Brandt v. Martin

          MEMORANDUM OPINION AND ORDER

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         This 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.^[1] [#24 at 8]; Eric Brandt, FIRST AMENDMENT (F***ING) EPIC FAIL (TOILET) BRUSH, COLORADO CITY COUNCIL, YouTube (Dec. 20, 2017), https://www.youtube.com/watch?v=8PG30Dshs (hereinafter “Recording”).^[2]

         Plaintiff 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.”^[3] [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, ^[4] 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.].

         Mr. 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].

         The Second Amended Complaint, less the claims against now-dismissed defendants, ^[5]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].

         LEGAL STANDARD

         I. Rule 12(b)(6)

         Rule 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).

         When 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).

         II. Pro Se Litigants

         A court 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).

         III. ...