United States District Court, D. Colorado
A. Brimmer, Chief United States District Judge
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.
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).
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.
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.
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.
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. ¶
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.
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.
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).
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
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.
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