Bowles v. Filsinger

          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 ...