United States District Court, D. Colorado
ESTATE OF JOSEPH VALVERDE, by and through ISABEL PADILLA, as personal representative, Plaintiff,
JUSTIN DODGE; and The CITY AND COUNTY OF DENVER, COLORADO, Defendants.
OPINION AND ORDER ADOPTING RECOMMENDATION AND
GRANTING IN PART MOTION TO DISMISS
S. KRIEGER UNITED STATES DISTRICT COURT JUDGE.
MATTER comes before the Court on the Magistrate
Judge's Recommendation (# 41) that the
Defendants' Motion to Dismiss (# 30) be
granted in part and denied in part, and the Defendants'
timely filed objections thereto (# 42). For
the following reasons, the Recommendation is adopted and the
motion is granted in part and denied in part.
Amended Complaint alleges that in July 2014, the Denver
Police Department (DPD) performed an undercover drug
operation wherein officers planned to arrest Joseph Valverde
after selling him cocaine. During the drug sale, officers
were located in a close-by parking lot. Approximately seven
SWAT officers approached and surrounded Mr. Valverde, who
initially pulled a firearm from his waistband, then dropped
it and raised empty hands near his head.
the fact that Mr. Valverde held no firearm (and it was on the
ground), Defendant Justin Dodge shot Mr. Valverde multiple
times, killing him. After the incident, Officer Dodge gave
false accounts to investigators, stating that he saw Mr.
Valverde raise and point his firearm. The City and County of
Denver (City) made a public announcement that Officer Dodge
fired only after Mr. Valverde advanced with his weapon
raised, and declared Officer Dodge to be a hero and his
conduct to be consistent with DPD policies and procedures.
Plaintiff brought this suit in July 2016, alleging that
Officer Dodge had used excessive force violating of Mr.
Valverde's Fourth Amendment rights and that the City was
liable for Officer Dodge's conduct under Monell v.
Department of Social Services, 436 U.S. 658, 694 (1978).
The Defendants move to dismiss all claims (#
27). The Defendants argue that Officer Dodge is
entitled to qualified immunity and that the Plaintiff has not
sufficiently alleged a basis for municipal liability. The
Plaintiff responds that the law with regard to the excessive
force claim is clearly established and that the City is
liable under Monell because (1) the City had an
informal custom of “shoot first, ask later”; (2)
the City failed to train or supervise its officers; (3) the
City had an unconstitutional formal policy; and (4) the City
ratified Officer Dodge's conduct.
Motion to Dismiss was referred to the Magistrate Judge, who
recommended that it be granted, in part, as to two theories
underlying the Monell claim, but denied in all other
respects. The Defendants object to the Recommendation arguing
that (1) the Magistrate Judge should have considered video
evidence referenced in the original Complaint (but not the
Amended Complaint) in conjunction with the assertion of a
defense of qualified immunity; (2) the Magistrate Judge
should not have considered other cases in assessing whether
there was adequate pleading of a custom or practice
sufficient to support municipal liability; and (3) the
Amended Complaint had insufficient factual allegations to
support a claim of municipal liability based on failure to
train its officers.
Magistrate Judge issues a recommendation on a dispositive
motion, the parties may file specific, written objections
within fourteen days after being served with a copy of the
recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The Court makes a de novo determination of those
portions of the recommendation to which timely and specific
objection is made. United States v. One Parcel of Real
Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996).
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept all well-pleaded allegations in the
complaint as true and view those allegations in the light
most favorable to the nonmoving party. Stidham v. Peace
Officer Standards & Training, 265 F.3d 1144, 1149
(10th Cir. 2001) (quoting Sutton v. Utah State Sch. for
the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999)). The Court must limit its consideration to the four
corners of the complaint, any exhibits attached thereto, and
any external documents that are incorporated by reference.
See Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009). However, a court may consider 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. Alvarado v. KOB-TV LLC,
493 F.3d 1210, 1215 (10th Cir. 2007).
is subject to dismissal if it fails to state a claim for
relief that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make
such an assessment, the Court first discards those averments
in the complaint that are merely legal conclusions or
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements. The Court then takes
the remaining, well-pleaded factual contentions, treats them
as true, and ascertains whether those facts (coupled, of
course, with the law establishing the requisite elements of
the claim) support a “plausible” as compared to a
“conceivable” claim. See: Khalik v. United
Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
is no dispute that a police officer's use of excessive
force in apprehending a suspect violates the suspect's
rights under the Fourth Amendment to the United States
Constitution. Whether the force used in this case was
excessive at this juncture requires the Court to consider the
totality of the circumstances described in the Amended
Complaint to determine whether the force described could be
viewed as objectively unreasonable. Several non-exclusive
factors are considered - the severity of the crime at issue,
whether the suspect posed an immediate risk of harm to an
officer or another person, whether the suspect was evading
arrest, and whether the officer's own conduct created the
need to use any force. The reasonableness of an officer's
actions is evaluated “from the on-scene perspective,
not with the advantage of 20/20 hindsight.” Jiron
v. City of Lakewood, 392 F.3d 410, 414-15, 418 (10th
Qualified Immunity ...