HomeMy WebLinkAbout2018CV3112 - Sean Slatton V. Fort Collins Police Department, Todd Hopkins, Brandon Barnes And John Hutto - 039 - Defendant Barnes, Hutto, And Fort Collins Police Department's Motion To DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-03112-RBJ-STV
SEAN SLATTON,
Plaintiff
v.
TODD HOPKINS, BRANDON BARNES, JOHN HUTTO
and FORT COLLINS POLICE DEPARTMENT
Defendants.
DEFENDANTS BRANDON BARNES, JOHN HUTTO AND FORT COLLINS POLICE
DEPARTMENT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
Defendants, Brandon Barnes, John Hutto, and the City of Fort Collins, sued as the “Fort
Collins Police Department,” through their Attorneys, Mark S. Ratner, Esq., and Hall & Evans,
L.L.C., hereby submits the following as their Motion to Dismiss Plaintiff’s Amended Complaint
(ECF No. 17) pursuant to Fed. R. Civ. P. 12(b)(6):
Certificate of Conferral
Undersigned Counsel conferred with pro se Plaintiff via email on June 14, 2019. Plaintiff
indicates he objects to the requested relief.
I. INTRODUCTION
Pro se Plaintiff appears to allege a myriad of claims in his Second Amended Complaint (ECF
No. 17) (“Complaint”) which are entitled “False Arrest” pursuant to 42 U.S.C. § 1983, “Excessive
Force/Physical Assault”, “False Imprisonment”, “Obstruction of Justice” pursuant to 18 U.S.C. §
1503, “Police Misconduct” pursuant to 18 U.S.C. § 242, and a “failure to intervene.” (ECF No. 17
at 4). The claims purportedly arise from the arrest of Plaintiff on or about December 3, 2016 (ECF
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No. 17 at 5).
Plaintiff’s Complaint is deficient in multiple respects. In particular, the Plaintiff fails to
comply with Federal pleading standards established pursuant to Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). Additionally, with respect to Defendants Barnes and Hutto, the doctrine of qualified
immunity, and a lack of allegations respecting particularized behavior, given that “personal
participation is an essential allegation in a section 1983 claim,” also preclude Plaintiff’s claims.
Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir.1976); Foote v. Spiegel, 118 F.3d 1416 (10th
Cir.1986)1.
Plaintiff also fails to identify any custom, practice, policy, or procedure which might
support any liability against the City of Fort Collins.
Plaintiff also attempts to set forth claims pursuant to 18 U.S.C. §§ 1503 and 242. However,
those sections pertain to criminal matters, and do not contain a civil enabling component.
II. ARGUMENT
A. Standard
A motion to dismiss under Fed R. Civ. P. 12(b)(6) is properly granted when a complaint
provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action . . . . Factual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A complaint must be dismissed pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not
1 Plaintiff’s failure to adhere to Federal pleading standards, makes discerning any purported
State law claim difficult at best. Therefore, any effort on Plaintiff’s part to attempt a claim against
Officer Barnes and Chief Hutto, grounded in Colorado State law, is precluded by the Colorado
Governmental Immunity Act (“CGIA”), which applies to any tort claims, while governmental
immunity shields these Defendants from any state law claim absent specific statutory waiver of
immunity. §§24-10-102, 24-105, 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). The existence of governmental immunity
waiver is an issue of subject matter jurisdiction determinable pursuant to F.R.C.P. 12(b)(1).
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plead “enough facts to state a claim to relief that is plausible on its face.” Twombly 550 U.S. at 570.
“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.” Twombly 550 U.S. at 555, citing 5 C. Wright &
A. Miller, Fed. Prac. & Proc., § 1216 at 235–36 (3d ed. 2004).
“The plausibility standard is not akin to a ‘probability requirement,’” but the allegations must
“permit the court to infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Ashcroft, 556 U.S. at 678 citing Twombly, 550 U.S. at 555.
B. Plaintiff’s Complaint never satisfies Federal pleading standards as to Officer
Barnes, Chief Hutto, and the City of Fort Collins2
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), “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). At the pleading stage, it is not the defendant’s or the court’s
responsibility to guess at plaintiff’s claims. Conley, 355 U.S. 41, 47 (1957). Robbins v. State of
Oklahoma, 519 F.3d 1242, 1248–49 (10th Cir. 2008). 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. Although the plaintiffs' pleadings are to be liberally construed, mere
conclusory allegations without supporting factual averments will not suffice.” Baumeister v. N.M.
2 Plaintiff’s Complaint identifies the “Fort Collins Police Department” as a Defendant in this
matter. The Fort Collins Police Department is not a proper defendant. Stump v. Gates, 777 F. Supp.
808, 815 (D. Colo. 1991) citing Boren v. City of Colorado Springs, 624 F. Supp. 474, 479 (D. Colo.
1985) (city’s police department, as merely the vehicle through which city fulfills its policing
functions, not a proper party). Plaintiff’s Complaint, therefore, should be construed as an attempt to
bring claims against the City of Fort Collins.
