Havens v. Johnson

Filing 219

OPINION AND ORDER GRANTING, IN PART, MOTIONS TO DISMISS. The Motions to Dismiss by the State (# 123 ); the Parole Board Defendants (# 124 ); Defendant Beal (# 127 ); Lone Tree (# 129 ); Defendant Ramirez (# 130 ); Arvada (# 134 ); Denver (# 137 ); D efendant Pachello (# 139 ); and Mountain View (# 147 ) are GRANTED, and the claims against these Defendants are DISMISSED in their entirety. The State Patrol Defendants' Motion to Dismiss (# 126 ) is GRANTED IN PART, insofar as all claims agains t Defendants Beauvais, Mayfield, Murray, and Pickering and the claims against Defendant Sandy other than that for excessive force under § 1983 are DISMISSED, and DENIED IN PART, insofar as the § 1983 excessive force claim against Defendant Sandy may proceed. The Arvada Officer Defendants' Motion to Dismiss (# 132 ) is GRANTED IN PART, insofar as all claims against Defendants Bickmore, Grueber, Heivilin, Kildow, Mantych, Roemer, Strasheim, Strate, and Vander Veen, and the claims ag ainst Defendant Johnson other than that for excessive force under § 1983 are DISMISSED, and DENIED IN PART, insofar as the § 1983 excessive force claim against Defendant Johnson may proceed. Defendants Hernandez, Kelly, and Pickering's Motion to Dismiss (# 180 ) is GRANTED IN PART, insofar as all claims against Defendants Kelly and Pickering, and the claims against Defendant Hernandez other than that for excessive force under § 1983 are DISMISSED, and DENIED IN PART, insofar as the § 1983 excessive force claim against Defendant Hernandez may proceed. The caption of this case is AMENDED to omit reference to all Defendants other than Defendants Johnson, Sandy, and Hernandez. The Clerk of the Court is directed to terminate all motions pending in 11-cv-490 and to close that case, by Judge Marcia S. Krieger on 03/13/2012.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-01380-MSK-MEH
consolidated with 11-cv-00490-MSK-MEH
DARRELL HAVENS,
Plaintiff,
v.
WILLIAM JOHNSON,
MARK MANTYCH,
C.J. BRICKMORE,
R.J. VANDER VEEN,
MIKE ROEMER,
IAN KILDOW,
MILES HEIVLIN,
MARK GRUEBER,
LINK STRATE,
ERIC STRASHEIM,
DON WICK,
ROBERTO RAMIREZ,
ARVADA POLICE DEPARTMENT,
CITY OF ARVADA,
UNKNOWN LAW ENFORCEMENT OFFICERS,
ROBERT WILSON,
DENVER POLICE DEPARTMENT,
CITY AND COUNTY OF DENVER,
BILLY MAYFIELD,
ZACH MURRAY,
SCOTT BEAUVAIS,
KELLY PICERKING,
COLORADO STATE PATROL,
WILLIAM BRIAN SANDY,
COLORADO STATE PARKS,
TODD PACHELLO,
TIM BEALS,
LONE TREE POLICE DEPARTMENT,
CITY OF LONE TREE,
RICARDO HERNANDEZ,
MOUNTAIN VIEW POLICE DEPARTMENT,
TOWN OF MOUNTAIN VIEW,

DAVID MICHAUD,
BECKY R. LUCERO,
MICHAEL E. ANDERSON,
DEBORAH C. ALLEN,
MICKEY HECKENBACH,
REBECCA L. OAKES,
CELESTE M. QUINONES,
COLORADO BOARD OF PAROLE,
STATE OF COLORADO,
DENVER METRO AUTO THEFT TEAM, and
JOHN DOES 1-30,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING, IN PART, MOTIONS TO DISMISS
______________________________________________________________________________
THESE MATTERS1 come before the Court pursuant to the following motions2: the

