Feltman v. Europe

          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

         This 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.

         I. BACKGROUND

         Proceeding 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.)

         On 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).

         Plaintiff's 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.

         Europe 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.

         Soon 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.

         Plaintiff, 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.

         II. LEGAL STANDARD

         A. Rule 12(b)(6) Motion to Dismiss

         Under 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).

         B. Rule 12(b)(1) Motion to Dismiss

         Rule 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.

         III. ANALYSIS

         A. Claim 1 - § 1983: Excessive Force Against Defendant Europe^[2]

         Plaintiff, 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.)

         1. Qualified Immunity

         “The 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).

         a. Prong 1 - Constitutional Violation

         The 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 has.

         “Apprehension 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.

         Plaintiff 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.

         b. Prong 2 - ...