United States District Court, D. Colorado
MARQUISE HARRIS, and ARTESIA CABRAL, individually and as next friend of N.C., a minor child, Plaintiffs,
CITY AND COUNTY OF DENVER, CITY OF AURORA, GLENN MAHR, in his individual and official capacities, KEVIN BARNES, in his individual and official capacities, MIKE DIECK, in his individual and official capacities, TASHA EWERT, in her individual and official capacities, JEREMY JENKINS, in his individual and official capacities, PAUL JEROTHE, in his individual and official capacities, JON MAREK, in his individual and official capacities, JEREMIAH MILES, in his individual and official capacities, LARRY BLACK, in his individual and official capacities, DAVID GROSS, in his individual and official capacities, and TONI TRUJILLO, in her individual and official capacities, Defendants.
Michael E. Hegarty, United States Magistrate Judge.
action arises out of the surveillance and arrest of the
Plaintiff Marquise Harris (“Harris”) and law
enforcement officers' entry into Harris' apartment he
shared with Plaintiff Artesia Cabral (“Cabral”)
and their child, N.C. (collectively,
“Plaintiffs”) on August 17, 2017. In the
operative First Amended Complaint, Plaintiffs bring three
claims for relief against the various Defendants pursuant to
42 U.S.C. § 1983, as follows:
Claim 1 § 1983 Unlawful Entry and Search All Individual
Claim 2 § 1983 Unlawful Seizure All Individual
Claim 3 § 1983 Monell Claim City of Aurora;
City and County of Denver
See Am. Compl., ECF No. 57. In response, Defendants
City and County of Denver, Mahr, Black, Gross, and Trujillo
(“Denver Defendants”) filed a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6), as did Defendants City of
Aurora, Barnes, Dieck, Ewert, Jenkins, Jeroth, Marek, and
Miles (“Aurora Defendants”), arguing the
Plaintiffs fail to plausibly state all three claims for
relief. For the reasons that follow, the Court will grant in
part and deny in part the Defendants' motions.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiffs in the operative First
Amended Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
the afternoon of August 17, 2017, officers assigned to the
fugitive units of the Aurora Police Department
(“APD”) and the Denver Police Department
(“DPD”) conducted surveillance on the apartment
of Plaintiff Marquise Harris at 1163 N. Dallas Street,
Aurora, Colorado. Harris had been involved in a
shooting that had occurred earlier in the day in
Denver. Although the shooting occurred in Denver, DPD
arranged to work in conjunction with the APD's Strategic
Response and Tactics (“SRT”) unit to conduct
surveillance and ultimately arrest Harris at or near his
apartment in Aurora. DPD was in charge of the operation, and
Aurora SRT assisted DPD in apprehending Harris.
before his arrest, Harris went to visit a friend in a
building across from his apartment. He was arrested by
officers outside of his friend's dwelling. At the time of
Harris's arrest, neither DPD nor APD had obtained a
search warrant for the apartment at 1163 N. Dallas Street.
Sergeant Joe Englebert of the DPD Homicide Unit informed
Defendant DPD Sergeant Glenn Mahr, who was on scene outside
the Plaintiffs' apartment, that the search warrant for
1163 N. Dallas Street was being prepared. Mahr told the APD
officers not to enter Harris' apartment until a search
warrant could be obtained. He also dispatched DPD officers to
take over for the APD officers.
point did a judge ever sign a search warrant for the
apartment. Harris told the officers as he was being arrested
that they did not have his permission to enter his dwelling,
noting that they did not have a search warrant to do so.
Harris' son, N.C., was asleep inside the apartment at the
time. Harris told the officers that he wanted N.C. 's
mother, Plaintiff Artesia Cabral, or their family members who
were present to get N.C. out of the apartment. Harris
repeated several times that he was not giving the officers
permission to enter the apartment.
several DPD officers were present, there was confusion among
APD officers as to whether they had been ordered to enter the
dwelling. The officers' discussion of the situation was
partially captured on body cameras. After several APD
officers gathered near the door of the apartment and knocked,
another APD officer who had been speaking to a DPD officer on
the phone informed them that, “They [DPD] don't
want the house, ” and the officers retreated from the
door back to the ground level of the apartment complex.
later, the APD officers walked back up the stairs to the
front door. Defendant Kevin Barnes asked, “They want it
again now?” Another officer remarked, “That's
what one of the Denver guys just said; they want it.”
