HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 063 - DEFENDANT JASON SHUTTERS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINTIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00884-CMA
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS (In their (sic) Individual Capacity only),
Defendants.
_____________________________________________________________________________
DEFENDANT JASON SHUTTERS’ MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT (ECF No.61)
PURSUANT TO FED. R. CIV. P. 12(b)(1) and 12(b)(6)
______________________________________________________________________
Defendant Jason Shutters, through his Attorneys Hall & Evans, LLC, submits the
following as his Motion to Dismiss Plaintiff’s Second Amended Complaint (ECF No. 61),
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) as follows:
CONFERRAL
Plaintiff is an incarcerated prisoner, and therefore no ability to
properly confer respecting the relief requested in this Motion
exists. Nonetheless, pursuant to CMA Civ. Practice Standard
7.1D, undersigned Counsel believes the deficiencies in
Plaintiff’s Second Amended Complaint, are not “correctable.”
I. INTRODUCTION
Plaintiff filed the present matter generally alleging a violation of his Constitutional
rights when he was arrested, tried, and subsequently convicted for sexual assault. The
allegations against Defendant Shutters purport to be for claims of “unreasonable search
and seizure” (ECF No. 61 at 21-22 (“Claim One”)), “excessive force” (ECF No. 61 at 23-
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 1 of 13
2
24 (“Claim Two”)), “Violation of the Uniform Youthful Offender Act” (ECF No. 61 at 25-27
(“Claim Three”)), and “Intentional Infliction of Emotional Distress” (ECF No. 61 at 29
(“Claim Five”)). The Second Amended Complaint also appears to set forth a claim
involving “Due Process”, although no specifics are provided in the Amended Complaint
(ECF No. 61 at 29).
On December 13, 2017, this Court issued a Magistrate’s Recommendation that
claims Three, Four, and Six of Plaintiff’s Second Amended Complaint, be dismissed (ECF
No. 60). Generally, the Magistrate’s recommendation is based on the Court’s previous
rulings dismissing the claims set forth in a previous iteration of Plaintiff’s Complaint.
Defendant Shutters seeks dismissal of the claims against him1
. In particular, the
claim for unreasonable search and seizure should be dismissed as the procurement of
non-testimonial evidence was conducted pursuant to a Court Order, including a finding of
probable cause. In addition, the claim for excessive force should be dismissed as Plaintiff
provides only conclusory allegations which fail to comply with Federal pleading standards
and the standard enunciated in Bell Atl. v. Twombly, 550 U.S. 544, 545 (2007).
Furthermore, Defendant Shutters is entitled to qualified immunity.
Additionally, any claim for intentional infliction of emotional distress should be
dismissed pursuant to the Colorado Governmental Immunity Act (“CGIA”). §§24-10-102,
24-10-105, 24-10-106(1), and 24-10-108, C.R.S. (2011); City of Colorado Springs v.
Conners, 993 P.2d 1167, 1171-72 (Colo.2000).
1 The filing of this Motion to Dismiss is not intended as an “objection” or response to
the Magistrate’s Recommendation. Rather, this Motion is filed given the timing respecting
the filing of a response to Plaintiff’s Second Amended Complaint.
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 2 of 13
3
II. ARGUMENT
A. First Claim for Relief: Unreasonable Search and Seizure
1. Defendant Shutters is entitled to qualified immunity in respect to
Plaintiff’s First Claim for Relief, as any search incident to the Plaintiff’s
arrest, was conducted pursuant to a Court Order and a valid probable
cause determination.
- Elements: The application of qualified immunity does not lend itself to a
recitation of elements, as required by CMA Civ. Practice Standard 7.1D(1) & (2).
Nonetheless, Defendant contends the Plaintiff has not overcome his burden of
establishing that (1) The defendants’ actions violated a constitutional right, and; (2) that
the right was clearly established at the time of the conduct at issue. Mick v. Brewer, 76
F.3d 1127, 1134 (10th Cir.1996), thereby entitling Defendant Shutters to qualified
immunity.
The first claim against Defendant Shutters appears to involve a violation of
Plaintiff’s Fourth Amendment rights, when Defendant Shutters “authorized” the collection
of evidence from Plaintiff (ECF No. 61 at 21). Plaintiff describes the collection of evidence
as a “M.S.A.K. examination” which apparently included being “stripped naked, searched
naked, photographed naked for 4 (sic) separate 360 degrees (sic) photographs…and had
his penis swabbed by Detective Neil, while a sit-in E.R. homosexual nurse physically
watched” (ECF No. 61 at 21). Based on Plaintiff’s description, it is assumed Plaintiff is
referring to a search for non-testimonial identification pursuant to Colo.R.Crim.P. 41.1,
also termed a “male sexual assault kit.”