1

Two separate civil actions by the Plaintiff, 09-cv-1380 and 11-cv-490, were consolidated
by the Court on November 3, 2011 (# 114). At that time, the Court anticipated that the cases
would proceed under separate identities, based on their own independent pleadings, sharing only
a consolidated caption (and such joint administration as may have been appropriate).
Since then, the Plaintiff has filed a Consolidated Complaint (# 119) in 09-cv-1380 that
appears to incorporate all of his claims then-pending in 11-cv-490, and all of the Defendants who
had pending motions attacking the current pleading in 11-cv-490 appear to have filed similar
motions attacking those same claims in the Consolidated Complaint in 09-cv-1380.
Thus, as far as this Court can ascertain, the Plaintiff has used the Consolidated Complaint
in 09-cv-1380 to swallow up 11-cv-490 in its entirety. Rather than attempt to forcibly extract the
newer case from the jaws of its older sibling, this Court will accede to the Plaintiff’s apparent
wish to proceed in only a single case, conducting all further proceedings via 09-cv-1380 and
directing the Clerk to close 11-cv-490. The Court has endeavored to ensure that this Order
addresses all motions currently pending in 11-cv-490, such that no further proceedings under that
case number will be necessary. To the extent that there remain extant issues raised solely in 11cv-490 following this Order, any Defendant who has made a motion in 11-cv-490 that hereafter
remains unresolved is granted leave to refile that motion in 09-cv-1380.
2

For purposes of convenience of those reviewing the parallel dockets of 09-cv-1380 and
11-cv-490, the Court set forth the docket numbers for the corresponding motions as they appear
in the docket of 09-cv-1380 in boldface text, followed by the docket number of that/those
motion(s) as it appears in the docket of 11-cv-490 in plain text. To the extent any of the listed
the motions in 09-cv-1380 are the subject of referrals to the Magistrate Judge, those referrals are
withdrawn.

Colorado Board of Parole, Colorado State Parks, Colorado State Patrol, and State of Colorado’s
(“the State”) Motion to Dismiss (# 123; # 175, 210), Mr. Havens’ response (# 196), and the
State’s reply (# 202); Defendants Allen, Anderson, Heckenbach, Lucero, Michaud, Oaks, and
Quinones’ (“the Parole Board Defendants”) Motion to Dismiss (# 124, # 212), Mr. Havens’
response (# 197), and the Parole Board Defendants’ reply (# 204); Defendants Beauvais,
Mayfield, Murray, Pickering, and Sandy’s (“the State Patrol Defendants”) Motion to Dismiss
(#126, # 185, 211), to which Mr. Havens apparently filed no clearly delineated response under
09-cv-1380 (but to which he filed a response under 11-cv-490 at docket # 238), and the State
Patrol Defendants’ reply (# 203); Defendant Beal’s Motion to Dismiss (# 127, # 176), Mr.
Havens’ response (# 189), and Mr. Beal’s reply (# 206); Defendants City of Lone Tree and Lone
Tree Police Department’s (“Lone Tree”) Motion to Dismiss (# 129, # 173), Mr. Havens’
response (# 191), and Lone Tree’s reply (# 205); Defendant Ramirez’s Motion to Dismiss (#
130, # 174), Mr. Havens’ response (# 194), and Mr. Ramirez’s reply (# 207); Defendants
Bickmore, Grueber, Heivilin, Johnson, Kildow, Mantych, Roemer, Strasheim, Strate, and Vander
Veen’s (“the Arvada Officer Defendants”) Motion to Dismiss (# 132, #174), Mr. Havens’
response (#190), and the Arvada Officer Defendants’ reply (# 208); Defendants City of Arvada
and Arvada Police Department’s (“Arvada”) Motion to Dismiss (# 134, # 174), Mr. Havens’
response (# 188), and Arvada’s reply (# 209); Defendant Denver Police Department, City and
County of Denver, and Robert Wilson’s (“Denver”) Motion to Dismiss (# 137, # 178), Mr.
Havens’ response (# 195), and Denver’s reply (# 210); Defendant Pachello’s Motion to Dismiss
(# 139, 221), Mr. Havens’ response (# 193), and Mr. Pachello’s reply (# 211); Defendants
Hernandez, Town of Mountain View, and Mountain View Police Department’s (“Mountain
View”) Motion to Dismiss (# 147, # 179, 185), Mr. Havens’ response (# 199), and Mountain

