HomeMy WebLinkAbout2022-cv-1983 - Townley v. Fort Collins, et al - 022 - Motion To Dismiss - Vansickle, Schilz, Hagerman, And YoungIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-CV-01983-SKC
MICHAEL PIPER TOWNLEY, ANNA KRUGER, and JOSHUA DeLEON;
Plaintiffs,
v.
BRIAN MALLORY, in his individual capacity;
ETHAN VanSICKLE, in his individual capacity;
DANIEL NETZEL, in his individual capacity;
JARED ROBERTSON, in his individual capacity;
JOE SCHILZ, in his individual capacity;
JASON HAFERMAN, in his individual capacity;
CHRISTOPHER YOUNG, in his individual capacity;
Defendants.
DEFENDANTS, ETHAN VANSICKLE, JOE SCHILZ, JASON HAFERMAN, AND
CHRISTOPHER YOUNG’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT [ECF 20] PURSUANT TO FED. R. CIV. P. 12(b)(6)
Defendants, Ethan VanSickle, Joe Schilz, Jason Haferman, and Christopher
Young (collectively, “Fort Collins Defendants”), by and through their undersigned counsel,
Hall & Evans, LLC, and pursuant to Fed.R.Civ.P. 12(b)(6), respectfully submit this Motion
to Dismiss Plaintiffs’ First Amended Complaint [ECF 20] (“Complaint”), stating in support
as follows:
SKC CIV. PRAC. STD. F(1) CONFERRAL:
Conferral on the Fort Collins Defendants’ Motion to Dismiss Plaintiffs’ First
Amended Complaint, was an attempted continuation from the previously filed Motion [See
ECF 18]. In particular, Counsel for the Fort Collins Defendants attempted to confer with
Counsel for Plaintiffs regarding the relief sought in the initial Motion, beginning November
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3, 2022. The Fort Collins Defendants asked Plaintiffs to consider filing an amended
complaint which, at the very least, indicated who did what to whom. Plaintiffs did not
timely respond to the Fort Collins Defendants’ conferral attempts, so a Motion to Dismiss
the initial Complaint was filed.
Counsel for the Fort Collins Defendants again attempted to discuss the
deficiencies in the First Amended Complaint on December 11, 2022, or in the alternative
a request for an extension of time to allow the parties time to discuss. Plaintiffs’ Counsel’s
office responded and indicated Counsel was out of the County, but would respond upon
his return.
Given the filing of the First Amended Complaint it is believed Plaintiffs object to the
requested relief.
I. INTRODUCTION
This matter arises out of the arrest of the three Plaintiffs on August 8, 2020, during
protests which took place in the City of Fort Collins, Colorado. The Plaintiffs attempt to
set forth eighteen claims for relief under both federal and state law theories, including
claims brought pursuant to 42 U.S.C. § 1983, and C.R.S. § 13-21-131. These claims
include excessive force, malicious prosecution, false arrest, violation of the First
Amendment, free speech-retaliation, violation of the Equal Protection Clause, and
conspiracy.
Plaintiffs filed their initial Complaint and the Defendants responded by filing a
Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on behalf of Officers VanSickle,
Schilz, Young, and former Fort Collins Police Officer, Jason Haferman (“Officer
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Haferman”)1. Plaintiffs now attempt, for the second time, to properly set forth claims
against these Defendants. Despite the additional opportunity to provide a specific factual
basis to support their claims, however, the Plaintiffs still offer nothing other than
conclusory and improper allegations which fail to satisfy minimal federal pleading
standards2.
Officers VanSickle, Schilz, Young and Haferman seek dismissal, with prejudice, of
Counts 3 to 4, and 7 to 18, pursuant to Fed. R. Civ. P. 12(b)(6).
II. STANDARD
To state a claim for relief, a federal complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2),
“that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). At the pleading stage, it is
not the defendant’s or the court’s responsibility to guess at plaintiff’s claims. Conley, 355
U.S. 41, 47 (1957). A § 1983 complaint must, under Rule 12, “make clear exactly who is
alleged to have done what to whom, to provide each individual with fair notice as to the
basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008). Thus, “[w]hen various officials have taken different actions with respect
to a plaintiff, the plaintiff’s facile, passive-voice showing his rights ‘were violated’ will not
suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated
1 The City of Fort Collins was also part of the Motion to Dismiss, but is not named in the
Amended Complaint.
