HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 019 - City And Heaton Mot Dismiss And Request For Qualified ImmunityIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1342-SBP
Jesse Cunningham,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman;
Sergeant Allen Heaton; and
Corporal Redacted.
Defendants.
DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P.
12(b)(6) AND REQUEST FOR QUALIFIED IMMUNITY
Defendants City of Fort Collins and Sergeant Allen Heaton, through their undersigned
counsel, Hall & Evans, LLC, submit the following as their Motion to Dismiss Plaintiff’s
Complaint, pursuant to Fed. R. Civ. P. 12(b)(6):1
CERTIFICATE OF CONFERRAL
Undersigned Counsel conferred with Counsel for the Plaintiff. Plaintiff objects to the relief
requested herein.
I. INTRODUCTION
This matter arises out of Plaintiff’s arrest on July 29, 2021, by former Fort Collins Police
Officer, Jason Haferman, and the subsequent investigation and prosecution for the crime of
1 Plaintiff identifies “Corporal Redacted” as an individual associated with the City of Fort Collins.
This Motion is not submitted on behalf of Corporal Redacted, as no such individual has been served.
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Driving Under the Influence (“DUI”). Plaintiff claims Defendant Haferman’s actions somehow
implicate the City of Fort Collins (“City”) and Sergeant Heaton, as Defendant Haferman’s
supervisor. The Complaint attempts to set forth claims against the City and Sergeant Heaton,
pursuant to 42 U.S.C. § 1983, for an unconstitutional pattern and practice, failure to train and
supervise, and violation of “due process” under the Fourth Amendment. (See Pltfs. Cmp., ECF 1-
1, Second Claim for Relief, at ¶¶ 184 to 190; 192 to 196).
For the reasons set forth below, Plaintiff’s claims against the City and Sergeant Heaton
should be dismissed. In particular, the claims rely on conclusory allegations while at the same
time fail to allege facts sufficient to satisfy minimal federal pleading standards established pursuant
to Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Additionally, the doctrine of qualified
immunity and the lack of allegations respecting any particularized behavior or personal
participation also preclude Plaintiff’s claims against Sergeant Heaton. See Bennett v. Passic, 545
F.2d 1260, 1262 (10th Cir.1976) (personal participation is an essential allegation in a section 1983
claim…”); See also Foote v. Spiegel, 118 F.3d 1416 (10th Cir.1986).
With respect to the claims against the City, Hinton v. City of Elwood, Kan., 997 F.2d 774,
783 (10th Cir.1993) precludes any claim against a public entity pursuant to a respondeat superior
theory. Instead, to establish liability against a municipality, a plaintiff must show a public entity’s
policy or custom existed, and a direct causal link between the policy or custom and the injury
alleged. City of Canton Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma County
Bd., 11 F.3d 1313 (10th Cir.1998). Plaintiff identifies no such policy or custom.
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
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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) (emphasis in original). 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 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. Pahls,
718 F.3d at 1225-26. 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).
To any extent Sergeant Heaton is alleged to have violated Plaintiff’s Constitutional rights
based on his individualized behavior, the doctrine of qualified immunity shields him from any
damages claimed. See Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Qualified immunity
affords public officials immunity from suit and exists to “protect them from undue interference
with their duties, and from potentially disabling threats of liability.” Elder v. Holloway, 510 U.S.
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510, 514 (1994), citing Harlow, 457 U.S. at 806 (1982). Qualified immunity protects all
governmental officials performing discretionary functions from civil liability as long as their
conduct does not violate clearly established Constitutional rights of which a reasonable person
would have known. Harlow, 457 U.S. at 818.
Qualified immunity is not only a defense to liability, it provides immunity from suit.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “One of the purposes of immunity, absolute or
qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands
customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S.
226, 232 (1991). “These burdens include distraction of officials from their governmental
responsibilities, the inhibition of discretionary decision making, the deterrence of able people from
public service, and the disruptive effects of discovery on governmental operations.” Hannula v.
City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). Courts should, therefore, resolve the purely
legal question raised by a qualified immunity defense at the earliest possible state in the litigation.
Medina v. Cram, 252 F.3d 1124, 1127-28 (10th Cir. 2001).
When a defendant pleads the defense of qualified immunity, a plaintiff bears a heavy two-
part burden of proving that: (1) the defendants’ actions violated a constitutional right, and (2) the
right was clearly established at the time of the conduct at issue. Mick v. Brewer, 76 F.3d 1127,
1134 (10th Cir. 1996) (citations omitted). To survive dismissal, the plaintiff must show that the
right was “clearly established” in a “particularized” sense. Wilson v. Meeks, 52 F.3d 1547, 1552
(10th Cir. 1995), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[F]or a right to be
‘particularized,’ there must ordinarily be a Supreme Court or Tenth Circuit decision on point, or
‘clearly established weight of authority’ from other courts.” Anderson, 483 U.S. at 640 citing
Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
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III. ARGUMENT
A. Plaintiff fails to set forth any specific allegations against Sergeant Heaton
establishing his personal participation in the alleged constitutional
violation.
