George v. City of Lakewood

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Scott T. Varholak, United States Magistrate Judge.

         This matter comes before the Court on Defendants' Motion to Dismiss [#30] (“Defendants' Motion”), Plaintiff's Motion to Strike [#56], and Plaintiff's Motion to Censure [#58]. All three Motions have been referred to this Court. [#37, 57, 59] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, this Court DENIES Plaintiff's Motion to Strike and Motion to Censure and respectfully RECOMMENDS that Defendants' Motion be GRANTED.

         I. BACKGROUND^[1]

         On July 31, 2016, at approximately 9:00 p.m., a female escort arrived at Plaintiff's residence in Lakewood, after being contacted by Plaintiff through a website known for advertising prostitutes and sex workers. [#14-2 at 1-2] Based upon the advertised price of $220 for one hour of service, Plaintiff had placed $220 in cash on the kitchen counter, which the escort took upon her arrival. [Id. at 2] After thirty minutes of the one-hour service, the escort announced her intent to leave. [Id. at 3] Plaintiff demanded a return of his money, and the escort refused, pushing Plaintiff and exiting the residence. [Id.] Fearing that he was being robbed and that the escort may have a pimp waiting in the parking lot, Plaintiff armed himself with a small handgun. [Id.] When the escort was within a few feet of her vehicle, she turned and confronted Plaintiff with a can of mace. [Id.] Plaintiff raised his arm overhead and fired a round into the air. [Id.] Plaintiff then lowered his arm and took aim at the escort, who fled. [Id. at 3-4] Plaintiff left and went to a restaurant for dinner and drinks. [Id. at 4]

         Shortly after the incident occurred, the escort contacted the Lakewood Police Department (“LPD”) through a 911 call. [Id.] The escort told LPD that Plaintiff had fired two shots, one in the air and one at the escort. [Id.] According to Plaintiff, the escort lied about the second shot as Plaintiff only fired his weapon once into the air. [Id.] Plaintiff was not aware at the time that the escort had made this call to the police, but he “did anticipate that a neighbor might contact police to report the sound of a gunshot, or might report excessive noise to neighborhood management.” [Id.]

         LPD officers responded to Plaintiff's residence at 10:13 p.m. [Id. at 5] LPD deliberately parked marked vehicles in a location that could not be observed from Plaintiff's residence. [Id.] Plaintiff returned home from dinner at approximately 11:15 p.m. [Id.] He did not see the police vehicles and was not contacted by the police. [Id.]

         At 12:17 a.m. on August 1, 2016, LPD Agent Eric Brennan called Plaintiff's cell phone. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] ¶ 12:20 a.m., Agent Brennan called again. [Id.] Though the caller ID was blocked, Plaintiff nonetheless answered the phone. [Id.] Agent Brennan identified himself as an agent with the LPD and instructed Plaintiff to come outside and talk to the police. [Id.] Plaintiff opened the front door, looked outside, and did not see any LPD officers. [Id.] LPD officers did not call out or announce their presence. [Id. at 6]

         At 12:23 a.m., LPD officers made a third phone call to Plaintiff. [Id.] Once again, the caller ID was blocked, and Plaintiff did not answer. [Id.] One minute later, Sergeant Nathan Muller called Plaintiff. [Id.] The Caller ID was blocked, but Plaintiff nonetheless answered the call. [Id.] Sergeant Muller identified himself as a sergeant with the LPD, said that his “friends” were in the backyard of Plaintiff's residence and could see Plaintiff through the window. [Id.] Sergeant Muller told Plaintiff to come outside to talk to the police. [Id.] Sergeant Muller has reported that Plaintiff was upset, unsettled, and paranoid, and that Plaintiff did not believe that the call was from an LPD officer. [Id.]

         At 12:30 a.m., LPD officers placed a fifth call to Plaintiff. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] Plaintiff, unarmed, exited his residence into his backyard. [Id. at 6-7] LPD Sergeant Jason Maines radioed that Plaintiff had exited his residence and looked tentative. [Id.] Sergeant Maines has reported that he was waiting for Plaintiff to take additional steps away from the house so that Sergeant Maines could grab him. [Id. at 7] Instead, Plaintiff retreated inside his home. [Id.]

