HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 093 - ORDER AFFIRMING AND ADOPTING RECOMMENDATIONS OF MAGISTRATE JUDGEIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS, in his individual capacity,
Defendants.
ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE SCOTT T. VARHOLAK
This matter is before the Court on review of the Recommendation by United
States Magistrate Judge Scott T. Varholak (Recommendation) (Doc. # 85), wherein he
recommends that this Court grant in part and deny in part Defendant Jason Shutters’
Motion to Dismiss (Doc. # 63) Plaintiff Chayce Aaron Anderson’s Claims One, Two, and
Five against him. For the following reasons, the Court adopts the Recommendation in
its entirety and dismisses Claims One and Five against Defendant Shutters.
I. BACKGROUND AND STANDARD OF REVIEW
Magistrate Judge Varholak provided a thorough recitation of the factual and
procedural background in this case. The Recommendation is incorporated herein by
reference, see 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b), and the facts will be
repeated only to the extent necessary to address Plaintiff’s objections.
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Plaintiff initiated this lawsuit following his arrest and eventual conviction of sexual
assault on a helpless victim in Larimer County District Court, criminal case number 15-
CR-1466. (Doc. # 85 at 2.) (Id.) As pertinent here, Plaintiff brings a Fourth
Amendment claim (Claim One), an excessive force claim (Claim Two), and an
intentional infliction of emotional distress claim (Claim Five) against Defendant based on
events that occurred during the course of his criminal arrest and prosecution. (Doc.
# 61.) Defendant moved to dismiss all three claims. (Doc. # 63.)
Magistrate Judge Varholak recommends that this Court
• grant Defendant’s request to dismiss Claim One under Federal Rule of Civil
Procedure 12(b)(6) based on the doctrine of qualified immunity;
• grant Defendant’s request to dismiss Claim Five under Federal Rule of Civil
Procedure 12(b)(1) pursuant to the Colorado Governmental Immunity Act
(CGIA); and
• deny Defendant’s request to dismiss Claim Two under Rule 12(b)(6) because
Plaintiff adequately plead that he was subject to excessive force when being
handcuffed.
The Recommendation advised the parties that specific written objections were
due within fourteen (14) days after being served with a copy of the Recommendation.
(Doc. # 85 at 14, n.4.) Plaintiff filed an Objection (Doc. # 86) to the Recommendation;
Defendant did not.
Plaintiff does not object to Magistrate Judge Varholak’s recommended
disposition of Claim Two. “[T]he district court is accorded considerable discretion with
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respect to the treatment of unchallenged magistrate reports. In the absence of timely
objection, the district court may review a magistrate [judge’s] report under any standard
it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). After
thoroughly reviewing the Recommendation, in addition to applicable portions of the
record and relevant legal authority, particularly the Court is satisfied that, with respect to
the unchallenged recommended disposition of Claim Two, the Recommendation is
sound and not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). The
Court therefore adopts Magistrate Judge Varholak’s Recommendation with respect to
Claim Two and denies Defendant’s request that the Court dismiss that claim.
Plaintiff however objects to Magistrate Judge Varholak’s recommended dismissal
of Claims One and Five. Federal Rule of Civil Procedure 72(b)(3) thus requires that this
Court conduct a de novo review of the issues underlying these claims. In so doing, the
Court “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
Plaintiff appears pro se in this matter. The Court, therefore, “review[s] his
pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Plaintiff’s pro
se status does not, however, entitle him to the application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Moreover, the Court may not
“construct arguments or theories for [Plaintiff] in the absence of any discussion of those
issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
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II. CLAIM ONE
A. FACTS AND RECOMMENDED DISPOSITION
Claim One stems from Plaintiff’s visit to the emergency room after his arrest.
(Doc. # 61 at 24.) There, Defendant instructed another detective to conduct a Male
Sexual Assault Kit (MSAK) examination of Plaintiff. (Id. at 21–22.) The MSAK
examination was authorized by Court Order for Non-Testimonial Identification issued
pursuant to Colorado Rule of Criminal Procedure 41.1 (Rule 41.1 Order). (Id.) In his
Complaint, Plaintiff alleges that the MSAK examination exceeded the permissible scope
of the Rule 41.1 Order. Plaintiff avers that Defendant “allow[ed] [Plaintiff] to be stripped
naked, searched naked, photographed naked for 4 separate 360 degrees photographs
(front, back, left, right), and ha[ve] his penis swabbed . . . while a sit-in E.R. homosexual
nurse physically watched.” (Id. at 21.) Plaintiff contends that the “very invasive and
intrusive examination” in the presence of the male nurse—an “unauthorized member of
the public”—violated his Fourth Amendment rights. (Id.)
Defendant argues for dismissal of Claim One pursuant to Fed. R. Civ. P. 12(b)(6)
on grounds that Defendant is entitled to qualified immunity. Magistrate Judge Varholak
agreed and recommended dismissal of the claim. Plaintiff objects to this
recommendation, focusing again on the presence of the nurse as being constitutionally
prohibitive. Having reviewed the issue de novo, and for the reasons set forth below, this
Court agrees with Magistrate Judge Varholak’s Recommendation and overrules
Plaintiff’s Objection.