2 Plaintiffs also bring claims against Fort Collins Police Officers Brian Mallory, Daniel
Netzel, and Jared Robertson. Answers on behalf of Mallory and Robertson have been filed. No
response is provided on behalf of Officer Netzel, as he has not been served.
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contention ‘defendants’ infringed his rights.” Pahls v. Thomas, 718 F.3d 1210, 1225-26
(10th Cir. 2013). “Rather, it is incumbent upon a plaintiff to identify specific actions taken
by particular defendants in order to make out a viable § 1983” claim. Id. The mere
metaphysical possibility some plaintiff could prove some set of facts for the claims is
insufficient; the complaint must give reason to believe this plaintiff has a reasonable
likelihood of mustering factual support for these claims. Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). All well-pleaded factual allegations are
viewed favorably to plaintiff. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).
All conclusory statements of law are set aside. Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). Rule 8, as interpreted by the Supreme Court, forbids
“labels and conclusions or a formulaic recitation of the elements of a cause of action.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
III. ARGUMENT
A. Plaintiffs’ Complaint Never Satisfies Federal Pleading Standards.
A court may not “assume that a plaintiff can prove facts that the plaintiff has not
alleged or that the defendants have violated the laws in ways that the plaintiff has not
alleged. Although the plaintiffs’ pleadings are to be liberally construed, mere conclusory
allegations without supporting factual averments will not suffice.” Baumeister v. N.M.
Comm'n for the Blind, 425 F. Supp. 2d 1250, 1257 (D. N.M. 2006); Kan. Penn Gaming,
LLC, 656 F.3d at 1214. Plaintiff must explain what each defendant did to him, when the
defendant did it, how the defendant’s action harmed him, and what specific legal right the
defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007); Robbins, 519 F.3d at 1250. It is not sufficient to refer collectively to a
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group of defendants, without specifying the individual activities of each. Robbins, 519
F.3d at 1250 (“Given the complaint’s use of either the collective term ‘Defendants’ or a list
of the defendants named individually but with no distinction as to what acts are attributable
to whom, it is impossible for any of these individuals to ascertain what particular
unconstitutional acts they are alleged to have committed.”) Robbins, 519 F. 3d at 1250.
The Complaint contains thirty-five pages and two-hundred ninety seven
paragraphs of allegations, against seven different Defendants, levied by three separate
Plaintiffs. Yet, even after amending their complaint, the additional allegations are nothing
more than conclusory statements respecting Defendants’ participation in conduct, which
might be construed as a violation of Plaintiffs’ Constitutional rights.
1. Plaintiffs Kruger and Townley Fail To Properly Allege Claims of
Malicious Prosecution.
A. Plaintiff Kruger Fails To Properly Allege Claims Of Malicious
Prosecution Against Officers Schilz, VanSickle, and Haferman.
In Counts 3 and 4 of the Complaint, Plaintiff Anna Kruger attempts claims for
malicious prosecution pursuant to 42 U.S.C. § 1983 and C.R.S. § 13-21-131 [ECF 20, at
¶¶ 153-158 and 159-164, respectively]. The claims are levied against Officers Schilz,
VanSickle, and Haferman, as well as other Defendants which are not part of this Motion.
To maintain a claim for malicious prosecution, a Plaintiff must properly allege the
following elements: “(1) the defendant caused the plaintiff's continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable
cause supported the original arrest, continued confinement, or prosecution; (4) the
defendant acted with malice; and (5) the plaintiff sustained damages.” Sanchez v.
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Hartley, 810 F.3d 750, 754 nt. 1 (10th Cir. 2016) citing Wilkins v. DeReyes, 528 F.3d
790, 799 (10th Cir. 2008).
Here, the Complaint fails to describe any specific action taken by any of these
Defendants, which might possibly be in violation of Plaintiffs’ constitutional rights. For
example, with respect to Officers Schilz and VanSickle, the only allegation relied on by
Plaintiff Kruger is a conclusory statement the Officers relayed that “Kruger had been
engaged in fighting when they had no probable cause or knowledge to believe this” [ECF
20, at ¶ 114]. No other allegations with respect to malicious prosecution against these
Defendants exists which might address the necessary elements of a claim.
