HomeMy WebLinkAbout2023-cv-1343 - Elias V. V. City Of Fort Collins, Et Al. - 060 - City Heaton Reply Re Mot Dismiss Amended 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.
REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED
COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)1 BY THE CITY OF FORT
COLLINS AND SERGEANT ALLEN HEATON
Defendants City of Fort Collins and Allen Heaton, through their undersigned counsel, Hall
& Evans, LLC, submit the following as their Reply in Support of Motion to Dismiss Plaintiff’s
Amended Complaint, (“Complaint”) pursuant to Fed. R. Civ. P. 12(b)(6):
I. ARGUMENT
A. Plaintiff has not properly alleged a claim against the City.
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 both a causal link with the alleged violation, Jenkins v. Wood, 81 F.3d 988, 993 (10th
Cir. 1996), and; deliberate conduct on the part of the City. Bd. of Cnty. Comm’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 404 (1997). Any other approach risks placing responsibility for Mr.
1 The City and Sergeant Allen Heaton filed a Motion to Dismiss Plaintiff’s Initial Complaint
(ECF 22). Corporal Bogosian was subsequently dismissed (ECF 52). Therefore, this Reply is
filed on behalf of the City and Sergeant Heaton, only.
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 1 of 11
2
Haferman’s actions on the City, based on a theory of respondeat superior or vicarious liability,
which would be inappropriate. 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).
Mr. Haferman’s acts, which form the basis of the claims against him, are paraded out in
both the Complaint and the Response. Plaintiff, however, attempts to overcome dismissal by
promulgating a negligence or malpractice theory, and using Mr. Haferman’s “bad acts” to simply
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. Liability on behalf of the City, may only
be established through five avenues: (1) a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of the decisions – and the
basis for them – of subordinates to whom authority was delegated subject to these policymakers’
review and approval; or (5) the failure to adequately train or supervise employees, so long as that
failure results from deliberate indifference to the injuries that may be caused. (ECF 49, Pltfs. Resp.
Brf., at 6, citing Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (citing
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)). The
Complaint, however, fails to set forth any non-conclusory allegations identifying any facts
sufficient to establish any of these methods.2
2 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 which requires more than conclusory (and biased) assertions. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007).
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 2 of 11
3
1. Plaintiff fails to identify any “formal regulation or policy statement.”
The only mention of “formal regulation” or “policy statement,” is the citation in the
Response to the five types of municipal liability theory. Plaintiff does not point to any allegations
identifying a formal regulation or policy statement, in the Complaint.
2. Plaintiff fails to identify an informal custom.
Likewise, both the Response and the Complaint fail to identify any “informal custom
amounting to a widespread practice” on which liability against the City might be based. The
Response does not even mention “informal custom” (other than, again, in the citation to the five-
types of municipal liability), and the only references in the Amended Complaint fare no better.
Plaintiff 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 1-1, ¶ 249), 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 1-1, ¶ 251). Plaintiff, however, does not identify any
specific “custom” or “practices” in his Response, and the only allegations set forth in paragraphs
249 and 251, are non-specific and conclusory. Based on these allegations, there is no way to
discern the existence of any specific policy, or a causal link between any undefined policy and the
violation alleged, nor is there any identification of deliberate conduct on the part of the City.
Furthermore, although Plaintiff generically states the City failed to supervise or train Mr.
Haferman, there is no identification as to how any such failures rise 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
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 3 of 11
4
specific customs or practices. The allegations are insufficient, and Plaintiff’s claims should be
dismissed.
3. Plaintiff does not allege Mr. Haferman’s actions were taken pursuant to
any 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). In order 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. 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 allege (nor could he), that Mr. Haferman’s actions were
the result of official policies. (See ECF 1-1 at ¶¶ 57-159). For example, Plaintiff alleges, it was
Defendant Haferman who allegedly: (i) witnessed Plaintiff driving erratically; (ii) made the
decision to charge him with DUI before administering the roadside tests (ECF 1-1, ¶ 60); (iii) made
the decision to conduct the roadside tests on Plaintiff (ECF 1-1, ¶ 94); (iv) had the knowledge the
particular arrest would require a report filled with “particularly flamboyant lies and exaggerations
of impairment cues” (ECF 1-1, ¶127); and (v) wrote a narrative for the arrest of Plaintiff filled
with lies and exaggerations in order to ensure Plaintiff was criminally prosecuted for DUI and
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 4 of 11
5
Child Abuse (ECF 1-1, ¶ 127). 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 any actions of Mr. Haferman were
ratified according to official customs or policies.
