United States District Court, D. Colorado
ORDER ENTERED BY MAGISTRATE JUDGE KRISTEN L.
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendants Dave Jones and the
City of Englewood's Motion to Dismiss (the
“Englewood Defendants' Motion”)
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, 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
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.
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.”
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.
together, both Motions [#4, #6] seek to dismiss all six of
Plaintiff's claims pursuant to Rule
12(b)(6). 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].
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
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).
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
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].
Defendant Jones in his Individual Capacity
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.
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).
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).
Claim One (First Amendment Retaliation)
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 1st Federal Charter Amendment
and without The Restrictions of The RESTRAINING ORDER.
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).
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.
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).
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.
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 ...