The allegations against Officer Haferman fare no better. Plaintiff Kruger alleges
Haferman “prepared” the criminal offenses of disorderly conduct and resisting arrest
against Kruger [ECF 20, at ¶ 108], “affirmed under oath that ‘Anna Kruger was observed
by multiple officers fighting in public’” and resisted arrest [ECF 20, at ¶ 109]. Plaintiff
Kruger supports these allegations by the conclusory statement, “Haferman lied about the
circumstances of Ms. Kruger’s arrest to support criminal charges.” [ECF 20, at ¶110]. No
specific allegations are provided which might uphold the conclusory assertion Officer
Haferman “lied about the circumstances” of Ms. Kruger’s arrest. Kruger’s malicious
prosecution claims against Schilz, VanSickle, and Haferman, should, therefore, be
dismissed.
B. Plaintiff Townley Fails To Properly Allege Claims Of Malicious
Prosecution Against Officers Young, Schilz, and VanSickle.
In Counts 7 and 8 of the Complaint, Plaintiff Michael Townley attempts claims for
malicious prosecution pursuant to 42 U.S.C. § 1983 and C.R.S. § 13-21-131 [ECF 20, at
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¶¶ 177-182 and 183-188, respectively]. As with Plaintiff Kruger’s claims, Plaintiff Townley
offers no proper allegations in support.
With respect to Officer Young, Plaintiff Townley alleges Young “prepared charges
against Mx. Townley for the criminal offense of disorderly conduct without basis” [ECF
20, at ¶ 103], that Young “affirmed under oath that Mx. Townley ‘was observed by officers
engaging in a physical fight with other protestors” [ECF 20, at ¶ 104], and Young “lied in
his sworn statement about the circumstances of Mx. Townley’s arrest…” [ECF 20, at ¶
107 and 110]. All of these statements are conclusory and improper.
Plaintiff Townley also fails to overcome his burden with respect to establishing a
lack of probable cause, by making “a substantial showing of deliberate falsehood or
reckless disregard for truth by the officer seeking the warrant.” Metzler v. City of Colo.
Springs, 841 Fed. Appx. 94, 98 (10th Cir. 2021), citing Stonecipher v. Valles, 759 F.3d
1134, 1142 (10th Cir., 2014). “Proof of ‘reckless disregard in the presentation of
information to a . . . judge [requires] evidence that the officer in fact entertained serious
doubts as to the truth of [her] allegations.’” Metzler, 841 Fed. Appx. 98, citing
Stonecipher, 759 F.3d at 1142. Plaintiff Townley, however, simply alleges “Defendants
had no probable cause to arrest Mx. Townley,” and “The police were simply looking to
use the force of the state to punish those who called for an end to police brutality.” [ECF
20, at ¶ 83]. Such conclusory statements are insufficient to maintain a claim against
Officer Young.
Plaintiff Townley offers no support for the conclusory assumptions the Officer
Young lied with respect to his sworn statement, or support for any of the other elements
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such as Officer Young acted with malice. “(M)alice, in the context of malicious
prosecution, requires evidence of intent, not mere negligence.” Chavez-Torres v. City
of Greeley, 660 F. App'x 627, 629 (10th Cir. 2016), (referring to Novitsky v. City of
Aurora, 491 F.3d 1244, 1258-59 (10th Cir. 2007)) (ruling evidence of misstatement in
arrest report was insufficient evidence of malice when plaintiff failed to show misstatement
was intentional rather than negligent or inadvertent), and Fletcher v. Burkhalter, 605
F.3d 1091, 1095 (10th Cir. 2010) (stating malice in § 1983 malicious prosecution claims
“requires intentional or reckless disregard of the truth”).
