HomeMy WebLinkAbout2023-cv-1343 - Elias v. City of Fort Collins, et al. - 104 - City and Heaton's Reply iso 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
REPLY IN SUPPORT OF 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 Reply in Support of Motion to Dismiss Plaintiff’s Second Amended Complaint
(“SAC”) Pursuant to Fed. R. Civ. P. 12(b)(6) and Request for Qualified Immunity:
I. ARGUMENT
A. Plaintiff Has Not Properly Alleged a Claim Against the City.
Plaintiff’s claims against the City are based on an improper theory of negligence and
respondeat superior liability. Municipal liability may only arise out of customs, practices, or
policies, Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-404 (1997), and
then only after Plaintiff establishes: (1) a causal link with the alleged violation, Jenkins v. Wood,
81 F.3d 988, 993 (10th Cir. 1996), and; (2) deliberate conduct on the part of the City. Bd. of
Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997) (emphasis added). Any
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other approach risks applying liability on respondeat superior or vicarious theories. See Hinton
v. City of Elwood, Kan., 997 F.2d 774, 782-83 (10th Cir.1993), citing Monell v. New York City
Dep't of Social Servs., 436 U.S. 658, 694 (1978).
Plaintiff attempts to overcome dismissal by promulgating a negligence or malpractice
theory, and parading out Haferman’s “bad acts” to imply liability on the part of the City. Claims
of negligence, malpractice, and respondeat superior liability, however, are not viable paths to
establishing liability, and any such approach is improper and insufficient to overcome dismissal.
Hinton, supra. The City’s liability may only be established through five avenues: (1) a formal
regulation or policy; (2) an informal custom amounting to a widespread practice; (3) the decisions
of a final policy maker; (4) ratification by a final policymaker of the decisions – and the basis for
them – of subordinates to whom authority was delegated subject to these policymakers’ review
and approval; or (5) a failure to adequately train or supervise, resulting from deliberate
indifference to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d 784,
788 (10th Cir. 2010). The Complaint fails to set forth any non-conclusory allegations identifying
any facts sufficient to establish any of these methods.1
1. Plaintiff Fails to Identify Any Formal Regulation or Policy.
The only mention of “formal regulation” or “policy statement,” is a citation in the
Response to the five types of municipal liability. Despite another bite at the proverbial apple
1 Plaintiff cites to a District of New Mexico decision for the proposition that, “(p)leading a
municipal policy, custom, or practice is like pleading the breach element of negligence- which is
also ultimately a question of fact for the jury.” (ECF 49 at 7, citing Griego v. City of Albuquerque,
100 F. Supp. 3d 1192, 1213 (D. N. Mex. Apr. 11, 2015)). The citation and holding ignores Supreme
Court case law requiring more than conclusory (and biased) assertions. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007).
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with his second response to a motion to dismiss, Plaintiff points to no allegations identifying a
formal regulation or policy statement in the Complaint.
2. Plaintiff Fails to Identify an Informal Custom.
Both the Complaint and the Response fail to identify any “informal custom amounting to
a widespread practice” on which liability against the City might be based. The Response does not
mention “informal custom” (other than, again, in the citation to the five-types of municipal
liability), and the only reference in the SAC fares no better. Plaintiff generally alleges,
“Defendant City of Fort Collins employed and was responsible for the promulgation of policies,
customs, practices and training of FCPS personnel, including Officers (sic) Haferman” (ECF 88,
¶ 307), and, “(b)oth Fort Collins’s failure to supervise and train Haferman, as well as its
aforementioned unconstitutional customs/practices, were the moving force behind Mr. Elias’s
wrongful arrest.” (ECF 88, ¶ 310). Plaintiff, however, identifies no specific “custom” or
“practice” satisfying this requirement with any non-conclusory allegations.
Plaintiff claims he identified a “detailed a scheme of profit and promotion wherein FCPS
officers are rewarded for baseless DUI arrests, [and] where their arrests of innocent people are
aggressively and vociferously defended publicly by the Chief of Police.” (ECF 103 at 9, referring
to ECF 88 at ¶¶ 230-244). The cited paragraphs, however, refer to an alleged investigation
conducted by a reporter, and have nothing to do with identifying a “scheme of profit.” Indeed
neither “scheme” nor “profit appears in the SAC, and the only reference to “incentive” is a self-
serving and unsupported conclusory assertion regarding awards allegedly given by Mothers
Against Drunk Drivers. (See ECF 88, at ¶ 14)2. Likewise, Plaintiff’s statement “absolutely no
2 There are no allegations in the Complaint alleging the City of Fort Collins actually received
awards, based on incentives.
