HomeMy WebLinkAbout2023-cv-1343 - Elias v. City of Fort Collins, et al. - 098 - City Heaton Mot Dismiss 2d Am ComplaintIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1343-GPG-KAS
Harris Elias,
Plaintiff.
v.
City of Fort Collins,
Jason Haferman, and
Sergeant Allen Heaton,
Defendants.
DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT [ECF 88]
PURSUANT TO FED. R. CIV. P. 12(b)(6) AND REQUEST FOR QUALIFIED
IMMUNITY
Defendants City of Fort Collins (“City”) and Sergeant Allen Heaton (“Sgt. Heaton”)
(together, “Defendants”), through their undersigned counsel, Hall & Evans, LLC, submit the
following as their Motion to Dismiss Plaintiff’s Second Amended Complaint (“SAC”) Pursuant to
Fed. R. Civ. P. 12(b)(6) and Request for Qualified Immunity, as follows:
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 December 3, 2021, by former Fort Collins
Police Officer, Jason Haferman, and the subsequent investigation and prosecution for the crime of
Driving Under the Influence (“DUI”). Plaintiff alleges that Haferman’s actions implicate the City
and Sgt. Heaton, as Haferman’s supervisor. The SAC attempts claims against the City and Sgt.
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Heaton pursuant to 42 U.S.C. §§1983 and 1985 and Colorado State law for unlawful arrest,
malicious prosecution, conspiracy, and failure to train and supervise.
For the reasons set forth below, Plaintiff’s claims against the City and Sgt. Heaton should
be dismissed. Notwithstanding several bites at the apple to amend his Complaint and assert
plausible claims against Defendants, Plaintiff continues to rely on conclusory allegations while at
the same time failing 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 Sgt. Heaton. See Bennett v. Passic, 545 F.2d
1260, 1262 (10th Cir.1976) (personal participation is an essential allegation in a §1983 claim);
Foote v. Spiegel, 118 F.3d 1416 (10th Cir.1986).
Regarding Plaintiff’s 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 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). 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.
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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 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
that 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).
While 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 that Sgt. 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
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). Courts should, therefore, resolve the purely
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legal question raised by a qualified immunity defense at the earliest possible stage 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: (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 the right was
“clearly established” in a “particularized” sense. Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir.
1995). “[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).
III. ARGUMENT
A. Plaintiff Does Not Sufficiently Allege a Basis for Imposing Individual
Liability Against Sgt. Heaton.
1. No Cognizable False Arrest Claims (First and Second Claims for
Relief)
To establish individual liability, a plaintiff must show personal participation by the
defendant in a constitutional violation. Premising claims on a “respondeat superior” relationship
is improper and insufficient. “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 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
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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. 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 establish personal participation by
Sgt. Heaton 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), citing 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, citing Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
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To establish supervisor liability, Plaintiff must assert Sgt. Heaton: (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).
The First and Second Claims for Relief against Sgt. Heaton are set forth under a generalized
heading of “Arrest without Probable Cause.” [ECF 88 at 82 and 85, First and Second Claims,
respectively]. Although no particular theories are identified, it appears Plaintiff attempts to impose
liability against Sgt. Heaton under theories of supervisor liability, failure to intervene, and the
alleged arrest of Plaintiff without probable cause. No matter the theory, however, Plaintiff’s
allegations against Sgt. Heaton are insufficient.
Plaintiff’s First and Second claims rest on the assertion Sgt. Heaton “had notice Haferman
was wrongfully arresting innocent people;” therefore, he should have known Haferman did not
have probable cause to arrest this Plaintiff. This is a conclusory assertion, not grounded in the
factual allegations in Plaintiff’s SAC. Applying Plaintiff’s non-conclusory allegations, Sgt. Heaton
had the following notice of Haferman’s DUI arrests resulting in negative test results before
Plaintiff’s arrest:
• Haferman arrested and charged C.B. with DUI. On March 20, 2021, Haferman authored a
supplemental report recording the receipt of C.B.’s blood draw results and documenting the
results “did not show alcohol or drugs of abuse.” Sgt. Heaton approved Haferman’s
supplemental report. [ECF 88, ¶¶ 30-31]. But mere approval of the supplemental report does
not demonstrate Sgt. Heaton was somehow on notice of improper conduct.