View’s reply (#212); and Defendants Hernandez, Kelly, and Pickering’s Motion to Dismiss (#
180, # 185) in their individual capacities, Mr. Havens’ response (# 214), and Defendants
Hernandez, Kelly, and Pickering’s reply (# 218).
FACTS
As discussed in more detail below, the Consolidated Complaint (# 119) is largely
conclusory, offering few specific factual allegations. It essentially concerns three instances.
First, on January 3, 2007, members of the Arvada, Denver, Lone Tree, and Mountain
View Police Departments, along with members of the Colorado State Patrol, were jointly
participating in an Auto Theft Task Force, conducting a sting operation intended to capture
unspecified subjects. Mr. Havens states that, as he was driving through the location where the
sting was being conducted, his vehicle was rammed by a vehicle driven by Defendant Sandy
without apparent justification. The collision initially pinned Mr. Havens’ car against a
snowbank, but almost immediately, a second vehicle, driven by Defendant Hernandez, struck
Mr. Havens’ car, freeing it from the snowbank and causing it to “lurch[ ] forward” and collide
with a third vehicle occupied by Defendants Bickmore and Mayfield. Mr. Havens contends that
when his vehicle hit the third car, Defendant Johnson fired several shots that struck Mr. Havens
and caused him severe injuries, including permanent paralysis.
Mr. Havens further contends that following the shooting various individual Defendants
“made false statements and falsified evidence and conspired together” to “wrongfully accuse Mr.
Havens” of certain crimes. However, the Consolidated Complaint provides no details of what
false statements each Defendant made, how each Defendant falsified evidence, or how the
Defendants “conspired together.” As a result of these statements, Mr. Havens states that he
unwillingly plead guilty to unspecified criminal charges and was sentenced to prison.

The third instance allegedly occurred in conjunction with a parole decision. On January
22, 2010 the Colorado Board of Parole allegedly granted Mr. Havens medical parole. Just days
before his release, however, Arvada “required”– through unspecified means – that Defendant
Michaud and the Board of Parole revoke the offer of parole. Defendants Johnson and Ramirez
(and perhaps Defendant Wick) offered to drop opposition to Mr. Havens’ parole if Mr. Havens
would agree to dismiss this suit and forego any other lawsuits relating to the shooting, but Mr.
Havens refused. As a result of Arvada’s opposition to his parole, Mr. Havens’ medical parole
was withdrawn and he remains in custody.
Mr. Havens asserts eleven claims for relief3: (i) a claim under 42 U.S.C. § 1983 for
violation of his Fourth Amendment right to be free from the excessive use of force, apparently
against all of the individual Defendant police officers, as well as against Arvada, Denver, the
State, Mountain View, and Lone Tree, based on the ramming of his vehicle and Defendant
Johnson shooting him; (ii) a somewhat rambling claim, nominally brought under 42 U.S.C. §
1983 for violation of his Eighth Amendment right to be free from cruel and unusual punishment,
apparently brought against Defendant Johnson insofar as “ramming and shooting [Mr. Havens]
constituted cruel and unusual punishment”; against unspecified Defendants who “denied his
obvious need for immediate medical care . . . and instead told Plaintiff at the scene he would be
left to die”; against unspecified Defendant officers for a “conspiracy . . . to convict [him] for a
crime he did not commit”; and against Arvada and Defendant Wick for pressuring the Parole
Board to deny his medical parole; (iii) a Monell claim against Arvada for failing to adequately
train and/or supervise Defendant Johnson in the use of deadly force (apparently relating to both

3

For purposes of the Consolidated Complaint, Mr. Havens is represented. Thus, the
Court understands the claims to be as designated.

the use of vehicles and firearms); (iv) a claim under 42 U.S.C. § 1983 for violation of Mr.
Havens’ Fourteenth Amendment right to equal protection, apparently brought against Arvada,
Defendant Johnson, insofar as these Defendants “discriminated against Plaintiff . . . and had no
rational basis” for some unspecified acts; that the Board of Parole, Ramirez, and Arvada
“interfered with and/or breached the contract [Mr. Havens] entered into with the Colorado Board
of Parole” to permit him to receive a medical parole; (v) a “claim” under 42 U.S.C. § 1988 that
Mr. Havens is entitled to attorney’s fees in pursuing this action; (vi) a claim for common-law
negligence against Defendant Johnson, and, apparently, all individual Defendant police officers,
in that “ramming their vehicles into [Mr. Havens’] vehicle [was] negligent and it was reasonable
foreseeable that injuries” to the Plaintiff would result; (vii) a claim apparently asserting that
Arvada is liable under the doctrine of respondeat superior for actions taken by Defendant
Johnson; (viii) a claim of unspecified provenance, titled “Obstruction of Justice,” alleging that
all of the Defendant police officers “did . . . make false statements and or falsify documents and
or persuade or attempt to persuade others persons to make false statements and or falsify
documents with the intent that those false statements and or false documents would be used to
obstruct justice in a criminal proceeding” against Mr. Havens, resulting in Mr. Havens’ wrongful
incarceration; (ix) a common-law claim for false imprisonment, apparently against the Parole
Board Defendants, arising out of their withdrawal of the offer of medical parole, resulting in Mr.
Havens’ continued incarceration; (x) a common-law claim for abuse of process brought against
Arvada and perhaps Defendants Ramirez and Johnson, based on their attempt to prevent Mr.
Havens’ parole and offer to withdraw their opposition to parole only if Mr. Havens would
abandon his lawsuit(s); and (xi) a common-law claim for civil conspiracy, apparently asserted
against all Defendant police officers as well as Arvada, insofar as the officers “entered into a

