United States District Court, D. Colorado
ESTATE OF JOSEPH VALVERDE, by and through ISABELLE PADILLA, as representative and next of kin of the decedent, Plaintiff,
JUSTIN DODGE, and THE CITY AND COUNTY OF DENVER, COLORADO Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendants' Motion to Dismiss First Amended
Complaint [filed October 25, 2016; ECF No. 30]. On
April 17, 2017, the Honorable Marcia S. Krieger referred the
motion to this Court for recommendation. The motion is fully
briefed, and the Court finds that oral argument will not
assist in its adjudication. Defendants' motion asks the
Court to determine whether Plaintiff's Amended Complaint
states individual and municipal liability claims against
Defendants under 42 U.S.C. § 1983. For the following
reasons, the Court respectfully recommends that
Defendants' motion to dismiss be granted in part and
denied in part.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in the Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678
2, 2014, the Denver Police Department (“DPD”)
arranged an undercover drug bust operation, where DPD's
officers planned to arrest Joseph Valverde after selling him
cocaine. Am. Compl. ¶ 12, ECF No. 27. During the deal, a
white SUV drove into a nearby parking lot, and approximately
seven members of the DPD SWAT team exited the vehicle and
surrounded Valverde. Id. at ¶ 17. Immediately
after Valverde noticed the SWAT team, he discarded his
handgun on the ground without pointing it at any officers or
bystanders. Id. at ¶¶ 18, 21. Valverde
then raised both of his hands near his head in an obvious
position of surrender. Id. at ¶ 19. While
Valverde's gun was on the ground and his empty hands were
in the air, Defendant Dodge discharged his assault rifle
multiple times at Valverde, which eventually led to his
death. Id. at ¶ 20.
the incident, Dodge gave false accounts of the shooting to
investigators and other personnel, including a statement that
he fired his weapon after he saw Valverde raise the gun
towards him. Id. at ¶ 25. Additionally, Denver
issued public statements designed to cover up and conceal the
use of unnecessary deadly force. Id. at ¶ 27.
Specifically, Denver stated that Dodge shot Valverde only
after Valverde advanced on Dodge's fellow officers with a
raised weapon. Id. at ¶ 28. Denver allegedly
labeled Dodge a hero and took the position that Dodge's
conduct was consistent with DPD policies and procedures.
Id. at ¶¶ 29-30.
on these factual allegations, Plaintiff filed its original
Complaint on July 3, 2016. On September 22, 2016, Defendants
filed a Motion to Dismiss the Complaint. ECF No. 17. In
response to Defendants' motion, Plaintiff filed the
operative Amended Complaint as a matter of course. ECF No.
27. Plaintiff's Amended Complaint asserts two causes of
action under 42 U.S.C. § 1983: (1) a Fourth Amendment
violation against Dodge in his individual capacity and (2) a
municipal liability claim against Denver. Am. Compl.
October 25, 2016, Defendants filed the present Motion to
Dismiss for Failure to State a Claim. ECF No. 30. First,
Defendants argue that, in deciding their motion, the Court
should consider video evidence of the alleged incident.
Defs.' Mot. 2-4. Incorporating this evidence, Defendants
contend Dodge is entitled to qualified immunity, because the
shooting did not violate clearly established federal law.
Id. at 5-13. Next, Defendants argue Plaintiff fails
to assert a plausible municipal liability claim against
Denver. Id. at 13-26. In its response, Plaintiff
contends the Court's analysis must be confined to the
four corners of the Amended Complaint, Dodge's actions
violate clearly established federal law, and “Plaintiff
has presented a robust set of Monell allegations
against Denver.” Pl.'s Resp. ECF No. 37. Defendants
filed a Reply in Support of their Motion on December 5, 2016.
ECF No. 38. After the Honorable Kathleen M. Tafoya recused
herself from this case, it was reassigned to this Court on
April 17, 2017. ECF No. 40.
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.'”
Iqbal, 556 U.S. at 678 (quoting 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. Twombly
requires a two-prong analysis. First, a court must identify
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679-80. Second, the Court
must consider the factual allegations “to determine if
they plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 680.
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 plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
issues before the Court are whether it should consider
Defendants' video evidence at this stage of the
proceeding, whether Plaintiff has alleged Dodge's actions
violated clearly established constitutional law, and whether
Plaintiff sufficiently pleads a municipal liability claim
against Denver. The Court will address each issue in turn.
Consideration of Video Evidence
first argue that, in determining whether Plaintiff's
Amended Complaint states a claim, the Court should consider
video evidence of the underlying incident. Defs.' Mot.
2-4. According to Defendants, this is proper, because
Plaintiff referenced the video in the original Complaint, and
the Amended Complaint refers to the incident depicted in the
video. Id.; Defs.' Reply 2. Plaintiff contends
the Court cannot consider the evidence, because it did not
specifically reference or incorporate the video into the
Amended Complaint. Pl.'s Resp. 8-9. The Court agrees with
motion to dismiss stage, courts generally cannot consider
evidence outside of the pleadings. See, e.g.,
Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)
(“Generally, the sufficiency of a complaint must rest
on its contents alone.”). The only exceptions to this
well-established rule are for “(1) documents that the
complaint incorporates by reference, (2) ‘documents
referred to in the complaint if the documents are central to
the plaintiff's claim and the parties do not dispute the
documents' authenticity, ' and (3) ‘matters of
which a court may take judicial notice.'”
Id. (quoting Jacobsen v. Deseret Book Co.,
287 F.3d 936, 941 (10th Cir. 2002); Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)) (internal citations omitted).
Defendants first argue that consideration of the outside
evidence is proper, because Plaintiff specifically referenced
the video in the original Complaint. Defs.' Mot. 3.
However, “it is well established that an amended
complaint ordinarily supersedes the original and renders it
of no legal effect.” Davis v. TXO Prod. Corp.,
929 F.2d 1515, 1517 (10th Cir. 1991) (quoting Int'l
Controls Corp. v. Vesco, 556 F.2d 665 (2d. Cir. 1977)).
Because the original Complaint is of no effect, the Court
cannot consider allegations or documents Plaintiff references
only in the original Complaint. See id.; Kelley
v. Crosfield Catalysts, 135 F.3d 1202, 1204 (7th Cir.
1998) (holding that the ...