United States District Court, D. Colorado
WYATT T. HANDY, JR and ASHLEE M. HANDY, Plaintiffs,
TERA L. FISHER and BRANDON H. JOHNSON, Defendants.
Brooke Jackson United States District Judge.
matter is before the Court on the March 4, 2019
Recommendation of Magistrate Judge S. Kato Crews. ECF No. 45.
The Recommendation addresses a motion to dismiss by
defendants Tera Fisher and Brandon Johnson, both of whom are
Jefferson County Sheriff's Deputies. ECF No. 31.
Magistrate Judge Crews recommends that I deny this motion to
dismiss as to plaintiffs Wyatt Handy, Jr. and Ashlee
Handy's Fourth Amendment individual capacity claims. ECF
No. 45 at 14. However, he recommends that I grant this motion
as to plaintiffs' Fourteenth Amendment individual and
official capacity claims, and as to plaintiffs' Fourth
Amendment official capacity claims. Id. The
Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b). For the reasons below, the Court ADOPTS the
plaintiffs' well-pled allegations in their complaint as
true, I will summarize the relatively straightforward facts.
Plaintiffs were driving along Highway 285 to visit a friend
in Conifer, Colorado in the early morning of April 14, 2016
when the alleged incident occurred. Complaint, ECF No. 1 at
¶8. Three people were in the vehicle: Mrs. Handy, who is
white, was driving; Mr. Handy, who is black, was the front
seat passenger; and an unidentified white female passenger
sat in the backseat behind Mrs. Handy. Id. at
¶9. At approximately 12:43 a.m. plaintiffs stopped in
the parking lot of the 24-hour Kum and Go convenience store
in Conifer to reprogram their GPS navigational unit.
Id. at ¶10. As plaintiffs pulled into the Kum
and Go located off Highway 285, they noticed Deputy
Fisher's patrol vehicle parked in the convenience
store's parking lot. Id. at ¶12. Mr. Handy
alleges that he made eye contact with Deputy Fisher as
plaintiffs' vehicle pulled into the Kum and Go parking
lot. Id. at ¶13.
one minute of parking, plaintiffs allege that Deputy Fisher
repositioned her patrol car behind plaintiffs' vehicle
and activated her emergency lights. Id. at ¶15.
Because plaintiffs' car faced the Kum and Go building,
plaintiffs were boxed in and unable to move their car.
Id. at ¶16. Apparently Deputy Fisher radioed
for backup because within “seconds, ” several
additional officers arrived at the convenience store.
Id. at ¶¶17-18. Deputy Johnson was one of
those officers. With backup in place and their weapons drawn,
Deputy Fisher approached the driver's side of the vehicle
and Deputy Johnson approached the passenger's side.
Id. at ¶¶19-20. Deputy Fisher asked Mrs.
Handy for her license, insurance, and registration.
Id. at ¶22. Mrs. Handy complied with the
request, and then she explained that she pulled over to
reprogram her GPS. Id. at ¶¶23-24. Deputy
Fisher then asked Mr. Handy for his identification “in
a hostile manner.” Id. at ¶¶24-25.
Mr. Handy initially refused to produce identification, but he
eventually complied after defendants made clear that he would
be arrested if he did not produce identification.
Id. at ¶¶26-28. Defendants did not request
identification from the backseat passenger. Id. at
¶31. Defendants released plaintiffs after they verified
that there were no outstanding warrants pending against
plaintiffs. Id. at ¶30.
allege two 42 U.S.C. § 1983 claims against defendants.
First, plaintiffs allege an unlawful seizure in violation of
the Fourth Amendment. Second, plaintiffs assert that
defendants racially profiled Mr. Handy in violation of the
Equal Protection Clause of the Fourteenth Amendment.
STANDARDS OF REVIEW
Magistrate Judge Recommendation.
magistrate judge makes a recommendation on a dispositive
motion, the district court “must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). An
objection is sufficiently specific if it “focus[es] the
district court's attention on the factual and legal
issues that are truly in dispute.” United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
In the absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
Rule 12(b)(6) - Motion to Dismiss for Failure to State a
survive a Rule 12(b)(6) motion, the complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). While the Court must accept the well-pled
allegations of the complaint as true and construe them in the
light most favorable to the plaintiff, Robbins v.
Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely
conclusory allegations are not entitled to be presumed true,
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the
speculative level, the plaintiff has met the threshold
pleading standard. See Twombly, 550 U.S. at 556.
“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 Deaf & Blind, 173 F.3d 1226, 1236 (10th
Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562,
1565 (10th Cir. 1991)).
Pro Se Litigants.
case involves pro se litigants, courts will review their
“pleadings and other papers liberally and hold them to
a less stringent standard than those drafted by
attorneys.” Trackwell v. U.S. Gov't, 472
F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not
“the proper function of the district court to assume
the role of advocate for the pro se litigant.” Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A
“broad reading” of a pro se plaintiff's
pleadings “does not relieve the plaintiff of the burden
of alleging sufficient facts on which a recognized legal
claim could be based.” Id. Pro se parties must
“follow the same rules of procedure that govern other
litigants.” Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (internal quotation marks and citations