conspiracy or otherwise conspired and agreed to . . . conceal evidence and cover up their
wrongful and willful acts” in order to secure Mr. Havens’ incarceration.
The various Defendants have each moved to dismiss the claims against them, in part or
whole. The Court will address each Defendants’ arguments in support of those motions as part
of its analysis.
ANALYSIS
A. Standard of review
Most of the Defendants seek dismissal of the claims against them for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), among other grounds. In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as
true and view those allegations in the light most favorable to the nonmoving party. Stidham v.
Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001), quoting Sutton v.
Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Court must
limit its review to the four corners of the Complaint, but may also consider documents attached
to the Complaint as exhibits, Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), as well
as unattached documents which are referred to in the Complaint and central to the plaintiff’s
claim, so long as the authenticity of such documents is undisputed.4 Jacobsen v. Deseret Book
Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956,
961 (10th Cir. 2001).
With regard to what must be pled to avoid dismissal, the Supreme Court in Ashcroft v.

4

Mr. Havens has attached numerous documents, including affidavits and other
evidentiary material, to many of his responses to the motions. Because these documents fall
outside of the scope of material the Court considers on a Rule 12(b)(6) motion, the Court has
disregarded them.

Iqbal, 129 S.Ct. 1937, 1949 (2009), described the standard that must be met as “facial
plausibility.” In this context, “plausibility” refers to the scope and degree of specificity of the
allegations in the complaint. Khalik v. United Air Lines, ___ F.3d ___, 2012 WL 364058 (10th
Cir. Feb. 6, 2012). Although Fed. R. Civ. P. 8(a)(2) still requires the pleader to supply only “a
short and plain statement of the claim,” that statement must provide more than “labels and
conclusions,” “a formulaic recitation of the elements of a cause of action,” or generalized
allegations of conduct that “encompass a wide swath of conduct, much of it innocent.” Id. In
this regard, the plaintiff must do more than articulate a set of facts that could “conceivabl[y]” or
“possibly” give rise to a claim; he must “nudge[ ] his claims across the line from conceivable to
plausible.” Id. Of course, the degree of specificity that will be required will necessarily vary
based on the context of the case. Id.
Iqbal suggests that one way for the Court to proceed when considering a Rule 12(b)(6)
motion is for the Court to “identify[ ] pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth. 129 S.Ct. at 1950. The Court’s factual recitation set
forth above is an attempt to do so. Once the complaint has been winnowed down to only those
sufficiently-specific, non-conclusory factual allegations, the Court treats those allegations as true
and proceeds to examine whether, under the controlling law, those facts are sufficient to state a
claim.
The Court’s factual recitation excludes conclusory statements.For example, the Court has
disregarded a standard phrasing employed by Mr. Havens that attempts to sweep every possible
law enforcement officer defendant into otherwise specific factual averments, such as where Mr.
Havens states that Defendant Johnson “and/or another Defendant named herein or other as of yet
unidentified law enforcement officer(s), which include the Defendant law enforcement officers

named herein” fired shots at Mr. Havens. Such pleading is sufficient to allege that Defendant
Johnson fired shots, but the Court declines to read this averment to state a claim by Mr. Havens
that any of the other law enforcement Defendants fired shots as well. At best, Mr. Havens’
generic assertion that other law enforcement Defendants might also have fired shots offers
nothing more than the speculation that these other Defendants “conceivably” or “possibly” fired
additional shots; it does not “nudge such claims” into the realm of “plausible.”
Similarly, the Court has disregarded the Plaintiff’s conclusory assertions of a
“conspiracy” among the Defendants to fabricate evidence or statements, as the Plaintiff has pled
nothing more than a “formulaic recitation” of the elements of a conspiracy. See Iqbal, 556 U.S
at 1951, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“[T]erms like
‘conspiracy,’ or even ‘agreement,’ are border-line: they might well be sufficient in conjunction
with a more specific allegation—for example, identifying a written agreement or even a basis for
inferring a tacit agreement, ... but a court is not required to accept such terms as a sufficient basis
for a complaint”) (quoting DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56
(1st Cir. 1999). Without factual allegations identifying the agreement that was formed among the
Defendants and the concerted action that they took to bring about the object of that agreement,
bare allegations of “a conspiracy” or “an agreement” are insufficient. Brooks v. Gaenzle, 614
F.3d 1213, 1227-28 (10th Cir. 2010) (mere assertion that there were unspecified inconsistencies
in officers’ various incident reports about the same event insufficient to establish alleged
conspiracy among officers).
B. Viable claims
Given the paucity of sufficiently-specific factual assertions in the Consolidated
Complaint, the Court will forego its regular practice of addressing each Defendant’s motion