On August 28, 2015, Judge C. Michelle Brinegar of the County Court for Larimer
County, Colorado, issued an Order for Non-Testimonial Identification (see Court Order,
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 3 of 13
4
attached hereto as Exhibit A (the “Order”)2
; see also Affidavit for Court Order For Non-
Testimonial Identification, attached hereto as Exhibit B, and; Return of Court Order for
Non-Testimonial Identification, attached hereto as Exhibit C). The Order sets forth that
the Court found probable cause to believe the crime of sexual assault pursuant to C.R.S.
§18-3-402(1)(h), a Class 3 Felony, had been committed by Plaintiff Anderson, and that
based on the finding of probable cause, the Court was authorizing the collection of non-
testimonial evidence through various procedures, including execution of a male sexual
assault kit (Exhibit A at 2). As alleged in Plaintiff’s Second Amended Complaint, the
male sexual assault kit was administered on or about September 2, 2015 (ECF No. 61 at
21-22; Exhibit C at 1).
Defendant Shutters is entitled to qualified immunity as to Plaintiff’s claim for
unreasonable search and seizure. 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 v. Fitzgerald, 457 U.S. 800, 806 (1982). It protects all governmental
officials from performing discretionary functions from civil liability as long as their conduct
2 Generally, a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b), must be
determined on the four-corners of the Complaint. SEC v. Goldstone, 952 F.Supp.2d
1060, 1191 (N.M.Dist.2013) referring to Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th
Cir.2010). Exceptions to this requirement include documents referred to in the complaint
if the documents are central to the plaintiff’s claim…and matters of which a court may
take judicial notice. Goldstone, 952 F.Supp.2d at 1191, referring to Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Materials outside the complaint
can be considered under these exceptions, without converting the Motion to Dismiss to a
Motion for Summary Judgment. The Defendants request this Court take judicial notice of
the Order for Non-Testimonial Identification, attached as Exhibit A, as well as the
Affidavit for Court Order for Non-Testimonial Identification, attached as Exhibit B, and
the Return of Court Order for Non-Testimonial Identification, attached as Exhibit C).
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 4 of 13
5
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); see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). “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 stage in the litigation. Medina v.
Cram, 252 F.3d 1124, 1127-28 (10th Cir. 2001); Albright v. Rodriguez, 51 F.3d 1531,
1534 (10th Cir. 1995). When a defendant pleads the defense of qualified immunity, a
plaintiff bears a heavy two-part burden of proving (1) that the defendants’ actions violated
a constitutional right, and (2) that the right was clearly established at the time of the
conduct at issue. Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir.1996). 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 ‘clearly
established weight of authority’ from other courts.” Wilson, 52 F.3d at 1552 citing Medina
v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992).
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 5 of 13
6
Here, the Court issued an Order expressly authorizing the collection of non-
testimonial evidence from Plaintiff Anderson, including execution of a “male sexual
assault kit.” Furthermore, the Court Order is explicitly based on a probable cause
determination that Plaintiff Anderson committed the crime of sexual assault (Exhibit A at
1). Plaintiff cannot establish that any actions taken pursuant to the Order, including the
means and methods of executing the male sexual assault kit, were somehow
unreasonable and in violation of any Constitutional right. Defendant Shutters is there
entitled to qualified immunity for his actions.
2. Plaintiff’s First Claim for Relief should also be dismissed as any
such claim is not plead in anything other than a conclusory
fashion.
- Elements: To state a claim, 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.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).
- Elements Not Met: Plaintiff does not allege in anything other than in a
conclusory fashion, that the search incident to the Court’s Order for Non-Testimonial
Evidence, was somehow unreasonable.
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “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).” Twombly, 550
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 6 of 13
7
U.S. at 555. At the pleading stage, it is not the defendant’s or the Court’s responsibility
to guess at plaintiff’s claims. Twombly, 550 U.S. at 555. 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).
As argued above, the Plaintiff does not allege a Constitutional violation, as any
search or seizure was conducted pursuant to a Court Order and a determination of
probable cause. Merely arguing that Defendant Shutters violation the scope of the Court
Order is conclusory, and therefore insufficient to overcome a Motion to Dismiss.
B. Plaintiff’s Second Claim for Relief pertaining to excessive force, fails to set
forth any allegations in anything other than a conclusory fashion.
- Elements: To recover on an excessive force claim involving handcuffing,
“a plaintiff must show that the officers used greater force than would have been
reasonably necessary to affect a lawful seizure, and some actual injury caused by the
unreasonable seizure that is not de minimis, be it physical or emotional’” Jones v.
