Watlington v. Browne

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss [#6]^[1] (the “Motion”). Plaintiff filed a Response [#11] in opposition to the Motion, and Defendant filed a Reply [#12]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons stated below, the Court respectfully RECOMMENDS that the Motion [#6] be GRANTED.

         I. Summary of the Case ^[2]

         This is a civil rights action seeking damages against a Colorado Springs Police K-9 Officer for dog bite injuries suffered by Plaintiff on December 11, 2015. Compl. [#1] ¶ 1. The incident occurred as Plaintiff enjoyed a night out and was leaving the Peak Tavern, located at 2001 Platte Avenue, in Colorado Springs, Colorado. Id. ¶ 10. Defendant arrived at the tavern, in full police uniform, with about four or five other officers. Id. ¶ 11. The officers went into the tavern through the front door while Defendant waited outside the back door. Id. ¶ 12. Plaintiff exited the tavern through the back door, which led almost immediately to an adjacent apartment complex where Plaintiff lived. Id. ¶ 13.

         Upon exiting the tavern, Plaintiff heard some muffled shouts, but no indication that the man was a police officer or that Plaintiff was being commanded to do anything. Id. ¶ 15. Seeing Plaintiff walk away, Defendant ordered his K-9 unit “Blitz” to seize Plaintiff by biting him. Id. ¶ 16. Plaintiff turned toward the source of the yelling in time to see the officer point toward him and the animal run in his direction. Id. ¶ 17. The dog ran up to Plaintiff and bit Plaintiffs leg multiple times, for approximately 5-10 seconds, and then held Plaintiff down on the ground during which time Defendant did not attempt to intervene to prevent the dog from biting or otherwise cease the attack. Id. ¶ 18. Eventually Defendant removed the dog from the hold the dog had on Plaintiffs leg. Id. ¶ 19. Plaintiff was treated by EMTs and later at Penrose St. Francis Hospital where doctors sutured several puncture wounds and one large gaping wound made by the K-9, as well as abrasions on both of Plaintiff s palms. Id. ¶¶ 21, 22.

         While being treated, Defendant's K-9 Supervisor, Brian Cummings, arrived and asked Plaintiff questions about the incident. Id. ¶ 23. He informed Plaintiff that the officers had been looking for a white male in his 50s or 60s, and that Plaintiff obviously did not fit the description. Id. He acknowledged that the K-9 should not have been used to bite him and that Defendant had violated Colorado Springs Police Department (“CSPD”) protocol. Id.

         This is Plaintiff's second lawsuit seeking damages arising from the December 11, 2015 encounter with Defendant.^[3] See Motion [#6] at 1. Plaintiff filed his first complaint in the District Court of El Paso County, Colorado (the “State Court Action”) and alleged that he was injured when “[i]n December of 2015, Officer Browne of CSPD released his German Shephard on me when I had committed no crime.” Id. The first complaint alleged a constitutional claim based on 42 U.S.C. § 1983 and sought damages for “hospital fees, loss of work, pain & suffering, and humiliation due to Defendant's misconduct.” Id. at 2. Defendant and other defendants in the State Court Action (collectively, the “City Defendants”) filed a motion to dismiss for failure to state a claim upon which relief could be granted. Id. The court granted the City Defendants' motion and noted that Plaintiff did not file an objection. See Def.'s Ex. C [#6-3] at 1. Plaintiff did not appeal the court's rulings. Rather, Plaintiff turned to this Court and filed a second complaint.

         In the second complaint, Plaintiff again names Tim Browne as a defendant, seeking relief under 42 U.S.C. § 1983, and claims that he was injured by the K-9 unit. Compl. [#1] ¶ 1. In the present Motion [#6], Defendant seeks dismissal of this action pursuant to Fed.R.Civ.P. (12)(b)(6).

         II. Standard of Review

          The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusion or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader is entitled to relief, ” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).

         III. Analysis

         Defendant argues that claim preclusion bars Plaintiff's claims because Plaintiff is seeking to relitigate issues that were or could have been brought in the State Court Action. See Motion [#6] at 4. “Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action.” Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993) (citing N. Nat. Gas v. Grounds, 931 F.2d 678, 681 (10th Cir. 1991) (internal quotation marks omitted)). Claim preclusion requires that four elements be satisfied: (1) a judgment on the merits in the earlier action; (2) identity of the parties or their privies in both suits; (3) ...