separately. Instead, the Court finds it more efficient to address Mr. Havens’ claims seriatim,
identifying which, if any, Defendants the Consolidated Complaint sufficiently states that claim
against.
1. § 1983 excessive force claim
A § 1983 excessive force claim lies where a state actor effecting an arrest or detention
resorts to a level of force that is unreasonable under the circumstances. Henry v. Storey, 658
F.3d 1235, 1242 (10th Cir. 2011).
Mr. Havens has alleged two types of force used against him: Defendants Sandy and
Hernandez each allegedly rammed Mr. Havens’ car with their vehicles for no apparent reason,
and Defendant Johnson fired shots that struck Mr. Havens. Both of these types of force have
been found to support § 1983 excessive force claims in appropriate circumstances. See generally
Scott v. Harris, 550 U.S. 372 (2007) (analyzing excessive force claim where police rammed
defendant’s vehicle during chase); Tennessee v. Garner, 471 U.S. 1 (1985) (excessive force
claim resulting from police shooting of suspect). Thus, the Court finds that Mr. Havens’
allegations that these particular Defendants employed the specifically-identified forceful acts
against him, coupled with his assertion that there was no ostensible justification for such use of
force, to be sufficient at the pleading stage to state a § 1983 excessive force claim against
Defendants Johnson, Sandy, and Hernandez.
The Court does not find that Mr. Havens has adequately alleged a colorable excessive
force claim against any other Defendant, however. The Consolidated Complaint contains no
specific allegations that any of the other law enforcement officer Defendants engaged in either a
vehicular or weapon-based use of force against Mr. Havens. Although Mr. Haven contemplates
the possibility that others besides Defendant Johnson may have fired weapons at him,

speculation as to what might have occurred is insufficient to meet Iqbal’s “plausibility” standard.
2. Eighth Amendment claim
The Court has some difficulty in understanding Mr. Havens’ ostensible claim for cruel
and unusual treatment brought under the Eighth Amendment. In general, the Eighth Amendment
is understood to afford rights to prisoners only upon the imposition of sentence; cruel and
inhuman treatment administered between the filing of charges and the time of trial is generally
understood to implicate a defendant’s Due Process rights stemming from the 5th and 14th
Amendments; and adverse treatment occurring prior to the lodging of charges is generally
considered to be within the scope of the arrest of the person and thus assessed under the Fourth
Amendment’s “reasonable seizure” standard. Bell v. Wolfish, 441 U.S. 520, 535-36 & n. 16
(1979); Brosseau v. Haugen, 543 U.S. 194, 197 (2004); Aldini v. Johnson, 609 F.3d 858, 864 (6th
Cir. 2010). The “cruel and unusual treatment” most evident in Mr. Havens’ allegations relate to
the circumstances under which he was arrested, and in this sense, such a claim would be entirely
duplicative of his excessive force claim, which also arises from the Fourth Amendment.
Mr. Havens’ various response briefs do little to clarify address this issue. He
acknowledges the Defendants’ arguments that the Eighth Amendment applies only to inmates
who have been sentenced upon conviction, but he argues – without any supporting citation or
further explanation – that “such limitations are not contained in the Eighth Amendment.” As the
citations above make clear, this argument is without merit. He further argues, again without
citation, that he was “in custody” as soon as he ventured into the area where the Defendants were
conducting the sting operation, but, as discussed above, the relevant constitutional inquiry is
whether charges had been lodged against him and whether he had been convicted and sentenced
on such charges. Accordingly, the Court can conceive of no Eighth Amendment claim – or any