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one in any supervisory capacity imposed any form of consequence on any FCPS officers for the
repeated wrongful arrests of citizens that they were observing their subordinates make,” is
unfortunately, fiction. (ECF 103 at 9, citing ¶¶ 201, 205, 206 of the SAC). The cited paragraphs
refer to the “wrongful arrest of Mr. Elias” and no other citizens. Assuming, however, Plaintiff
relies on the arrests of other individuals, there is nothing other than rhetoric from Plaintiff, that
any such arrests were, in fact, wrongful. Plaintiff and his attorney may certainly believe any such
arrests are improper, but other than conclusory assertions, there is nothing establishing support
for the allegations. This is the reason conclusory assertions are insufficient to overcome a
pleading burden. Twombly, supra.
There is no identifiable policy or a causal link between any undefined policy and the
violation alleged, nor is there identification of deliberate conduct on the part of the City.
Furthermore, although Plaintiff generically states the City failed to supervise or train Haferman,
there is no identification as to such failures rose to the level of being unconstitutional, and
certainly not to the level of being deliberate. Even more telling is Plaintiff’s generic reference to
“unconstitutional customs/practices,” but again no identification of any specific customs or
practices. The allegations are insufficient, and Plaintiff’s claims should be dismissed.
3. Plaintiff Identifies No actions by Haferman Taken Pursuant to a
Specific Policy.
“Congress did not intend municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional tort.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 477 (1986), citing Monell v. New York City Dept. of Social Services,
436 U.S. 658, 691 (1978). To implicate “official policy,” “Monell reasoned that recovery from a
municipality is limited to acts that are, properly speaking, acts ‘of the municipality’ -- that is,
acts which the municipality has officially sanctioned or ordered.” Pembaur, 475 U.S. at 469.
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Municipal liability, therefore, can either be premised on actions taken by a governmental
employee based on official policy (e.g., “ordered”) or ratification of conduct taken after actions
of the governmental employee have already taken place (e.g., “sanctioned”). The Supreme Court
recognized, however, that “not every decision by municipal officers automatically subjects the
municipality to § 1983 liability.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
Here, Plaintiff recounts his arrest on December 3, 2021, but nowhere does he properly allege
(nor could he), that Haferman’s actions were the result of official policies. (See ECF 88 at ¶¶
56-207). For example, Plaintiff alleges it was Defendant Haferman who allegedly: (i) witnessed
Plaintiff driving suspiciously; (ii) decided to charge him with DUI before administering roadside
tests (ECF 88, ¶¶ 59-61; 79); (iii) had the knowledge the arrest would require a report filled with
“particularly flamboyant lies and exaggerations of impairment cues” (ECF 88, ¶174); and (iv)
wrote a narrative for the arrest of Plaintiff filled with lies and exaggerations to ensure Plaintiff
was criminally prosecuted for DUI and Child Abuse (ECF 88, ¶ 174). None of these actions
are official or unofficial City policy, and Plaintiff does not (and cannot) allege as much.
4. There are No Proper Allegations Haferman’s Actions Were
Ratified.
Plaintiff alleges FCPS Chief Swoboda made “false claims,” to “ratify and defend
Haferman’s constitutional violations…” (ECF 84, ¶ 247). Plaintiff does not, however, identify any
action taken by Haferman, pursuant to specific City policies or customs, which could be ratified
by either Chief Swoboda or the City. Merely stating there was “ratification” of Haferman’s
conduct, is conclusory and improper. Twombly supra. “(A) municipality will not be found liable
under a ratification theory unless a final decisionmaker ratifies an employee's specific
unconstitutional actions, as well as the basis for these actions.” Bryson v. City of Okla. City, 627
F.3d 784, 790 (10th Cir. 2010) (emphasis added). “But ‘mere acquiescence in a single
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discretionary decision by a subordinate is not sufficient to show ratification.’” Buttler v. City
of Sperry, 2023 U.S. Dist. LEXIS 20985, *23 (N.D. Okla., 2023), citing Finlinson v. Millard
Cty., 2018 WL 5438436, at *27 (D. Utah Oct. 29, 2018). “Otherwise, a county or municipality
‘would be liable for all of the discretionary decisions of its employees, and this would be
indistinguishable from respondeat superior liability.’” Finlinson, 2018 U.S. Dist. LEXIS 185262,
2018 WL at *27. Plaintiff mentions “ratify” only once in his Response, and attempts to overcome
dismissal by referencing a statement made by Chief Swoboda; however, no case law is cited
validating this approach as a form of ratification. Plaintiff’s approach muddles the concept of
ratification by focusing on statements made by Chief Swoboda, but the statements do not address
the specific arrest of Mr. Elias; the actions of Haferman in effectuating Plaintiff’s arrest; or any
actions by Sergeant Heaton. There is no ratification of any specific, allegedly unconstitutional
conduct, and therefore no implicated City policy.
