United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge
Eli Olivas (“Olivas”) and Marisela Chavez
(“Chavez”) initiated this action in El Paso
County District Court, Colorado, on July 21, 2017. Defendants
removed the action to this Court on August 16, 2017, pursuant
to 28 U.S.C. §§ 1441, 1443, and 1446. Plaintiffs
filed an Amended Complaint as a matter of course on October
6, 2017, alleging generally that Defendants engaged in
violations of Plaintiffs' rights secured by the Second,
Fourth, Fifth, and Fourteenth Amendments. In response,
Defendants City of Fountain (the “City”) and
Matthew Racine (“Racine”) filed a motion to
dismiss the Amended Complaint. Following review of the motion
and briefing, the Court finds the Plaintiffs have failed to
state plausible claims against either Defendant. Therefore,
the Court will grant the Defendants' motion.
Statement of Facts
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiffs in the Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
reside at 7934 Cairn Court in Fountain, Colorado. Am. Compl.
¶¶ 10-11. Mr. Olivas is a decorated American
veteran who served tours in Iraq and Bosnia. Id.
¶ 3. He has been diagnosed with post-traumatic stress
disorder and a compression fracture in his lumbar spine, and
he has knee injuries caused by his service in the Army.
Id. Ms. Chavez is a clinical coordinator in a dental
facility. Id. ¶ 4.
Olivas is a registered medical marijuana patient pursuant to
article XVIII, section 14 of the Colorado Constitution.
Id. ¶ 12. Additionally, Mr. Olivas grows
marijuana plants at his residence pursuant to article XVIII,
section 16 of the Colorado Constitution. Id. At the
relevant time, he was growing eighteen marijuana plants in an
opaque plastic greenhouse in his backyard. See Id.
¶¶ 10, 13-14, 25-26. The greenhouse was enclosed by
a six-foot fence that surrounded the yard; the fence had an
extension that climbed to approximately eleven feet on the
portion facing the street. Id. ¶ 13. These
measures obscured the plants from public view. Id.
The fence was secured by two gates that were locked or
screwed shut. Id.
Racine is an officer in the City of Fountain Police
Department. Id. ¶ 6. On July 15, 2016, Racine
secured a warrant, signed by a judge, that authorized the
search of Plaintiffs' residence and the seizure of any
marijuana, firearms, and ammunition discovered within.
Id. ¶¶ 14-15. The warrant did not specify
any particular crime Plaintiffs were suspected of committing.
Id. ¶ 18. At approximately 6:00 a.m. on July
22, 2016, the City of Fountain Police Department executed the
warrant. Id. ¶ 14. A SWAT team entered the
residence by detonating a “flash bang” grenade.
Id. ¶ 19. The grenade woke Mr. Olivas, and he
went to the front of the house where he found the SWAT team
waiting with their weapons drawn. Id. ¶ 20. The
SWAT team ordered him out of the house, and he exited wearing
only his underwear and a tee shirt. Id. The SWAT
team then “raided” the house and forced Ms.
Chavez outside, wearing only her nightgown. Id.
¶ 21. Ms. Chavez informed the police that she had a
preexisting shoulder injury. Id. ¶ 22. The SWAT
team then handcuffed both Plaintiffs and forced them to sit
next to the exhaust pipe of a running police vehicle.
Id. ¶ 21. Ms. Chavez experienced a
“burning intense pain” and numbness in her
shoulder as a result of being handcuffed. Id. ¶
22. Both Plaintiffs experienced difficulty with their vision,
faintness, nausea, and headaches because of the exhaust
fumes. Id. ¶ 21.
the raid, Mr. Olivas asked Detective Brenda Lagree why the
police were searching his home. Id. ¶ 28.
Detective Lagree replied that it was for an illegal grow
operation, but she was “unsure” and
“confused” on the law. Id. During the
search, the police destroyed one of the gates surrounding the
greenhouse, and the officers seized Mr. Olivas' 5.56
millimeter Sig Sauer rifle, Glock 17 handgun, and AK-47
rifle. Id. ¶¶ 25, 31. After the SWAT team
completed the raid, the Plaintiffs were allowed to return to
their home. Id. ¶ 30. Plaintiffs allege the
“SWAT raid . . . was not an isolated episode. The same
[conduct] occurred multiple times on the same morning of July
22, 2016.” Id. ¶ 39.
on these allegations, Plaintiffs bring four claims for
relief, all under 42 U.S.C. § 1983: (1) violation of the
Fourth and Fourteenth Amendments to be secure from
unreasonable searches and seizures; (2) violation of the
Fourth and Fourteenth Amendments for excessive force; (3)
violation of the Fifth and Fourteenth Amendments for
deprivation of liberty; and (4) violation of the Second and
Fourteenth Amendments for deprivation of the right to keep
and bear arms. Am. Compl. ¶¶ 43-57, ECF No. 25. The
present motion asks the Court to dismiss the claims against
the City for Plaintiffs' failure to identify a municipal
policy, practice, or custom that caused Plaintiffs'
injuries, and to dismiss the claims against Racine for
Plaintiffs' failure to state a claim sufficient to
overcome Racine's qualified immunity. Mot., ECF No. 27.
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled 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 678-80.
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.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to ...