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Sequeira v. McClain

United States District Court, D. Colorado

March 31, 2017

DAVID McCLAIN, KIEL JOHNSON, JEFFREY GROFF, in his official capacity as EBAT Program Manager for the Colorado Department of Public Health and Environment, and in his individual capacity, DAVID BUTCHER, in his official capacity as former Director of the Laboratory Services Division for the Colorado Department of Public Health and Environment, and in his individual capacity, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT - LABORATORY SERVICES DIVISION, CMI, INC., a Kentucky Corporation, and ALAN C. TRIGGS, Corporate Compliance Officer - Corporate Counsel, CMI, Inc., Defendants.


          PHILIP A. BRIMMER, United States District Judge

         The matter is before the Court on CMI, Inc.'s and Alan Triggs' Motion to Dismiss Amended Complaint with Prejudice [Docket No. 61]; Defendant [sic] McClain and Johnson's Motion to Dismiss Amended Complaint [Docket No. 63]; and Motion to Dismiss Amended Complaint by Colorado Department of Public Health and Environment - Laboratory Services Division, Jeffrey Groff and David Butcher [Docket No. 70]. The Court has jurisdiction pursuant to 28 U.S.C. 1331.

         I. BACKGROUND[1]

         This case arises from the arrest and prosecution of plaintiff for driving under the influence of alcohol (“DUI”). Docket No. 58. Plaintiff brings claims for constitutional violations pursuant to 42 U.S.C. § 1983. He alleges that the arresting officers, David McClain and Kiel Johnson (“police officers”), violated his civil rights under federal law by forcing him to perform roadside maneuvers without a coat in below-freezing weather and by arresting him without probable cause. Id. at 2, ¶ 2. He also brings a claim against the Colorado Department of Public Health and Environment - Laboratory Services Division (“CDPHE”) and two of its employees, Jeffery Groff and David Butcher (collectively, “state defendants”), for withholding evidence related to their allegedly false certification that the Intoxilyzer 9000 machine used to test plaintiff's blood alcohol level was properly calibrated and tested. Id. at 30-31, ¶ 78-83. Finally, plaintiff alleges a conspiracy among the state defendants, CMI, Inc. (the company that makes the Intoxilyzer 9000) and its former general counsel, Alan C. Triggs (together, “CMI defendants”), to improperly withhold exculpatory evidence related to the testing and operation of the Intoxilyzer 9000. Id. at 2, ¶ 3.

         In the early morning of November 24, 2013, Officer McClain stopped the car plaintiff was driving in Louisville, Colorado for a defective headlight. Docket No. 58 at 6, ¶ 17. At the scene of the stop, it was 24 degrees with a windchill of 19.1 degrees. Id., ¶ 19. A video camera in the patrol car recorded the stop. Id., ¶ 18; see also Docket No. 43, Ex. A (“Arrest Video”).[2]

         When Officer McClain activated his overhead lights, plaintiff turned on his right turn signal, but took more than a minute to pull over. Docket No. 58 at 6, ¶ 18; Arrest Video at 3:38:05-3:49:20. Before pulling over, plaintiff passed roads on which he could have made a right turn and passed several safe locations to pull over. Arrest Video at 3:38:05-3:49:20. Plaintiff eventually did make a right turn and pulled over to the curb. Id. The video does not show any evidence of bad driving on plaintiff's part.