other constitutional claim – that would address the events leading up to and including the
shooting of Mr. Havens that would not entirely duplicate his excessive force claim.
Mr. Havens also makes a perfunctory argument that his Eighth Amendment claim also
applies “to the wrongful revocation of his medical parole.” Mr. Havens offers no meaningful
explanation of his theory as to how his continued incarceration on an undischarged sentence
constitutes “cruel and unusual punishment.” Accordingly, all Defendants are entitled to
dismissal of the purported Eighth Amendment claim.
3. Monell claim
Is it not entirely clear to the Court whether Mr. Havens intends to bring the third claim,
sounding in municipal liability under Monell, against Arvada based on its failure to train
Defendant Johnson, or whether he also brings that claim against the entities that employed and
supervised Defendants Sandy and Hernandez as well. For purposes of this discussion, the Court
will assume the latter.
Monell ensures that municipalities are not held vicariously liable for the unlawful acts of
their employees under simple respondeat superior principles. Monell v. Dept. of Social
Services, 436 U.S. 658, 691 (1978). Rather, municipal liability only arises when some official
act (or failure to act) by the municipality itself caused or motivated the employee’s unlawful act,
such that the municipality can be said to be independently liable for its own conduct that brought
about the injury. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Mr. Havens has invoked Monell by name and primarily offers a formulaic recitation that
each of the employing agencies “failed to train, supervise and discipline their police officers . . .
regarding the use of deadly force.” But beyond that formulaic recitation, Mr. Havens has not
alleged any specific facts that would nudge this claim from the possible to the probable. He does

not allege that the Defendant entities’ training programs have any affirmative constitutional
deficiencies – i.e. that they are drafted in such a way as to encourage the use of force where
circumstances do not warrant it. Instead, he appears to allege solely that the individual
Defendant officers were not properly trained to follow otherwise constitutionally-compliant use
of force policies enacted by the employing entities. Where the allegedly unconstitutional
municipal custom or policy is a failure by the municipality to train or supervise police officers, a
plaintiff must allege facts sufficient to demonstrate that such failures amount to “deliberate
indifference to the rights of persons with whom the police come into contact.” Walker v. City of
Orem, 451 F.3d 1139, 1153 (10th Cir. 2006). To satisfy the deliberate indifference standard, Mr.
Havens must ultimately show that “the municipality has actual or constructive notice that its
action or failure to act is substantially certain to result in a constitutional violation, and it
consciously or deliberately chooses to disregard the risk of harm.” Carr v. Castle, 337 F.3d
1221, 1229 (10th Cir. 2003). The touchstone of this inquiry is “the risk inadequate training poses
and the [entity’s] awareness of that risk,” typically by showing “that the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the [entity] can reasonably be said to have been
deliberately indifferent to the need.” Id.
Even assuming that Mr. Havens has adequately alleged that the agencies employing
Officers Johnson, Sandy, and Hernandez maintained policies regarding the use of deadly force
but failed to adequately train or supervise the officers with regard to those policies – a finding
this Court does not make – Mr. Havens has nevertheless failed to allege facts that would
demonstrate that such failure occurred in circumstances that could lead the factfinder to conclude
that such a failure to train or supervise reflected deliberate indifference on the part of those

agencies. He has not alleged any facts that would support an inference that those entities were:
(i) aware that their training or supervision programs were not being adequately administered; and
(ii) were nevertheless deliberately indifferent to the risk of constitutional deprivation that would
result from these inadequacies. Without sufficiently-specific factual allegations on these points,
Mr. Havens’ Monell claims are deficient and thus are dismissed against all entity Defendants.
4. Equal Protection claim
The precise theory behind Mr. Havens’ Equal Protection claim is unclear. The
Consolidated Complaint begins its discussion of this claim by quoting 42 U.S.C. § 1981, a
statute that prohibits racial discrimination in the making and enforcement of contracts. It goes
on to allege that Arvada and Defendant Johnson “discriminated” against Mr. Havens – the basis
upon that discrimination was based is entirely unclear – and that they “had no rational basis” for,
presumably, opposing his request for medical parole.
The Court begins by noting that, to the extent this claim seeks to invoke 42 U.S.C.
§1981, Mr. Havens’ claim is defective. To plead such a claim, Mr. Havens must allege, among
other things, that he was discriminated against on the basis of his race in the formation or
execution of a contract. Thornton v. Kaplan, 937 F.Supp. 1441, 1446-47 (D.Colo. 1996). Mr.
Havens alleges that he signed a written parole agreement with the Colorado Department of
Corrections on February 1, 2010, and as Mr. Havens does, the Court will assume, without
necessarily finding, that agreement constituted an enforceable contract entitling him to release on
parole. The Court will also assume, again without making a finding to this effect, that Mr.
Havens’ allegations that Arvada and Defendants Johnson, Ramirez, and Wick induced the Parole
Board to refuse to honor that contract. However, Mr. Havens has pled no facts to suggest that
these Defendants were motivated by Mr. Havens’ race in doing so; as best the Court can