         After Plaintiff returned inside his home, Sergeant Muller again called Plaintiff's cell phone. [Id.] Sergeant Muller told Plaintiff that he was with the police and that there were police outside. [Id.] Plaintiff, having not seen the police on his previous trips outside, told Sergeant Muller “you aren't (out) there.” [Id.] Sergeant Muller told Plaintiff to come out with nothing in his hands, to which Plaintiff responded, “I have something in my hands.” [Id.] In response to Plaintiff's comment, Agent Brennan aired on the radio that Plaintiff was being threatening on the phone. [Id.]

         Plaintiff, believing somebody was impersonating a police officer and was luring Plaintiff outside, grabbed a shotgun and once again exited the door leading to the backyard. [Id. at 8] Plaintiff loudly pumped the action of his shotgun, ejecting a shell to the ground. [Id.] Agent Devon Trimmer aired by radio, “Did you hear that gun rack?” [Id.]

         At this point, Agent Trimmer and Sergeant Maines hid behind a truck. [Id.] Sergeant Maines eventually moved behind some foliage while Sergeant Muller and Agent Brennan positioned themselves on the west end of Plaintiff's residential building. [Id.] Plaintiff began to walk from the backyard to the front of the building. [Id. at 9] Sergeant Maines radioed, “Alright [Agent Trimmer], he's coming [e]ast, he is walkin' fast, straight towards you.” [Id.] Agent Trimmer observed Plaintiff walking through a communal driveway between two apartment buildings, with his weapon pointed downward in the “low ready” condition. [Id. at 10] Agent Trimmer then shot Plaintiff in the leg. [Id.] In the approximately seven minutes between Plaintiff exiting his home and Agent Trimmer shooting Plaintiff, none of the LPD officers announced a warning. [Id. at 8-10]

         After being shot, Plaintiff returned fire on Agent Trimmer. [Id. at 10] Plaintiff retreated north and Agent Trimmer fired a second round at Plaintiff, missing Plaintiff. [Id.] Plaintiff again returned fire. [Id.] Agent Trimmer then fired a third shot at Plaintiff, missing him. [Id. at 11] Sergeant Maines, who was hidden behind a bush near one of the apartment buildings, activated a flashlight under the barrel of his handgun and aimed it at Plaintiff. [Id.] Plaintiff, still not realizing any of the individuals were police officers, fired at Sergeant Maines. [Id.]

         Plaintiff then retreated to his residence where he called 911. [Id. at 11-12] LPD officers entered the front door, and Plaintiff fired a shot into the ceiling. [Id. at 13] Plaintiff was then taken into custody at 1:00 a.m. [Id.] At the time of the incident, LPD officers did not have in their possession an arrest warrant for Plaintiff. [Id.]

         On July 30, 2018, Plaintiff filed the instant action. [#1] Plaintiff's Third Amended Complaint alleges numerous federal and state causes of action. [See generally # 14, 14-1] On December 3, 2018, United States Senior District Judge Lewis T. Babcock issued an Order to Dismiss in Part and to Draw Case. [#17] As a result of Judge Babcock's Order, Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1]

         On January 31, 2019, Defendants moved to dismiss all of Plaintiff's remaining claims. [#30] Plaintiff has responded to Defendants' Motion [#50, 54], and Defendants filed a reply [#55]. On April 15, 2019, Plaintiff moved to strike Defendants' reply. [#56] One week later, Plaintiff filed his Motion to Censure, which is nearly identical to the Motion to Strike but seeks sanctions for statements made in Defendants' reply brief. [#58] On May 6, 2019, Defendants filed their response to the Motion to Strike. [#60]

         II. STANDARD OF REVIEW

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate for any claim over which the Court lacks subject matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a 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 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “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 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The Court's ultimate duty 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).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ANALYSIS

         Following Judge Babcock's Order to Dismiss in Part and to Draw Case [#17], Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1] Defendants have moved to dismiss each of these claims. [#30] The Court addresses each claim below.

         A. Excessive Force Claims

         Plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by Agent Trimmer, in violation of Plaintiff's Fourth Amendment rights. [#14-1, 54 at 1] “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

         “[C]laims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “The reasonableness of the use of force is evaluated under an ‘objective' inquiry that pays ‘careful attention to the facts and circumstances of each particular case.'” Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Mendez, 137 S.Ct. at 1546 (quotation omitted). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

         In Defendants' Motion, the individual Defendants contend that they are entitled to qualified immunity. [#30 at 7-12] “Qualified immunity ‘protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) ...