Lehmkuhl, 2013 U.S. Dist. LEXIS 139229 at *33-34 (D. Colo. 11 cv 02384 WYD CBS,
April 26, 2013) citing Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009).
- Elements Not Met: Plaintiff’s excessive force claim expresses in nothing
but a conclusory fashion, that Defendant Shutters used “excessive force”.
Factors to be considered when reviewing a complaint based on handcuffing and
excessive force include the manner in which the Plaintiff was handcuffed. Jones, 2013
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 7 of 13
8
U.S. Dist. LEXIS at *35 referring to Rhoden v. City of Lakewood, Colorado, 2013 U.S.
Dist. LEXIS 32293 at *3 (D. Colo. 11 cv 01734 PAB BNB, Mar. 8, 2013).
In the present matter, Plaintiff presents a thirty-four-page Second Amended
Complaint, which recounts in detail a lengthy history involving juvenile arrests, purported
suppression of juvenile convictions, a psychological history including sexual abuse, adult
arrests, and the facts surrounding the criminal matter for which Plaintiff was ultimately
convicted of. Despite such detail, Plaintiff’s excessive force claim expresses in nothing
but a conclusory fashion, that Defendant Shutters used “excessive force”. Although
purported injuries are identified, Plaintiff fails to allege any indication respecting the basis
for concluding Defendant Shutters used greater force than would have been reasonably
necessary to affect a lawful seizure (see ECF No. 61 at 23). Defendant Shutters is left to
guess as to the purported “unreasonableness” of his actions were in handcuffing the
Plaintiff. As a result, there are no specific factual allegations respecting any actions from
which Defendant can discern the existence of a Constitutional violation. Plaintiff’s claim
fails to meet Federal pleading standards for a Constitutional claim and should be
dismissed.
The same argument applies as to Plaintiff’s allegations respecting inhibiting
“proper photographing of wounds for multiple hours”, inhibiting “proper medical care by
denying originally (sic) access to E.M.T.’s into police station”, and “inhibited proper
medical attention in the E.R., and convinced the doctor to deny subsequent medical
attention.” (ECF No. 61 at 24). All such allegations are conclusory, and there is no basis
to discern any Constitutional violation or “credence to the claim of excessive force.” (ECF
No. 61 at 24).
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 8 of 13
9
C. Plaintiff’s Third Claim for Relief should be dismissed, as per the Court’s
previous ruling.
Plaintiff’s Third Claim for Relief, purports to set forth a claim for violation of the
“Uniform Youthful Offender Act,” and “Violation of Juvenile Rights” (ECF No. 61 at 25).
These claims were previously dismissed by the Court as being “legally frivolous” (see
ECF No. 60 at 7, citing ECF No. 17 at 9, and; Andrews v. Heaton, 483 F.3d 1070, 1076
(10th Cir. 2007)) (“Judge Babcock previously dismissed this claim as legally frivolous
because the statute cited by Plaintiff, 18 U.S.C. § 5038, did not provide a private right of
action))3
. Plaintiff admits as much in his Complaint, by generally stating: “There is no
appropriate cure or remedy to these deprivations other than a Federal Civil Rights Lawsuit
(sic).” No citation is provided in the Second Amended Complaint to any statute setting
for a “Youthful Offender Act”, “Violation of Juvenile Rights”, or how any allegations set
forth in the Third Claim for Relief, constitute an actionable violation of Plaintiff’s Federal
Civil or Constitutional Rights. The claim should be dismissed.
D. Plaintiff’s Fifth Claim for Relief fails as a matter of law
1. Intentional Infliction of Emotional Distress4
Plaintiff’s Fifth Claim for Relief, is entitled “Intentional Infliction of Emotional
Distress” (ECF No. 61 at 29). To any extent Plaintiff intends on alleging a tort claim, any
such claim is barred by application of the Colorado Governmental Immunity Act (“CGIA”).
3 This Court is recommending this claim as set forth in the Second Amended
Complaint, be dismissed. (see ECF No. 60 at 7 and ECF No. 62).
