Parr v. Stevens

          ORDER ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Defendants Dave Jones and the City of Englewood's Motion to Dismiss (the “Englewood Defendants' Motion”) [#4]^[1] and Defendant Gary Paul Stevens' Motion to Dismiss Complaint [#6] (the “Defendant Stevens' Motion”) (collectively, the “Motions”). Plaintiff, who proceeds as a pro se litigant, ^[2]filed Responses [#7, #10] in opposition to the Motions, and Defendants filed Replies [#9, #11]. The Court has reviewed the Motions, the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motions [#4, #6] are GRANTED.^[3]

         I. Background^[4]

         Plaintiff initiated this action against Defendants Gary Paul Stevens (“Stevens”), Dave Jones (“Jones”), and the City of Englewood on August 1, 2018. Compl. [#1] at 1. Generally, Plaintiff's claims arise from his arrest and detention on August 2, 2017. Id. at 2. Plaintiff alleges that his arrest was made by Defendant Jones, a police officer for the City of Englewood, pursuant to an “unverified accusation” by Defendant Stevens, a private citizen. Id. at 2-4. Plaintiff states that the unverified complaint was based on a Permanent Civil Protection Order (the “Protection Order”) which prohibits Plaintiff from being within 100 yards of Defendant Stevens' residence located at 2690 W. Union Avenue, Englewood, Colorado, 80110. Id. at 2-3. Plaintiff asserts that he was wrongfully arrested because the “alleged violation” occurred at 2722 West Union Ave., Englewood, Colorado 80110, which, according to Plaintiff, is more than 100 yards from Defendant Stevens' residence. Id. at 2.

         Plaintiff further alleges that Defendant Jones made the arrest without verifying whether Plaintiff was or had been within 100 yards of Defendant Stevens' residence and that Defendant Jones was “following standard policy which instructs [law enforcement officers] to make an arrest pursuant to an unverified accusation.” Id. at 2-3. Plaintiff states that, because of the arrest, he was “held captive” from 10:15 a.m. to about 11:30 p.m. on August 2, 2017 and “would have been kept captive much longer [had he] not been bonded out” for $760. Id. Ultimately, however, Plaintiff states that, “[o]nce the [p]rosecutor learned of [t]he [f]alse [a]ccusation, the [p]rosecutor moved [t]he [c]ourt for dismissal.” Id.

         On these facts, Plaintiff asserts the following six claims in his Complaint [#1]: (1) “Defendants lacked the power and right to prevent plaintiff from taking photos as alleged” (“Claim One”); (2) “Defendants lacked the power and right to arrest Plaintiff without probable cause” (“Claim Two”); (3) “Defendants lacked the power and right to inflict punishment on Plaintiff” (“Claim Three”); (4) “Defendants lacked the power and right to obstruct or prevent Plaintiff from remaining at liberty” (“Claim Four”); (5) “Defendants lacked the power and right to victimize Plaintiff through any abuse of Legal Process” (“Claim Five”); and (6) “Defendants lacked the power and right to obstruct Plaintiff's civil rights” (“Claim Six”). Id. at 3-4. As remedies for his alleged injuries, Plaintiff demands to be “recompensated [sic] and indemnified for [t]he [t]ime he lost under unlawful incarceration” by an award of $864, 125.25. Id. at 4.

         Taken together, both Motions [#4, #6] seek to dismiss all six of Plaintiff's claims pursuant to Rule 12(b)(6).^[5] Specifically, Defendant Jones contends that all claims against him in his individual capacity should be dismissed on the grounds of qualified immunity and failure to state a claim. Englewood Defendants' Motion [#4] at 3-5. The City of Englewood, in turn, asserts that any claim against it should be dismissed because Plaintiff has failed to adequately allege any policy or custom, or any underlying constitutional violation. Id. at 5-6. Finally, Defendant Stevens argues that Plaintiff fails to allege that Defendant Stevens was a state actor with respect to his constitutional claims and fails to state a claim for abuse of process under Colorado law. See generally Defendant Stevens' Motion [#6].

         II. Legal Standard

         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 conclusions 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

         As a preliminary matter, the Court notes that each of Plaintiff's claims refer to “Defendants” collectively, making it unclear which claims are being asserted against which Defendant. See Compl. [#1] at 3-4. Considering Plaintiff's pro se status and in the interest of completeness, the Court construes the Complaint [#1] as asserting five of the six claims against all Defendants. However, as discussed in Section C below, the Court construes Claim Five as being asserted only against Defendant Stevens and thus, does not address this claim with respect to Defendant Jones or the City of Englewood. The Court notes that while it must construe Plaintiff's Complaint liberally, “the [C]ourt cannot take on the responsibility of serving as [Plaintiff's] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). With this in mind, the Court addresses each Defendant and the arguments raised for dismissal in the respective Motions [#4, #6].

