United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATE MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant
Milligan's Motion to Dismiss [#18](the
“Milligan Motion”) and Defendant City of
Aurora's Motion to Dismiss [#19] (the
“Aurora Motion”). Plaintiff filed Responses [#26,
#29] in opposition to the Motions, and Defendants each filed
a separate Reply [#37, #36]. Pursuant to 28 U.S.C. §
636(b)(1) and D.C.COLO.LCivR 72.1©, the Motions have
been referred to the undersigned for a recommendation
regarding disposition. See [#20]. The Court has
reviewed the pleading, the briefing, the entire case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Court
respectfully RECOMMENDS that the Milligan
Motion [#18] be DENIED in part and GRANTED in
part, and further RECOMMENDS that
the Aurora Motion [#19] be DENIED in part and GRANTED
in part, as outlined below.
action arises from allegations of serious police misconduct.
Am. Compl. [#17] ¶ 1. Central to
Plaintiff's claims is the allegation that Defendant
Matthew T. Milligan (“Milligan”) of the Aurora
Police Department (“APD”) planted drug evidence
in Plaintiff's vehicle during a traffic stop in late
2016. Id. ¶¶ 3, 28. Plaintiff, who is an
African-American man and resident of Denver, Colorado, was
subsequently tried for Driving Under the Influence
(“DUI”) and Unlawful Possession of a Controlled
Substance in a Colorado state court. Id.
¶¶ 1, 28-29. In April 2018, Plaintiff was acquitted
of all criminal charges. Id. ¶ 3, 29.
now brings several constitutional claims against his
arresting officer, Defendant Milligan. These include
allegations that Defendant Milligan unlawfully arrested,
searched, and prosecuted Plaintiff, as well manufactured
false inculpatory evidence, in violation of the Fourth and
Fourteenth Amendments. Id. ¶¶ 45-77.
Plaintiff also raises a Monell claim against
Defendant City of Aurora (“Aurora”), asserting
municipal liability for the constitutional violations
allegedly committed by its employee, Defendant Milligan.
Id. ¶¶ 4, 68-85; see generally Monell
v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658
(1978). All claims are brought pursuant 42 U.S.C. §
1983. Am. Compl. [#17] ¶ 5.
times relevant to this lawsuit, Plaintiff resided or was
incarcerated in the State of Colorado. Id. ¶ 7.
Defendant Milligan is an active employee of the APD and was
acting under color of law and within the scope of his duties
while engaging in the actions that gave rise to this suit.
Id. ¶ 8. Defendant Aurora is and was at all
times relevant to this action responsible for the
supervision, training, customs, official policies, and actual
practices of the APD and its employees. Id. ¶
The Traffic Stop and Subsequent Arrest
before midnight on November 9, 2016, Plaintiff was driving in
Aurora, Colorado when he was pulled over by police for a
broken taillight. Id. ¶ 21. Defendant Milligan,
at the time a thirteen-year veteran of the APD,
initiated the traffic stop, and APD dispatch subsequently
directed two additional officers to the scene: Field Training
Officer Jason Oviatt (“Oviatt”) and his trainee,
Officer Alex Sotelo (“Sotelo”). Id.
¶ 22. Plaintiff's friends, who were driving ahead of
him in a separate car, witnessed the traffic stop and
remained in the vicinity while the following events unfolded.
his initial encounter with Plaintiff, Defendant Milligan
noticed an empty beer can in the back seat of the car and
asked Plaintiff if he had been drinking. Id. ¶
2 3. P l aintiff told Defendant Milligan that he had not been
and explained that the empty can was from much earlier in the
day. Id. Nevertheless, Defendant Milligan ordered
Plaintiff to exit the vehicle, conducted a search of his
person, and told him to sit on the curb while he ran his
meantime, Officers Oviatt and Sotelo arrived on the scene,
and Officer Sotelo subsequently observed a half-empty bottle
of tequila in the passenger compartment of the car.