• Plaintiff alleges “some supervising officers showed up” during Haferman’s arrest of Mr.
Padilla on February 18, 2021, and from there, he speculates that “if Sgt. Heaton were in this
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group of officers, this constitutes even more specific notice to them regarding Haferman’s
ongoing disregard for the rights of citizens.” [ECF 88, n. 4 (emphasis added)]. Plaintiff
invites the Court to speculate that Sgt. Heaton was part of the group of supervisors present
for Mr. Padilla’s arrest. This is improper and should not be considered by the Court.
• Sgt. Heaton reviewed Haferman’s June 10, 2021 “report and arrest” of R.B. Plaintiff does
not specify if Sgt. Heaton reviewed Haferman’s June 10, 2021, arrest report or a
supplemental report following (or not following) the receipt of R.B’s blood draw results.
[ECF 88, ¶ 43].
This is the sum total of factual support of the alleged “notice” Sgt. Heaton possessed before
Plaintiff’s arrest—namely, that he reviewed two DUI arrest reports for Haferman where the blood
test results later showed the arrestee did not have alcohol or drugs of abuse in their systems.1 These
allegations do not establish Sgt. Heaton had actual knowledge of any pattern of wrongful DUI
arrests by Haferman, which might support Plaintiff’s claim Sgt. Heaton knew Haferman was
wrongfully arresting him, particularly since there are no proper allegations Sgt. Heaton had
knowledge of Plaintiff’s circumstances surrounding his arrest. Furthermore, it is a temporal
impossibility Sgt. Heaton could have possibly known at the time of Plaintiff’s arrest, the blood
tests would come back as showing no alcohol or drugs. The above incidents have no connection
to Plaintiff, and there are no proper allegations that Sgt. Heaton participated in the decision to
1 In ¶ 105 of the SAC, Plaintiff alleges when Sgt. Heaton approved his arrest, he “had actual
and constructive knowledge that Haferman had repeatedly been arresting people for DUIs (at least
7 in the prior 6 months) only to have their blood tests come back with no alcohol or drugs detected.”
This allegation is unsupported by the well-plead allegations in Plaintiff’s SAC. As outlined above,
Plaintiff only alleges Sgt. Heaton had “notice” of two DUI arrests by Haferman resulting in
negative blood test results. Two instances do not establish a “repeated” pattern. See Merriam-
Websters Dictionary defining “repeated” as “recurring over and over again.” Additionally, there
are no allegations a blood test which shows no alcohol or drugs, somehow resulted in an improper
arrest. Any such assertion is simply Plaintiff’s unsupported, conclusory belief.
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arrest Plaintiff, nor could he because Sgt. Heaton was not on scene at the time of Plaintiff’s arrest.
Plaintiff has not alleged: (1) that Sgt. Heaton observed Plaintiff’s driving precipitating the stop;
(2) that Sgt. Heaton witnessed the encounter between Plaintiff and Haferman; (3) that Sgt. Heaton
was present for any of Haferman’s investigation resulting in his independent decision to arrest
Plaintiff; or (4) that Haferman consulted Sgt. Heaton prior to his arrest determination. Rather,
plaintiff specifically pleads that Haferman called Sgt. Heaton for the first time after placing
Plaintiff under arrest. [ECF 88, ¶ 102].
Plaintiff alleges Sgt. Heaton approved Plaintiff’s arrest during a post-arrest phone call.
[ECF 88, ¶ 14]. The problem with Plaintiff’s allegations is the lack of any knowledge regarding
the substance of Haferman and Sgt. Heaton’s conversation. Plaintiff merely is speculating as to
what was discussed, again based on nothing other than Plaintiff’s one-sided assumption of what
occurred. This conversation was not captured on body worn camera footage, and Plaintiff does
not allege that he or any witnesses overheard any conversations between Haferman and Sgt.
Heaton. The only two individuals with substantive knowledge of the conversation are: (1)
Haferman and (2) Sgt. Heaton. Plaintiff attempts to circumvent his knowledge problem by stating
his allegations are based on “information and belief.” Plaintiff cannot fill the holes in his
knowledge to support his conclusory assertions, however, with imagined and creative facts whose
only purpose is to advance his own self-serving narrative. Plaintiff weaves an intriguing story, but
complaints should not be works of fiction and, as recognized by this District, federal pleading
standards require a good faith basis for claims and factual assertions—"No allegation of fact
should be asserted without a good faith basis in fact and law.” Ortiz v. DePriest, 2015 U.S. Dist.
