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Tedesco v. Peak

United States District Court, D. Colorado

September 4, 2019

KEVIN TEDESCO, Plaintiff,
v.
EVELYN PEAK and CHRISTOPHER HERMAN, Defendants.

          ORDER

          Philip A. Brimmer, Chief United States District Judge

         This matter comes before the Court on Defendant Herman's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [Docket No. 18] and Defendant Peak's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [Docket No. 19]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983.

         I. BACKGROUND

         The allegations in plaintiff's Complaint with Jury Demand [Docket No. 1] are assumed to be true in considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).

         On March 24, 2016, plaintiff Kevin Tedesco (“Tedesco”), defendant Evelyn Peak (“Peak”), and defendant Christopher Herman (“Herman”) went out for drinks in Colorado Springs, Colorado. Docket No. 1 at 3-4, ¶¶ 28-31. At that time, all three were employed at the El Paso County Sheriff's Office (the “Sheriff's Office”) - Tedesco as a sergeant and Peak and Herman as deputies. Id. at 2-3, ¶¶ 16, 23, 26. Tedesco and Peak were engaged and lived together. Id. at 3, ¶¶ 22, 24.

         When the bar closed at 2 a.m. on March 25, all three returned to Tedesco and Peak's house. Id. at 4, ¶¶ 31-32. At the house, Peak and Herman had a conversation, during which either Peak stated “I know Tedesco is cheating on me” or Herman told Peak that Tedesco was cheating on her. Id. ¶ 33. Peak confronted Tedesco, who had fallen asleep, repeatedly striking Tedesco to wake him up. Id. ¶ 34. Although Tedesco denied that he had been unfaithful, Peak continued to punch and slap Tedesco on his face and upper body. Id. ¶¶ 35-36. Tedesco called for Herman to join them. Id. ¶ 37. Tedesco asked Herman why he lied to Peak about Tedesco's infidelity. Id. Herman denied making any false statements. Id. Herman rushed at Tedesco, yelling “let's fight.” Id., ¶ 39. Both men fell to the ground. Id. ¶ 40. Tedesco ordered Herman to leave, which he did; Peak left shortly afterwards. Id. ¶¶ 41-42.

         On June 7, 2016, Herman submitted a memorandum to the Sheriff's Office reporting that Tedesco had assaulted him. Id. at 6, ¶ 53. Peak encouraged Herman to write the memorandum. Id. The memorandum spawned both a criminal investigation and an internal investigation. Id. ¶ 55. Peak and Herman spoke to the detective running the criminal investigation; Tedesco invoked his right to remain silent. Id. ¶¶ 56-57. In the course of her interview, Peak stated that Tedesco assaulted Herman, although she also stated that he was acting in self-defense. Id. ¶ 59. In the internal investigation, Peak told the investigator that she slapped Tedesco, which she did not mention in the criminal investigation. Id. ¶ 62. As a result of the internal investigation, Tedesco was demoted from sergeant to deputy. Id. at 7, ¶ 64. Peak and Herman were also disciplined. Id. ¶ 65.

         On June 24, 2016, the El Paso County District Attorney's Office (the “DA's Office”) charged Tedesco with third-degree assault of Herman, relying on the criminal investigation “along with Peak's and Herman's false statements.” Id. ¶ 66. On January 20, 2017, Peak met with a district attorney and an investigator for a pre-trial witness interview on the condition that she receive immunity from prosecution. Id. at 8, ¶ 76. Tedesco alleges that Peak requested immunity because was worried that, if the DA's Office decided to charge her with domestic violence, she could lose her gun license and her position with the Sheriff's Office. Id. at 7, ¶ 72. Peak subsequently stated that Tedesco assaulted her and that she slapped him in response. Id. at 8, ¶ 77. Peak also stated that Tedesco harassed and stalked her. Id. Based on this testimony, the DA's Office charged Tedesco with felony stalking, felony menacing, domestic violence, and harassment. Id. ¶ 78.[1] On January 22, 2017, Tedesco turned himself in on an arrest warrant and spent a night in jail before being released on bond. Id. ¶¶ 79-80. On March 12, 2017, the Sheriff's Office informed Tedesco of its intent to terminate his employment. Id. ¶ 83. On April 18 and 19, 2018, Tedesco's trial took place. Id. at 10, ¶ 97. Tedesco, Peak, and Herman all testified. Id. ¶ 98. Tedesco alleges that both Peak and Herman made false claims under oath. Id. at 10-12, ¶¶ 99-100. The jury acquitted Tedesco of all charges. Id. at 12, ¶ 101.

         On August 8, 2018, Tedesco filed this lawsuit. Docket No. 1. Tedesco brings a single claim for relief under 42 U.S.C. § 1983, asserting that Peak's and Herman's actions violated Tedesco's rights under the Fourth Amendment by subjecting him to “false arrest, false imprisonment, and malicious prosecution.” Id. at 13, ¶ 116. Peak and Herman subsequently filed motions to dismiss. Docket Nos. 18, 19. Peak and Herman argue that (1) they are entitled to qualified immunity; (2) Tedesco fails to allege a violation of his Fourth Amendment rights; and (3) Tedesco fails to allege that Peak and Herman were acting under color of law. Id.

         II. LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent, ” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).

         III. ANALYSIS

         Peak and Herman argue that Tedesco fails to state a claim under 42 U.S.C. § 1983 because he has failed to allege that Peak and Herman were acting under color of state law.[2] Docket No. 18 at 10-13; Docket No. 19 at 10-13. The Court turns to this argument first since, if Tedesco fails to allege that Peak and Herman were acting under color of state law, there is no need to consider their other arguments.

         To state a claim under 42 U.S.C. § 1983, plaintiff must allege that she was deprived of a right “secured by the Constitution or laws” of the United States and that this deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). For an act to be under color of law, “[f]irst, the deprivation of [a federal right] must be caused by the exercise of some right or privilege created by the State . . . [s]econd, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he [or she] is a state official, because he [or she] has acted together with or has obtained significant aid from state officials, or because his [or her] conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see also Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000). It is plaintiff's burden to “plead, and ultimately establish, the existence of ‘a ...


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