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Comm'n for the Blind, 425 F. Supp. 2d 1250, 1257 (D. N.M. 2006). 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); Robbins, 519 F.3d at 1250. It is not sufficient to refer collectively
to a group of defendants, without specifying the individual activities of each. Robbins, 519 F.3d at
1250 (“Given the complaint’s use of either the collective term ‘Defendants’ or a list of the defendants
named individually but with no distinction as to what acts are attributable to whom, it is impossible
for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have
committed.”) Robbins, 519 F. 3d at 1250. Further, Federal pleading standards require Plaintiff to
also establish personal participation in conduct in which he alleges is a violation of his Constitutional
rights. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.2008); Currier v. Doran, 242 F.3d
905, 925 (10th Cir.2001).
Plaintiff’s Complaint contains no clear delineation as to what claims are levied against which
Defendant. Instead, Plaintiff generally sets forth six “claims” apparently lumping all the Defendants
together. (ECF No. 17 at 4).
Furthermore, Plaintiff’s Complaint offers nothing more than conclusory allegations
respecting any purported action which might result in a violation of Constitutional or statutory law.
For example, Plaintiff alleges “Officer Barnes was also involved with the shooting of a suspect by
the FCPD in January of this year.” (ECF No. 18 at 8), and “(t)hus, there is a reasonable likelihood
that material and information related to the use of force and other acts of aggression or violence by
or otherwise involving Officer Barnes, exists.” (ECF No. 17 at 8). Such allegations, however, are
merely conclusory and therefore invalid under Federal pleading standards.
The Plaintiff’s inability to allege proper factual averments is further supported by his
intention to conduct discovery in an attempt to identify “officer propensity for violence, officer
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propensity for misconduct and officer credibility”. Setting forth bare allegations with an eye towards
somehow later identify a potential claim, and attempting to support said claim with future discovery,
is the exact mechanism precluded by the reasoning in Twombly and progeny. Conley, 355 U.S. 41,
47 (1957). Any such allegations are insufficient against these Defendants.
Any claims against these Defendants should, therefore, be dismissed on this basis.
C. Plaintiff fails to properly set forth allegations identifying personal participation
by Officer Barnes or Chief Hutto.
To establish liability pursuant to § 1983, the Plaintiff must assert that: (i) any named
individual 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); Currier v. Doran, 242
F.3d 925 (10th Cir.2001). Plaintiff must also allege that the individual Defendant’s conduct violated
a clearly established constitutional or federal statutory right that would have been known by a
reasonable government official.
Here, the Complaint does not properly allege anything other than in a conclusory fashion,
that any of the Defendants personally participated in pertinent conduct, or that any of the Defendants
exercised control or direction over any relevant activity. A plaintiff must allege the personal
participation of the Defendants in some identifiable alleged wrongful conduct, or that the Defendant
exercised control or direction over such behavior, failed to supervise, train or tacitly authorized the
conduct of others, that resulted in a constitutional deprivation. see Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008); Currier v. Doran, 242 F.3d 905, 925 (10th Cir.2001). No claim against
any defendant in an individual capacity can succeed without a proper indication the individual was
involved in some personal manner in the events prompting the claim, otherwise, any such claim must
fail for lack of personal participation which is a requirement of any 42 U.S.C. §1983 claim. Grimsley
v. Mackay, 93 F.3d 676, 679 (10th Cir.1996); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
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Cir.1996); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976).
The Complaint is devoid of any allegations explaining, in more than conclusory terms, how the
individual Defendants are alleged to personally have caused any deprivation of a federal right.
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
D. Plaintiff fails to establish any claim against the City of Fort Collins.
Hinton v. City of Elwood, Kan., 997 F.2d 774, 783 (10th Cir.1993) precludes any claim against
a public entity based on any theory of respondeat superior. Instead, to establish liability against a
municipality, a plaintiff must show that a public entity’s policy or custom existed and a direct causal
link between that policy or custom and the injury alleged. City of Canton Ohio v. Harris, 489 U.S.
378, 385 (1989); Myers v. Oklahoma County Bd., 11 F.3d 1313 (10th Cir.1998).
Nowhere in Plaintiff’s Complaint is a specific custom, practice, policy or procedure alleged
nor is there any indication respecting a causal link between any such custom, practice or policy and
a purported violation of Plaintiff’s Constitutional rights.
E. Plaintiff’s Claim pursuant to 18 U.S.C. § 1503 fails.
Plaintiff appears to attempt a claim pursuant to 18 U.S.C. § 1503 (ECF No. 17 at 4).
However, 18 U.S.C. § 1503 pertains to “Influencing or injuring officer or juror”. Generally, that
section provides criminal liability for anyone who “corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influence, intimidate, or impeded any grand or
petit juror…” Here, 18 U.S.C. § 1503 provides no enabling provision for civil liability. Rather, the
Section provides for imprisonment and other relief within a criminal context, and therefore any such
claim should be dismissed on this basis alone. Additionally, even if this Section could somehow be
construed as providing a basis for civil liability, Plaintiff’s Complaint completely fails to identify
any allegations which might support such a cause of action, and therefore it fails to comply with
Federal pleading standards. Twombly, supra. Furthermore, as argued below, any such claim would
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be a state-law tort claims barred by governmental immunity under the CGIA.