In regard to Officers Schilz and VanSickle, and as argued above, Plaintiff Townley
offers only conclusory statements pertaining to a nebulous statement with respect to
Townley’s involvement in a fight. [ECF 20, at ¶ 104]. These allegations are also improper,
given Plaintiffs’ efforts to lump all of the Defendants together. See Robbins, 519 F.3d at
1250 (“Given the complaint’s use of … the collective term ‘Defendants’ … with no
distinction as to what acts are attributable to whom, it is impossible for any of these
individuals to ascertain what particular unconstitutional acts they are alleged to have
committed.”); See also Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (plaintiff
must identify specific acts a specific defendant took which form the basis of a
constitutional violation, and not lump numerous defendants into a single claim or use the
collective “Defendants” without isolating allegedly unconstitutional acts); cf. Gray v. Univ.
of Colo. Hosp. Auth., 672 F.3d 909, 921 n.9 (10th Cir. 2012) (defendants lacked notice
because the claim used the collective “Defendants”). Plaintiffs’ First Amended Complaint
is riddled with collective refences to the Fort Collins Defendants as merely “Defendants”,
“the police officers”, “the police”, and “FCPD officers”. [See ECF 20, ¶¶ 28, 29, 31,32, 29,
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31-32, 35, 37- 40, 50-52, 56-57,63-64, 75-76, 78, 83, 88; 106 ], without any factual
evidence to support this collective approach. Such allegations fail to identify specific
actions by any named Defendants. Moreover, Plaintiffs’ reference to “the police officers”,
“the police”, and “FCPD officers” makes it impossible to determine whether Plaintiffs are
making allegations regarding named Defendants in the present lawsuit, or general
allegations against police officers employed by Fort Collins Police Services. [See
generally ECF 20].
Plaintiffs do not sufficiently allege how each Fort Collins Defendant personally
participated in the actions which allegedly violated their Constitutional rights. Specifically,
Plaintiff Kruger fails to allege how all Defendants were personally involved in the arrest
or “failure to intervene to prevent the other Defendants from violating” Plaintiffs’
constitutional rights.” [See ECF 20, ¶¶ 127, 143]. Similarly, the remainder of Plaintiffs’
claims similarly fail to provide sufficient allegations of the personal participation by the
Fort Collins Defendants relating to their false arrest, malicious prosecution, and violation
of their free speech and assembly, retaliation and equal protection claims. Plaintiffs
merely include conclusory statement which simply recite the elements of each claim. As
such, Plaintiffs’ allegations are wholly insufficient to state a claim for relief. See, e.g., Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009), and therefore any claims against them should be dismissed.
2. Plaintiffs Fail To Properly Allege Claims of False Arrest.
A. Plaintiff Townley Fails To Properly Allege Claims Of False Arrest
Against Officers Schilz and VanSickle.
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In Counts 9 and 10 of the Complaint, Plaintiff Michael Townley attempts claims for
false arrest pursuant to 42 U.S.C. § 1983 and C.R.S. § 13-21-131 [ECF 20, at ¶¶ 189-
193 and 194-198, respectively]. Here, Plaintiffs approach seems to be an attack on the
purported lack of probable cause, as well as the arresting Officer’s arrest affidavit.
“A police officer violates an arrestee's clearly established Fourth Amendment right
to be free of unreasonable seizure if the officer makes a warrantless arrest without
probable cause. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002), citing
Tenn. v. Garner, 471 U.S. 1, 7, (1985). “Probable cause exists if facts and circumstances
within the arresting officer's knowledge and of which he or she has reasonably trustworthy
information are sufficient to lead a prudent person to believe that the arrestee has
committed or is committing an offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.,
1995) (citing Jones v. City & County of Denver, 854 F.2d 1206, 1210 (10th Cir. 1988)).
With respect to a claim of wrongful or false arrest arising out of a purportedly
deficient arrest affidavit, a plaintiff must show the facts relied on by the officer were
knowingly false, misleading, or omitted. “The burden is on the plaintiff to make a
substantial showing of deliberate falsehood or reckless disregard for truth by the officer
seeking the warrant.” Metzler, 841 Fed. Appx. at 98 (emphasis added), citing
Stonecipher, 759 F.3d at 1142. “Proof of ‘reckless disregard in the presentation of
information to a . . . judge [requires] evidence that the officer in fact entertained serious
doubts as to the truth of [her] allegations.’” Metzler, 841 Fed. Appx. at 98 (emphasis
added), citing Stonecipher, 759 F.3d at 1142. “The failure to investigate a matter fully,
to exhaust every possible lead, interview all potential witnesses, and accumulate
overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for
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the truth. To the contrary, it is generally considered to betoken negligence at most.”