5. Plaintiff Identifies No Specific Failure to Train or Supervise.
“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 hiring.” Schneider, 717
F.3d at 770, citing Martin A. Schwartz, Section 1983Litigation Claims & Defenses, § 7.12. “[F]or
claims of inadequate. . . training. . . a plaintiff ‘must demonstrate that the municipal action was
taken with deliberate indifference as to its known or obvious consequences.’” Hernandez v. City
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and Cnty. of Denver, 2022 U.S. Dist. LEXIS 151302, at *3 (D. Colo. Aug. 23, 2022), citing
Waller v. City and Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019). “[A] less stringent
standard of fault for a failure-to-train claim ‘would result in de facto respondeat superior liability
on municipalities.’” Hernandez, at *3, citing Connick v. Thompson, 563 U.S. 51, 62 (2011)
(citing City of Canton v. Harris, 489 U.S. 378, 392 (1989)). “A pattern of similar constitutional
violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference
for purposes of failure to train.” Erickson v. City of Lakewood, 489 F. Supp. 3d 1192, 1208 (D.
Colo. Sept. 24, 2020), citing Connick, 563 U.S. at 62.
To satisfy this requirement, Plaintiff insists he has pled “in extensive detail… at least 14
separate similar wrongful DUI arrest instances” (ECF 103 at 9, citing ECF 88, at ¶¶ 37-53).
Plaintiff’s statement is nothing more than literary license and artful pleading. Omitted from the
Complaint or the Response, is reference to a judicial determination for any of the cited matters,
regarding an individual’s constitutional rights, or the City’s notice of same. Plaintiff and his
attorney may think there is a pattern of constitutional violations, but without even a scintilla of
judicial determination, any such statement is conclusory. A pattern of “similar constitutional
violations” has not been properly pled, and to move forward based on these allegations risks
establishing liability based merely on respondeat superior or vicarious liability. Hernandez, at
*7.
B. Sergeant Heaton is Entitled to Qualified Immunity.
1. Plaintiff Still Fails to Allege Supervisor Liability.
To properly allege liability against Sergeant Heaton, Plaintiff must properly allege a
“deliberate, intentional act by the supervisor to violate constitutional rights. Jenkins v. Wood, 81
F.3d 988, 994-95) (10th Cir 1996). “(T)he supervisor’s state of mind is a critical bridge between
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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 v. Colo. Dept.
of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006), citing Green v. Branson, 108 F.3d 1296,
1302 (10th Cir. 1997). Plaintiff alleges Sergeant Heaton “directed” Haferman’s plan to deny
Plaintiff a breath test, and joined Haferman at the hospital to execute the deed, as well as failing
to turn on his body-worn camera (ECF 103, at 12, referring to ECF 88, at ¶¶ 147 and 133,
respectively.) The argument mis-cites Plaintiff’s own Complaint. Paragraphs 147 and 148 of the
Complaint do not assert Sergeant Heaton met Haferman to conduct a plan of violating Mr. Elias’
constitutional rights. Instead, the allegations acknowledge Heaton went to the hospital to take a
Complaint, as requested by Elias (See ECF 88, at ¶ 147-148). The mere metaphysical possibility
plaintiff could prove some set of facts, based on creative pleading, 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).
Plaintiff also fails to submit any factual basis to claim Sergeant Heaton had knowledge Haferman
was purportedly arresting innocent people. (ECF 103 at 13, ftnt. 7). Despite the assertion,
Plaintiff relies on the fact Sergeant Heaton was Haferman’s supervisor. But, as recognized by the
Plaintiff, without establishing some deliberate conduct, such an approach is improper.
