United States District Court, D. Colorado
WYATT T. HANDY, JR., ASHLEE M. HANDY, Plaintiffs,
TERA L. FISHER, AND BRANDON H. JOHNSON Defendants.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS AMENDED COMPLAINT [ECF. #31]
KATO CREWS UNITED STATES MAGISTRATE JUDGE
Report and Recommendation (“Recommendation”)
addresses Defendants Tera L. Fisher (“Fisher”)
and Brandon H. Johnson's (“Johnson”)
(collectively, the “Officers”) Motion to Dismiss
Amended Complaint (the “Motion”) [ECF. #31]. The
Court has reviewed the Motion and related briefing, and the
applicable law. Now being fully informed, the Court
RECOMMENDS the Motion be GRANTED in part and DENIED in part.
SUMMARY FOR PRO SE PARTY
Court is recommending that District Judge Jackson partially
grant Defendants' motion to dismiss because the Amended
Complaint fails to allege sufficient facts to plausibly
establish the Fourteenth Amendment and official capacity
claims based on the applicable legal standards. The Court
recommends partially denying Defendants' motion as it
relates to the Fourth Amendment claim because this Court
believes the Amended Complaint plausibly alleges sufficient
facts to maintain the Fourth Amendment (unreasonable seizure)
claim. Plaintiffs and Defendants will have fourteen days
after service of this Recommendation to file specific written
objections to this Recommendation with Judge Jackson for his
review. Judge Jackson may either adopt this Recommendation,
or reject this Recommendation, and issue an order based on
his own findings and conclusions. Should Judge Jackson adopt
this Recommendation, then: (a) Plaintiffs' Fourteenth and
official capacity claims will be dismissed and no further
actions may be brought against these Defendants based on the
events alleged in the Amended Complaint for a violation of
the Fourteenth Amendment; and (b) the Fourth Amendment claims
would continue in litigation.
Wyatt T. Handy Jr. (“Mr. Handy”), and Ashlee M.
Handy (“Mrs. Handy”) (collectively, the
“Handys”) brought this action under 42 U.S.C.
§ 1983 and 28 U.S.C. § 1343 seeking money damages
for alleged Fourth and Fourteenth Amendment violations by the
Officers. [ECF. #1.] Magistrate Judge Gallagher ordered the
Handys to file an amended complaint after noting their
failure to assert a cognizable claim against the Board of
County Commissioners of Jefferson County, who was a named
defendant at the time. [ECF. #7.] The Handys filed their
Amended Complaint (“Complaint”) on June 27, 2018.
FACTUAL BACKGROUND 
April 14, 2016, Mrs. Handy was driving a vehicle with Mr.
Handy, an African-American, riding in the front
passenger's seat. An unnamed female passenger rode in the
backseat. [ECF. #9 at ¶9.] At approximately 12:43 A.M.,
the Handys pulled into the parking lot of a 24-hour gas
station in Conifer, Colorado, to re-program their GPS unit.
[Id. at ¶¶10, 15, 52.] The Handys passed
Fisher, who was sitting in her patrol car at the gas
station's entrance. [Id. at ¶12.] Mr. Handy
and Fisher made eye contact as the Handys passed in their
vehicle. [Id. at ¶13.]
Handy parked the car and they “immediately began
reprogramming” the GPS. [Id. at ¶14.]
After being parked for “less than a minute, ”
Fisher pulled her vehicle behind the Handys, blocking their
exit, and activated her emergency lights. [Id. at
¶¶15, 16.] “Within seconds, ”
“several” other officers, including Johnson,
arrived. [Id. at ¶¶17, 18.]
weapons drawn, Fisher and Johnson approached the driver and
passenger side of the Handys' vehicle, respectively.
[Id. at ¶¶19, 20.] Fisher told the Handys
the reason for the stop was a “suspicious vehicle,
” and asked Mrs. Handy for her driver's license,
and insurance and registration. [Id. at
¶¶22, 57, 59.] “[I]n a hostile manner,
” Fisher also “immediately began demanding”
Mr. Handy produce his identification as well. [Id.
at ¶25.] Mrs. Handy complied and told Fisher they had
parked to reprogram their GPS. [Id. at ¶24.]
Mr. Handy, on the other hand, initially refused to produce
his identification and asked the Officers to move their
vehicles so they could leave. [Id. at ¶26.] The
Officers “made it clear” that the Handys were not
free to go, and “inferred” that Mr. Handy would
be arrested if he failed to provide his identification.
[Id. at ¶27.] Mr. Handy eventually complied.
[Id. at ¶28.] The unnamed female passenger was
not asked to provide identification. [Id. at
¶31.] The Officers did not release the Handys until
after they confirmed that neither of them had any outstanding
warrants. [Id. at ¶30.]
the Officers' actions were done pursuant to any search,
or search and seizure, warrant. [Id. at ¶ 37.]
In their Complaint, the Handys allege two § 1983 claims.
One claim is based on an alleged unlawful seizure in
violation of the Fourth Amendment. The second claim is based
on an alleged equal protection (racial profiling) violation
under the Fourteenth Amendment.
STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” See
Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule
12(b)(6), the Court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (internal citations omitted).
The Court is not, however, “bound to accept as true a
legal conclusion couched as a factual allegation.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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, 556 U.S. at 678 (internal quotation marks
omitted). A claim is plausible when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This standard
requires more than the sheer possibility that a defendant has
acted unlawfully. Id. Facts that are “merely
consistent” with a defendant's liability are
insufficient. Id. “[T]o state a claim in
federal court, a complaint must explain what each defendant
did to him or her; when the defendant did it; how the
defendant's actions harmed him or her; and what specific
legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
ultimate duty of the Court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Nevertheless, the standard remains a liberal one, and
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that recovery is very remote and
unlikely.” Dias v. City & Cty. of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009).
Court acknowledges that the Handys are not attorneys.
Consequently, their pleadings and other papers have been
construed liberally and held to a less stringent standard
than formal pleadings drafted by a lawyer. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
“[I]f the court can reasonably read the pleadings to
state a claim on which the plaintiff[s] could prevail, it
should do so despite the [The Handys'] failure to cite
proper authority, ...