HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 023 - Defendants' Motion To Dismiss4088263.1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-00901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
RANDALL KLAMSER in his individual capacity, and
CITY OF FORT COLLINS, a municipality,
Defendants.
DEFENDANTS’ MOTION TO DISMISS
Defendants RANDALL KLAMSER, in his individual capacity, and CITY OF FORT
COLLINS, a municipality, by and through their attorneys, Hall & Evans, L.L.C., submit the
following Motion to Dismiss, as follows:
CERTIFICATE OF CONFERRAL
Pursuant to this Court’s Practice Standard (WJM Practice Standard III.D.1), the
undersigned counsel conferred with counsel for Plaintiff by identifying the grounds for dismissal
argued herein. Plaintiff does not agree with the underlying legal arguments below and objects to
the request for dismissal.
STANDARD OF REVIEW
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 that will give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which it rests. Robbins v. Okla. Ex rel. Dep’t
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of Human Servs., 519 F.3d 1242 (10th Cir. 2008). A FED R. CIV. P. 12(b)(6) motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action. … Factual allegations must be enough to raise a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, (2007). A
complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id.
At the pleading stage, it is not the defendant’s or the Court’s responsibility to guess at
plaintiff’s claims. Id. The 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. 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).
Moreover, the Tenth Circuit has held that request for dismissal brought under Heck v.
Humphry, 512 U.S. 477, 486-87 (1994) should be raised as a failure to state a claim pursuant to
FED. R. CIV. P. 12(b)(6), as opposed to a lack of subject matter jurisdiction under Rule 12(b)(1).
Mendia v. City of Wellington, 432 Fed. Appx. 796, n.1 (10th Cir. 2011).
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SUMMARY OF COMPLAINT’S ALLEGATIONS1
Plaintiff alleges police were called to a bar after her boyfriend was asked by staff to leave
following an altercation. [ECF 1, ⁋15-16.] Plaintiff grabbed her boyfriend’s arm and tried to pull
him away as he was speaking with Fort Colling Police Officer Garrett Pastor, at which point she
alleges Fort Colling Police Officer Randall Klamser said her boyfriend was not free to go, but she
“can keep walking.” [Id., ⁋18.] Plaintiff alleges Officer Klamser told her to “back off,” while
pushing her shoulder backwards with his hand, and then grabbed her wrist. [Id., ⁋19, 21.] She told
him, “’you don’t need to fucking touch me,’ and attempted to free herself from his grasp[,]” and
he pulled her arm behind her back and advised that she was under arrest. [Id., ⁋18.] Plaintiff alleges
Officer Klamser held her arm in a rear wristlock hold as Plaintiff alleges the two continued
“speaking over one another,” and that Officer Klamser then pulled her arm and “forcefully threw
her face-down to the ground,” causing her injury. [Id., ⁋22-24, 26-27.] According to the Complaint,
“[t]he entire encounter between Ms. Surat and Defendant Klamser happened in thirty-two
seconds.” [Id., ⁋28.]
The Complaint states a five-day jury trial was held related to Plaintiff’s criminal charges,
following which she was convicted of C.R.S. § 18-8-103 (Resisting Arrest) and C.R.S. § 18-8-
104(1)(a) (Obstructing a Peace Officer). [Id., ⁋37.]
1 For this motion only, Plaintiff’s allegations are accepted as true. Defendants reserve the right to
dispute each factual allegation contained in the Complaint in any future proceedings.
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ARGUMENT
I. Plaintiff’s Excessive Force Claim is Barred Based Upon Her Underlying Convictions
Plaintiff’s excessive force claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Although courts have determined allegations related to officers’ use of force during arrest are not
always barred by Heck, Plaintiff’s claim is precluded in this matter because it relies on facts
contrary to the basis of her criminal conviction. The jury in the criminal trial conclusively decided
facts against Plaintiff when it concluded Officer Klamser did not use excessive force; had the jury
determined he had done so, Plaintiff would have been entitled to an acquittal based on the self-
defense jury instruction submitted by Ms. Surat. A ruling in favor of Plaintiff in this civil lawsuit
would call into question the validity of both of her criminal convictions. Plaintiff’s excessive force
claim is, therefore, barred.
In Heck, the Supreme Court held that “when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence.” Heck, at 487. If so, the Court must dismiss the
complaint “unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Id. A civil claim is not the proper place to challenge a criminal conviction. Id. at 486.