ascertain, the Consolidated Complaint does not even identify Mr. Havens’ race. Even if it did,
Mr. Havens’ own allegations clearly imply that the Defendants’ motivation for preventing his
release on parole were the result of animus against Mr. Havens for having filed suit against them,
not simply because Mr. Havens was a member of some particular race. Thus, to the extent Mr.
Havens intends his Equal Protection claim to assert a violation of 42 U.S.C. § 1981, it plainly
fails to state a colorable claim.
Similar reasoning reveals a defect in Mr. Havens’ attempt to assert such a claim under the
constitution’s Equal Protection clause as well. To assert an Equal Protection violation claim,
Mr. Havens must allege facts showing: (i) that a state actor has intentionally treated similarlysituated individuals differently because of a particular classification that one of them possessed;
and (ii) that such differential treatment lacks appropriate connection to a legitimate governmental
purpose. SECSYS, LLC v. Vigil, 666 F.3d 678, 685-87 (10th Cir. 2012). Essential to such a claim
is an allegation by Mr. Havens of facts suggesting that other persons similarly-situated to him
were treated more favorably. Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011). The
Consolidated Complaint contains no allegations of anyone similarly-situated to Mr. Havens –
that is, an inmate proposed for medical parole – that Arvada or Defendants Johnson, Ramirez, or
Wick are alleged to have treated more favorably. Without reference to a similarly-situated
comparator who received more favorable treatment, Mr. Havens has failed to adequately allege
an Equal Protection claim.5

5

Mr. Havens appears to assert a similar Equal Protection claim against the Parole Board
itself and its constituent members. The foregoing analysis is sufficient to dispose of any such
claim. In addition, Parole Board members enjoy absolute immunity from civil suits arising from
their decision to grant or deny parole. Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992).
Because all of Mr. Havens’ purported claims against the Parole Board Defendants arise from
their decision to deny his medical parole, all of those claims are subject to dismissal.

5. “Claim” for attorney’s fees
Mr. Havens’ request for an award of attorney’s fees under 42 U.S.C. § 1988 is an item of
relief, not a stand-alone “claim.” Fees under that statute are only awarded to a plaintiff who
prevails on another substantive claim; there is no independent and freestanding “claim” for
attorney’s fees. If Mr. Havens does indeed prevail on one or more of his claims, he may file a
motion for attorney’s fees in accordance with Fed. R. Civ. P. 54(d)(2) and D.C. Colo. L. Civ. R.
54.3 at the appropriate time.
6. State law claims
Mr. Havens purports to assert a variety of tort claims under state law against various
Defendants, including claims sounding in negligence, malicious prosecution, obstruction of
justice, and civil conspiracy. All of these claims sound in tort, and thus, are governed by the
Colorado Governmental Immunity Act (“CGIA”), C.R.S. § 24-10-106(1) (deeming public
entities immune “from liability in all claims for injury which lie in tort or could lie in tort”); §
24-10-118(1) (applying to “any action against a public employee . . . which lies in tort or could
lie in tort”). Among other things, that statute provides that a plaintiff seeking to assert tort
claims against a public agency or public employee must first file a Notice of Claim within 180
days of the events at issue.6 C.R.S. § 24-10-109(1); § 24-10-118(1)(a). The Notice of Claim

6

The Notice of Claim is required regardless of whether the claim alleges “willful and
wanton” conduct. C.R.S. § 24-10-109(1) (“Any person claiming to have suffered an injury by a
public entity or by an employee thereof . . . whether or not by a willful or wanton act or
omission, shall file a written notice. . . .”). Even though Mr. Havens alleges that the individual
Defendants acted willfully and wantonly, ostensibly removing them from immunity under the
CGIA, the Notice of Claim requirement applies regardless of whether the public employee is
ultimately found to be within or outside of the statute’s reach. Middleton v. Hartman, 45 P.3d
721, 730-31 (Colo. 2002).
Mr. Havens argues that his tort claims are also cognizable under C.R.S. § 29-5-111
(requiring municipalities and entities to indemnify police officers), and thus, “are not limited by
the notice provisions of the Immunity Act.” Citing Antonopoulos v. Town of Telluride, 532 P.2d