Plaintiff alleges in his Complaint FCPS Chief Swoboda made “false claims,” in order to
“ratify and defend Haferman’s constitutional violations…” (ECF 1-1, ¶ 195). But, nowhere does
Plaintiff identify any specific policies allegedly ratified by either Chief Swoboda or the City, and
merely stating there was “ratification,” of Mr. Haferman’s conduct, is conclusory and improper.
No other indicia of a ratification exists in either the Complaint or the Response.
“(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 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 attempts to overcome dismissal by
referencing other Haferman arrests and lawsuits, and alleging ratification by Chief Swoboda. But,
there is no case law validating this approach as proper. Rather, the single act which is the subject
of this lawsuit, is the arrest of Mr. Elias by Mr. Haferman. The Complaint is devoid of ratification
of this specific act and Plaintiff muddles the concept of ratification by focusing on statements made
by Chief Swoboda. Those statements, however, do not address the specific arrest of Mr. Elias, nor
the actions of Mr. Haferman in effectuating Plaintiff’s arrest, or for any actions by Sergeant
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 5 of 11
6
Heaton. There is no ratification of any specific, allegedly unconstitutional conduct, and therefore
no implicated City policy.
5. Plaintiff identifies no specific failure to adequately 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 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. In an effort to satisfy this
requirement, Plaintiff insists he “pleaded in extensive detail both the fact of and various specifics
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 6 of 11
7
regarding at least 7 separate similar wrongful DUI arrest instances in just a seven-month
span…corroborating FCPS’s persistent and deliberate failure to train and supervise…” (ECF 49
at 6-7). Plaintiff, however, omits one important detail-the allegation “similar wrongful DUI
arrest(s)” which he believes resulted in a constitutional violation, comes from nothing more than
literary license and artful pleading. Omitted from the Complaint and the Response is any reference
to the fact there has yet to be a determination any of the cited individual’s constitutional rights
were violated. Therefore, a pattern of “similar constitutional violations” has actually not been
properly pled. Likewise, Plaintiff states he properly “alleged facts related to FCPS’s failure to
train and supervise Haferman with respect to specific skills needed to handle recurring situations
that presented obvious potential for constitutional violations…” (ECF 49 at 7). Again, these
statements are conclusory and as yet unproven, and for this matter to move forward based on these
allegations, risks establishing liability based merely on respondeat superior. Hernandez, at *7.
Additionally, there is no analysis or criticism in the Complaint, of any specific training
provided to either Mr. Haferman or Sergeant Heaton, related to the claims in this lawsuit, which
was either faulty or lacking. ). Here, Plaintiff alleges, it was Defendant Haferman who allegedly:
(i) witnessed Plaintiff driving erratically; (ii) made the decision to charge him with DUI before
administering the roadside tests (ECF 1-1, ¶ 60); (iii) made the decision to conduct the roadside
tests on Plaintiff (ECF 1-1, ¶ 94); (iv) had the knowledge the particular arrest would require a
report filled with “particularly flamboyant lies and exaggerations of impairment cues” (ECF 1-1,
¶127); and (v) wrote a narrative for the arrest of Plaintiff filled with lies and exaggerations in order
to ensure Plaintiff was criminally prosecuted for DUI and Child Abuse (ECF 1-1, ¶ 127). None of
these actions implicate any specific FCPS or City training (or the lack thereof) and are therefore
insufficient to allege a claim against the City.