Barnes then commented: “Are they writing for the house
or they writing for the f***ing guy? ‘Cause if they
ain't writing for the house then how the
f***…?” Despite the confusion, an APD officer
broke the apartment screen door purportedly in anticipation
DPD and APD had been conducting surveillance at
Plaintiffs' apartment, they knew that no other adults
were inside at the time they arrested Harris. Nonetheless, at
least Defendant APD Officers Barnes, Mike Dieck, Paul
Jerothe, Jon Marek, and Jeremiah Miles, all heavily armed,
entered Harris' apartment with guns drawn. Defendant APD
Officers Tasha Ewert and Jeremy Jenkins were present at the
scene and knew there was no warrant yet, but did not inform
their fellow officers. In addition, several officers,
including Defendant APD Officers Ewert and Jenkins, were
aware that Cabral had arrived at the scene before Officers
Barnes, Dieck, Jerothe, Marek, and Miles entered
APD officers “cleared” the apartment, they took
the opportunity to closely examine the interior. Later, when
allowed back into the apartment, Cabral noticed that many
items were out of place. While inside, Defendant Jerothe
picked up Harris and Cabral's infant son, N.C., while he
was asleep, although neither Harris nor Cabral had given
Jerothe permission to touch the child. Jerothe carried N.C.
outside, while the other officers remained inside.
an unknown APD officer explained to Cabral, “So
they're going to get a search warrant for your house.
Unless you'd prefer to give them consent.” Cabral
stated that she would “absolutely not” give
consent for the search and commented, “You guys [the
APD officers] are already in there, you know, so it's
already illegal.” Although Sergeant Mahr and Defendants
DPD Detectives Larry Black, David Gross, and Toni Trujillo
were on scene and knew that no warrant had been issued, they
did not clarify to APD officers that there was no warrant at
the time of the entry, and did not otherwise intervene to
prevent the APD officers from entering the apartment.
purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is
to test the sufficiency of the plaintiff's complaint.
Sutton v. Utah State Sch. For the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to
plausible.” S.E.C. v. Shields, 744 F.3d 633,
640 (10th Cir. 2014) (quoting Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The
nature and specificity of the allegations required to state a
plausible claim will vary based on context.” Safe
Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th
Cir. 2017) (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus,
while the Rule 12(b)(6) standard does not require that a
plaintiff establish a prima facie case in a complaint, the
elements of each alleged cause of action may help to
determine whether the plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
forth in the caption of the First Amended Complaint, the
Plaintiffs sue the non-entity Defendants in both their
individual and official capacities. Am. Compl., ECF 57.
Defendants in their individual capacities contend they are
entitled to qualified immunity from Claims One and Two for
violations of the Fourth Amendment. The entity Defendants argue
Plaintiffs fail to plausibly state Claim Three for municipal
liability against them pursuant t o Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 691 (1978). The Court will
address each argument as presented.
their individual capacities, the Defendants base their
request for dismissal of Plaintiffs' Section 1983 claims
on the doctrine of qualified immunity, which protects from
litigation a public official whose possible violation of a
plaintiff's civil rights was not clearly a violation at
the time of the official's actions. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified
immunity balances two important interests - the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). Because qualified immunity is an
immunity from suit, rather than a mere defense to liability,
it is effectively lost if a case is erroneously permitted to
go to trial. Id. at 231; Ahmad v. Furlong,
435 F.3d 1196, 1198 (10th Cir. 2006) (“The privilege is
an immunity from suit rather than a mere defense to
liability.”). The “driving force behind creation
of the qualified immunity doctrine was a desire to ensure
that insubstantial claims against government officials will
be resolved prior to discovery.” Pearson, 555
U.S. at 231-232 (quoting Anderson v. Creighton, 483
U.S. 635, 640, n.2 (1987)). Accordingly, qualified immunity
questions must be resolved at the earliest possible stage in
litigation.” Id. at 232.
immunity is an entitlement not to stand trial or face the
other burdens of litigation. Ahmad, 435 F.3d at 1198
(internal quotations and citations omitted). “Put
simply, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.”
