United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss by
Defendant Shiflett [Docket No. 28]. The Court has subject
matter jurisdiction pursuant to 28 U.S.C. § 1331.
case arises out of plaintiff's arrest and detention by
Immigration and Customs Enforcement (“ICE”)
officials. Plaintiff is an American citizen who lives in
Gunnison, Colorado. Docket No. 26 at 1-2, ¶¶ 1, 5.
On January 27, 2015, plaintiff was at the Gunnison county
court for a traffic matter when he was confronted by two men.
Id. at 3-4, ¶¶ 12-13. Plaintiff alleges,
“[o]n information and belief, ” that the men
“may have been Defendant [Christopher] Danaher and
Defendant Doe #1. Id. After plaintiff provided the
men with his Colorado identification, defendants conducted a
search of plaintiff without providing a warrant or asking for
plaintiff's permission. Id. at 4, ¶ 14. The
men then informed plaintiff that he would need to accompany
them to Alamosa for questioning. Id., ¶ 15.
After reaching a detention center in Alamosa, Defendant Does
#2, #3, and #4 asked plaintiff questions regarding his
“immigration status.” Id. at 5, ¶
19. Plaintiff informed these defendants that he was an
American citizen and had been born in Montrose. Id.
In response, these defendants accused plaintiff of lying and
stated that he was a Mexican citizen who was in the United
States illegally. Id. at 5, ¶ 20. One of these
defendants told plaintiff, “[Y]ou don't look like
you were born in Montrose, ” allegedly referring to
plaintiff's “Hispanic appearance.”
Id., ¶ 22.
Does #2, #3, and #4 told plaintiff that he could leave the
Alamosa detention center by posting a $12, 000 ICE bond.
Id., ¶ 23. Sometime on January 27, 2015, the
Department of Homeland Security issued documents “which
attempted to justify and prolong Plaintiff's custody,
” namely, a Warrant for Alien Arrest, a Notice to
Appear, and a Notice of Custody Determination. Id.
at 5-6, ¶ 25. Each document was signed by defendant
Robert Shiflett and served by defendant Danaher. Id.
at 6, ¶ 25. That evening, defendant was transferred to a
detention facility in Colorado Springs, id. at 6,
¶ 26, and, on January 29, 2015, was transferred to a
detention facility in Denver, Colorado. Id., ¶
29. At both facilities, plaintiff told an unknown number of
Defendant Does that he was an American citizen. Id.,
¶¶ 27, 30. During this same period, plaintiff's
family members attempted to present plaintiff's birth
certificate to any official they could get in contact with.
Id. at 7, ¶ 32. Despite these efforts, there
was no investigation into plaintiff's claim of
citizenship. Id., ¶¶ 33-34. On January 30,
2015, defendants learned that plaintiff was an American
citizen. Id., ¶ 35. After questioning plaintiff
as to why he had not told them sooner, defendants released
plaintiff from the detention center. Id. at 7,
¶¶ 36, 39.
filed this lawsuit on January 27, 2017 asserting claims
pursuant to Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), for unlawful
search and seizure under the Fourth Amendment, denial of due
process under the Fifth Amendment, and denial of equal
protection under the Fifth Amendment. Docket No. 1. On August
7, 2017, defendant Robert Shiflett moved to dismiss the
claims against him based on qualified immunity. Docket No.
28. Plaintiff filed a response to the motion, Docket No. 31,
to which defendant replied. Docket No. 36. On September 11,
2018, the Court ordered the parties to file supplemental
briefs addressing (1) whether a Warrant for Arrest of Alien,
a Notice to Appear, or a Notice of Custody Determination is
required to state specific facts to support a probable cause
determination and, if so, (2) whether the facts asserted can
be so facially deficient as to render the issuing
officer's determination of probable cause objectively
unreasonable. Docket No. 48. Both parties filed supplemental
briefs on September 18, 2018. Docket Nos. 49, 50.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
qualified immunity context, a plaintiff “must allege
facts sufficient to show (assuming they are true) that the
defendants plausibly violated their constitutional rights,
and that those rights were clearly established at the
time.” Robbins v. Oklahoma ex rel. Dep't of
Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008).
Shiflett moves for dismissal of plaintiff's claims under
the Fourth and Fifth Amendments on the ground that plaintiff
has failed, pursuant to qualified immunity analysis, to
allege a plausible violation of his clearly established
No. 28 at 1, 3-9.
Fourth Amendment Claim
Fourth Amendment of the U.S. Constitution “prohibits
government officials from detaining a person in the absence
of probable cause.” Manuel v. City of Joliet,
Ill., 137 S.Ct. 911, 918 (2017). “Probable cause
exists if facts and circumstances within the . . .
officer's knowledge and of which he or she has reasonably
trustworthy information are sufficient to lead a prudent
person to believe that the arrestee has committed or is
committing an offense.” Olsen v. Layton Hills
Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (internal
quotation marks omitted). Because probable cause is
determined according to an objective standard, United
States v. Valenzuela, 365 F.3d 892, 896 (10th Cir.
2004), the focus of the inquiry is ...