Harris v. City and County of Denver

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         This 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 Defendants

Claim 2 § 1983 Unlawful Seizure All Individual Defendants

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.

         STATEMENT OF FACTS

         The 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).

         During 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^[1] 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.

         Shortly 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.

         At no 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.

         Although 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.

         Seconds 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 of entering.

         Because 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 Plaintiffs' apartment.

         As the 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.

         Outside, 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.

         LEGAL STANDARDS

         The 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.

         Plausibility 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.

         However, “[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).

         ANALYSIS

         As set 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.^[2] 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.

         I. Qualified Immunity

         In 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.

         Qualified 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)).

         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). 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^[3] 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).

         It is 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 Defendants.

         A. Claim One - Aurora Defendants

         The 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.

         In 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 https://www.merriam-webster.com/dictionary/central, last 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 ...