [its] officers to refrain from using police authority in response to First Amendment protected speech that may offend or frustrate an officer." Id. ¶ 54. Plaintiff maintains that Defendant Denver "has insufficiently disciplined [Defendant] Packard to refrain from concealing/misrepresenting evidence, hiding the truth, or arbitrarily suspending police department procedures to achieve results that she desired at the expense of justice." Id. ¶ 55. Plaintiff asserts that Defendant Denver's "policies, practices, and lack of training and supervision were likely to lead to the deprivation of Plaintiffs' [sic] Constitutional rights and if not changed would likely lead to the deprivation of other similarly situated persons' rights." Id. ¶ 56. According to Plaintiff, Defendant Denver's "policies, practices and lack of training and supervision were a moving force behind Plaintiffs' [sic] First Amendment Constitutional deprivations and the resulting damages." Id. ¶ 57.

In the Motion, Defendants argue that "Plaintiff fails to state facts showing that Defendant Packard violated his clearly established First Amendment rights." Motion [#29] at 3. Defendants assert that "[t]he Complaint fails to allege facts showing that Plaintiff's clearly established Fourth Amendment rights were violated." Id. at 7. Defendants maintain that "Plaintiff fails to state a plausible [ Monell ] claim." Id. at 11.

In the Response, Plaintiff argues that he "has shown sufficient facts to form a plausible, primae [sic] facia [sic] assertion that Defendant Packard has violated [his] clearly established First Amendment rights when she retaliated against [him] by seizing him, attempting to manipulate evidence to fabricate probable cause, and by charging [him] with crimes that she know [sic] [he] did not commit." Response [#36] at 3-4. According to Plaintiff, the "Complaint contains sufficient facts to demonstrate that Defendant Packard violated [his] Fourth Amendment rights when she confined him to [the] [R]oom for 30 minutes and manipulated evidence to ensure that [he] was charged and prosecuted with crimes that [she] knew he did not commit." Id. at 8. Plaintiff maintains that the "Complaint contains sufficient factual materials to support a [ Monell ] claim utilizing three different theories[:] (1) Defendant Packard as a final decision maker, (2) the failure of [District Six] to supervise/discipline the rogue supervisor, and (3) the failure of [District Six] to sufficiently train its employees and supervisors not to retaliate against citizens making complaints against officers, even when those officers might be offended." Id. at 11.

In the Reply, Defendants argue that "Plaintiff fails to cite applicable authority showing that his clearly established First Amendment rights were violated." Reply [#39] at 1. Defendants assert that "Plaintiff has failed to state facts overcoming Defendant Packard's assertion of qualified immunity from his Fourth Amendment claims." Id. at 5. Finally, according to Defendants, "Plaintiff has failed to allege facts supporting his Monell claim." Id. at 7.

II. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) tests "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) (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991)); 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 Atlantic v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting Twombly, 550 U.S. at 570) ("The complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations."). "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) (citing Twombly, 550 U.S. at 556). 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. (citation omitted) (internal quotation marks omitted).

"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." Id. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some 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 this 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) (internal quotation marks omitted). Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678.

III. Analysis

A. Defendant Packard

Defendant Packard argues that she is entitled to qualified immunity with regard to Plaintiff's First Amendment and Fourth Amendment claims. See Motion [#29] at 3, 7-11. A law enforcement officer sued under § 1983 is entitled to qualified immunity unless it is shown that the officer violated a constitutional right that was clearly established at the time of the challenged conduct. Plumhoff v. Rickard, ___ U.S. ___, ___, 2014 WL 2178335, at *9 (May 27, 2014) (citing Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S.Ct. 2074, 2080 (2011)). "The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.'" Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When the defense of qualified immunity is raised, the Court considers whether the plaintiff's factual allegations demonstrate that the defendant violated a constitutional right, and, secondly, whether that constitutional right was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); cf. Pearson v. Callahan, 555 U.S. 223, 242 (2009). Both prongs must be satisfied. Saucier, 533 U.S. at 201. District courts, as the triers of fact, have the discretion to determine which prong is most appropriate to address first. Pearson, 555 U.S. at 242.

1. Retaliatory Prosecution Claim

In general, a properly stated claim for retaliation for the exercise of First Amendment rights must include three elements: (1) the plaintiff was engaged in activity protected by the First Amendment; (2) the defendant's actions caused the plaintiff to suffer an injury that would reasonably have a chilling effect on the exercise of protected activity; and (3) the defendant's action was "substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct." Shero, 510 F.3d at 1203 (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). In addition, in 2006, the Supreme Court settled a circuit split and held that where the retaliatory action taken was a criminal prosecution, a plaintiff bringing suit under § 1983 must plead and prove a fourth element: lack of probable cause for the allegedly retaliatory prosecution. Hartman v. Moore, 547 U.S. 250, 261-66 (2006). The Supreme Court explained that because prosecutorial immunity prevents the plaintiff from directly suing the prosecutor for damages, the plaintiff must demonstrate that the defendant he sues in the prosecutor's stead-typically, the law enforcement officer who allegedly acted with a retaliatory motive-caused the retaliatory prosecution. Id. at 261-63. "To bridge the gap between the nonprosecuting government agent's motive and the prosecutor's action, ' the [Supreme] Court held that a plaintiff bringing a claim for retaliatory prosecution must allege and prove an absence of probable cause[, ]" which serves as strong circumstantial evidence that the prosecution was not initiated for an alternative, non-retaliatory purpose. McBeth v. Himes, 598 F.3d 708, 718 ...


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