United States District Court, D. Colorado
ERIC ST. GEORGE, Plaintiff,
v.
CITY OF LAKEWOOD, COLORADO, DEVON TRIMMER, a/k/a DEVON MYERS, JASON MAINES, JEFF LARSON, and DAN McCASKY, Defendants.
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) ...