Plaintiff ’s claims against Sergeant Heaton are based on an alleged supervisory position
over Defendant Haferman. (ECF 1-1, ¶ 191). Premising claims merely as a result of a “respondeat
superior” relationship, however, is improper. “Under § 1983, government officials are not
vicariously liable for the misconduct of their subordinates. ‘There is no concept of strict supervisor
liability under § 1983.’” Serna v. Colo. Dept. of Corrections, 455 F.3d 1146, 1151 (10th Cir.
2006), citing Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996); see also Bass v. Robinson, 167
F.3d 1041, 1048 (6th Cir. 1999) (“Liability . . . must be based upon more than a mere right to
control employees.”). Liability against a supervisor, therefore, must be premised on some direct
action by the supervisor. Serna, 455 F.3d at 1151, citing Scull v. New Mexico, 236 F.3d 588, 600
(10th Cir. 2000). “Supervisors are only liable under §1983 for their own culpable involvement in
the violation of a person's constitutional rights. To establish supervisor liability under § 1983, ‘it
is not enough for a plaintiff merely to show a defendant was in charge of other state actors who
actually committed the violation. Instead, . . . the plaintiff must establish ‘a deliberate, intentional
act by the supervisor to violate constitutional rights.’’” Serna, 455 F.3d at 1151, citing Jenkins, 81
F.3d at 994-95, citing Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992). “In
short, the supervisor must be personally ‘involved in the constitutional violation,’ and a ‘sufficient
causal connection’ must exist between the supervisor and the constitutional violation.” Serna, 455
F.3d at 1151 (emphasis added) citing Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006).
An affirmative link means Plaintiff must properly allege not only that the subordinate violated the
Constitution, but also the “active participation or acquiescence of the supervisor in the
constitutional violation by the subordinates.” Serna, 455 F.3d at 1151, citing Holland v.
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Harrington, 268 F.3d 1179, 1187 (10th Cir. 2001), and Green v. Branson, 108 F.3d 1296, 1302
(10th Cir. 1997). “(T)he supervisor’s state of mind is a critical bridge between the conduct of a
subordinate and his own behavior. Because ‘mere negligence’ is not enough to hold a supervisor
liable under § 1983, a plaintiff must establish the supervisor acted knowingly or with ‘deliberate
indifference’ that a constitutional violation would occur.” Serna, 455 F.3d at 1151, citing
Green,108 F.3d at 1302.
In addition to a culpable state of mind, Plaintiff must also establish some sort of personal
participation in the alleged Constitutional violation. “Personal participation by a defendant is an
essential element of a civil rights action.” Weiss v. Vasquez, 2022 U.S. Dist. LEXIS 183467, at
*10 (D. Colo. Oct. 6, 2022), referring to Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976). “There must be an affirmative link between the alleged constitutional violation and each
defendant's participation, control or direction, or failure to supervise.” Weiss , 2022 U.S. Dist.
LEXIS 183467, at * 10, referring to Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.
1993). To establish supervisor liability pursuant to § 1983, Plaintiff must assert that any named
individual: (i) personally participated in the conduct; (ii) exercised control or direction over it; (iii)
failed to supervise; (iv) failed to train; or (v) tacitly authorized the conduct that resulted in a
constitutional deprivation. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); Currier
v. Doran, 242 F.3d 925 (10th Cir. 2001).
Here, Plaintiff recounts his arrest on July 29, 2021, but nowhere in his Complaint does he
identify any specific involvement of Sergeant Heaton implicating a violation of any constitutional
rights. In particular, Plaintiff alleges he witnessed a horrific motorcycle accident when a driver
pulled out in front of three-motorcyclists at an intersection (ECF 1-1, ¶ 55). Plaintiff pulled over
provided aid. (ECF 1-1, ¶¶ 57-59).
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Fort Collins Police Services arrived and asked him to remain on scene to fill out witness
statements describing what he saw. The Officers also asked Plaintiff and his family to remain on
scene to answer any questions the accident reconstruction officer might have, which they did.