         A. Defendant Jones in his Individual Capacity^[6]

         As stated above, Defendant Jones contends that all claims against him in his individual capacity should be dismissed based on qualified immunity and failure to state a claim. Englewood Defendants' Motion [#4] at 3-5.

         Government officials are entitled to qualified immunity from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person in their position would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To overcome the defendant's claim of qualified immunity, the plaintiff must establish that the defendant's actions (1) violated plaintiff's constitutional or statutory right and (2) that the right at issue was clearly established at the time of the defendants' alleged unlawful conduct. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). For a constitutional right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clear weight of authority from other circuits must establish the constitutional right. Medina v. City and Cty. of Denver, 960 F.2d 1493, 1498 (1992). Once a defendant asserts qualified immunity, the plaintiff bears the burden of satisfying that defendant's actions violated a constitutional right. Dodds v. Richardson, 514 F.3d 1185, 1191 (10th Cir. 2010).

         Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the inquiry. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). Thus, a defendant is entitled to qualified immunity if the plaintiff fails to show a violation of a constitutional right at all. See e.g., Romero v. Fay, 45 F.3d 1472, 1475 (defendant entitled to qualified immunity because plaintiff failed to allege facts and law demonstrating defendant arrested him without probable cause in violation of the Fourth Amendment).

         1. Claim One (First Amendment Retaliation)

         In Claim One, Plaintiff asserts that “Defendants lacked the power and right to prevent plaintiff from taking photos as alleged.” Compl. [#1] at 3. Pursuant to the section of Plaintiff's Complaint [#1] entitled “Jurisdiction, ” Plaintiff appears to bring Claim One under the First Amendment. Id. at 2. In support of this claim Plaintiff alleges the following facts:

On The Morning of 08-02-2018, Plaintiff was visiting 2722 W. Union Ave, which is more than 100 yards from 2690 W. UNION AVE, easily verified by Arapahoe County's Advertised Map Records, if Plaintiff was taking photos of his illegally confiscated homestead, 2710 W. UNION AVE, as alleged, the taking of such photos would have been Legal, within the protection of The 1^st Federal Charter Amendment and without The Restrictions of The RESTRAINING ORDER.

Id.

         Based on the foregoing, the Court construes Claim One as a First Amendment retaliation claim. To state a First Amendment retaliation claim, Plaintiff must allege that “(1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct.” Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009).

         Even construing Plaintiff's allegations liberally, Plaintiff fails to allege any facts to satisfy either the first or third prong of a retaliation claim: that he was engaged in constitutionally protected activity or that the government's actions were substantially motivated as a response to constitutionally protected conduct.

         For Plaintiff to successfully assert that he was engaged in a constitutionally protected activity, he must demonstrate that he possessed (1) a message to be communicated and (2) an audience to receive the message. Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 568 (1995); Porat v. Lincoln Towers Cmty. Ass'n, No. 04-cv-31999, 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005). Here, Plaintiff fails to allege that he was attempting to express or communicate an idea by taking photographs of his “illegally confiscated homestead.” Compl. [#1] at 3. Nor does he indicate that the photos were meant for anyone but himself. See Porat, 2005 WL 646093, at *4-5 (noting that photos for private consumption are generally not protected under the First Amendment); Larsen v. Fort Wayne Police Department, 825 F.Supp.2d 965, 979 (N.D. Ind. 2010).

         Assuming arguendo that Plaintiff had a constitutionally protected right to photograph his “illegally confiscated homestead, ” Plaintiff fails to allege any facts to demonstrate that his arrest by Defendant Jones was substantially motivated in response to such photographs. See Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015); see also Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (explaining that the plaintiff's retaliation claim failed because he had “presented no evidence that the defendants' alleged retaliatory motives were the ‘but for' cause of the defendants' actions”); Magluta v. U.S. Fed. Bureau of Prisons, No. 08-cv-00404-CMA-MJW, 2009 WL 1504749, at *3-4 (finding that plaintiff failed to state a plausible retaliation claim because he had not identified any facts alleging that defendants' conduct would not have happened but for plaintiff's protected activity). Instead, he asserts that the arrest was based on an “unverified accusation” that he violated the Protection Order. Compl. [#1] at 2. Therefore, to the extent that Plaintiff is asserting that Defendant Jones arrested him for taking photographs, his own allegations contradict such an assertion.

         Because Plaintiff has not sufficiently alleged a constitutional violation, Defendant Jones is entitled to qualified immunity with respect to Claim One. See Escobar v. Reid, 668 F.Supp.2d 1260, 1293 (D. Colo. 2009). Accordingly, the Englewood Defendants' Motion [#4] is granted to the extent that Claim One against Defendant Jones in his individual capacity is dismissed with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice ...