HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 039 - Bogosian's Mot Dismiss Am ComplIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1342-SBP
Jesse Cunningham,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman;
Sergeant Allen Heaton; and
Corporal Jason Bogosian.
Defendants.
___________
DEFENDANT CORPORAL JASON BOGOSIAN’S MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND
REQUEST FOR QUALIFIED IMMUNITY
Defendant Sergeant Jason Bogosian, sued as “Corporal Jason Bogosian,”1 through his
undersigned counsel, Hall & Evans, LLC, submit the following as his Motion to Dismiss Plaintiff’s
Amended Complaint, 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 29, 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 claims Defendant Haferman’s actions somehow
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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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 24-1, Second Claim for Relief at ¶¶ 184 to 190; 192-201).
For the reasons set forth below, Plaintiff’s claims against 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 Corporal Bogosian. See Bennett v. Passic, 545 F.2d 1260, 1262-
63 (10th Cir.1976) (personal participation is an essential allegation in a section 1983 claim…”);
See also Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (“Individual liability under § 1982
must be based on personal involvement in the alleged constitutional violation.”)2
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). At the pleading
stage, it is not the defendant’s or the court’s responsibility to guess at plaintiff’s claims. 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.
2008). Likewise insufficient, is a plaintiff’s more active-voice yet undifferentiated contention
2 The City of Fort Collins and Sergeant Allen Heaton are also seeking dismissal of the claims against them,
pursuant to a separate Motion to Dismiss (See ECF 19).
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‘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 1226. 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 the non-moving party. Brown v.
Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). All conclusory statements of law, however, 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 Corporal Bogosian 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, 806-807 (1982). Qualified immunity
affords public officials immunity from suit and exists to “protect them from undue interference
with their duties, and from potentially disabling threats of liability.” Elder v. Holloway, 510 U.S.
510, 514 (1994), citing Harlow, 457 U.S. at 806. 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, but also 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).
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“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 at least allege
that the right was “clearly established” in a “particularized” sense. Wilson v. Meeks, 52 F.3d 1547,
1552 (10th Cir. 1995), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[F]or a right to
be ‘particularized,’ there must ordinarily be a Supreme Court or Tenth Circuit decision on point,
or ‘clearly established weight of authority’ from other courts.” Anderson, 483 U.S. at 640 citing
Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
III. ARGUMENT
A. Plaintiff fails to set forth any specific allegations against Corporal Bogosian
establishing his personal participation in any alleged constitutional
violation.
Plaintiff ’s claims against Corporal Bogosian are based on an alleged supervisory position
over Defendant Haferman. (See ECF 24-1, ¶ 197). 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). Liability against a
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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. “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 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.
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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).
Here, Plaintiff recounts his arrest on July 29, 2021, but nowhere in his Complaint does he
identify any specific involvement of Corporal Bogosian implicating a violation of any
constitutional rights. In particular, Plaintiff alleges he witnessed a horrific motorcycle accident
when a driver pulled out in front of three-motorcyclists at an intersection (ECF 24-1, ¶ 55).
Plaintiff pulled over and provided first-aid. (ECF 24-1, ¶¶ 57-59). Fort Collins Police Services
arrived and asked him to remain on scene to fill out witness statements describing what he saw.
The Officers also asked Plaintiff and his family to remain on scene to answer any questions the
accident reconstruction officer might have, which they did. (ECF 24-1, ¶ 62). Defendant
Haferman arrived on scene, (ECF 24-1, ¶ 64) and informed Plaintiff someone reported smelling
the odor of alcohol on him. (ECF 24-1, ¶ 65). Defendant Haferman informed Plaintiff he needed
him to complete roadside tests to prove he was safe to drive (ECF 24-1, ¶ 69). The roadside tests
were conducted, and Defendant Haferman arrested Plaintiff for DUI (ECF 24-1, ¶ 77) and
transported him to jail. (ECF 24-1, ¶ 87). As part of the arrest, Plaintiff agreed to submit to a blood
draw (ECF 24-1, ¶ 81).3
3 The Defendants reserve the right to contest the validity of these facts in any subsequent proceedings.
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Nowhere in the recitation of Defendant Haferman’s interaction with Plaintiff on July 29,
2021, is Corporal Bogosian mentioned. Plaintiff criticizes the roadside tests and conclusions of
Defendant Haferman as the basis for the wrongful arrest and violation of his constitutional rights.
There are no allegations, however, identifying Corporal Bogosian’s participation in the roadside
tests, conclusions of Defendant Haferman, or any other actions which might be construed as a
violation of Plaintiff’s Constitutional rights. According to Plaintiff’s own allegations, it was
Defendant Haferman who allegedly: (i) refused to provide Plaintiff with a portable breath test
(ECF 24-1, ¶ 71); (ii) did not perform the road-side tests in the standardized manner in which he
was trained (ECF 24-1, ¶ 75); and (iii) included multiple lies in the arrest report regarding
Plaintiff’s performance on the road-side tests (ECF 24-1, ¶ 75).
There are no non-conclusory allegations establishing any affirmative link between
Defendant Haferman’s actions, the alleged constitutional violations, and involvement by Corporal
Bogosian. Weiss , 2022 U.S. Dist. LEXIS 183467 at * 10, referring to Butler, 992 F.2d at 1055.
There are also no non-conclusory allegations Corporal Bogosian exercised control or direction
over Defendant Haferman’s determinations with respect to Mr. Cunningham, failed to supervise
the specific stop of Mr. Cunningham, or tacitly authorized Defendant Haferman’s conduct resulting
in any constitutional deprivation. See Fogarty, 523 F.3d at 1162 and Currier, 242 F.3d 925.
The allegations in the Complaint identifying Corporal Bogosian, fail to describe any
specific action taken which might have possibly violated Mr. Cunningham’s constitutional rights.
For example, the Complaint states, “(a)s of March 20, 2021…Sergeant Heaton and Corporal
Bogosian…personally, again had notice that Haferman was wrongfully arresting innocent people.”
(ECF 24-1 at ¶¶ 31(a) to (g)-32). But these allegations refer to the arrest of “C.B.” and not Plaintiff
(ECF 24-1 at ¶ 31). These allegations have nothing to do with Plaintiff, and are also conclusory
and insufficient to state a claim for relief against Corporal Bogosian. Twombly, 550 U.S. 544;
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Iqbal, 556 U.S. at 677-78. There is no information to suggest Corporal Bogosian had any sort of
“notice,” especially regarding the specific arrest of Plaintiff.
Likewise, other 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 noting a clue of impairment on a standardized roadside test, which was
“not a clue of impairment at all.” (ECF 24-1 at ¶ 30). 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
24-1 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. Corporal Bogosian is entitled to qualified immunity.
As discussed above, Plaintiff bears a heavy, two-part burden of overcoming the defense of
qualified immunity. In particular, Plaintiff must properly allege that: (1) the defendants’ actions
violated a constitutional right, and (2) the right was clearly established at the time of the conduct
at issue. Mick, 76 F.3d at 1134.
1. Plaintiff fails to establish a constitutional violation.
As argued above, there are no allegations identifying specific action taken by 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 the defense of
qualified immunity.
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2. Plaintiff fails to identify a clearly established right.
To survive dismissal, the plaintiff must show 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 Corporal Bogosian violated Plaintiff’s Fourth Amendment rights by
failing to supervise and/or train Defendant Haferman with respect to his DUI arrest. Plaintiff’s
allegations rest on the notion Sergeant Bogosian purportedly failed to intermittently review other
DUI arrests thereby precipitating Haferman’s actions with respect to Plaintiff (ECF 24-1 at ¶¶ 199-
200). Besides being improperly speculative, a search of Tenth Circuit jurisprudence fails to reveal
any particularized case allowing for the imposition of Constitutional liability on these theories,
including a failure to review previous DUI arrests unrelated to a plaintiff’s arrest. Without any
clearly established authority, Plaintiff can state no claim for a Constitutional violation, and
Corporal Bogosian is entitled to qualified immunity.
IV. CONCLUSION
Wherefore, Defendant Corporal Jason Bogosian respectfully requests the Court grant his
Motion, order Corporal Bogosian is entitled to qualified immunity, dismiss all claims against him
with prejudice, and for entry of any other relief deemed just.
Respectfully submitted this 20th day of November, 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
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hoffmank@hallevans.com
ATTORNEYS FOR THE CITY OF FORT
COLLINS, ALLEN HEATON, AND JASON
BOGOSIAN
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 20th day of November 2023, a true and correct copy of the
foregoing DEFENDANT CORPORAL JASON BOGOSIAN’S MOTION TO DISMISS
PLAINTIFF’S 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.
jonathan@kandf.com
Yulia Nikolaevskaya, Esq.
julie@kandf.com
s/ Sarah Stefanick
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