LEXIS 90924, *7 (D. Colo. July 8, 2015). Here, Plaintiff does not show any good faith basis to
assert these claims against Sgt. Heaton.
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At the request of Plaintiff, Sgt. Heaton went to the hospital to address his complaint against
Haferman. [ECF 88, ¶ 130]. Sgt. Heaton spoke with Haferman, and Plaintiff spins a sordid tale
involving allegations where Sgt. Heaton not only approved Plaintiff’s arrest, but assisted Haferman
in violating Plaintiff’s constitutional rights. Plaintiff, however, possesses no knowledge (nor is any
such knowledge alleged) regarding the substance of the conversations between Sgt. Heaton and
Haferman. Plaintiff asserts nothing more than speculative allegations in hopes of overcoming
dismissal and obtaining some information during discovery which might hypothetically support
his claims. This approach is improper.
Accordingly, the Court should dismiss Plaintiff’s federal and state false arrest claims.
Plaintiff cannot show Sgt. Heaton personally participated in any alleged violations, and any
allegations regarding Sgt. Heaton’s approval of Plaintiff’s arrest arising from post-arrest calls and
meetings with Haferman, are based on nothing but conjecture and therefore insufficient to satisfy
Plaintiff’s pleading requirements. Route APP, Inc. v. Alexiev, 2023 U.S. Dist. LEXIS 226266, *5
and n. 23 (D. Utah Dec. 19, 2023).
2. Plaintiff Does Not Allege Cognizable Malicious Prosecution Claims
(Third and Fourth Claims For Relief).
To prevail on a § 1983 malicious prosecution claim, a plaintiff must show the following
five elements: "(1) the defendant caused the plaintiff's continued confinement or prosecution; (2)
the original action terminated in favor of the plaintiff; (3) there was no probable cause to support
the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice;
and (5) the plaintiff sustained damages." Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th
Cir. 2007). Malice requires evidence of intent, not mere negligence. Novitsky, 491 F.3d at 1258-
59; Fletcher v. Burkhalter, 605 F.3d 1091, 1095 (10th Cir. 2010) (malice “requires intentional or
reckless disregard of the truth”).
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Plaintiff’s malicious prosecution claims against Sgt. Heaton under federal and state law,
likewise, fails, as he has not properly alleged Sgt. Heaton personally participated in any
constitutional violations. As outlined above, Sgt. Heaton was not present for Haferman’s
investigation and arrest, and Haferman did not consult Sgt. Heaton until after he arrested Plaintiff.
[See e.g. ECF 88, ¶ 94 (“Officer Haferman replied: “Alright, you’re under arrest for driving under
the influence.”)]. While Sgt. Heaton briefly interacted with Plaintiff at the hospital, the non-
conclusory allegations in the SAC establish that he did this for the purpose of taking Plaintiff’s
complaint against Haferman. [ECF 88, ¶¶ 130-31]. As outlined above, Plaintiff’s allegations that
Sgt. Heaton approved and assisted Haferman with Plaintiff’s arrest and prosecution are based on
three post-arrest conversations allegedly occurring between Haferman and Sgt. Heaton. Again,
Plaintiff has no knowledge of what Haferman and Sgt. Heaton discussed during these
conversations. Thus, Plaintiff does not possess the requisite knowledge, and merely assumes Sgt.
Heaton acted with malice or somehow maliciously prosecuted him.
3. There Is No Cognizable Conspiracy Claim Against Sgt. Heaton (Fifth
Claim For Relief).
To establish a §1985(3) claim, a plaintiff must allege: (1) a conspiracy; (2) to deprive
plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the
conspiracy; and (4) an injury. Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). “However,
§1985(3) does not ‘apply to all tortious, conspiratorial interferences with the rights of others,’ but
rather, only to conspiracies motivated by ‘some racial, or perhaps otherwise class-based,
invidiously discriminatory animus.’” Tilton, 6 F.3d at 686 (citations omitted).