Id. ¶ 24. When he informed Defendant Milligan
of his discovery, the latter allegedly responded by telling
the trainee: “We need to search this car
essentially.” Id. Defendant Milligan and
Officer Sotelo then returned to the sidewalk and engaged with
Plaintiff. Id. ¶ 25.
camera footage taken from Defendant Milligan's person
captured the two officers speaking with Plaintiff.
Id. According to the allegations, Plaintiff appears
to have clear eyes and coherent, enunciated speech during
this and all subsequent interactions. Id. Plaintiff
nevertheless consented to a roadside sobriety test conducted
by Officer Sotelo, which was also captured on film.
Id. According to the Amended Complaint [#17],
Plaintiff appeared objectively sober in this video, yet he
was still arrested for DUI by Defendant Milligan.
Id. ¶¶ 25-26.
point, Plaintiff's friends approached Defendant Milligan
to ask why their friend was being arrested and whether they
could assume possession of his car. Id. ¶ 26.
However, despite an APD policy that expressly allows for such
a transfer of possession, Defendant Milligan allegedly
refused to explore this option and instead opted to impound
the vehicle. Id. Defendant Milligan subsequently
sought Plaintiff's consent to conduct an inventory search
of the vehicle, but Plaintiff refused. Id. ¶
27. Defendant Milligan then proceeded with the search
camera footage shows Defendant Milligan conducting this
search. Id. Specifically, it shows Defendant
Milligan searching through an insulated lunchbox that was
found in the backseat of Plaintiff's vehicle.
Id. However, just as Defendant Milligan was opening
the top zippered compartment of the lunchbox, the body camera
was deactivated and the video footage cut off. Id.
However, according to the Amended Complaint [#17], the
footage nevertheless clearly shows that the zippered
compartment was empty prior to the camera's deactivation.
lapse of time, Defendant Milligan's camera came back on,
and he is seen instructing Officer Sotelo to search this same
lunchbox. Id. Officer Sotelo's body camera
footage shows him opening the same zippered compartment that
Defendant Milligan opened just before his camera was
deactivated; this time, however, Officer Sotelo discovered a
bag of cocaine, a digital scale, and other drug paraphernalia
readily visible inside the compartment. Id.
Plaintiff alleges that, upon information and belief,
Defendant Milligan placed the cocaine and other contraband in
Plaintiff's lunchbox while his body camera was
deactivated. Id. ¶ 28.
to Plaintiff, Defendant Milligan has repeatedly changed his
story with respect to the drug evidence. Am. Compl.
[#17] ¶ 64. Initially, Defendant Milligan asserted that
he did not search the lunchbox prior to Officer Sotelo;
however, in light of the body camera footage, Defendant
Milligan later claimed he had deliberately left the evidence
in the lunchbox as a sort of training exercise for Officer
Sotelo. Id. Regardless, Plaintiff was charged with
DUI and Unlawful Possession of a Controlled Substance with
Intent to Distribute and was taken into custody. Id.
Plaintiff was on parole at the time he was arrested, he was
prevented from posting bond. Id. ¶ 29. Thus,
Plaintiff was required to remain in custody for the entire
pendency of these charges-a total of over seventeen months.
The Criminal Trial
Motion to Dismiss [#18], Defendant Milligan relies on several
official court documents from Plaintiff's criminal
proceedings to support his argument that the instant claims
should be dismissed. These documents include four interlocutory
motions filed by Plaintiff and transcripts of the three
evidentiary hearings held on those motions. See Exs. A-G
of Milligan Motion [#18-1-#18-7].
presiding Colorado district court judge, the Honorable
Patricia Herron, ruled from the bench on June 8, 2018,
following final oral arguments from counsel. See Ex. G of
Milligan Motion [#18-7] (“June 8 Hearing”)
at 1, 54-59. At that hearing, the court held that any issues
regarding Defendant Milligan's credibility were
insufficient for the court to find, as a matter of law, that
he lacked probable cause for his actions, and should
therefore go to the jury. Id. at 56. Thus, the court
found there was sufficient probable cause for the DUI arrest,
“or at least suspicion of DUI.” Id.
because probable cause existed for the initial arrest, the
state court found that an inventory search was, given the
totality of the circumstances, proper. Id. at 57.
