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Kolesnikov v. Austin

United States District Court, D. Colorado

October 10, 2014

ANDREY KOLESNIKOV, Plaintiff,
v.
OFFICER BENJAMIN AUSTIN, individually and in his capacity as a paid peace office and as an employee and/or agent of the Denver Police Department and the City of Denver, OFFICER BRIAN KLAUS, individually and in his capacity as a paid peace office and as an employee and/or agent of the Denver Police Department and the City of Denver, CORPORAL JOHN BLEA, individually and in his capacity as a paid peace office and as an employee and/or agent of the Denver Police Department and the City of Denver, OFFICER DAN SWINT, individually and in his capacity as a paid peace office and as an employee and/or agent of the Denver Police Department and the City of Denver, OFFICER JOHN DOE, individually and in his capacity as a paid peace office and as an employee and/or agent of the Denver Police Department and the City of Denver, DENVER POLICE DEPARTMENT, in its capacity as an agent and/or independent contractor of the City and County of Denver, in its capacity as a governmental entity, the employee and/or supervisor of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint, Officer John Doe, and CITY AND COUNTY OF DENVER, in its capacity as a governmental entity and/or as the employer of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint, Officer John Doe, and the Denver Police Department, Defendants.

ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

This case involves claims that Defendants violated Plaintiff's constitutional rights and Colorado law. This matter is before the court on Defendants' "Motion to Dismiss" (Doc. No. 8 [Mot.], filed March 27, 2014). Plaintiff filed his response on April 30, 2014 (Doc. No. 18 [Resp.]), and Defendants filed their reply on May 13, 2014 (Doc. No. 19 [Reply]). This motion is ripe for ruling.

STATEMENT OF THE CASE

Plaintiff's Complaint is not a model of clarity. Plaintiff alleges on February 20, 2012, Defendants Austin and Klaus responded to a call at a Walgreens store. (Doc. No. 2 [Compl.], ¶ 12.) Plaintiff states the officers found him lying on the ground being attended by medical responders and that "he was under arrest at this time due to a DUI offense and Car Accident prior to him on the ground at Walgreens." ( Id. ) In the next paragraph, Plaintiff states he was being treated for a head injury related to a fall inside Walgreens.[1] ( Id. at 13.) Plaintiff states he was transported by ambulance to Denver Health Medical Center and then released to the custody of Defendant Officer Blea. ( Id., ¶ 13.) Plaintiff alleges at the hospital he was handcuffed to a gurney. ( Id., ¶ 14.) Plaintiff alleges he could not feel his left hand because the handcuffs were too tight, but when he asked an unnamed officer to loosen the cuffs, the officer refused and told Plaintiff he was "going down." ( Id. ) Plaintiff alleges he started yelling for help, and the officer wheeled Plaintiff down the hall into a maintenance/storage closet, where Plaintiff was left for six hours. ( Id. ) After he was removed from the closet, Plaintiff was driven to the Denver Detention Center and then released from custody. ( Id. )

Plaintiff alleges thirteen days later, the Denver Police found him in his home with severe swelling, blistering, and bruising on his left arm. ( Id., ¶ 15.) Plaintiff states he was taken to Denver Health Medical Center, where he was diagnosed with compartment syndrome, and fasciotomies were performed on his forearm and hand. ( Id. ) Plaintiff alleges he has had sixteen surgeries and has lost the ability to use his left hand. ( Id. )

Plaintiff asserts five claims for relief. In his First Claim for Relief, Plaintiff claims Defendants violated his Fourth, Fifth, and Fourteenth Amendment rights. ( Id., ¶¶ 20-24.) Specifically, Plaintiff alleges the defendants violated his right to be free from unreasonable search and seizure, his right not to be deprived of liberty property without due process, his right to be free from excessive force, his right to be free from false arrest, and his right to just compensation for taking of property. ( Id., ¶ 21.) In his Second and Third Claims for Relief, Plaintiff alleges Defendants Blea, Swint, Austin, Klaus, and the City and County of Denver (the "City") adopted and implemented careless and reckless policies, customs, and practices in violation of Plaintiff's Fourth, Fifth, and Fourteenth Amendment rights. ( Id., ¶¶ 25-32.) In his Fourth Claim for Relief, Plaintiff alleges the defendants falsely imprisoned him. ( Id., ¶¶ 37-42.) In his Fifth Claim for Relief, Plaintiff alleges Defendant City is liable for the actions of all of the defendants under the theory of respondeat superior. ( Id., ¶¶ 43-44.) Plaintiff seeks declaratory and injunctive relief and compensatory and punitive damages. ( Id. at 7.)

Defendants move to dismiss Plaintiff's Amended Complaint on the bases that (1) the defendants are entitled to qualified immunity in their individual capacities; (2) Plaintiff fails to allege any facts in support of municipal liability; (3) the claims against the defendants in their official capacities are duplicative of the claims against Defendant City; (4) the Denver Police Department is not a separate entity subject to suit; (5) this Court lacks jurisdiction over the state law claims; (5) Plaintiff's state law claims must be dismissed for Plaintiff's failure to allege willful and wanton conduct; (6) Plaintiff's state law claim against the defendant police officers is barred by the statute of limitations; and (7) Plaintiff's state law claim against Defendant City should be dismissed because there is no applicable waiver of governmental immunity. ( See Mot.)

STANDARD OF REVIEW

1. Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).

A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations... [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

2. Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007). "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 relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. ...


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