Metzler, 841 Fed. Appx. at 98, citing Stonecipher, 759 F.3d at 1142. “A reviewing judge
may infer recklessness from circumstances evincing obvious reasons to doubt the
veracity of the allegations . . . ; [b]ut this is not a mandatory or automatic inference.”
Metzler, 841 Fed. Appx. at 98, citing Kapinski v. City of Albuquerque, 964 F.3d 900,
908 (10th Cir. 2020).
With respect to Officers Schilz and VanSickle, the same arguments set forth above
as to Plaintiffs’ failure to properly allege claims for malicious prosecution, apply to the
claims of false arrest. In particular, Plaintiff Townley fails to allege in anything other
than in a conclusory fashion, that the officer knowingly made a false or misleading
statement. In addition, Plaintiffs merely offer the conclusory assertion the arrest lacked
probable cause. Plaintiff Townley, therefore, fails to sustain his burden of showing a
“deliberate falsehood or reckless disregard for truth.” Metzler, 841 Fed. Appx. at 98
(emphasis added), citing Stonecipher, 759 F.3d at 1142, or specific facts the arresting
Officer would not have believed Townley committed an offense. Townley’s claims for
false arrest against Schilz and VanSickle should be dismissed.
3. Plaintiffs Fail To Properly Allege Claims of Violation of Free Speech
and Assembly
In Counts 11 and 12 of the Complaint, Plaintiffs attempt claims for a violation of
their rights pursuant to the First Amendment, delineated as “Freedom of Speech and
Assembly.” [ECF 20, at ¶¶ 199-213 and 214-227, respectively]. The claims are levied
against Officers Schilz, VanSickle, Haferman, and Young, as well as other Defendants
which are not part of this Motion.
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“The First Amendment, applicable to the States through the Fourteenth
Amendment, commands that Congress shall make no law abridging the freedom of
speech or freedom of assembly.” Reed v. Town of Gilbert, 576 U.S. 155, 162 (2015)).
“Under that Clause, a government, including a municipal government vested with state
authority, ‘has no power to restrict expression because of its message, its ideas, its
subject matter, or its content.’” Reed, 576 U.S. at 163 (2015), citing Police Dep't of
Chicago v. Mosley, 408 U. S. 92, 95 (1972). “To establish a First Amendment freedom
of speech or freedom of assembly violation against the government, the plaintiff must
prove that government action prohibited the plaintiff from speaking or assembling.” See
Reed, 576, U.S. at 163-64.
Here, Plaintiffs provide no proper allegations respecting any law or enforcement of
any law infringing on their ability to engage in their exercise of their First Amendment
rights. As argued above, the involvement of the Fort Collins Defendants is based on
nothing more than conclusory assertions and speculation.
Moreover, the Court may “‘discern no distinction’ between the [Plaintiffs’] First
Amendment retaliation claim and [their] claim alleging a direct denial of First Amendment
Rights” which supports a dismissal of such claims. See Sodaro v. City & Cnty. of
Denver, U.S. Dist. LEXIS 170904, *19-20 (D. Colo. September 21, 2022)(citing Valdez
v. New Mexico, 109 F. App'x 257, 263 n.4 (10th Cir. 2004). Plaintiff’s allegations which
form the basis of Counts 11 and 12, also form the basis of Plaintiff’s retaliation claims
brought pursuant to 42 U.S.C. § 1983 and C.R.S. § 13-21-131, Counts 13 and 14. Thus,
Plaintiffs bring duplicative claims and it is appropriate for this Court to dismiss Counts 11
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and 12 “considering that all of the Officers' actions occurred in response to the activities
that Plaintiff[s] contend[] were constitutionally protected.” See Sodaro, U.S. Dist. LEXIS
170904 at19.
4. Plaintiffs Fail To Properly Allege Claims of Retaliation.
In Counts 13 and 14 of the Complaint, Plaintiffs attempt claims for violation of free
speech and assembly pursuant to 42 U.S.C. § 1983 and C.R.S. § 13-21-131 [ECF 20, at
¶¶ 228-244 and 245-260, respectively].