B. Sergeant Heaton is entitled to qualified immunity.
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 7 of 11
8
1. Plaintiff still fails to properly allege supervisor liability.
Plaintiff acknowledges that in order to properly allege liability against Sergeant Heaton, he must
establish a “deliberate, intentional act by the supervisor to violate constitutional rights.” (ECF 49
at 11, citing Jenkins v. Wood, 81 F.3d 988, 994-95) (10th Cir 1996). “(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). Plaintiff references certain allegations
that Sergeant Heaton “directed” Haferman’s plan to deny Plaintiff a breath test, and joined
Haferman at the hospital to execute the deed. (ECF 49 at 12), as well as Sergeant Heaton failing
to turn on his body-worn camera (ECF 49 at 12). The argument, however, embellishes the
allegations. Paragraph 104 of the Complaint fails to make the affirmative assertion that Sergeant
Heaton intentionally met Haferman at the hospital, to carry out a plan of violating Mr. Elias’
constitutional rights. (See ECF 1-1, ¶ 104, “While waiting for the twenty-minute deprivation
period to pass prior to administering the breath test, Officer Haferman began to wonder if doing a
breath test was really the best idea. In a panic, he called his supervising Sergeant Allen Heaton and
asked if he could force Mr. Elias to do a blood draw instead (far better for the fishing expedition
Haferman was on) by claiming Mr. Elias urgently needed medical care for his knee.”). Certainly,
Plaintiff could amend the paragraph to reference the intentional act, but 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).
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 8 of 11
9
The same holds true with respect to not activating a body-worn camera, Plaintiff can assume there
was some nefarious actions, but again this conclusory assertion does not appear in the Complaint.
Additionally, it is conclusory for Plaintiff to allege that Sergeant Heaton “knew that he was both
directing and participating in yet another wrongful DUI arrest in a long line of wrongful Haferman
DUI arrests.” (ECF 49 at 12). There is no factual basis to make this allegation, and merely stating
it does not make it so.
Plaintiff also fails to submit to the Court any factual basis to claim Sergeant Heaton had
knowledge Haferman was wrongfully arresting innocent people. (ECF 49 at 13). Despite the
assertion, Plaintiff seems to merely rely on the fact Sergeant Heaton was Mr. 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 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 Sergeant Heaton violated the Fourth Amendment, is not the “particularized”
authority which overcomes a defense of qualified immunity. Plaintiff only claims Sergeant Heaton
violated Plaintiff’s rights by failing to supervise and/or train Defendant Haferman, and failing to
review other, unrelated DUI arrests (ECF 1-1, ¶¶ 237-241). Tenth Circuit jurisprudence fails to
reveal any particularized case allowing for the imposition of liability on this theory, and Plaintiff
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 9 of 11
10
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.
3. Plaintiff fails to establish personal participation of Officer Heaton.
With respect to the arrest of Plaintiff and the personal participation of Sergeant Heaton, the
only allegations in the Complaint are: (1) Mr. Haferman called Sergeant Heaton to ask if he could
force Mr. Elias to do a blood draw (ECF 1-1 at ¶ 104); (2) Sergeant Heaton did not activate his
body-worn camera (ECF 1-1 at ¶ 113); (3) Sergeant Heaton did not complete a report (ECF 1-1 at
¶ 114); (4) Sergeant Heaton observed Plaintiff who was allegedly sober (ECF 1-1 at ¶ 115), and;
(6) Sergeant Heaton discussed how to obtain a blood test from Plaintiff to test for prescription and
over-the-counter drugs (ECF 1-1 at ¶ 116).
Paragraphs 104, 113, 114, and 116 are not constitutional violations, and Plaintiff provides
no case law to suggest otherwise. Paragraph 115 is conclusory. There is no indication Sergeant
Heaton made any such observations, or was even required to do so. There are no proper allegations
of personal participation by Sergeant Heaton in the actions of Mr. Haferman which allegedly
violated Plaintiff’s constitutional rights, nor has Plaintiff pled Sergeant Heaton directly violated
any of his rights.
II. CONCLUSION
Wherefore, Defendants, City of Fort Collins and Sergeant Allen Heaton, respectfully
request the Court grant their Motion, 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 27th day of December, 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, Esq.
Katherine N. Hoffman, Esq.
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 10 of
11
11
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 AND SERGEANT ALLEN HEATON
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 27th day of December 2023, a true and correct copy of the
foregoing REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED
COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) BY THE CITY OF FORT
COLLINS 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
Case No. 1:23-cv-01343-GPG-KAS Document 60 filed 12/27/23 USDC Colorado pg 11 of
11