(ECF 1-1, ¶ 62). Defendant Haferman arrived on scene, (ECF 1-1, ¶ 64) and informed Plaintiff
someone reported smelling the odor of alcohol on him. (ECF 1-1, ¶ 65). Defendant Haferman
informed Plaintiff he needed him to complete roadside tests to prove he was safe to drive (ECF 1-
1, ¶ 69). The roadside tests were conducted, and Defendant Haferman arrested Plaintiff for DUI
(ECF 1-1, ¶ 77) and transported him to jail. (ECF 1-1, ¶ 87). As part of the arrest, Plaintiff agreed
to submit to a blood draw (ECF 1-1, ¶ 81).2
Nowhere in the recitation of Defendant Haferman’s interaction with Plaintiff on July 29,
2021, is Sergeant Heaton mentioned. Plaintiff criticizes the roadside tests and conclusions of
Defendant Haferman as the basis for the wrongful arrest and violation of his constitutional rights.
There are no allegations, however, identifying Sergeant Heaton’s participation in the roadside
tests, conclusions of Defendant Haferman, or any other actions which might be construed as a
violation of Plaintiff’s Constitutional rights. According to Plaintiff’s own allegations, it was
Defendant Haferman who allegedly: (i) refused to provide Plaintiff with a portable breath test
(ECF 1-1, ¶ 71); (ii) did not perform the road-side tests in the standardized manner in which he
was trained (ECF 1-1, ¶ 75); and (iii) included multiple lies in the arrest report regarding Plaintiff’s
performance on the road-side tests (ECF 1-1, ¶ 75).
There are no non-conclusory allegations establishing an affirmative link between
Defendant Haferman’s actions, the alleged constitutional violations, and involvement by Sergeant
2 The Defendants reserve the right to contest the validity of these facts in any subsequent
proceedings.
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Heaton. Weiss , 2022 U.S. Dist. LEXIS 183467, at * 10, referring to Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993). There are also no non-conclusory allegations Sergeant
Heaton exercised control or direction over Defendant Haferman’s determinations, failed to
supervise the specific stop involving the Plaintiff, or tacitly authorized Defendant Haferman’s
conduct resulting in a constitutional deprivation. See Fogarty, 523 F.3d at 1162 and Currier, 242
F.3d 925.
Likewise, the allegations in the Complaint identifying Sergeant Heaton fail to describe any
specific action taken which might have possibly violated Plaintiff’s constitutional rights. For
example, the Complaint states, “(a)s of March 20, 2021…Sergeant Heaton…personally, again had
notice that Haferman was wrongfully arresting innocent people.” (ECF 1-1, ¶¶ 31(g)-32). But this
allegation refers to the arrest of “C.B.” and not Plaintiff (ECF 1-1, ¶ 31). This allegation has
nothing to do with Plaintiff, and it is also conclusory and insufficient to state a claim for relief
against Sergeant Heaton. Twombly, 550 U.S. 544; Iqbal, 556 U.S. at 677-78. There is no
information to suggest Sergeant Heaton had any sort of “notice,” especially regarding the specific
arrest of Plaintiff. Any claim against Sergeant Heaton should be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) for failure to meet federal pleading standards.
B. Sergeant Heaton is entitled to qualified immunity.
As discussed above, Plaintiff bears a heavy, two-part burden of overcoming the defense of
qualified immunity. In particular, Plaintiff must properly allege that: (1) the defendants’ actions
violated a constitutional right, and (2) the right was clearly established at the time of the conduct
at issue. Mick, 76 F.3d at 1134.
1. Plaintiff fails to establish a constitutional right.
As argued above, there are no allegations identifying specific action taken by Sergeant
Heaton which might have possibly violated Plaintiff’s constitutional rights. (See § III (A), supra).
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Plaintiff’s inability to comply with federal pleading standards, and to identify a constitutional
violation, is likewise detrimental to his burden with respect to Sergeant’s defense of qualified
immunity.
2. Plaintiff fails to identify a clearly established right.
To survive dismissal, the plaintiff must show that the right was “clearly established” in a
“particularized” sense. Wilson, 52 F.3d at 1552. “[F]or a right to be ‘particularized,’ there must
ordinarily be a Supreme Court or Tenth Circuit decision on point, or ‘clearly established weight
of authority’ from other courts.” Anderson, 483 U.S. at 640 citing Medina, 960 F.2d 1498.
Here, Plaintiff alleges Sergeant Heaton violated Plaintiff’s Fourth Amendment rights by
failing to supervise and/or train Defendant Haferman with respect to his DUI arrest. The basis for
Plaintiff’s allegations is the notion Sergeant Heaton purportedly failed to review other DUI arrests
thereby precipitating Haferman’s actions with respect to Plaintiff (ECF 1-1, ¶¶ 193-196). Besides
being improperly speculative, a search of Tenth Circuit jurisprudence fails to reveal any
particularized case allowing for the imposition of Constitutional liability on this theory, including
a failure to review previous DUI arrests unrelated to a plaintiff’s arrest. Without any clearly
established authority, Plaintiff can state no claim for a Constitutional violation, and Sergeant
Heaton is entitled to qualified immunity.