To establish a § 1983 claim of retaliation for the exercise of free speech, a plaintiff
much establish: “(1) the plaintiff was engaged in activity protected by the First
Amendment; (2) the defendant's actions caused the plaintiff to suffer an injury that would
reasonably have a chilling effect on the exercise of protected activity by a person of
ordinary firmness; and (3) the defendant's action was ‘substantially motivated as a
response to the plaintiff's exercise of constitutionally protected conduct.’” Boateng v.
Metz, 410 F. Supp. 3d 1180, 1188 (D. Colo. 2-19) (citing Shero v. City of Grove, 510
F.3d 1196, 1203 (10th Cir. 2007)); See also Nieves v. Bartlett, 139 S. Ct. 1715, 1718
(2019) (Defendant officers summary judgment was affirmed by the Supreme Court
regarding plaintiff’s allegations his arrest was in retaliation for his protected speech under
the First Amendment). Moreover, it is “not enough to show that an official acted with a
retaliatory motive and that the plaintiff was injured—the motive must cause the injury.”
Nieves, 139 S. Ct., at1722; see also Hartman v. Moore, 547 U.S. 250, 260 (2006)
(recognizing that although it “may be dishonorable to act with an unconstitutional motive,”
an official’s “action colored by some degree of bad motive does not amount to a
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constitutional tort if that action would have been taken anyway”). The United States
Supreme Court adopted the requirement that plaintiffs asserting retaliatory arrest claims
must allege and prove an absence of probable cause for the underlying criminal charge.
See Nieves, 139 S. Ct., at 1725.
Plaintiffs have presented nothing other than conclusory assertions that Officers
VanSickel, Schilz, Haferman, and/or Young were substantially motivated to retaliate
against Plaintiffs as a response to their exercise of constitutionally protected conduct. As
set forth above, Plaintiffs include conclusory statements that Fort Collins Defendants did
not have probable cause for each of their arrests, with no factual support to substantiate
this conclusion. Such conclusory statements include, “For each of these five Defendants,
Mr. DeLeon was the opposition and they intended to punish him for his speech and
viewpoint”, “FCPD officers were seeking to punish only those who called out police
brutality”, and “The police were simply looking to use the force of the state to punish those
who called for an end to police brutality.” [ECF 20, ¶¶ 50, 56, 83]. Plaintiffs allegations
are wholly insufficient to state a claim for relief. See, e.g., Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), and therefore any
claims against them should be dismissed.
5. Plaintiffs Fail To Properly Allege Claims of Due Process.
In Counts 15 and 16 of the Complaint, Plaintiffs attempt claims for selective
enforcement pursuant to the Due Process Clause, 42 U.S.C. § 1983 [ECF 20, at ¶¶ 261-
269 and ¶¶ 270-277]. The Equal Protection Clause prohibits selective enforcement.
Whren v. United States, 517 U.S. 806, 813 (1996). A selective enforcement claim
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requires establishing: (1) different treatment from others similarly situated; and (2) the
differing treatment was based on clearly impermissible or invidious grounds “such as
race, religion, or the desire to prevent the exercise of constitutional rights.” United States
v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983). The standard for proving a violation of
Equal Protection based on selective enforcement is a “demanding” one. See United
States v. Armstrong, 517 U.S. 456, 463 (1996). “To establish a claim of selective law
enforcement, ‘[t]he plaintiff must demonstrate that the defendant’s actions had a
discriminatory effect and were motivated by a discriminatory purpose.’” Haskett v.
Flanders, 2014 U.S. Dist. LEXIS 179691, at *16 (D. Colo. Dec. 12, 2014), citing Marshall
v. Columbia Lea Reg'l Hosp, 345 F.3d, 1157, 1168 (10th Cir. 2003). “[T]he
discriminatory purpose element requires a showing that discriminatory intent was a
‘motivating factor in the decision’ to enforce the criminal law against the [plaintiff].”
Haskett, 2014 U.S. Dist., LEXIS 179691, at *16, citing United States v. Alcaraz—
Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006), citing Marshall, 345 F.3d at 1168.