The court left the issue regarding whether Defendant
Milligan's actions went beyond the lawful parameters of
an inventory search up to the jury. Id. at 58-59.
state court never directly addressed Plaintiff's motion
seeking dismissal based on outrageous government conduct,
wherein he alleged Defendant Milligan planted cocaine in his
lunchbox. Id. at 59; Ex. A of Milligan
Motion [#18-1] (“Outrageous Conduct
Motion”). The court, while admitting that it thought it
was “bad practice, and . . . in direct contradiction to
Aurora's policy to turn those body cams on and off[,
]” nevertheless found that these facts created
potential credibility issues and were therefore properly left
to the jury to consider. June 8 Hearing [#18-1] at
case was eventually tried before a jury in April 2018.
Am. Compl. [#17] ¶ 29. Plaintiff was found not
guilty of all criminal charges. Id.
The Current Lawsuit
instant Complaint against Defendants Milligan and Aurora was
filed in November 2018. See Compl. [#1]. In his
Amended Complaint [#17], Plaintiff raises five separate
claims for relief against one or both Defendants:
(1) Unlawful Search and Detention by Defendant Milligan in
Violation of the Fourth Amendment;
(2) Malicious Prosecution by Defendant Milligan in Violation
of the Fourth and Fourteenth Amendments;
(3) Manufacturing False Inculpatory Evidence by Defendant
Milligan in Violation of the Fourteenth Amendment;
(4) Racially Biased Policing by both Defendant Milligan and
Defendant Aurora in Violation of the Fourteenth Amendment;
(5) Deliberately Indifferent Training, Supervision, and
Discipline by Defendant Aurora Resulting in Constitutional
Id. ¶¶ 45-85. All claims against Defendant
Milligan are brought against him in his individual capacity.
move to dismiss all claims against them pursuant to Rule
12(b)(6). See Milligan Motion [#18];
Aurora Motion [#19]. Defendant Milligan argues that
Claims One, Two, and Three necessarily fail because one or
more elements required to establish each claim were
previously decided in Defendant Milligan's favor and are
precluded from relitigation here under Colorado's
doctrine of collateral estoppel. Milligan Motion
[#18] at 2. Specifically, Defendant Milligan asserts that the
following determinations were made by the state court and are
therefore precluded here: (1) Defendant Milligan had probable
cause to arrest Plaintiff for DUI; (2) the inventory search
of Plaintiff's vehicle was legal; (3) Defendant Milligan
had probable cause to charge Plaintiff for both the DUI and
narcotics offenses; and (4) Defendant Milligan did not plant
drug evidence in Plaintiff's vehicle. Id. at 8,
13-14. If Defendant Milligan's interpretations of the
state court's rulings on these issues are given
preclusive effect, as he asserts, then he argues
Plaintiff's first three claims must be dismissed as a
matter of law. Id. at 10, 13, 14. Defendant Milligan
further argues that Claim Four should be dismissed because
Plaintiff fails to provide a sufficient factual basis for his
Aurora, meanwhile, argues that the two municipal liability
claims against it (Claims Four and Five) should be dismissed
because Plaintiff has failed to sufficiently allege either
element required to bring a Monell claim. Aurora
Motion [#19] at 3; see Bryson v. City of Okla.
City, 627 F.3d 784, 788 (10th Cir. 2010);
Monell, 436 U.S. at 691. Specifically, Defendant
Aurora argues that (1) Plaintiff has failed to sufficiently
plead any of the alleged constitutional violations by
Defendant Milligan; and that (2) Plaintiff has failed to show
the existence of a municipal “policy” or
“custom” that caused his purported injuries.
Aurora Motion [#19] at 3.