4 Defendant Shutters seeks dismissal of any purported State law tort claim, pursuant
to Fed.R.Civ.P. 12(b)(1). Pursuant to CMA Civ. Practice Standard 7.1D(c), Defendant
Shutters seeks dismissal of any State law tort claim, pursuant to the Colorado
Governmental Immunity Act, “CGIA”, as there is no specific statutory waiver for any such
claim. §§24-10-102, 24-10-105, 24-10-106(1), and 24-10-108, C.R.S. (2011); Conners,
993 P.2d 1171-72 (Colo.2000). It is Plaintiff’s burden to establish such a waiver.
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 9 of 13
10
The CGIA provides a grant of governmental immunity unless there is a specific statutory
waiver. §§24-10-102, 24-10-105, 24-10-106(1), and 24-10-108, C.R.S. (2011); Conners,
993 P.2d 1171-72 (Colo.2000). The issue of whether the CGIA waived governmental
immunity as to a claim for relief is one of subject matter jurisdiction to be decided pursuant
to C.R.C.P. 12(b)(1). Medina v. State, 35 P.3d 443, 451-52 (Colo.2001). C.R.S. §24-
10-108 of the CGIA requires the trial court to resolve all issues of governmental immunity
before trial. Finne v. Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253, 1259 (Colo.2003).
On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff must
demonstrate that governmental immunity was waived. Tidwell v. City and Cnty. of
Denver, 83 P.3d 75, 85 (Colo.2003). When jurisdictional facts concerning governmental
immunity are in dispute, the trial court is required to hold an evidentiary hearing and enter
findings of fact. see Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848
P.2d 916, 924 (Colo.1993). Where no evidence is disputed no hearing is needed.
Tidwell, 83 P.3d at 85-86.
To the extent the Second Amended Complaint is considered to have incorporated
State law claims, any such claims are barred pursuant to the CGIA. In addition, Plaintiff
makes insufficient allegations against Defendant Shutters to ever meet his obligation
regarding any attempt to assert a claim grounded in willful and wanton behavior, enough
to overcome the protections of the CGIA. see City of Lakewood v. Brace, 919 P.2d
231, 236 (Colo.1996); C.R.S. §24-10-106(1); C.R.S. §24-10-110(5)(a) and (b); Moody v.
Ungerer, 885 P.2d 200, 205 (Colo.1994).
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 10 of 13
11
2. Due Process
- Elements: An essential principle of a due process claim is that a deprivation
of life, liberty or property “be preceded by notice and opportunity for hearing appropriate
to the nature of the case." Riggins v. Goodman, 572 F.3d 1101 citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
- Elements Not Met: To any extent Plaintiff intends to allege a violation of
his due process rights, any such claim should be dismissed as it fails to comply with
Federal pleading standards pursuant to Twombly.
Plaintiff’s Fifth Claim for Relief references treatment that was “unconstitutional” and
a violation of “due process”, in addition to the purported claim of intentional infliction of
emotional distress (ECF No. 61 at 29). To any extent Plaintiff intends to allege a violation
of his due process rights, any such claim should be dismissed as it fails to comply with
Federal pleading standards pursuant to Twombly. An essential principle of a due
process claim is that a deprivation of life, liberty or property “be preceded by notice and
opportunity for hearing appropriate to the nature of the case." Riggins v. Goodman, 572
F.3d 1101 citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). “The
Supreme Court has described ‘the root requirement’ of the Due Process Clause as being
‘that an individual be given an opportunity for a hearing before he is deprived of any
significant property interest.’” Riggins, 572 F.3d at 1108 citing Cleveland Bd. of Educ.,
470 U.S. at 542 and Boddie v. Connecticut, 401 U.S. 371, 379 (1971).
Plaintiff provides no indication how he was purportedly deprived of an opportunity
for a hearing, or how any actions by Defendant Shutters purportedly contributed to any
such determination. Twombly. Additionally, Plaintiff provides no indication respecting
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 11 of 13
12
personally participation of any such actions. Since personal participation is a prerequisite
to establishing a Constitutional violation, Plaintiff’s attempts fail. Bennett v. Passic, 545
F.2d 1260, 1262 (10th Cir. 1976).
III. CONCLUSION
WHEREFORE, Detective Shutters, for the foregoing reasons, respectfully
requests that the Court dismiss Plaintiff’s Second Amended Complaint in its entirety, and
for entry of any other relief deemed just and appropriate by this Court.
Dated this 28th day of December 2017.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, Colorado 80202
Phone: (303) 628-3300
Fax: (303) 628-3368
Ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 12 of 13
13
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on this 28th day of December 2017, I served via email the
foregoing DEFENDANT JASON SHUTTER’S MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV. P.12(b)(6) to the
following:
Plaintiff:
Chayce Aaron Anderson, #175290
Arkansas Valley Correctional Facility
12750 Hwy. 96 at Lane 13
Ordway, CO. 81034
Case 1:17-cv-00884-CMA-STV Document 63 Filed 12/28/17 USDC Colorado Page 13 of 13