“Those seeking to establish an equal protection claim based on selective law
enforcement face a high burden: they must dispel the presumption that a law enforcement
official has not violated the Equal Protection Clause with ‘clear evidence to the contrary.’”
Haskett 2014 U.S. Dist. LEXIS 179691, at *16-17 (emphasis added), citing United States
v. Hernandez—Chaparro, 357 F. App'x 165, 166 (10th Cir. 2009) (citing United States
v. Armstrong, 517 U.S. 456, 465 (1996)).
Police possess broad discretion in determining when to make an arrest. Alcaraz—
Arellano, 441 F.3d at 1264. “Judicial interference with law-enforcement discretion might
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‘induce police officers to protect themselves against false accusations in ways that are
counterproductive to fair and effective enforcement of the laws,’ such as by directing law
enforcement resources away from minority neighborhoods.’” Haskett, 2014 U.S. Dist.
LEXIS 179691, at *17 citing Alcaraz-Arellanco, supra. “Moreover, the conscious
exercise of some selectivity in enforcement is not in itself a federal constitutional
violation.” Haskett, 2014 U.S. Dist. LEXIS 179691, at *17, citing Oyler v. Boles, 368
U.S. 448, 456 (1962).
First, it is unclear from the Complaint what invidious grounds Plaintiffs claim the
selective enforcement was based on. A small and conclusory portion of the Complaint
attempts to allege a claim for conspiracy based on “racial animus,” [ECF 20, at ¶ 283], as
well as an accusation the Defendants targeted “individuals of color.” [ECF 20, at ¶ 284].
But, no identification with respect to the race of the Plaintiffs, or any of the other
protestors, are identified in the Complaint which might support any such claims.
Plaintiffs also attempt claims for violation of their First Amendment rights, [ECF 20,
at ¶ ¶ 199-269], but fail to identify whether these rights are the “invidious grounds” for
which they believe the law was selectively enforced. This failure alone supports dismissal
of Counts 15 and 16, as Plaintiff failed to comply with federal pleading standards.
Twombly, supra.
Either way, however, there is nothing other than conclusory allegations about
discriminatory conduct, which still fail to overcome the presumption the Officers did not
violate Plaintiffs’ Due Process rights, or establish by clear evidence that any actions by
the Officers had a discriminatory effect which were motivated by a discriminatory purpose.
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Haskett, 2014 U.S. Dist. LEXIS 179691, at *16 and Marshall, 345 F.3d, 1157, 1168 (10th
Cir. 2003). Any claims for a violation of Due Process should be dismissed.
6. Plaintiffs’ Conspiracy Claims Against The Fort Collins Defendants
Are Insufficient.
Counts 17 and 18 of the Complaint, attempt to allege claims for “Conspiracy to
Obstruct Justice Based on Invidious Discrimination,” pursuant to 42 U.S.C. § 1985(3)
[ECF 20, at ¶¶ 278-288] and Conspiracy to Deprive Constitutional Rights, pursuant to 42
U.S.C. § 1983 [ECF 20, at ¶¶ 289-297]. In addition to the specific pleading requirements
pursuant to Rule 8(a), Plaintiffs must also satisfy a heightened pleading requirement with
respect to any claim for conspiracy. “In Dixon v. City of Lawton, we explained many
differences exist between § 1983 and § 1985 for the purpose of alleging an actionable
conspiracy.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010) (referring to
Dixon, 898 F.2d 1443, 1447, 1449 & n.6 (10th Cir. 1990)). “However, despite these and
other differences in pleading actions under § 1983 and § 1985, we have generally held a
federal conspiracy action brought under either of these statutes requires at least a
combination of two or more persons acting in concert and an allegation of a meeting of
the minds, an agreement among the defendants, or a general conspiratorial objective.”
Brooks, 614 F.3d at 1227-28 (10th Cir. 2010) (referring to Salehpoor v. Shahinpoor,
358 F.3d 782, 785, 789 (10th Cir. 2004) (regarding § 1985 action)); Abercrombie v. City
of Catoosa, 896 F.2d 1228, 1229, 1231 (10th Cir. 1990) (regarding § 1985 action)). “‘(A)
plaintiff must allege specific facts showing an agreement and concerted action amongst
the defendants’ because ‘[c]onclusory allegations of conspiracy are insufficient to state a
valid § 1983 claim.’” Brooks, 614 F.3d at 1228, (citing Tonkovich v. Kan. Bd. of
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Regents, 159 F.3d 504, 533 (10th Cir. 1998) (quoting Hunt v. Bennett, 17 F.3d 1263,
1266 (10th Cir. 1994)).