         After plaintiff pulled his vehicle over, Officer McClain got out of his patrol car and walked up to plaintiff's car. While standing next to the driver's window, Officer McClain asked for plaintiff's license and registration and asked plaintiff questions about where he was going to and coming from. Arrest Video at 3:50. He then radioed for backup to perform “roadsides.” Id. at 3:52. Officer Johnson responded to the scene. Id. Upon walking back to plaintiff's vehicle, Officer McClain asked plaintiff, “Do you want to jump out and talk to me?” Id., at 3:54. Plaintiff immediately got out of the car. Id. Officer McClain then asked plaintiff to move to the sidewalk in order not to get run over. Id. Officer McClain asked plaintiff if he had been drinking. Id. at 3:55. Plaintiff said no. Id.[3] Plaintiff also said that his passenger had not been drinking. Id. Officer McClain stated, “I'm smelling it off somebody.” Id. Officer McClain asked plaintiff if he “would do voluntary roadsides to tell if he was good to drive.” Id. Plaintiff said, “of course.” Id. Officer McClain explained to plaintiff that he was going to perform a horizontal gaze nystagmus (“HGN”) test. Id. at 3:56. He asked plaintiff to keep his head still and straight while doing the test. Id. Plaintiff said that he was cold, and Officer McClain asked if he had a coat. Id. Plaintiff said that he did not. Id. Plaintiff complained that he was “freezing” and shivering. Id. at 3:57. After finishing the HGN test, Officer McClain had plaintiff perform a walk-and-turn test. Id. Plaintiff said that he was very cold and that he was shaking. Id. at 3:59. Officer McClain told him he would “take that into consideration.” Id. Officer McClain then had plaintiff stand on one leg and count. Id. at 4:00. Plaintiff stated, “look how bad I'm shaking.” Id.

         Officer McClain then asked plaintiff if he would take a “voluntary” portable breathalyzer test (“PBT”). Arrest Video at 4:01. Plaintiff asked if taking the test was voluntary and what would happen if he refused. Id. at 4:02. Officer McClain told plaintiff that it did not matter to him whether plaintiff took the test. He said, “whatever you want to do.” Id. at 4:02:19. Plaintiff expressed concerns about the consequences of not taking the PBT, but agreed to take it. Id. at 4:02:53. Officer McClain said he needed some time for his PBT to warm up. Id. at 4:03. Officer McClain then said his PBT was “cold, like you, and it's not going to work.” Id. Officer Johnson performed the test with his PBT. Id. at 4:04. Officer McClain then arrested plaintiff for DUI. Id. at 4:04:40. At this point, plaintiff had been outside his car for just over ten minutes.

         After arresting plaintiff, Officer McClain put him in the back of his patrol car with the door open. Docket No. 58 at 12, ¶ 31. Officer McClain and plaintiff then had an extended discussion about whether plaintiff would consent to an official blood or breath test or whether plaintiff refused to take either. Arrest Video at 4:05-10. Plaintif f continued to complain that he was “cold, ” id. at 4:09, and “freezing, ” id. at 4:10, and Officer McClain said, “I will turn the heat on for you” and indicated that he had done so. Id. at 4:10:41. This was approximately sixteen minutes after plaintiff exited his car. Id. After further discussion, plaintiff agreed to take a breath test. Id. at 4:13:18.

         Plaintiff was taken to the Louisville Police Department and instructed to blow into an Intoxilyzer 9000 device. Docket No. 58 at 13, ¶ 32. The Intoxilyzer 9000, unlike the Intoxilyzer model previously used in Colorado, does not capture a sample of the breath to allow independent confirmation of its results. Id. at 15-16, ¶ 36. Instead, it provides only a histogram result. Id. at 13, ¶ 32. Plaintiff blew into the device twice, and Officer McClain recorded the result of one of those tests as 0.077. Id. Plaintiff alleges that he had not been drinking and that the device's result was erroneous. Id.

         By regulation, breathalyzer devices in Colorado must be tested and certified by the CDPHE in order to have their results be admissible in DUI prosecutions. 5 Colo. Code Regs. § 1005-2:1 et seq. Plaintiff alleges that Mr. Groff caused Mr. Butcher to issue certificates falsely certifying that the Intoxilyzer 9000 he used had been properly tested and complied with Colorado's requirements. Docket No. 58 at 16, ¶ 37. Plaintiff also alleges that Mr. Groff destroyed all the documents related to the “testing, accuracy and reliability” of such devices so that such documents would not be discoverable by criminal defendants through the Colorado Open Records Act (“CORA”). Id. at 17-18, ¶ 40.