2. Plaintiff Fails to Identify a Clearly Established Right.
Plaintiff argues the right to be free of unreasonable search and seizure is clearly
established under the Fourth Amendment. He is correct, but Plaintiff fails to show a right any
violated 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
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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. Arguing generally that Sergeant Heaton violated the Fourth
Amendment, is not the “particularized” authority which overcomes a defense of qualified
immunity. Here, Plaintiff claims Sergeant Heaton violated his rights by failing to supervise
and/or train Defendant Haferman, and failing to review other, unrelated DUI arrests. Tenth
Circuit jurisprudence fails to reveal any particularized case allowing for the imposition of
liability on this theory, and Plaintiff cites to none. Without any clearly established authority,
Plaintiff can state no claim for a constitutional violation, and Sergeant Heaton is entitled to
qualified immunity. Plaintiff also argues Sergeant Heaton participated in Haferman’s wrongful
arrest. But Sergeant Heaton cannot be responsible for Haferman’s actions merely because he is
a supervisor, and there are no well pled, supported allegations establishing Sergeant Heaton
“personally directed” Haferman to subject him to an “extended seizure.” (ECF 103, at 16-17).
Those allegations are based on conclusory assumptions by Counsel, without any specific, factual
reference.
3. Plaintiff Fails to Establish Personal Participation of Sgt. Heaton.
Plaintiff attempts to allege personal participation, by claiming Sergeant Heaton received
a telephone call from Haferman, where he directed Haferman to hold Plaintiff for an extended
period of time, so they could do a blood, instead of a breach, test. The statement is based on
Plaintiff’s perception of a conversation in a telephone call between Haferman and Heaton – but
this merely is a guess. In his Response, Plaintiff blithely states, “(t)he City/Heaton may want
to re-review Haferman’s BWC from this call before they make further commitment in written
pleadings to this claim,” while at the same time failing to provide the Court with Haferman’s
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body-worn camera (“BWC”) for review, or any specific citation supporting this statement. Later
on in the Response brief, however, Plaintiff attempts to support his claim for conspiracy by
relying on the “efforts undertaken by both Heaton and Haferman to mute their BWC videos for
each of their repeated discussions by phone and in person during Mr. Elias’s seizure…ensuring
none of their discussion is recorded…” (ECF 103, at 15). The muting of the BWC begs the
question, of how Plaintiff has any knowledge regarding the substance of the conversation,
sufficient to allege claims against Sergeant Heaton, while at the same time claiming the lack of
any audio supports a conspiracy claim. Plaintiff should provide the specific citation, and not just
a conclusory assertion. “(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 v. Colo.
Dept. of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006), citing Green v. Branson, 108 F.3d
1296, 1302 (10th Cir. 1997). There are no proper allegations of personal participation by Sergeant
Heaton in the actions of Haferman which allegedly violated Plaintiff’s constitutional rights, nor
has Plaintiff pled Sergeant Heaton directly violated any of his rights.
Defendants, however, have provided the Court with Haferman’s BWC, for the Court’s
review (See Exhibit A). Of particular interest is: The reasons articulated by Haferman to
establish probable cause for the arrest (Ex. A, at 11:08 to 12:25); Plaintiff’s demand to speak to
a supervisor, which turns out to be Heaton (Ex. A at 39:00); Plaintiff’s demand for immediate
medical treatment at a hospital (Ex. A, at 41:14 to 41:23); Haferman’s explanation to Plaintiff
that because he is seeking medical treatment, they cannot conduct a breath test (Ex. A, at 53:36
to 54:30), and the muted conversations between Haferman and Heaton, which show no
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conspiracy whatsoever (Ex. A, at 1:05 to 1:06:30; 1:10:18 to 1:13:35). It was Haferman’s
decision to arrest, and Plaintiff’s decision to go to the hospital. Plaintiff’s statements are simply
wrong.
4. Plaintiff’s Conspiracy Claim Should be Dismissed.
Any conspiracy claim pursuant to § 1983 should be dismissed. As argued above, the only
basis for the claim, is an alleged call between Haferman and Sgt. Heaton. For the same reasons as
set forth above with respect to personal participation and review of the BWC, any conspiracy claim
against Sergeant Heaton should also be dismissed.3
II. 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 17th day of June, 2024.
s/ Mark S. Ratner
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
3 Any claim pursuant to § 1985 should also be dismissed, based on Plaintiff’s admission the claim
is in error. (See ECF 103, at 14).
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 17th day of June 2024, a true and correct copy of the foregoing
DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
REPLY IN SUPPORT OF 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/ Sarah Stefanick
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