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Estate of Valverde v. Dodge

United States District Court, D. Colorado

August 17, 2017

ESTATE OF JOSEPH VALVERDE, by and through ISABEL PADILLA, as personal representative, Plaintiff,



         THIS 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.

         I. BACKGROUND[1]

         The 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.

         Despite 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.

         The 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.

         The 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.


         When a 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).

         In 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).

         A claim 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).


         There 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 Cir. 2004).

         A. Qualified Immunity ...

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