         Plaintiff was charged with DUI in the County Court, Boulder County, Colorado (“Boulder County Court”). People v. Sequeria, No. 9:13T3851. During the criminal proceedings, plaintiff sought material about the design, operation, and validation of the Intoxilyzer 9000. Docket No. 58 at 21, ¶ 47. Defendants acknowledged the existence of such materials, but “conspired to prevent the documents from being disclosed to defense counsel” by having “the district attorney file a motion to quash Plaintiff's requests, asserting that the materials explaining the methods of operation and design of the Intoxilyzer 9000 were protected by CMI, Inc.'s copyright.” Id. Plaintiff alleges that this claim was “legally fictitious” because the proposed use would have been subject to the “fair use” exception to copyright infringement. Id. at 21-22, ¶ 48.

         On April 21, 2014, the Boulder County Court held a motions hearing (“suppression hearing”). Docket No. 58 at 22, ¶ 50. The court found that Officer McClain lacked probable cause that plaintiff had been driving under the influence before he exited his vehicle and that plaintiff was ordered out of the vehicle by Officer McClain, i.e., that the roadside tests were involuntary. Docket No. 58 at 22-23, ¶ 50. On April 30, 2014, the court issued an order suppressing the search and any evidence obtained thereafter. Id. (citing Order Regarding the Defendant's Motion to Suppress the Results of Government Action in Violation of the Fourth Amendment to the Constitution of the United States, slip op. at 2 (April 30, 2014)). The charges against plaintiff were then dismissed and the court did not rule on plaintiff's requests for information about the Intoxilyzer 9000. Id.

         On November 24, 2015, plaintiff filed his complaint. Docket No. 1. He filed an amended complaint on May 4, 2016. Docket No. 58. On May 18, 2016, the CMI defendants and the police officers filed their motions to dismiss. Docket No. 61, 63. On May 25, 2016, the state defendants filed their motion to dismiss. Docket No. 70.


         Defendants request that the Court dismiss plaintiff's amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Docket Nos. 61, 63, 70.

         Under Rule 12(b)(1), defendants CDPHE, Groff, and Butcher (“State Defendants”) challenge the Court's jurisdiction to hear plaintiff's fifth and sixth claims for relief based on a lack of standing, claiming that plaintiff cannot show he was injured because he was not convicted. Docket No. 70 at 5-6. The federal courts are courts of limited jurisdiction that only have subject matter jurisdiction over live cases and controversies. Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). A court resolves such issues under Rule 12(b)(1).

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if a court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F .3d 1001, 1013 (10th Cir. 2003)). Here, state defendants bring a facial attack because they do not seek to introduce any evidence to show the Court lacks jurisdiction. When resolving a facial attack on the allegations of subject matter jurisdiction, the Court “must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

         All defendants challenge plaintiff's claims for failure to state a claim under Rule 12(b)(6). “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) (quoting Sutton v. Utah St. Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). In doing so, the 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.” Alvarado, 493 F.3d at 1215. At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).

         Generally, “[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.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks 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, 678 (2009). The “plausibility” standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Nonetheless, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alteration marks omitted).

         The police officers and state defendants invoke the doctrine of qualified immunity with respect to the claims against them. Docket No. 63 at 6-7; Docket No. 70 at 13-14. “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity provides immunity from trial and the other burdens of litigation such as discovery, rather than merely a defense to liability. See Saucier v. Katz,533 U.S. 194, 200 (2001), overruled on other grounds by Pearson, 555 U.S. 223. Therefore, a court should resolve questions of qualified immunity at the earliest possible stage of litigation. Anderson v. Creighton,483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified immunity challenge still does not have a heightened pleading standard. Currier v. Doran,242 F.3d 905, 916-17 (10th Cir. 2001); see Id . at 914 (although qualified immunity protects public officials “from the costs ...

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