Gutierrez v. Cobos, 841 F.3d 895, 899 (10th Cir.
2016) (quoting Mullenix v. Luna, - U.S. -, 136 S.Ct.
305, 308, 193 L.Ed.2d 255 (2015)).
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). Traditionally, there has been a two-step
process for resolving qualified immunity questions:
“First, a court must decide whether the facts that a
plaintiff has alleged . . . or shown . . . make out a
violation of a constitutional right. . . . Second, if the
plaintiff has satisfied this first step, the court must
decide whether the right at issue was clearly
established at the time of the defendant's alleged
misconduct.” Pearson, 555 U.S. at 232 (quoting
Saucier v. Katz, 533 U.S. 194 (2001) (internal
citations and quotation marks removed)). The Supreme Court
affords courts the discretion to decide “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; see
also Christensen v. Park City Mun. Corp., 554 F.3d 1271,
1277 (10th Cir. 2009).
undisputed that Plaintiffs' failure-to-intervene claims
against the Denver Defendants cannot survive without a
finding that Plaintiffs plausibly allege the Aurora
Defendants' conduct violated Plaintiffs'
constitutional rights. See Jones v. Norton, 809 F.3d
564, 576 (10th Cir. 2015) (“In order to be liable for
failure to intervene, the officers must have
“observe[d] or ha[d] reason to know” of a
constitutional violation and have had a “realistic
opportunity to intervene.”) (quoting Vondrak v.
City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.
2008)). Therefore, the Court will analyze each claim starting
with Plaintiffs' allegations against the Aurora
Claim One - Aurora Defendants
Aurora Defendants argue for dismissal by referencing evidence
outside of the Amended Complaint: the body camera recordings
cited and quoted by the Plaintiffs in their allegations.
Defendants contend that the Court may consider the recordings
because they are referenced in the pleading and central to
Plaintiffs' claims, and the Plaintiffs do not challenge
the recordings' authenticity or accuracy. Citing opinions
from other circuits, Plaintiffs counter that the recordings
are not “central” to their claims, in that the
allegations cite only a few quotations and references from
such recordings. Resp. 25-26. The Court concludes that, based
on the plain meaning of “central” and the Tenth
Circuit's description of a document “central to the
plaintiff's claim” in its seminal opinion, GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d
1381, 1385 (10th Cir. 1997), the body camera recordings are
not central to the Plaintiffs' claims.
GFF Corp., the Tenth Circuit, citing several
opinions from other circuits, concluded: “if a
plaintiff does not incorporate by reference or attach a
document to its complaint, but the document is referred to in
the complaint and is central to the plaintiff's claim, a
defendant may submit an indisputably authentic copy to the
court to be considered on a motion to dismiss.” GFF
Corp., 130 F.3d at 1384-85. As relevant here,
Merriam-Webster defines “central” as “of
primary importance; essential; principal.” See
visited December 10, 2019. The Tenth Circuit found that a
“letter” not attached to the operative pleading,
nor incorporated by reference, was “central” to
the plaintiff's claim under the following circumstances:
. . . GFF did not dispute the authenticity of the letter.
Indeed, GFF frequently referred to and quoted from the letter
in its amended complaint, and alleged that the letter alone
satisfied the statute of frauds. GFF also attached the letter
as an exhibit to its opposition to the 12(b)(6) motion, via
incorporation by reference of its 12(c) opposition, and
referred to the letter (in some instances as the contract
itself) throughout its brief. For these ...