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Olivas v. City of Fountain

United States District Court, D. Colorado

January 30, 2018

CITY OF FOUNTAIN, and MATTHEW RACINE, in his individual and official capacities, Defendants.


          Michael E. Hegarty, United States Magistrate Judge

         Plaintiffs 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.


         I. Statement of Facts

         The 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).[1]

         Plaintiffs 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.

         Mr. 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.

         Defendant 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.

         During 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.

         II. Procedural History

         Based 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.


         “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.'” 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.

         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.

         However, “[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 ...

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