United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG UNITED STATES MAGISTRATE JUDGE
case is before the court pursuant to 28 U.S.C. § 636(c),
upon the Parties' Consent to the Exercise of United
States Magistrate Judge Jurisdiction [#21; #42; #68] and the
Order of Reference dated September 11, 2018 [#83]. Pending
before this court is the Morgan County Defendants' Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (“the
Motion to Dismiss”) filed by Defendants James Crone,
Sheriff of Morgan County (“Defendant Crone” or
“Sheriff Crone”); Dave Martin, Undersheriff of
Morgan County (“Defendant Martin” or
“Undersheriff Martin”); and the Morgan County
Sheriff's Office's (“MCSO” and
collectively with Defendants Crone and Martin, “Morgan
County Defendants” or simply “Defendants”)
[#70, filed August 16, 2018]. On October 1, 2018, Plaintiff
filed his Response within the extended timeframe granted by
the court. [#87; #89]. The Morgan County Defendants filed
their Reply on October 15. [#92]. Having reviewed the
briefing, the record, applicable case law, and the arguments
of both Plaintiff and Defendants, the court
GRANTS the Motion to Dismiss and dismisses
the Second Amended Complaint with prejudice.
case concerns the Brush City Council meeting that occurred on
December 18, 2017 and the relevant facts are taken from
Plaintiff's Second Amended Complaint and the videotape of
the incident uploaded by Plaintiff to the video-sharing
service YouTube and referenced in the
Complaint. [#24 at 8]; Eric Brandt, FIRST
AMENDMENT (F***ING) EPIC FAIL (TOILET) BRUSH, COLORADO CITY
COUNCIL, YouTube (Dec. 20, 2017),
Eric Brandt (“Plaintiff” or “Mr.
Brandt”) attended the meeting and during an open
comment period began to make a public statement concerning
the City Council's alleged silencing of political speech.
[#24 at 7-8]. Mr. Brandt identifies himself as not being a
citizen of Brush and launches into an admonition of the
Council for “giving Colorado a bad name.”
[Recording at 2:35]. Mr. Brandt's speech quickly turned
hostile, as Mr. Brandt admonished the Council, stating
“I don't know what the f*** is wrong with you
people; but ‘F*** THE POLICE' is absolutely
protected speech.” [Id. at 10]. When one of the
City Councilors tried to interject, Mr. Brandt raised a hand
and stated, “You need to listen to me. Period.”
[Recording at 2:43]. The Councilor then stated that he would
cut Mr. Brandt off if he did not “behave.”
[Id.]. Mr. Brandt replied, “If you cut me off,
it would be a terrible thing for you.” [Id. at
2:50]. When told he needed to address the Council with
respect, Mr. Brandt replied, “I don't need to
f***ing address you with nothing” and added, “YOU
work for me; you work for these people; and if you don't
like the word ‘F***,' then that's too bad-you
shouldn't have taken the job.” [Id.]
(emphasis in original). One of the Councilors stated,
“I think we are done.” [Id. at 3:12].
Local police officers, none of whom are joined as defendants,
approached Mr. Brandt to remove him. When departing under
escort, Mr. Brandt shouted “I object to this unlawful
silencing of my speech. Ladies and Gentlemen of Brush, Get
ready for a mother f***ing surprise!” [Id.].
Mr. Brandt was placed under arrest. [Id.].
Brandt initiated this civil action on February 26, 2018, by
filing pro se a Complaint asserting violations of
various constitutional rights pursuant to 42 U.S.C. §
1983. [#1]. The court granted Plaintiff's application to
proceed in forma pauperis under 28 U.S.C. §
1915 and, after undertaking a preliminary review pursuant to
that statute and D.C.COLO.LCivR 8.1, ordered him to file an
amended pleading. [#4; #8]. Plaintiff filed an Amended
Complaint, [#7], and thereafter submitted two sets of
documents, [#15; #16], which the court construed as
supplements to the Amended Complaint. See [#23]. The
operative pleading, filed on May 30, 2018, is hereafter
referred to as the Second Amended Complaint. [#24]. The
Second Amended Complaint named nineteen individuals,
counties, and municipalities as Defendants. See Id.
Many of these defendants were subsequently voluntarily
dismissed by Plaintiff [#60; #61; #81; #96]. The only
remaining Defendants-the Morgan County Defendants-have filed
the instant Motion to Dismiss [#70]. Pursuant to
Plaintiff's request [#86], this court extended the
deadline to respond to the motions to dismiss until October
22, 2018 [#87]. Plaintiff filed a Response on October 1, 2018
[#89] and the Morgan County Defendants filed their Reply on
October 15, 2018. [#94].
Second Amended Complaint, less the claims against
now-dismissed defendants, brings five claims. Plaintiff's
First Claim alleges that the Defendants violated Mr.
Brandt's First Amendment rights in violation of §
1983 by improperly “silencing his speech and removing
him from the meeting based on its content and viewpoint. [#24
at ¶¶ 33-50]. Plaintiff's Second Claim alleges
that the Defendants retaliated against him for the exercise
of his First Amendment rights, as described above.
[Id. at ¶¶ 51-65]. Plaintiff's Third
Claim alleges that the Defendants violated Mr. Brandt's
Fourth Amendment right against unreasonable search and
seizure in violation of § 1983. [Id. at
¶¶ 66-72]. Plaintiff's Fourth Claim alleges
that the Morgan County Sheriff's Office and Sheriff Crone
(but not Undersheriff Martin) failed to supervise the
officers at issue and maintain a custom, practice, or policy
of violating citizens' rights; Mr. Brandt does not
actually specify if this refers to First or Fourth Amendment
rights, or both. Mr. Brandt further alleges that this
violates due process in some unspecified manner.
[Id. at ¶¶ 73-85]. Finally,
Plaintiff's Fifth Claim alleges that the Defendants
engaged in a civil conspiracy to deny Mr. Brandt his First,
Fourth, Fifth, and Fourteenth Amendment rights. [Id.
at ¶¶ 86-90].
12(b)(6) of the Federal Rules of Civil Procedure states that
a court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To state a claim, a complaint must contain factual
allegations that, when taken as true, establish a claim for
relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Plausibility is
distinct from, and more demanding than, mere conceivability.
Khalik v. United Air Lines, 671 F.3d 1188, 1190
(10th Cir. 2012).
reviewing a motion to dismiss under Rule 12(b)(6), a court
accepts as true all well-pleaded factual allegations and
views those allegations in the light most favorable to the
plaintiff. Sec. & Exch. Comm'n v. Shields,
744 F.3d 633, 640 (10th Cir. 2014). Legal conclusions,
whether presented as such or masquerading as factual
allegations, are not afforded such deference. Dahn v.
Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017). An
unadorned, conclusory recitation of the elements of the cause
of action does not meet this standard. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
Pro Se Litigants
must liberally construe a pro se party's pleadings and
will not dismiss his claims under Rule 12(b)(6) if the court
can “reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail . . . despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991); see also Tatten v. City and Cty.
of Denver, 730 Fed.Appx. 620, 623-24 (10th Cir. 2018)
(reviewing the rule in Hall and its rationale). But
a court may not assume that a plaintiff can prove facts that
have not been alleged, or that a defendant has violated laws
in ways that a plaintiff has not alleged. See Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009)
(“[Court's] role is not to act as [pro se
litigant's] advocate.”). Nor is it proper for the
court to assume the mantle of advocate for the pro se
litigant. Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).