Furthermore, mere parallel conduct, without more, does not suggest conspiracy
and conclusory allegations of agreement do not give enough facts to show illegality. See
Twombly, 550 U.S. at 556-57 & 565 n.10; Tonkovich, 159 F.3d at 533. An allegation
of parallel action — or inaction — does not necessarily indicate agreement to act in
concert. Brooks 614 F.3d at 1228. For the complaint to survive, it must allege facts
plausibly stating a conspiracy. Allegations of parallel conduct absent a specific context
implying meeting of minds is not enough. Gee v. Pacheco, 627 F.3d 1178, 1183 (10th
Cir. 2010). “‘[A] plaintiff must allege specific facts showing an agreement and concerted
action amongst the defendants’ because ‘conclusory allegations of conspiracy are
insufficient to state a valid § 1983 claim.’” Thompson v. Platt, 815 F. App’x 227, 240
(10th Cir. 2020) (quoting Brooks, 614 F.3d at 1228).
Here, Plaintiffs have not alleged a concrete factual context plausibly establishing
action in concert, a meeting of the minds, an agreement among Fort Collins Defendants,
or a conspiratorial objective. They have not alleged facts showing any Fort Collins
Defendant acted in concert with each other or any of the other defendants. They have
not even alleged facts showing when or how any of the Fort Collins Defendants
communicated with one another, and their conclusory allegations that they, “reached an
agreement among themselves to deprive Plaintiffs of their constitutional rights and equal
protection of the laws”, and “the proto-insurrectionists were their allies” and “consistent
with their plan to allow political violence” [See ECF 20, ¶ 42, 53, 55, 56, 59, 65, 67, 282],
are insufficient to state a claim. See Thompson, 815 F. App’x at 240 (conclusory
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allegations of conspiracy identified no specific agreement to work together to achieve an
unlawful objective); see also Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230-31
(10th Cir. 1990) (“Without any evidence of communication between Dirck and Conley,
there is nothing to give rise to the inference that they conspired.”); Selhime v. Carlson,
2013 U.S. Dist. LEXIS 185297, at *14 (D. Colo. Nov. 12, 2013) (no conspiracy claim
where plaintiff failed to allege “any specific communication or command from which a
conspiracy among the Defendants could be inferred”); Jemaneh v. Univ. of Wyo., 2013
U.S. Dist. LEXIS 187472, at *25 (D. Colo. Oct. 28, 2013) (dismissing conspiracy claim
absent “specific, non-conclusory factual allegations showing agreement and concerted
action among defendants”).
For these reasons, Plaintiffs have not alleged sufficient allegations respecting any
conspiracy exists, and Plaintiff fail to meet their burdens with respect to both initial and
the heightened federal pleading standards.
IV. CONCLUSION
For the foregoing reasons, the Defendants Ethan VanSickle, Joe Schilz, Jason
Haferman, and Christopher Young request this Court enter an Order dismissing all claims
against them, with prejudice, and granting all other and further relief deemed just and
proper.
Respectfully submitted this 12th day of December 2022.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Andrew D. Ringel, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
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ratnerm@hallevans.com
ringela@hallevans.com
hoffmank@hallevans.com
Attorneys for Defendants Brian Mallory,
Ethan VanSickle, Jared Robertson,
Joe Schilz, Jason Haferman and
Christopher Young
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 12th day of December 2022, a true and correct copy of
the foregoing DEFENDANTS, ETHAN VANSICKLE, JOE SCHILZ, JASON
HAFERMAN, AND CHRISTOPHER YOUNG’S MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT [ECF 20] PURSUANT TO FED. R. CIV. P. 12(b)(6)
was filed with the Court via CM/ECF and served on the below-listed party by email:
Edward Milo Schwab, Esq.
milo@ascendcounsel.co
s/ Sarah Stefanick
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