United States District Court, D. Colorado
A. BRIMMER, United States District Judge
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.
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.
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
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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).
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).
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).
“[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).
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 ...