United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on the Motion to Dismiss Amended Complaint [#37],  filed by Defendants Dominick Luna ("Luna") and the City of Colorado Springs (the "City"). Plaintiff, who proceeds in this matter as a pro se litigant,  filed a Response [#39], and Defendants filed a Reply [#42]. The Motion has been referred to the undersigned for recommendation [#38] pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3). The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#37] be GRANTED.
I. Summary of the Case
Plaintiff is a Texas citizen. Am. Compl. [#30] ¶ 1. Defendant Luna is a patrol officer with the City of Colorado Springs Police Department. Id. ¶ 4. The City is Defendant Luna's employer. Id. Defendant Gary Woodrow Flanders ("Flanders") and Plaintiff have a long history of contentious interaction with one another. See, e.g., id. ¶ 13 (describing a four-year "convoluted District Court lawsuit with [Defendant] Flanders concerning a tract of commercial real estate").
According to the allegations in Plaintiff's Amended Complaint [#30], on November 1, 2012, Plaintiff and Defendant Flanders were coincidentally at the same post office in downtown Colorado Springs. Id. ¶ 16. While Plaintiff waited in line inside the building, Defendant Flanders identified Plaintiff's vehicle, which was parked nearby, by its Texas tags and proceeded to take multiple photographs of the interior by pressing his camera against the window glass. Id. ¶ 18. When Plaintiff exited the post office, Defendant Flanders rushed to within two feet of Plaintiff, his camera held chest high, taking multiple photographs of Plaintiff. Id. ¶¶ 20-21. Defendant Flanders continued to take photographs of Plaintiff's vehicle from all sides, which Plaintiff attempted to prevent him from doing. Id. ¶ 22. Plaintiff asserts that the 71-year-old Defendant Flanders' motives underlying this incident consisted of, first, hoping to be assaulted by Plaintiff so that Defendant Flanders could have Plaintiff arrested for elder abuse, and, second, providing a justification for a search by law enforcement of Plaintiff's vehicle so that any firearms therein could be seized. Id. ¶¶ 38-39. When Defendant Flanders moved away from the vehicle, Plaintiff got in and started the engine. Id. ¶ 23. As Plaintiff backed out of the parking space, he saw Defendant Flanders run down the sidewalk to two individuals who had witnessed the incident. Id. ¶ 24. As Plaintiff drove away, he saw Defendant Flanders talking with them. Id.
Approximately ninety minutes after Plaintiff left the post office, Defendant Flanders walked into the lobby of the Colorado Springs Police Department Police Operations Center ("POC") and called 9-1-1 from his cell phone. Id. ¶ 25. Defendant Flanders told the 9-1-1 operator that, "A fellow was trying to kill me." Id. ¶ 26. Defendant Luna was dispatched to meet Defendant Flanders at the POC, and Defendant Flanders told the officer that Plaintiff had threatened to "rape and kill him." Id. Defendant Flanders also admitted to Defendant Luna that he was on probation from federal prison. Id. ¶ 29. Defendant Flanders then provided Defendant Luna with a memory card holding eight photographs showing how Plaintiff and Defendant Flanders moved around Plaintiff's vehicle while Defendant Flanders snapped pictures. Id. ¶ 27. Plaintiff alleges that, during the ninety minutes before Defendant Flanders called 9-1-1, Defendant Flanders deleted the many other photographs he had taken and only kept the ones that best supported the story he was giving to Defendant Luna. Id. ¶ 28.
Defendant Luna proceeded to interview the two witnesses to whom Defendant Flanders had spoken immediately after the incident. Id. ¶ 29. One of the witnesses told Defendant Luna that, although he could not actually hear what Plaintiff and Defendant Flanders were saying at the vehicle, "most of what Plaintiff said were threats on Flanders' life." Id. Plaintiff asserts that these two witnesses, along with a third who was never interviewed by Defendant Luna, were later interviewed by Plaintiff's investigator, and that their statements did not corroborate Defendant Flanders' version of the events. Id. ¶¶ 34-37.
Defendant Luna thereafter signed an arrest warrant for Plaintiff. Id. ¶ 31. He called Plaintiff's cell phone number, which he obtained from Defendant Flanders, but Plaintiff missed the call and chose not to return it. Id. Plaintiff's attorney spoke with Defendant Luna the next day, and they arranged for Plaintiff to pick up a "no arrest" summons at the POC in lieu of being arrested, which Plaintiff did that same morning. Id. ¶ 32. Thus, Plaintiff was not arrested in connection with this case. Id. ¶ 41. Three months later, on February 6, 2013, the municipal court prosecutor moved to dismiss the charges against Plaintiff with prejudice "for lack of evidence." Id. ¶ 42. The court granted the request. Id.
Plaintiff asserts that this incident is part of Defendant Flanders' and the Colorado Springs Police Department's long-running harassment of Plaintiff. See, e.g., id. ¶¶ 39-40. In connection with these events, Plaintiff asserts six causes of action: (1) defamation/libel against Defendant Flanders, (2) intentional interference with a beneficial contractual relationship against Defendant Flanders, (3) malicious prosecution against Defendants Flanders and Luna, (4) Fourth and Fourteenth Amendment claims under 42 U.S.C. § 1983 against all Defendants, (5) a conspiracy claim under 42 U.S.C. § 1985(3) against all Defendants, and (6) respondeat superior against the City Defendant. Id. ¶¶ 47-111. In the Response [#39], Plaintiff concedes that he has not alleged a § 1983 claim for malicious prosecution but does assert the state-law version of this claim. Defendants Luna and the City argue that all of Plaintiffs' claims should be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted.
II. Standard of Review
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). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility 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 plaintiff [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).
"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, 677 (2009). However, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (citation omitted). That said, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik, 671 F.3d at 1192.
"The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that 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) (emphasis in original). "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 (citation omitted).
A. Claims Four and Five Against Defendant Luna
Defendant Luna seeks qualified immunity on Plaintiff's claims for monetary relief against him in his individual capacity. Motion [#37] at 4-5. Government officials are entitled to qualified immunity from liability for civil damages when their conduct does not violate clearly-established statutory or constitutional rights of which a reasonable person in their position would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity offers protection both from trial and the other burdens of litigation. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). When a defendant raises qualified immunity in a Rule 12(b)(6) motion to dismiss, the Court employs a two-step process. One part of the inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). "If no [c]onstitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. However, "if a violation could be made out on a favorable view of the parties' submissions, the [other part of the inquiry] is to ask whether the right was clearly ...