The Complaint identifies the length in dates, location and disposition of Plaintiff’s trial and
resultant criminal convictions resulting from her April 6, 2017 arrest by Officer Klamser.
Following the five-day misdemeanor trial, she was convicted of C.R.S. § 18-8-103 (Resisting
Arrest) and C.R.S. § 18-8-104(1)(a) (Obstructing a Peace Officer). [Id., ⁋37.]
Pursuant to Colorado law, a person is guilty of obstructing a peace officer “when, by using
or threatening to use violence, force, physical interference, or an obstacle, such person knowingly
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obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by
a peace officer, acting under color of his or her official authority.” C.R.S. § 18-8-104(a). A person
commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer from
effecting an arrest of the actor or another by either: (a) using or threatening to use physical force
or violence against the peace officer or another; or (b) using any other means which creates a
substantial risk of causing bodily injury to the peace officer or another. C.R.S. § 18-8-103. “’[S]elf-
defense is an available defense’ against both charges ‘when a defendant reasonably believes that
unreasonable or excessive force is being used by the peace officer.’” Johnson v. Heinis, No. 11-
cv-3135-WJM-KLM, 2013 U.S. Dist. LEXIS 62342, *8-10 (D. Colo. March 28, 2013)2
; Dye v.
Colo. Dep’t of Corr., No. 120cv020601-PAB-KLM, 2013 U.S. Dist. LEXIS 42453, *16-22 (D.
Colo. March 26, 2013).
Where the factfinder for the underlying criminal court considered the affirmative defense
of self-defense to charges of resisting arrest or obstruction of justice, courts in this Circuit have
repeatedly determined that a subsequent Section 1983 excessive force claim is barred by Heck
because an ultimate determination by this Court that the officer used excessive force would call
into question the validity of the underlying conviction. Agyemang v. City of Aurora Mun. Court,
No. 15-cv-734-LTB, 2015 U.S. Dist LEXIS 60628, *8 (D. Colo. May 8, 2015); Kennedy v.
Golden, No. 13-cv-00920-REB-KLM, 2014 U.S. Dist. LEXIS 106409, at *1 (D. Colo. Mar. 4,
2014)3
; Johnson, 2013 U.S. Dist. LEXIS 62342 at *8-10; Dye, 2013 U.S. Dist. LEXIS 42453 at
2 Adopted by Johnson v. Heinis, 2013 U.S. Dist. LEXIS 62347 (D. Colo., May 1, 2013).
3 Adopted by Kennedy v. Golden, 2014 U.S. Dist. LEXIS 106408 (D. Colo., Aug. 1, 2014).
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*16-22; Oates v. Patella, No. 11-cv-1871-REB-KLM, 2012 U.S. Dist. LEXIS 22715, *9-11 (D.
Colo. Feb. 1, 2012).4
Throughout these cases, the plaintiffs were convicted of resisting arrest,
obstructing a peace officer, or both, and subsequently filed Section 1983 civil suits against
arresting officers for excessive force during the arrest. In determining Heck barred the Section
1983 claims, the courts all noted the respective juries in the underlying criminal trials received the
self-defense/excessive force affirmative defense jury instruction, but rejected the affirmative
defense and convicted the plaintiffs.
Similarly, in Adams v. Dyer, 223 Fed.Appx. 757, 759-60 (10th Cir. 2007), the Tenth
Circuit affirmed summary judgment where officers were alleged to have used excessive force
during an arrest. The suspect was subsequently convicted of resisting arrest and other crimes. Id.
He brought Section 1983 claims against arresting officers alleging excessive force during and after
the arrest. Id. The Tenth Circuit examined the conduct of each of the officers during each phase of
the arrest and held that Heck barred all claims which were based on actions the officers took as
they attempted to arrest him because the claim called into question the legitimacy of the resisting
arrest conviction. Id.