C. Plaintiff fails to properly set forth any proper allegations to maintain a
claim against the City of Fort Collins.
Plaintiff’s claims against the City of Fort Collins (“City”) fare no better than those against
Sergeant Heaton. To establish liability of a public entity under 42 U.S.C. §1983, “a plaintiff must
show (1) the existence of a municipal custom or policy and (2) a direct and causal link between
the custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir.
1996), citing City of Canton v. Harris, 489 U.S. 378, 385 (1989). The Supreme Court described
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the requirements a plaintiff must meet to impose public entity liability as follows: “It is not enough
for a §1983 plaintiff merely to identify conduct properly attributable to the municipality. The
plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action
was taken with the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.” Bd. of Cnty. Comm’rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1998) (emphasis added).
Under these standards, municipal liability may arise only out of official customs or policies,
or for the actions of a final policymaker to any extent that such policies, customs, or policymakers
can be shown to be responsible for a constitutional violation. See Brown, 520 U.S. at 403-404.
Establishing deliberate conduct and the “requisite degree of culpability,” means municipal liability
attaches only where “a deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); Myers v.
Oklahoma Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1319 (10th Cir. 1998).
“Where a plaintiff claims that the municipality has not directly inflicted an injury, but
nonetheless has caused an employee to do so, rigorous standards of culpability and causation must
be applied to ensure that the municipality is not held liable solely for the actions of its
employee.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.
2013), citing Brown, 520 U.S. at 405. “The causation element is applied with especial rigor when
the municipal policy or practice is itself not unconstitutional, for example, when
the municipal liability claim is based upon inadequate training, supervision, and deficiencies in
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hiring.” Schneider, 717 F.3d at 770, citing Martin A. Schwartz, Section 1983Litigation Claims &
Defenses, § 7.12.
“[A] plaintiff seeking to establish municipal liability on the theory that a facially
lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that
the municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Schneider 717 F.3d at 770 (10th Cir. 2013) citing Brown, 520 U.S. at 407; see
also City of Canton, 489 U.S. 378, 389 (1989). “The deliberate indifference standard may be
satisfied when the municipality has actual or constructive notice that its action or failure to act is
substantially certain to result in a constitutional violation, and it consciously or deliberately
chooses to disregard the risk of harm.” Schneider, 717 F.3d at 771, citing Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998).
Plaintiff supports his claim against the City on generalized allegations it had a duty to train
and supervise Defendant Haferman, and it was somehow aware of his propensity for wrongfully
arresting citizens to increase his DUI arrest numbers by falsifying his reports, and it deliberately
chose not to remedy the situation. (ECF 1-1, ¶ 205). The Complaint alleges the City’s “failure to
supervise and train Haferman” was the moving force behind Plaintiff’s wrongful arrest (ECF 1-1,
¶ 206), and those actions “violated plaintiff’s federal constitutional rights.” (ECF 1-1, ¶ 207).
Those allegations, however, are factually unsupported in the Complaint, conclusory, and improper
under federal pleading standards. Twombly, 550 U.S. 544; Iqbal, 556 U.S. at 677-78.
There are simply no allegations in the Complaint establishing deliberate indifference by
the City with respect to any specific policy or custom, nor are there any allegations the City’s
actions (or failure to act) was substantially certain to result in a violation of Plaintiff’s
constitutional rights, and that the City consciously or deliberately chose to disregard any such
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harm. Schneider, 717 F.3d at 771, citing Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.
1998). Any claim against the City should be dismissed.
IV. CONCLUSION
Wherefore, Defendants, City of Fort Collins and Sergeant Allen Heaton, respectfully
request the Court grant their Motion, order Sergeant Heaton is entitled to qualified immunity,
dismiss all claims against them with prejudice, and for entry of any other relief deemed just.
Respectfully submitted this 21st day of August, 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, 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
ratnerm@hallevans.com
weinerr@hallevans.com
hoffmank@hallevans.com
Attorneys for the City of Fort Collins and Allen
Heaton
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 21st day of August 2023, a true and correct copy of the
foregoing DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN
HEATON’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED.
R. CIV. P. 12(b)(6) AND REQUEST FOR QUALIFIED IMMUNITY was filed with the
Court via CM/ECF and served on the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
Jonathan M. Abramson, Esq.
jonathan@kandf.com
Yulia Nikolaevskaya, Esq.
julie@kandf.com
s/ Sarah Stefanick
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