Bowers v. Cruz et al

Filing 49

ORDER On Motions re 20 , 39 , 43 and 45 : State Defendants' motion to dismiss 20 is granted and the plaintiff's claims against the Fourth Judicial District Probation Office, against Ellen Walker as Chief Probation Officer of the F ourth Judicial District Probation Office, against the Office of theState Court Administrator Division of Probation Services, and against Eric Philp as Director of the State Court Administrator's Division of Probation Services) are dismissed pur suant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendant Cruz's partial motion for dismissal 39 is granted with respect to his request for clarification that the plaintiff's claims are alleged against Cruz in individual capacity only. Plain tiff's motion to withdraw her supplemental authority 45 is granted and the State Defendants' motion to strike the plaintiff's supplemental authority 43 is moot. Plaintiff's motion for limited discovery and supplemental briefing 45 is denied, by Judge Richard P. Matsch on 2/25/2013.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 12-cv-01841-RPM
AMY BOWERS,
Plaintiff,
v.
GUY CRUZ, individually and as an agent
and/or employee of the Office of the Fourth Judicial District Probation Department;
OFFICE OF THE FOURTH JUDICIAL DISTRICT PROBATION DEPARTMENT;
ELLEN WALKER, Chief Probation Officer;
OFFICE OF THE STATE COURT ADMINISTRATOR – DIVISION OF PROBATION
SERVICES, and
ERIC PHILP, Director of State Court Administrator – Division of Probation Services,
Defendants.

ORDERS ON MOTIONS
___________________________________________________________________________
Amy Bowers claims that her probation officer, Guy Cruz, abused his authority by
coercing her to participate in multiple acts of sexual congress between July 15 and August 18,
2011, by threatening her with revocation of probation upon his reporting of her violations of the
conditions of probation. She seeks redress under 42 U.S.C. § 1983 in this civil action brought
against Cruz; the Fourth Judicial District Probation Office; Ellen Walker as Chief Probation
Officer of the Fourth Judicial District Probation Office; the Office of the State Court
Administrator – Division of Probation Services, and Eric Philp as Director of the State Court
Administrator’s Division of Probation Services.

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The plaintiff alleges six claims for relief: (1) a claim pursuant to 42 U.S.C. § 1983
against defendant Cruz for the use of unreasonable and excessive force in violation of the 4th
Amendment to the United States Constitution; (2) a claim pursuant to 42 U.S.C. § 1983 against
defendant Cruz for deprivation of the plaintiff’s liberty interest and substantive Due Process
rights in violation of the 14th Amendment to the United States Constitution; (3) a claim pursuant
to 42 U.S.C. § 1983 against the Fourth Judicial Probation Office; Ellen Walker as Chief
Probation Officer of the Fourth Judicial District; the Office of the State Court Administrator, and
Eric Philp as Director of the Probation Services Division of the Office of the State Court
Administrator for deliberate indifference to the rights of the plaintiff in violation of the 14th
Amendment to the United States Constitution for allegedly failing to adequately train and
supervise probation officers under their administration, including Cruz; (4) a state law claim of
assault and battery against defendant Cruz; (5) a state law claim of intentional infliction of
emotional distress against defendant Cruz, and (6) a claim against the defendants collectively,
captioned “federal and state liability for the actions of defendant Cruz under the doctrine of
respondeat superior.”
The defendants other than Cruz moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6). They function under the Colorado Judicial Department which is an arm of the State of
Colorado, immune from suit under the Eleventh Amendment to the U.S. Constitution.
Additionally, Bowers’ allegations of constitutional violations by failure to train or
supervise Cruz are insufficient to state a claim. There is no vicarious liability for his conduct
and the conduct of Cruz as alleged is such an obvious abuse of his authority as to not require
special training or supervision.

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The plaintiff also claims that the state law tort claims of assault and battery against Cruz
are applicable to the other defendants under the doctrine of respondeat superior. That claim of
vicarious liability is barred by the Colorado Governmental Immunity Act (CGIA), C.R.S. § 2410-101 et seq.
Defendant Cruz filed a partial motion for dismissal of claims against him in his official
capacity. That is barred by the Eleventh Amendment and the plaintiff has clarified that she is not
pursuing Cruz in his official capacity. Cruz for the first time in his reply brief contends that the
state law tort claims should be dismissed under the CGIA because the plaintiff has not pleaded
willful or wanton conduct. That question will be reserved because the plaintiff may be permitted
to amend her pleadings upon the facts to be discovered in this case.
Upon the foregoing, it is
ORDERED that the State Defendants’ motion to dismiss [# 20] is granted and the
plaintiff’s claims against the Fourth Judicial District Probation Office, against Ellen Walker as
Chief Probation Officer of the Fourth Judicial District Probation Office, against the Office of the
State Court Administrator – Division of Probation Services, and against Eric Philp as Director of
the State Court Administrator’s Division of Probation Services) are dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6); it is
FURTHER ORDERED that defendant Cruz’s partial motion for dismissal [# 39] is
granted with respect to his request for clarification that the plaintiff’s claims are alleged against
Cruz in individual capacity only. It is

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FURTHER ORDERED that the plaintiff’s motion to withdraw her supplemental
authority [#45] is granted and the State Defendants’ motion to strike the plaintiff’s supplemental
authority [#43] is moot. It is
FURTHER ORDERED that the plaintiff’s motion for limited discovery and supplemental
briefing [#45] is denied.
DATED: February 25, 2013
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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