In sum, Plaintiff alleges: (1) Haferman and Sgt. Heaton spoke on the phone after Plaintiff’s
arrest [ECF 88, ¶ 102]; (2) Haferman called Sgt. Heaton a second time while at the jail [ECF 88,
¶ 116]; (3) Plaintiff asked for medical treatment and was transported to the hospital [ECF 88, ¶
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122]; (4) Plaintiff asked to speak with Haferman’s supervisor so he could submit a complaint
against Haferman [ECF 88, ¶ 130]; (5) Sgt. Heaton responded to the hospital following Plaintiff’s
request to speak with Haferman’s supervisor [ECF 88, ¶¶ 130-31]; (6) Haferman and Sgt. Heaton
spoke at the hospital [ECF 88, ¶ 132]; (7) Sgt. Heaton took Plaintiff’s complaint, which he recorded
[ECF 88, ¶¶ 147-48]; and (8) Haferman and Sgt. Heaton generally muted their body worn cameras
when speaking to each another [ECF 88, ¶¶ 102, 116-17, 132]. Plaintiff’s allegations are
insufficient to show a plausible conspiracy claim. Assuming these calls and meetings occurred,
Plaintiff’s imagination as to what was discussed during these calls and meetings is insufficient to
allege a "meeting of the minds" among alleged co-conspirators. Plaintiff’s allegations consist of
nothing more than innuendo, conjecture, and improper literary license, which are insufficient as a
matter of law to establish a conspiracy. See, e.g., Hunt v. Cent. Consol. Sch. Dist., 2016 U.S. Dist.
LEXIS 92587, at *18 (D. N.M. March 23, 2016) (collecting cases); Harrington v. Wilson, 2006
U.S. Dist. LEXIS 102203, at *38 (D. Colo. Sept. 21, 2006) ("rank speculation and innuendoes"
insufficient to support conspiracy claim), aff'd and remanded, 242 F. App'x 514 (10th Cir.
2007); City of Omaha Employees Betterment Ass'n v. Omaha, 883 F.2d 650, 653 (8th Cir.
1989) ("Mere communications are insufficient to establish an agreement to conspire against an
individual employee."). Moreover, Plaintiff’s argument Haferman and Sgt. Heaton muted their
body worn cameras to cover their tracks is just that—an unsupported, conclusory argument.
Contrary to Plaintiff’s assertions, officers are permitted, and indeed encouraged, to speak with one
another about investigations and arrests. This includes conversations about privileged and/or
confidential administrative and tactical considerations. Colorado Senate Bill 20-217 recognized
this distinction, requiring “A peace officer shall wear and activate a body-worn camera when
responding to a call for service or during any interaction with the public initiated by the peace
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officer when enforcing the law or investigating possible violations of the law.” SB 20-217 also
provides exceptions to this requirement, however, including that officers “may turn off a body-
worn camera…during administrative, tactical, and management discussions.” Plaintiff does not
allege anything in SB 20-217, any other federal or state laws, or Fort Collins Police Department
policy that required two officers speaking alone to film their conversation on their body worn
cameras. Finally, Plaintiff spills much ink discussing the misclassification of Sgt. Heaton’s body
worn camera footage and his untimely submission of a report following his conversation with
Plaintiff, seeking to somehow connect this assertion to an unrelated case from an unrelated
jurisdiction. The failure to timely complete a report or comply with a policy is not a constitutional
violation, and Plaintiff provides no authority saying otherwise. See, e.g., Ernst v. Creek Cty. Pub.
Facilities Auth., 697 Fed. Appx. 931, 934 (10th Cir. 2017), (“(t)he Supreme Court has held that
simply failing to follow jail policies is not a constitutional violation in and of itself.”).
Plaintiff has not alleged sufficient facts to establish a cognizable conspiracy claim, instead
relying on conclusory, speculative assertions that are insufficient to sustain his burden. Moreover,
Plaintiff does not allege Sgt. Heaton was motivated by a racial or other invidious class-based
animus. Accordingly, dismissal of Plaintiff’s conspiracy claim is warranted.
B. Sgt. Heaton Is Entitled To Qualified Immunity.
1. Plaintiff Fails To Establish Or Identify A Clearly Established
Constitutional Right.
As argued above, there are no allegations identifying specific action taken by Sgt. Heaton
which might have possibly violated Plaintiff’s constitutional rights. [See § III(A)(1)-(3), supra].
Plaintiff’s inability to comply with federal pleading standards, to identify a constitutional violation,
and to establish personal participation by Sgt. Heaton is detrimental to his burden respecting Sgt.
