Diallo v. Milligan

          RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Milligan's Motion to Dismiss [#18]^[1](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.

         I. Background ^[2]

         This 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.

         Plaintiff 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.

         At all 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. ¶ 9.

         A. The Traffic Stop and Subsequent Arrest

         Just 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, ^[3] 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. Id.

         During 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 paperwork. Id.

         In the 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.

         Body 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.

         At this 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 nevertheless. Id.

         Body 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. Id.

         After a 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.

         According 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. ¶ 28.

         Because 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. Id.

         B. The Criminal Trial

         In his 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.^[4] 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].

         The 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.

         Additionally, 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.

         The 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 59.

         The case was eventually tried before a jury in April 2018. Am. Compl. [#17] ¶ 29. Plaintiff was found not guilty of all criminal charges. Id.

         C. The Current Lawsuit

         The 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; and

(5) Deliberately Indifferent Training, Supervision, and Discipline by Defendant Aurora Resulting in Constitutional Violations.

Id. ¶¶ 45-85. All claims against Defendant Milligan are brought against him in his individual capacity. Id.

         Defendants 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 claim. Id.

         Defendant 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.

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