HomeMy WebLinkAbout2023-cv-1344 - Sever V. V. City Of Fort Collins, Et Al. - 033 - City Motion To DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1344-NYW-NRN
Carl Sever,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman;
Sergeant Allen Heaton; and
Corporal Jason Bogosian
Defendants.
DEFENDANTS CITY OF FORT COLLINS, SERGEANT ALLEN HEATON, AND
“CORPORAL” JASON BOGOSIAN’S MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT (ECF 29-1) PURSUANT TO FED. R. CIV. P. 12(b)(6) AND
REQUEST FOR QUALIFIED IMMUNITY
Defendants City of Fort Collins, Sergeant Allen Heaton, and Sergeant Jason Bogosian,
sued as “Corporal Jason Bogosian,”1 through their undersigned counsel, Hall & Evans, LLC,
submit the following as their Motion to Dismiss Plaintiff’s Amended Complaint (ECF 29-1),
pursuant to Fed. R. Civ. P. 12(b)(6):
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 31, 2021, by former Fort Collins Police
Officer, Jason Haferman, and the subsequent investigation and prosecution for the crime of
1 Jason Bogosian is a Sergeant with the City of Fort Collins Police Department. For consistency, he will be
referred to Corporal Bogosian in this Motion.
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Driving Under the Influence (“DUI”). Plaintiff claims Defendant Haferman’s actions somehow
implicate the City of Fort Collins (“City”), as well as Sergeant Heaton and Corporal Bogosian, as
Defendant Haferman’s supervisors. The Complaint attempts to set forth claims against the City,
Sergeant Heaton, and Corporal Bogosian, 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 29-1, Second Claim for Relief, at ¶¶ 197 to 216).
For the reasons set forth below, Plaintiff’s claims against the City, Sergeant Heaton, and
Corporal Bogosian, 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 and Corporal
Bogosian. 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
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defendant fair notice of what the plaintiff ’s claim is and the grounds upon which it rests.” Conley
v. Gibson, 355 U.S. 41, 47 (1957). At the pleading stage, it is not the defendant’s or the court’s
responsibility to guess at plaintiff’s claims. Conley, 355 U.S. 41, 47 (1957). A § 1983 complaint
must, under Rule 12, “make clear exactly who is alleged to have done what to whom, to provide
each individual with fair notice as to the basis of the claims against him or her.” Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (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 or Corporal Bogosian are alleged to have violated Plaintiff’s
Constitutional rights based on his individualized behavior, the doctrine of qualified immunity
shields them 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
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undue interference with their duties, and from potentially disabling threats of liability.” Elder v.
Holloway, 510 U.S. 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
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‘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 fails to set forth any specific allegations against Sergeant Heaton
or Corporal Bogosian, establishing his personal participation in the alleged
constitutional violation.
Plaintiff ’s claims against Sergeant Heaton and Corporal Bogosian are based on an alleged
supervisory position over Defendant Haferman. (ECF 29-1, ¶¶ 197 and 203, respectively).
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
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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 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 23, 2021, but nowhere in his Complaint does he
identify any specific involvement of either Sergeant Heaton or Corporal Bogosian, resulting in a
violation of any constitutional rights. In particular, Plaintiff alleges Defendant Haferman observed
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him taking a “wide turn” out of a parking lot. (ECF 29-1, ¶ 51). After following Plaintiff for a
mile, Defendant Haferman decided to pull him over and “exaggerate the nature of Mr. Sever’s
wide turn when writing his arrest report.” (ECF 29-1, ¶ 51). Plaintiff claims he was driving under
the speed limit, and Defendant Haferman would “later go on in his report to list this lawful driving
behavior as an indication of drug impairment.” (ECF 29-1, ¶¶ 52, 55). Defendant Haferman
indicated he smelled alcohol coming from Plaintiff’s breath, and Plaintiff’s speech was “slow.”
(ECF 29-1, ¶ 59-60). After calling for a cover officer, Defendant Haferman muted his body-worn
camera throughout the interaction with Plaintiff. (ECF 29-1, ¶ 63). At the request of Defendant
Haferman, Plaintiff engaged in roadside tests to prove he was safe to drive. (ECF 29-1, ¶ 72).
Plaintiff alleges Defendant Haferman deliberately omitted from his arrest report, that Plaintiff had
a traumatic brain injury and disabilities, (ECF 29-1, ¶ 73, 79-81), and also included in his report
multiple false statements and exaggerations of impairment indicators for Plaintiff. (ECF 29-1, ¶
74). Plaintiff also claims Defendant Haferman failed to administer the roadside tests to Plaintiff,
in the standardized manner he was trained. (ECF 29-1, ¶ 75), including failing to note Plaintiff
recently had surgery on his right knee, and was unable to put pressure on it without pain. (ECF 29-
1, ¶ 82). It was Plaintiff’s belief Defendant Haferman, “knew that the elderly and disabled
generally did poorest on his roadside ‘tests’ even when sober and so he regularly preyed on the
elderly and disabled to increase his DUI arrest numbers.” (ECF 29-1, ¶ 84). Defendant Haferman
arrested Plaintiff for DUI. (ECF 29-1, ¶ 90)2.