F. Plaintiff’s claim pursuant to 18 U.S.C. § 242 fails
As with Plaintiff’s attempt at setting forth a claim pursuant to 18 U.S.C. § 1503, any claim
pursuant to 18 U.S.C. § 242 (ECF No. 17 at 4) also fails. 18 U.S.C. § 242 also provides for criminal
penalties and fails to identify a civil enabling provision. In addition, if any such provision did provide
for a civil penalty, it would be duplicative of § 1983.
G. Any claim for “failure to intervene” fails.
In order to for a claim for “failure to intervene” be viable, a plaintiff must show an existing
underlying constitutional violation. Duncan v. Quinlin, 2015 U.S. Dist. LEXIS 48159 at *13 (D.
Colo. April 13, 2015) citing Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). Here, Plaintiff’s
allegations fail to comply with Federal pleading standards, as no underlying Constitutional violation
is alleged. Furthermore, no basis is provided to support the notion that Officer Barnes or John Hutto
had any opportunity or need to intervene. Any such claim should be dismissed.
H. Plaintiff’s State law tort claims, if any, fail as a matter of law.
To any extent Plaintiff intends on pursuing a State law tort claim, any such claim is barred
by application of the Colorado Governmental Immunity Act (“CGIA”). The CGIA provides a grant
of governmental immunity unless there is a specific statutory waiver. §§24-10-102, 24-105, 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). 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). C.R.S. §24-10-108 also requires the trial court to suspend discovery
until the issue of governmental immunity is decided, except for discovery necessary to resolve the
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issue of governmental immunity. “If a public entity raises the issue of sovereign immunity prior to
or after commencement of discovery, the court shall suspend discovery, except any discovery
necessary to decide the issue of sovereign immunity, and shall decide such issue on motion.” C.R.S.
§24-10-108.
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 85086.
None of Plaintiff’s purported claims are within any of the areas where governmental
immunity is waived by the CGIA. C.R.S. §24-10-101 et seq. In addition, Plaintiff makes insufficient
allegations against these Defendants to ever meet his obligation with regard to 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)3.
I. Officer Barnes and Chief Hutto are Entitled to Qualified Immunity.
To any extent Officer Barnes and Chief Hutto could ever be liable for any Constitutional
claim respecting alleged individual behavior violating any right of Plaintiff, qualified immunity
doctrine shields them from any damages claimed. See Harlow v. Fitzgerald, 457 U.S. 800, 806
(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
3 To the extent Plaintiff intends on asserting any such claims might be attempted under Federal
law, all such efforts are defeated by the precedents and reasoning that defeat all other efforts to state
a federal claim here.
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v. Holloway, 510 U.S. 510, 514 (1994), citing Harlow, 457 U.S. at 806 (1982)). 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; 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). “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 (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.” Anderson, 483 U.S. at 640 citing Medina v. City & County of Denver, 960 F.2d
1493, 1498 (10th Cir.1992). “As this Court explained decades ago, the clearly established law must
be ‘particularized’ to the facts of the case. White v. Pauly, 137 S. Ct. 548, 552 (2017) citing Anderson,
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supra. in
The Complaint never describes any constitutional violation in any particularized respect with
regard to Officer Barnes and Chief Hutto. These Defendants are therefore entitled to qualified
immunity with regard to any of Plaintiff’s Federal law claims in this matter.
III. CONCLUSION
WHEREFORE, Officer Barnes, Chief Hutto, and the City of Fort Collins, respectfully requests
the Court dismiss Plaintiff’s Complaint, with prejudice and for entry of any other relief deemed just
and appropriate by this Court.
Respectfully submitted this 17th day of June, 2019.
/s/ Mark S. Ratner
Mark S. Ratner
Hall & Evans, L.L.C.
1001 17th
Street, Suite 300
Denver, CO 80202
Phone: 303-628-3300
Fax: 303-628-3368
ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANTS
BRANDON BARNES, JOHN
HUTTO, AND THE CIT OF FORT
COLLINS, SUED AS THE CITY OF
FORT COLLINS POLICE
DEPARTMENT
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 17th
day of June, 2019, I electronically filed the foregoing
DEFENDANTS BRANDON BARNES, JOHN HUTTO AND FORT COLLINS POLICE
DEPARTMENT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) with the
Clerk of Court using the CM/ECF system and mailed a copy to the following:
Sean Slatton
951 20th Street. #8971
Denver, CO 80202
Marni Nathan Kloster
Nicholas C. Poppe
Nathan Dumm & Mayer, P.C.
MKloster@ndm-law.com
NPoppe@ndm-law.com
/s/ Mary McNichols
Legal Assistant
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