In this matter, during the Plaintiff’s criminal trial, the jury instructions included a “defense
of person” affirmative defense, which informed the jury that Plaintiff could not be found guilty if
she was defending herself from unreasonable or excessive force. The instruction further stated that
burden rested with the prosecution to prove that Surat’s conduct was not legally authorized by the
defense. [Jury Instruction No. 10, Larimer County Court Case No. 2017M965, attached as Exhibit
A.] See Sweesy v. Sun Life Assur. Co., 643 Fed. Appx. 785, 789 (10th Cir. 2016) (court permitted
4 Adopted by Oates v. Patella, 2012 U.S. Dist. LEXIS 22716 (D. Colo., Feb. 22, 2012).
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to take judicial notice of facts which are a matter of public record); Hayes v. Lowe, No. 13-cv-
3239-LTB-KMT, 2014 U.S. Dist. LEXIS 179998, *7-8 (D. Colo. Dec. 22, 2014) (taking judicial
notice of public documents from County Court proceedings without converting Rule 12(b)(6)
motion into motion for summary judgment); Makeen v. Colo., No. 14-cv-3452-WJM-CBS, 2016
U.S. Dist. LEXIS 186118, n. 6 (D. Colo. Sept. 16, 2016).
Thus, the jury received an instruction that Ms. Surat was legally authorized to use physical
force upon Officer Klamser to defend herself from what a reasonable person would believe to be
the use or imminent use of “unlawful physical force” by him. Exhibit A, Instruction 10 (emphasis
added). The jury convicted Plaintiff of resisting arrest and obstruction a peace officer, thereby
making a finding beyond a reasonable doubt that there was no unlawful (or excessive) physical
force by Officer Klamser justifying any claim of self-defense by Ms. Surat. Critically, because this
instruction related to both charges for which Plaintiff was ultimately convicted, it is impossible to
for this Court to now determine that Officer Klamser unlawfully used excessive force during the
course of the arrest without undermining this affirmative defense and, by extension, the validity of
Plaintiff’s underlying convictions. See, e.g., Adams, 223 F. App’x at 761 (“To find in favor of
Adams, the district court would have been required to nullify the jury’s rejection of Adams’
‘excessive force’ defense[.]”)
As demonstrated by the allegations of the Complaint, the alleged use of excessive force
and the Plaintiff’s resistance and obstruction were contemporaneous. The Complaint alleges the
entire encounter between Plaintiff and Officer Klamser happened in thirty-two seconds. [ECF 1,
⁋28; see also ⁋ 63 “Defendant Klamser’s arrest of Ms. Surat by, among other things, pulling her
arm by her wrist and throwing her face-first to the sidewalk, used greater force than would have
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been reasonably necessary to effect the seizure.”] In other words, the use of force and the resistance
and obstruction are inextricably intertwined.5
Indeed, Heck bars a plaintiff’s civil claim where, as
here, “the conviction and the civil claim both arise from a single, continuous struggle . . . [meaning]
they are inextricably intertwined.” Matheney v. City of Cookeville, No. 08-cv-0066, 2010 U.S.
Dist. LEXIS 34515, *13 (M.D. Tenn. Apr. 7, 2010), citing Cummings v. City of Akron, 418 F.3d
676, 682-83 (6th Cir. 2005). Accordingly, Plaintiff’s excessive force claims against Officer
Klamser must be barred and judgement entered for Defendants.
II. The Claim against the City of Fort Collins Must Be Dismissed Because There Is No
Underlying Constitutional Violation and the Complaint Fails to Sufficiently Allege
Municipal Liability.
a. There is No Underlying Constitutional Violation
It is well-established that a municipality may be held liable under 42 U.S.C. § 1983 only
for its own unconstitutional or illegal policies and not for the tortious acts of its employees. Monell
v. Dept of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978); Barney v. Pulsipher, 143 F.
3d 1299, 1307 (10th Cir. 1998). “A municipality may not be held liable where there was
no underlying constitutional violation by any of its officers.” Hinton v. City of Elwood, Kan.,
997 F.2d 774, 782 (10th Cir. 1993) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, cert.
5 Plaintiff’s specific allegation that the alleged force which forms the basis of her claim
against Officer Klamser occurred during the arrest and was all contained in a 32-second timeframe
distinguishes this instance from cases within this Circuit where alleged excessive force occurred
as part of a separable series of events from the arrest. See Dye, 2013 U.S. Dist. LEXIS 42453 at
*18-21, citing Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th
Cir. 1999) (contrasting
allegations of force which are “inextricably intertwined” with the arrest to those allegations of
force which occurred separately from the arrest because the underlying criminal conviction was
based on a separable initial flight from officers prior to the actual use of force when placing suspect
into custody).