Plaintiff’s theory in support of the argument his Constitutional rights were violated, is
premised on criticisms with respect to administration of the roadside tests and conclusions made
2 The Defendants reserve the right to contest the validity of these facts in any subsequent
proceedings.
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by Defendant Haferman. There are no allegations, however, identifying either Sergeant Heaton’s
or Corporal Bogosian’s personal participation in the roadside tests, involvement in the conclusions
of Defendant Haferman, or any other actions which might be construed as a violation of Plaintiff’s
Constitutional rights. In particular, according to Plaintiff’s own allegations, it was Defendant
Haferman who allegedly: (i) performed the roadside tests on an individual who apparently did not
fall within the NHTSA manual for administration of such tests, (ECF 29-1, ¶ 77); (ii) deliberately
omitted from the arrest report Plaintiff suffered from a traumatic brain injury and other disabilities,
(ECF 29-1, ¶ 73); (iii) made false statements and exaggerations of impairment indicators for
Plaintiff, (ECF 29-1, ¶ 74); (iv) failed to administer the roadside tests to Plaintiff in the
“standardized manner in which was trained,” (ECF 29-1, ¶ 75) (emphasis added); and (v)
deliberately omitted the fact Plaintiff was using a tobacco vape pen and was a “mouthwash user”
immediately prior to blowing into the PBT, (ECF 29-1, ¶ 87).
There are no non-conclusory allegations establishing an affirmative link between
Defendant Haferman’s actions, the alleged constitutional violations, and any involvement by
Sergeant Heaton or Corporal Bogosian. Weiss , 2022 U.S. Dist. LEXIS 183467, at * 10, referring
to Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Plaintiff appears to rely on the
fact both Sergeant Heaton and Corporal Bogosian were supervisors. This fact alone, however, is
insufficient to maintain supervisor liability. “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). No such allegations are set forth in the Complaint. There are also no non-conclusory
allegations either Sergeant Heaton or Corporal Bogosian exercised control or direction over
Defendant Haferman’s determinations, failed to supervise the specific stop involving the Plaintiff,
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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.
The allegations in the Complaint identifying Sergeant Heaton fail to describe any specific
action taken which might have possibly violated Plaintiff’s constitutional rights. Plaintiff claims,
“(a)s of March 20, 2021…Sergeant Heaton…personally, again had notice that Haferman was
wrongfully arresting innocent people.” (ECF 29-1, ¶¶ 31(g)-32). But this allegation refers to the
arrest of “C.B.” and not Plaintiff (ECF 29-1, ¶ 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.
Likewise, the allegations in the Complaint with respect to Corporal Bogosian, also fail to
describe any specific action which violated Plaintiff’s constitutional rights. For example, Plaintiff
refers to an interaction where Corporal Bogosian noted a purported mistake made by Mr.
Haferman, consisting of misusing a clue of impairment on a standardized roadside test, which was
“not a clue of impairment at all.” (ECF 29, at ¶ 30(d)). Plaintiff alleges Corporal Bogosian
“confronted Haferman about his repeated misrepresentation of impairment evidence,” and in
nothing other than a conclusory assertion, states “(t)his was the first of many red flags…” (ECF
20, at ¶ 30(c) and (e)). These conclusory allegations do not rise to the level of a constitutional
violation, and therefore any claim against Corporal Bogosian should be dismissed pursuant to Fed.
R. Civ. P. 12(b)(6) for failure to meet federal pleading standards.
B. Sergeant Heaton and Corporal Bogosian are entitled to qualified
immunity.
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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 either
Sergeant Heaton or Corporal Bogosian, which might have possibly violated Plaintiff’s
constitutional rights. (See § III (A), supra). 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 and Corporal Bogosian 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 and Corporal
Bogosian purportedly failed to review other DUI arrests thereby precipitating Haferman’s actions
with respect to Plaintiff. (ECF 29-1, ¶¶ 198-202; 204-207). 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
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no claim for a Constitutional violation, and both Sergeant Heaton and Corporal Bogosian are
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
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).
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“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.
“[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 29-1, ¶ 211). The Complaint alleges the City’s “failure to
supervise and train Haferman” was the moving force behind Plaintiff’s wrongful arrest (ECF 29-
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1, ¶ 212), and those actions “violated plaintiff’s federal constitutional rights.” (ECF 29-1, ¶ 213).
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
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, Sergeant Allen Heaton, and Corporal
Bogosian, respectfully request the Court grant their Motion, order Sergeant Heaton and Corporal
Bogosian are entitled to qualified immunity, dismiss all claims against them with prejudice, and
for entry of any other relief deemed just.
Respectfully submitted this 9th day of October, 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, ALLEN HEATON, AND JASON
BOGOSIAN
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 9th day of October 2023, a true and correct copy of the foregoing
DEFENDANTS CITY OF FORT COLLINS, SERGEANT ALLEN HEATON, AND
“CORPORAL” JASON BOGOSIAN’S MOTION TO DISMISS PLAINTIFF’S AMENDED
COMPLAINT (ECF 29-1) 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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