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B. LAW
To resolve a Defendant’s claim of qualified immunity, this Court must decide,
pursuant to Fed. R. Civ. Proc. 12(b)(6), whether the facts Plaintiff has alleged make out
a violation of a clearly establish constitutional right. Pearson v. Callahan, 555 U.S. 223,
232 (2009). Indeed, the doctrine of qualified immunity shields officials from civil liability
so long as their conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A clearly
established right is one that is “sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.” Reichle v. Howards, 132
S.Ct. 2088, 2093 (2012) (internal quotation marks and alteration omitted). “[E]xisting
precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).
“[C]learly established law” is not defined “at a high level of generality.” Id. at 742.
The dispositive question is “whether the violative nature of particular conduct is clearly
established.” Id. This inquiry “must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam). Such specificity is especially important in the Fourth Amendment
context, where the Supreme Court has recognized that “[i]t is sometimes difficult for an
officer to determine how the relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
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C. ANALYSIS
Plaintiff has failed to adequately plead that Defendant’s challenged conduct in
this case violated a clearly established right. Defendant was acting pursuant to a Rule
41.1 Order that was based on probable cause and specifically authorized the MSAK—
an order that Plaintiff does not challenge as invalid or unlawful. (Doc. ## 61 at 21, 63-3
at 2–3.) Plaintiff appears most concerned with the presence of a male nurse during the
examination who was not a member of law enforcement.
1
But Plaintiff has provided this
Court with no case law suggesting that the presence of a medical professional, as
opposed to a police officer, during a MSAK exam at the hospital is constitutionally
improper or unreasonable. Moreover, nothing in the Rule 41.1 Order precluded the
presence of a nurse during the MASK examination and Rule 41.1 specifically authorizes
it in certain circumstances; it provides, “[b]lood tests shall be conducted under medical
supervision, and the judge may require medical supervision for any other test ordered
pursuant to this section . . . .” Colo. R. Crim. P. 41.1(f)(1).
Thus, Plaintiff has not demonstrated that Defendant’s conduct in directing the
MASK examination and allowing the presence of a nurse during the exam violated
“clearly established statutory or constitutional rights of which a reasonable person would
have known.” See Callahan, 555 U.S. at 231. Defendant is therefore entitled to
1 In his Complaint and Objection, Plaintiff harps on his assumption regarding the nurse’s
supposed sexual orientation—suggesting that this somehow renders the nurse’s presence
constitutionally prohibitive. Plaintiff discusses at length his beliefs about “homosexuality” leading
“to eternal damnation,” adding that being exposed to “a homosexual . . . violated [him] to his
core belief structure,” that Defendant was somehow aware of this belief system, and that
Defendant “deliberately meant to further harm [Plaintiff]” by allowing the nurse to be present.
(Doc. # 61 at 12.) The Court overrules that Objection; the nurse’s sexual orientation and
Plaintiff’s religious beliefs have no relevance to the issues before this Court.
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qualified immunity on Plaintiff’s Fourth Amendment claim, and Claim One is accordingly
dismissed with prejudice pursuant to Rule 12(b)(6).
2
III. CLAIM FIVE
A. FACTS AND RECOMMENDED DISPOSITION
Claim Five stems from the prosecution of Plaintiff’s sexual assault case.
Specifically, Plaintiff alleges that Defendant and the prosecutor disclosed confidential
information about Plaintiff’s 2009 juvenile delinquency case at his public bond reduction
hearing in October 2015 and his public sentencing hearing in February 2017. (Doc. #
61 at 26.) Plaintiff also asserts that they disclosed such information “behind ‘closed
doors.’” (Id.) Plaintiff contends that these disclosures caused Plaintiff to “re-live long-
ago settled events of the past that were very traumatizing to him,” including the sexual
abuse he experienced as a child. (Id. at 29.)
Defendant argues for dismissal of this claim pursuant to Fed. R. Civ. Proc.
12(b)(1) on grounds that it is jurisdictionally barred by the Colorado Governmental
Immunity Act (CGIA)—a law that generally bars tort claims against public employees,
including law enforcement officers. Magistrate Judge Varholak agreed and
recommended dismissal of this Claim. Plaintiff objects to this recommendation,
primarily arguing that Defendant acted in a “malicious manner” in “complete disregard to
2 Dismissal under Rule 12(b)(6) with prejudice is only appropriate “where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); see Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The Court finds that, due to the Rule 41.1
Order authorizing the MSAK examination and the provision in Rule 41.1 allowing a medical
professional to be present for the exam, Plaintiff cannot prevail on the facts he has alleged and
it would be futile to give him the opportunity to amend. Thus, dismissal with prejudice is
appropriate.
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[Plaintiff’s] substantial rights” and that he therefore waived his sovereign immunity.
