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Home My WebLink About2023-cv-1341 - Erbacher V. V. City Of Fort Collins, Et Al. - 054 - City's Reply Iso Mot Dismiss Am ComplIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:23-cv-1341-CNS-NRN Cody Erbacher, Plaintiff. v. City of Fort Collins, and Jason Haferman, 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 Defendant City of Fort Collins, 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 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. 1 The City, along with Corporal Jason Bogosian, and Sergeant Allen Heaton, filed a Motion to Dismiss Plaintiff’s Amended Complaint (ECF 40). Corporal Bogosian and Sergeant Heaton were subsequently dismissed by the Plaintiff (See ECF 50 & 51). Therefore, this Reply is submitted on behalf of only the City of Fort Collins. Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 1 of 10 2 v. Brown, 520 U.S. 397, 404 (1997). Any other approach risks placing responsibility for Mr. 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). (A municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff). Mr. Haferman’s acts, which form the basis of the claims against him, are paraded out in both the Complaint and the Response. There is, however, no specific identification of any custom, practice, policy, or procedure, a causal link between any such policies and Mr. Haferman’s conduct, or deliberate conduct on the part of the City. Instead, Plaintiff attempts to overcome dismissal by promulgating a negligence or malpractice theory, and using the alleged “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 48, 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 Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 2 of 10 3 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 A. 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. B. 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 33, ¶ 184), 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. Erbacher’s wrongful arrest.” (ECF 33, ¶ 185). Plaintiff, however, does not identify 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 48 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-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 3 of 10 4 any specific “custom” or “practices” in his Response, and the only allegations set forth in paragraphs 184 and 185, 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 specific customs or practices. The allegations are insufficient, and Plaintiff’s claims should be dismissed. C. 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). Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 4 of 10 5 Here, Plaintiff recounts his arrest on June 11, 2022, but nowhere does he allege (nor could he), that Mr. Haferman’s actions were the result of official policies. (See ECF 33 at ¶¶ 49-82). For example, Plaintiff alleges after questioning by Defendant Haferman, he was asked by to engage in road-side tests to prove he was safe to drive (ECF 33, ¶ 54). And, it was Defendant Haferman who allegedly: (i) failed to activate his body-worn camera during the encounter with Mr. Erbacher (ECF 33, ¶¶ 50 & 68), and lied about it (ECF 33, ¶ 69); (ii) deliberately omitted from the arrest report that Mr. Erbacher suffered from multiple traumatic brain and back injuries (ECF 33, ¶¶ 55-56); (iii) made false statements and exaggerations of impairment (ECF 33, ¶ 57); (iv) failed to properly administer the road-side tests “in the standardized manner he was trained” (ECF 33, ¶ 58); (v) lied elsewhere in his arrest report about Mr. Erbacher showing clues/signs of impairment where there were none (ECF 33, ¶ 61); (vi) made the determination a breath test could not be performed because Mr. Erbacher was taking antibiotics (ECF 33, ¶¶ 64-65); and (vii) had the preference of obtaining blood specimens over administration of a breath test from the people he arrested for DUI, because he knew the method would cast the widest net, capture any and all drugs, and when combined with the exaggerated arrest reports and missing body-camera videos could make his wrongful DUI arrests appear more justified on paper. (ECF 33, ¶ 66). None of these actions are official or unofficial City policy, and Plaintiff does not (and cannot) allege as much. D. 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 33, ¶ 129). 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. Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 5 of 10 6 “(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 which validates this approach as proper. Rather, the single act which is the subject of this lawsuit, is the arrest of Mr. Erbacher 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 (See e.g. ECF 33, at ¶ 129). Those statements, however, do not address the specific arrest of Mr. Erbacher, nor the actions of Mr. Haferman in effectuating Plaintiff’s arrest. There is no ratification of any specific, allegedly unconstitutional conduct, and therefore no implicated City policy. E. 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 Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 6 of 10 7 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 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 48 at 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. Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 7 of 10 8 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 48 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 Mr. Haferman, related to the claims in this lawsuit, which was either faulty or lacking. Here, Plaintiff addresses Mr. Haferman’s failure to activate his body-worn camera (ECF 33, ¶¶ 50 & 68); an intentional lie when asked confronted about it (ECF 33, ¶ 69); a deliberate omission from the arrest report about Mr. Erbacher’s multiple traumatic brain and back injuries (ECF 33, ¶¶ 55-56); intentional false statements and exaggerations of impairment made by Mr. Haferman (ECF 33, ¶ 57); a failure by Mr. Haferman to properly administer the road-side tests “in the standardized manner he was trained” (ECF 33, ¶ 58), and; another intentional lie by Mr. Haferman elsewhere in his arrest report about Mr. Erbacher showing clues/signs of impairment where there were none (ECF 33, ¶ 61). 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. II. CONCLUSION 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) which were substantially certain to result in a violation of Plaintiff’s constitutional rights. The Complaint is also devoid of any allegations the City consciously or deliberately chose to disregard any such harm. Schneider, 717 F.3d at 771, citing Barney, 143 F.3d at 1307 (10th Cir. 1998). Any claims against the City should be dismissed. Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 8 of 10 9 Wherefore, Defendant, City of Fort Collins respectfully requests the Court grant their Motion, dismiss all claims against the City 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. 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 Case No. 1:23-cv-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 9 of 10 10 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-01341-CNS-NRN Document 54 filed 12/27/23 USDC Colorado pg 10 of 10