United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION
William J. Martínez United States District Judge
matter is before the Court on Defendants Wilfred Europe
(“Europe”), Cory Engel (“Engel”), and
Michael McIntosh's (“McIntosh's”) Motion
to Dismiss for Lack of Jurisdiction and for Failure to State
a Claim (ECF No. 17). For the reasons that follow, the Motion
is granted in part and denied in part.
individually and on behalf of her deceased son Kyler
Grabbingbear, Plaintiff Andrea Feltman filed a Complaint in
this Court against Defendants on December 3, 2018. (ECF No.
1.) Defendants on March 4, 2019 filed their Motion to Dismiss
for Lack of Jurisdiction and for Failure to State a Claim
(the “Motion”) (ECF No. 17.)
March 7, 2019 Defendants filed a Motion to Stay Discovery
(ECF No. 18), seeking to stay discovery pending the
resolution of the qualified immunity issues raised in
Defendants' Motion to Dismiss. The Magistrate Judge on
April 17, 2019 granted Defendants' Motion to Stay
Discovery, with two exceptions not relevant here. On May 24,
2019, Plaintiff filed a Response to Defendants' Motion to
Dismiss (ECF No. 34), and on June 7, 2019, Defendants filed a
Reply (ECF No. 35).
allegations in her complaint, which the Court accepts as true
for purposes of this Motion, are as follows: At approximately
3:30 AM on December 7, 2017, Grabbingbear was leaving
Apartment 301 on the third floor of a building located in
unincorporated Adams County, Colorado. (ECF No. 1 at 4.)
Simultaneously, Europe “was serving a notice” to
a woman in nearby Apartment 303. Id. Europe heard
noise emanating from Apartment 301, and Grabbingbear emerged
holding a table. Id. at 5. Europe ordered him to
stop. Id. at 5. Grabbingbear dropped the table and
began to flee from Europe down a flight of stairs.
Id. at 5.
pursued Grabbingbear down the stairs, and a struggle ensued
on the ground floor outside the apartment building.
Id. at 5. During the struggle, Europe
“battered Grabbingbear causing severe injury to his
right forehead, left cheek, lower lip, interior neck, lower
back, right upper arm, right elbow, right forearm, left upper
arm, and left wrist.” Id. at 5. At 3:37 AM,
“[a]fter rendering Grabbingbear incapable of further
resistance, Deputy Europe unholstered and then fired his .45
caliber, Para Hi-Cap 1911 handgun, at close range[, ]”
and the bullet entered Grabbingbear's left upper chest.
Id. at 5.
after Grabbingbear was shot, Engel arrived on the scene.
Id. at 5. Neither Europe nor Engel provided medical
assistance to Grabbingbear, and paramedics were not called
until 3:48 AM. Id. at 6. Grabbingbear eventually was
taken by ambulance to Denver Health Medical Center, where he
was pronounced dead at 4:24 AM. Id. at 6.
arguing that Grabbingbear's killing was unlawful, brings
numerous state and federal claims against Defendants.
Id. at 7-11. With respect to Plaintiff's federal
claims, Defendants in the Motion argue that they are entitled
to qualified immunity, and that dismissal consequently is
appropriate under Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 17 5-13.) With respect to Plaintiff's state law
claims, Defendants seek dismissal for lack of subject-matter
jurisdiction under Rule 12(b)(1). Id. at 13-15.
Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a cause of action for “failure to state a claim
upon which relief can be granted.” The Rule 12(b)(6)
standard requires the Court to “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
Rule 12(b)(1) Motion to Dismiss
12(b)(1) empowers a court to dismiss a complaint for
“lack of jurisdiction over the subject matter.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceeding in which it becomes apparent that jurisdiction
is lacking.” See id.
Claim 1 - § 1983: Excessive Force Against Defendant
arguing that Grabbingbear's Fourth Amendment right
against unreasonable seizures was violated, seeks money
damages from Defendant Europe under 42 U.S.C. § 1983.
(ECF No. 1 at 7.) Defendants argue that Europe is entitled to
qualified immunity, and as such, that Claim 1 should be
dismissed. (ECF No. 17 at 9-13.)
doctrine of 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.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks omitted). To resolve a claim
of qualified immunity, the Court must consider two elements:
(1) whether Plaintiff has alleged a constitutional violation,
and (2) whether the violated right was “clearly
established” at the time of the violation. Id.
at 230-31. “The judges of the district courts . . .
[may] exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand.” Id. at 236.
Qualified immunity is applicable unless the plaintiff can
satisfy both prongs of the inquiry. Id. at 232. When
a defendant asserts the defense of qualified immunity, the
burden shifts to the plaintiff to overcome the asserted
immunity. Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009).
Prong 1 - Constitutional Violation
question at this stage is whether Plaintiff has plausibly
alleged that Defendant Europe's shooting of Grabbingbear
was objectively unreasonable. The Court concludes that she
by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.”
Tennessee v. Garner, 471 U.S. 1, 7 (1985).
“Determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of the nature and quality of the
intrusion on the individuals Fourth Amendment interests
against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396
(1989). “Where the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly
force to do so.” Garner, 471 U.S. at 11.
alleges that Defendant Europe shot Grabbingbear
“[a]fter rendering [him] incapable of further
resistance.” (ECF No. 1 at 5.) While it is unclear
precisely what this means, it does strongly suggest that
Grabbingbear could not have posed an immediate threat to
Europe or to others at the time he was shot. Indeed, for
purposes of Defendants' Motion, the Court must view
Plaintiff's allegations in the light most favorable to
her. The Supreme Court has squarely held that using deadly
force against a person who is not an immediate threat to the
safety of officers or to the public is unreasonable.
Garner, 471 U.S. at 11. As such, Plaintiff has
adequately alleged that Europe violated Grabbingbear's
Fourth Amendment right against unreasonable seizures.
Prong 2 - ...