United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS
CHRISTINE M. ARGUELLO JUDGE
This
matter is before the Court on Defendants Gregg Filsinger, Jr.
and Corey Richards' (“Defendants”) Motion to
Dismiss Plaintiff's Second Amended Complaint (Doc. # 9)
For Failure to State a Claim Upon Which Relief May Be Granted
Pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. #
23.) This Motion has been fully briefed. (Doc. ## 28, 29,
30.) Having reviewed the briefing, pertinent record, and
applicable law, and for the following reasons, the Court
finds that Defendants are entitled to qualified immunity and
grants the Motion.
I.
BACKGROUND
A.
FACTUAL BACKGROUND
Plaintiff
Everett Steele Bowles alleges that he previously requested
assistance from the Estes Park Police Department
(“EPPD”) regarding how to handle situations
involving a woman by the name of “Ms. Debey.”
(Doc. # 9 at 4.) Those situations concerned incidents where
Ms. Debey was “drunk and violent.” (Id.)
Plaintiff
further alleges that, on November 14, 2016, the EPPD,
including Defendants Filsinger and Richards, visited
Plaintiff's home. (Id.) Although Plaintiff's
allegations are vague and often incoherent, the Court gleans
that the following situation allegedly occurred. Despite
allegedly knowing that Ms. Debey posed a “threat,
” Defendant Filsinger “allowed Ms. Debey to admit
to [] [and] commit crimes, ” and then turned over the
minor infant “MAB” (the “minor”) to
the custody of Ms. Debey who [admitted] to being on probation
as well as intoxicated.” (Id.) Even though
Plaintiff allegedly informed Defendants that Ms. Debey
“broke her probation and bond by drinking, ” he
alleges that Defendants failed to protect the minor from harm
by permitting Ms. Debey to hold custody of the minor.
(Id.)
Notwithstanding
that Plaintiff fails to allege how he was arrested, at some
unspecified point in time, Plaintiff was within the custody
of the EPPD. (Id.) While in custody, Plaintiff
alleges that the situation involving the minor and Defendant
Filsinger's comments about that situation caused
Plaintiff to attempt suicide. (Id.) Specifically,
Plaintiff alleges that Defendants Richards and Filsinger
“allowed [Plaintiff] to be isolated” and upon
such isolation, Plaintiff “began hitting his head on
the block concrete and bolt[, ] eventually causing permanent
damage to his skull and brain.” (Id.) The
Defendants allegedly “failed to adequately respond, or
do anything during [Plaintiff's] suicide attempt”
while he was in their care and he “had a history of
anxiety [and] depression.” (Id.) Thereafter,
Plaintiff alleges that he requested medical aid due to
“this situation making him attempt suicide in the
jail.” (Id.)
B.
PROCEDURAL HISTORY
On
November 13, 2018, Plaintiff filed his Complaint and asserted
various civil rights claims arising out of the situation
involving the minor and his detainment. (Doc. # 1.) On
November 19, 2018, Magistrate Judge Gordon P. Gallagher
issued an Order requiring Plaintiff to file an amended
complaint to address several deficiencies with his previously
filed Complaint, including violations of Federal Rule of
Civil Procedure 8 (Doc. # 4.) On December 18, 2018, Plaintiff
filed his Amended Complaint and asserted a claim for police
misconduct under 42 U.S.C. § 1983 and an Americans with
Disabilities Act claim relating to his detainment and the
situation involving the minor. (Doc. # 5 at 4-5.) On January
18, 2019, Magistrate Judge Gallagher issued
another Order requiring Plaintiff to file
another amended complaint due to Plaintiff's
repeated failure to abide by Rule 8. (Doc. #
6 at 2.) The Magistrate Judge thoroughly explained the
contours of the defects in Plaintiff's Amended Complaint
and how Plaintiff should amend his pleading. (Id. at
2-11.)
On
February 19, 2019, Plaintiff filed the present version of his
complaint-the Second Amended Complaint (Doc. # 9). He
asserted two claims-one alleging that the EPPD created a
dangerous situation causing harm and another under “HR
1680-114th.” (Id.) Additionally, in his
request for relief, Plaintiff sought one million dollars in
damages and injunctive relief in the form of changing
EPPD's policy regarding bodycam footage, at risk adults,
and prevention of self-harm. (Id. at 4-6.) United
States District Court Judge Lewis T. Babcock issued an Order
dismissing in part Plaintiff's Second Amended Complaint
and ordering that the case be drawn to a presiding district
court judge. (Doc. # 10.) Because Plaintiff was not
represented by an attorney, Judge Babcock liberally construed
Plaintiff's Second Amended Complaint and discerned three
possible claims: (1) failure to protect with regard to a
minor; (2) liability of the Estates Park Police Department;
and (3) deliberate indifference by the individual officers to
Plaintiff's safety while in police custody. (Id.
at 2.)
Judge
Babcock dismissed the first claim because Plaintiff is not
permitted to represent a minor child without assistance of
counsel. (Id. at 2-3.) He dismissed the second claim
because Plaintiff failed to allege that an EPPD policy or
custom existed and that there was a direct causal link
between the EPPD policy or custom and the injury alleged.
(Id. at 3.) However, Judge Babcock declined to
summarily dismiss Plaintiff's third claim for deliberate
indifference in violation of the Fourteenth Amendment and
likewise permitted his related claims for money damages and
injunctive relief against the present Defendants to proceed.
(Id. at 4) (citing Estate of Olivas By &
Through Miranda v. City & Cty. of Denver, 929
F.Supp. 1329, 1337 (D. Colo. 1996)).
Thus,
on April 2, 2019, this case was randomly assigned to
Magistrate Judge Michael E. Hegarty. (Doc. # 10.) Because all
parties did not consent to the jurisdiction of Magistrate
Judge Hegarty, this case was reassigned to the Court on June
5, 2019. (Doc. # 22.) On June 5, 2019, Defendants moved to
dismiss Plaintiff's Second Amended Complaint on the
grounds of qualified immunity and for failure to state a
claim under Rule 12(b)(6). (Doc. # 23.) At a Scheduling
Conference held on June 11, 2019, Magistrate Judge Hegarty
ordered Plaintiff to file a response to the Motion to Dismiss
on or before July 1, 2019. (Doc. # 27.) Plaintiff failed to
do so. Upon that failure, Defendants filed a Reply in Support
of their Motion to Dismiss and requested dismissal with
prejudice because of Plaintiff's failure to obey court
orders and prosecute this case. (Doc. # 28 at 6-7.) Plaintiff
then responded on July 22, 2019 (Doc. # 29), to which
Defendants replied (Doc. # 30).
II.
LEGAL STANDARD
Rule
12(b)(6) provides that a defendant may move to dismiss a
claim for “failure to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b)(6). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be ...