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denied, 476 U.S. 1154 (1986)). Here, because Plaintiff cannot maintain her claim of an alleged
constitutional violation against Officer Klamser pursuant to Heck, Plaintiff’s claim against the
City of Fort Collins must similarly be dismissed. See, e.g., Ash v. Twp. Of Willingsboro, No. 10-
1900, 2012 U.S. Dist. LEXIS 179124, *12 (D. N.J. Dec. 18, 2012) (“Supervisory liability claims
under Monell require an underlying constitutional violation and, where the underlying violation is
barred by Heck, it cannot form the basis for a derivative Monell claim.”) (collecting cases).
b. The Complaint fails to establish any basis for imposing municipal liability
against the City of Fort Collins.
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 the
requirements a plaintiff must meet to impose public entity liability as follows: “[i]t 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).
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. Municipal liability only attaches
where “a deliberate choice to follow a course of action is made from among various alternatives
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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).
The Plaintiff attempts to set forth a claim against the City entitled “Unconstitutional
Policies, Customs, and Practices” (ECF No. 1 at 12-13, ¶ ¶ 67-74). However, the allegations set
forth in this claim never rise to a level that would satisfy Federal pleading standards. No
allegations are provided supporting any notion the City maintained any custom or policy relevant
to the Plaintiff’s 42 U.S.C. §1983 claim, or that anyone followed any specific custom or policy
regarding the interaction between the Plaintiff and the City of Fort Collins. Nothing in the
Complaint suggests that any specific policy or custom was implicated, deliberately followed, or
how any such custom, practice or policy harmed the Plaintiff. Rather, the Plaintiff sets forth only
conclusory allegations, which are insufficient to overcome a Motion to Dismiss (See eg. ECF No.
1 at ¶ 68, (“Defendant Fort Collins established policies, customs and/or practices in violation of
the Constitution”); (“Defendant Fort Collins developed and maintained law enforcement-related
policies, customs, and/or practices exhibiting or resulting in a deliberate indifference to the Fourth
and Fourteenth Amendment protected constitutional rights…”) (ECF No. 1 at ¶ 69); (“Defendant
Fort Collins’ policies, customs, or practices in failing to train and supervise its employees were
the proximate cause of, and moving force behind, the violation of Ms. Surat’s constitutional
rights…”) (ECF No. 1, ¶ 74)). Because the Complaint is devoid of any mention of a specific
municipal custom or policy, any effort to state a claim against the City here fails as a matter of
law.
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Further, the Complaint contains no hint that any deliberate choice to follow a specific
course of action was made by anyone responsible for establishing any final policy with respect to
any of the Plaintiff. Absent some basis for thinking the City of Fort Collins undertook deliberate
conduct that could be said to constitute the “moving force” behind any injury, or that there is any
direct causal link between any action by the City of Fort Collins claimed to have deprived the
Plaintiff of her Federal rights, there could be no claim against the City of Fort Collins.
Likewise, the Plaintiff fails to provide any specific allegations respecting a failure to train
or supervise. Instead, the Complaint merely contains the generic allegation that “(t)he inadequate
training and supervision provided by Defendant Fort Collins resulted from a conscious or
deliberate choice…Defendant Fort Collins could have and should have pursued reasonable
methods for the training and supervising of such employees, yet failed to do so. Plaintiff’s efforts
do not establish a custom, practice or policy sufficient to overcome this Motion to Dismiss.
CONCLUSION
For all of the foregoing reasons, Defendants respectfully request this Court to dismiss
Plaintiff’s claims against them in their entirety with prejudice, and for all other and further relief as
this Court deems proper.
Dated: June 7, 2019
Respectfully submitted,
s/ Christina S. Gunn _____
Christina S. Gunn, Esq.
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th
Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
gunnc@hallevans.com /ratnerm@hallevans.com
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 7th day of June, 2019, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which will send notification of such filing to
the following e-mail addresses:
T. Valdez, Esq.
Killmer, Lane & Newman, LLP
1543 Champa St, Suite 400
Denver, CO 80202
303-571-1000 Phone
303-571-1001 Fax
tvaldez@kln-law.com
Attorney for Plaintiff
s/ Nicole Marion, Legal Assistant to
Christina S. Gunn, Esq. of
Hall & Evans, L.L.C.
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