Heaton’s qualified immunity defense.
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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 Sgt. Heaton violated his Fourth Amendment rights by approving his
arrest and prosecution. Plaintiff also alleges Haferman and Sgt. Heaton conspired against him to
violate his constitutional rights. As outlined above, Sgt. Heaton was not involved in Haferman’s
underlying DUI investigation of Plaintiff. Indeed, Sgt. Heaton was not present for this
investigation. Sgt. Heaton was not notified of this incident until after Plaintiff’s arrest. Plaintiff
alleges Sgt. Heaton and Haferman had three calls or meetings after Plaintiff’s arrest. Plaintiff
alleges these calls were for the purpose of convincing Plaintiff to take a blood test, rather than
breath test. Plaintiff can only speculate as to what Haferman and Sgt. Heaton discussed during
these calls, which is improper because Plaintiff does not have any knowledge of the substance of
these discussions. Finally, Plaintiff asserts generalized assertions of Sgt. Heaton’s alleged “notice”
of Haferman’s prior conduct, which (1) is not grounded in the factual allegations in the SAC, (2)
is conclusory, and (3) does not connect in any way to Plaintiff’s incident or provide Sgt. Heaton
with notice of any issues with this Plaintiff’s arrest. A search of Tenth Circuit jurisprudence fails
to reveal any particularized case allowing for the imposition of constitutional liability on this
theory, including the alleged failure to review previous DUI arrests unrelated to a plaintiff’s arrest.
Without any clearly established authority, Sgt. Heaton is entitled to qualified immunity.
C. There Is No Cognizable Monell Claim Against the City.
Plaintiff’s claims against the City fare no better. To establish liability of a public entity
under §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,
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81 F.3d 988, 993 (10th Cir. 1996), citing City of Canton v. Harris, 489 U.S. 378, 385 (1989). The
Supreme Court described 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).
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). “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 hiring.” Schneider, 717 F.3d at 770.
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“[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.
Plaintiff supports his claim against the City on generalized allegations that it had a duty to
train and supervise Defendant Haferman, that the City somehow was aware of his propensity for
wrongfully arresting citizens to increase his DUI arrest numbers by falsifying his reports, and that
the City deliberately chose not to remedy the situation. [ECF 88, ¶ 309]. The SAC alleges the
City’s “failure to supervise and train Haferman” and an alleged informal custom of encouraging
DUI arrests were the moving force behind Plaintiff’s wrongful arrest [ECF 88, ¶¶ 308, 310], and
that those actions violated plaintiff’s federal constitutional rights. Such allegations, however, are
unsupported by any non-conclusory allegations in the SAC. Conclusory assertions and speculation
are insufficient to state a plausible claim under federal pleading standards. Twombly, 550 U.S.
544; Iqbal, 556 U.S. at 677-78.
There are no allegations in the SAC establishing deliberate indifference by the City with
respect to any specific policy or custom, nor are there any allegations showing the City’s actions
(or failure to act) were substantially certain to result in a violation of Plaintiff’s constitutional
rights and that the City consciously or deliberately chose to disregard any such harm. Schneider,
717 F.3d at 771. Accordingly, Plaintiff’s claim against the City should be dismissed.
Case No. 1:23-cv-01343-GPG-KAS Document 98 filed 05/13/24 USDC Colorado pg 15 of
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IV. CONCLUSION
Wherefore, Defendants City of Fort Collins and Sergeant Allen Heaton respectfully request
the Court grant their Motion to Dismiss Plaintiff’s Second Amended Complaint, 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 13th day of May, 2024.
s/Katherine N. Hoffman
Mark S. Ratner, 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
hoffmank@hallevans.com
Attorneys for the City of Fort Collins and Allen
Heaton
Case No. 1:23-cv-01343-GPG-KAS Document 98 filed 05/13/24 USDC Colorado pg 16 of
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 13th day of May 2024, a true and correct copy of the foregoing
DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED 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.
jabramson@sgrllc.com
Yulia Nikolaevskaya, Esq.
jnikolavskaya@sgrllc.com
s/ Erica Cameron
Erica Cameron, Legal Assistant
Case No. 1:23-cv-01343-GPG-KAS Document 98 filed 05/13/24 USDC Colorado pg 17 of
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