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In re Estate of Valverde

United States District Court, D. Colorado

May 9, 2017

ESTATE OF JOSEPH VALVERDE, by and through ISABELLE PADILLA, as representative and next of kin of the decedent, Plaintiff,


          Michael E. Hegarty, United States Magistrate Judge.

         Before 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.[1]


         I. Facts

         The 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 (2009).

         On July 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.

         After 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.

         II. Procedural History

         Based 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. ¶¶ 42-59.

         On 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.


         “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.'” 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.

         Plausibility 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.


         The 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.

         I. Consideration of Video Evidence

         Defendants 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 Plaintiff.

         At the 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).

         Here, 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 ...

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