(Doc. # 86 at 6.) Having reviewed the issue de novo, and for the reasons set forth
below, this Court agrees with Magistrate Judge Varholak’s recommendation and
overrules Plaintiff’s Objection.
B. LAW
Defendant’s motion to dismiss, brought under the CGIA, presents this Court with
a jurisdictional inquiry analyzed pursuant to Fed. R. Civ. P. 12(b)(1). Dismissal under
Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a
determination that the court lacks authority to adjudicate the matter. Castaneda v. INS,
23 F.3d 1576, 1580 (10th Cir. 1994).
Pursuant to the CGIA, § 24-10-118(2), “[a] public employee is immune from all
claims that lie or could lie in tort, unless . . . the act or omission causing the injury was
willful and wanton.” The phrase willful and wanton is not defined by the Colorado
Governmental Immunity Act. Moody v. Ungerer, 885 P.2d 200, 204–05 (Colo. 1994).
The Colorado Supreme Court has defined willful and wanton conduct as exhibiting a
“conscious disregard for the danger.” Martinez v. Estate of Bleck, 2016 CO 58, ¶ 30,
379 P.3d 315, 323.
To overcome a public employee’s immunity from suit, a plaintiff bears the burden
of demonstrating that the official’s conduct was willful and wanton, i.e. that it exhibited a
“conscious disregard for the danger.” L.J. v. Carricato, 2018 COA 3, ¶ 34, 413 P.3d
1280, 1288. At a minimum, plaintiff must allege “specific facts to support a reasonable
inference’ that the employee was consciously aware that his . . . acts or omissions
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created danger or risk to the safety of others, and that he . . . acted, or failed to act,
without regard to the danger or risk.” L.J. v. Carricato, 2018 COA 3, ¶ 33, 413 P.3d
1280, 1288.
C. ANALYSIS
Plaintiff has not met this burden. To begin, Plaintiff’s allegations are vague and
conclusory.
3
He asserts that Defendant disclosed “confidential information” about his
2009 juvenile case to “unauthorized parties” in public and “behind closed doors,” but
fails to specify what precise information was disclosed, except to briefly state that
Defendant depicted Plaintiff as a “convicted child molester.” (Doc. # 61 at 26.) To the
extent Defendant did discuss Plaintiff’s 2009 juvenile case during his bond reduction
and sentencing hearings, the Court agrees with Magistrate Judge Varholak that
Defendant was performing his duties as a law enforcement officer to inform the Court
about pertinent information in Plaintiff’s criminal past; he was not willfully or wantonly
disregarding Defendant’s rights.
In his Objection to the Recommendation, Plaintiff argues that his 2009 juvenile
case was not relevant to his bond or sentence reduction hearings because (1) it was
sealed and (2) he was not convicted. Even if that were true, Plaintiff’s Claim fails for
another reason—nothing in Plaintiff’s Second Amended Complaint suggests that
Defendant was aware of the “psychological damage or mental anguish” that the 2009
juvenile case caused Plaintiff or that, consequently, Defendant consciously disregarded
3 Indeed, Plaintiff’s more specific allegations under Claim Five focus on the prosecutor,
Defendant Cara Boxberger, who has already been dismissed from this case. (Doc. # 61 at 9–
11, 13.)
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that harm. Although Plaintiff alleges that he suffered “depression, suicide attempts,
suicidal tendencies, and anxiety” as a result of the 2009 juvenile case (Doc. # 61 at 29),
Plaintiff presents no allegations that Defendant was “consciously aware” that disclosing
the 2009 case to the Court in a public hearing or otherwise would risk Plaintiff re-living
these harms. Plaintiff has not, therefore, demonstrated that Defendant acted in a willful
or wanton manner.
Because Plaintiff has failed to meet his burden of demonstrating that Defendant’s
conduct was willful and wanton, the Court finds that Defendant is immune from suit
under the CGIA and Plaintiff’s Claim Five against him warrants dismissal without
prejudice under Rule 12(b)(1).
4
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiff Chayce Aaron Anderson’s Objection to the Recommendation is
OVERRULED. (Doc. # 86.)
2. The Recommendation of Magistrate Judge Varholak is AFFIRMED AND
ADOPTED as an Order of this Court. (Doc. # 85.)
3. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint is
GRANTED IN PART and DENIED IN PART. (Doc. # 63.)
4. Plaintiff’s Fourth Amendment Claim against Defendant Shutters (Claim One)
is DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(6).
4 The Tenth Circuit has made clear that “dismissal on sovereign immunity grounds . . . must be
without prejudice” because it is a matter of the Court’s subject-matter jurisdiction. Rural Water
Sewer & Solid Waste Mgmt., Dist. No. 1, Logan Cty., Oklahoma v. City of Guthrie, 654 F.3d
1058, 1069 (10th Cir. 2011).
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5. Plaintiff’s intentional infliction of emotional distress claim (Claim Five) is
DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(1).
6. Plaintiff’s excessive force claim (Claim Two) shall proceed as the only
remaining claim in this case.
DATED: June 13, 2018 BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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