requirement is jurisdictional in nature, and is not subject to equitable defenses such as waiver,
tolling, or estoppel that would normally apply to statutes of limitations. City and County of
Denver v. Crandall, 161 P.23d 627, 633 (Colo. 2007).
It is undisputed that Mr. Havens did not file a Notice of Claim with regard to any
Defendant within 180 days of the events of January 3, 2007. His Consolidated Complaint
contends that his commencement of this action in March 2009 suffices to meet the requirements
of a Notice of Claim, and that in any event he filed a formal Notice of Claim on March 1, 2011.
Mr. Havens argues that his medical incapacity resulting from the shooting left him unable to
function for an extended period of time, thus forgiving his untimely Notice of Claim. This Court
has previously determined that accrual of Mr. Havens’ claims, for statute of limitations purposes,
was tolled as a result of his incapacity under C.R.S. § 13-81-103. But, as noted above, the
Notice of Claim requirement is not akin to a statute of limitations; rather, it is a non-claim statute
that operates outside the reach of doctrines of tolling. Mesa County Valley School Dist. v.
Kelsey, 8 P.2d 1200, 1206 (Colo. 2000). Indeed, Colorado courts have squarely determined that
the incapacity toll of C.R.S. § 13-81-103 does not excuse noncompliance with the Notice of
Claim statute. McMahon v. Denver Water Bd., 780 P.2d 28, 29 (Colo.App. 1989). Because he
failed to file a Notice of Claim within the 180 day period, regardless of the reasons why, this
Court lacks jurisdiction over any of Mr. Havens’ tort claims against any of the Defendants.7

346, 349 (Colo. 1975). However, since Antonopoulos, the CGIA has been amended to expressly
provide that the Notice of Claim requirements apply “whether [claims are] brought pursuant to
[the CGIA], section 29-5-111, the common law, or otherwise.” C.R.S. § 24-10-105(1) (emphasis
added).
7

Not every Defendant raised the untimeliness of Mr. Havens’ Notice of Claim in their
motions, but because compliance with the Notice of Claim requirement is jurisdictional in
nature, the Court may – indeed must – address it sua sponte if the parties do not.

CONCLUSION
For the foregoing reasons, the Motions to Dismiss by the State (# 123); the Parole Board
Defendants (# 124); Defendant Beal (# 127); Lone Tree (# 129); Defendant Ramirez (# 130);
Arvada (# 134); Denver (# 137); Defendant Pachello (# 139); and Mountain View (# 147) are
GRANTED, and the claims against these Defendants are DISMISSED8 in their entirety. The
State Patrol Defendants’ Motion to Dismiss (# 126) is GRANTED IN PART, insofar as all
claims against Defendants Beauvais, Mayfield, Murray, and Pickering and the claims against
Defendant Sandy other than that for excessive force under § 1983 are DISMISSED, and
DENIED IN PART, insofar as the § 1983 excessive force claim against Defendant Sandy may
proceed. The Arvada Officer Defendants’ Motion to Dismiss (# 132) is GRANTED IN PART,
insofar as all claims against Defendants Bickmore, Grueber, Heivilin,, Kildow, Mantych,
Roemer, Strasheim, Strate, and Vander Veen, and the claims against Defendant Johnson other
than that for excessive force under § 1983 are DISMISSED, and DENIED IN PART, insofar as
the § 1983 excessive force claim against Defendant Johnson may proceed. Defendants
Hernandez, Kelly, and Pickering’s Motion to Dismiss (# 180) is GRANTED IN PART, insofar
as all claims against Defendants Kelly and Pickering, and the claims against Defendant
Hernandez other than that for excessive force under § 1983 are DISMISSED, and DENIED IN
PART, insofar as the § 1983 excessive force claim against Defendant Hernandez may proceed.

8

Given the fact that Mr. Havens has already availed himself of several opportunities to
amend and refine his pleadings, both as a pro se litigant and upon representation by counsel, the
Court does not reflexively grant Mr. Havens leave to amend the Consolidated Complaint in an
attempt to rescue those claims that might be viable with more specific pleading. If Mr. Havens
believes that he can adequately allege additional claims, within 14 days he may file an
appropriate motion seeking leave to amend, tendering a proposed amended pleading that clearly
and conspicuously indicates the material that is allegedly sufficient to overcome the pleading
deficiencies identified here.

The caption of this case is AMENDED to omit reference to all Defendants other than
Defendants Johnson, Sandy, and Hernandez. The Clerk of the Court is directed to terminate all
motions pending in 11-cv-490 and to close that case.
Dated this 13th day of March, 2012
BY THE COURT:

Marcia S. Krieger
United States District Judge