Handy v. Fisher

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT [ECF. #31]

          S. KATO CREWS UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. SUMMARY FOR PRO SE PARTY

         The 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.

         II. PROCEDURAL HISTORY

         Plaintiffs 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. [ECF. #9.]

         III. FACTUAL BACKGROUND ^[1]

         On 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.]

         Mrs. 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.]

         With 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.]

         None of 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.

         IV. STANDARD OF REVIEW

         Under 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 (2009).

         To 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).

         The 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).

         The 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, ...