Lovern v. Dorscheid et al

Filing 14

ORDER granting 9 Motion to Dismiss by Judge Lewis T. Babcock on 2/7/14. Costs are awarded to the Defendants.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Case No. 13-cv-02446-LTB-KLM

DENNY LOVERN,
Plaintiff,
v.
INVESTIGATOR BART DORSCHEID, Eighteenth Judicial District Attorney’s Office
Investigator, and
CHIEF INVESTIGATOR KNIGHT, Eighteenth Judicial District Attorney’s Office,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on a Motion to Dismiss filed by Defendants Bart Dorscheid and
Michael Knight, who are being sued in their official capacity as Investigators with the
Eighteenth Judicial District Attorney’s Office, by Plaintiff Denny Lovern, pursuant to 42 U.S.C.
§1983. [Doc #9] Defendants seek to have Plaintiff’s single §1983 claim – for false arrest and
malicious prosecution without probable cause, in violation of the Forth Amendment – dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, based on the defense of qualified
immunity. Oral arguments would not materially assist me in my determination of this motion.
After consideration of the parties’ arguments, and for the reasons stated, I GRANT the motion
and, as such, I DISMISS this case.
I. BACKGROUND
In his complaint, Plaintiff concedes that he has been charged and convicted of over a

dozen alcohol-related driving offenses over the last thirty years. With regard to the incident at
issue here, Plaintiff alleges that in the late afternoon of October 9, 2008, Shane Donahoe
observed a silver Saab, driven by Plaintiff, pull out of a carport and hit the cinderblock wall.
Plaintiff then passed out at the wheel, woke up, and hit the carport wall again with his Saab.
After passing out again, and again awaking, Plaintiff pulled out into the street and passed out
again. Mr. Donahoe, and several other witnesses, called 911 to report the incident.
Thereafter, an Arapahoe County Sheriff’s Deputy took Plaintiff into custody after he hit a
wooden fence in an alley at approximately 10 miles per hour. Plaintiff had a blood alcohol
content/concentration (BAC) of approximately .321, which is four times the legal limit to
operate a vehicle. Plaintiff was taken into custody and hospitalized due to his high BAC. An
initial complaint was filed charging him with various traffic misdemeanors, including Driving
Under the Influence, in Arapahoe County Case No. 2008T5230. After Plaintiff failed to appear
at his arraignment, a bench warrant was issued and he was arrested on May 2, 2009.
Plaintiff asserts that after he was arrested, Defendant Chief Investigator Knight instructed
his subordinate, Defendant Investigator Dorscheid, to “fabricate” felony charges against
Plaintiff. Specifically, he contends that Defendant Dorscheid – who drafted and signed the
affidavit supporting probable cause dated July 1, 2009 – perjured himself by stating that he had
probable cause for believing that Plaintiff committed the felony crimes of attempted
manslaughter and attempted assault in the second degree. Plaintiff avers that “there was no
probable cause for believing that the Plaintiff committed these felonies because his alleged
reckless actions were directed at a fence and a cinderblock [wall], not at an identifiable human
being.” He argues that Defendants intentionally or recklessly omitted from the probable cause

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affidavit the fact that there was no human victim of Plaintiff’s reckless conduct when driving
under the influence of alcohol on October 9, 2008.
Plaintiff further asserts that Defendants “conspired with an Arapahoe County Deputy
District Attorney . . . to procure the malicious prosecution of the Plaintiff” by dismissing the
initial complaint, and filing a new Complaint and Information that charged Defendant with the
felonies of: Criminal Attempt to Commit Manslaughter, in violation of Colorado Revised
Statute §18-3-104(1)(a), and Criminal Attempt to Commit Assault in the Second Degree with a
Deadly Weapon (namely, a motor vehicle), in violation of Colorado Revised Statute §18-3203(1)(d), in Arapahoe County Case No. 2009CR1653. Plaintiff avers that the felony charges
against him were ultimately dismissed on the grounds that he could not be charged with
attempted manslaughter (dismissed by the trial court) and attempted assault (voluntarily
dismissed by the People) when the evidence was that Plaintiff’s criminal actions were not
directed at a human victim.
Plaintiff then filed this lawsuit seeking damages for Defendants’ unconstitutional acts, in
pursuing the felony charges against him, for false arrest and malicious prosecution as single
claim for relief under 42 U.S.C. §1983. In his §1983 claim, Plaintiff asserts that Defendants
acted maliciously, knowingly, intentionally, willfully and wantonly by drafting and executing the
affidavit of probable cause which, in turn, caused Plaintiff to ultimately be wrongfully
prosecuted for felony attempted manslaughter and felony attempted second degree assault.
II. RULE 12(b)(6)/QUALIFIED IMMUNITY STANDARD
In this motion, Defendants seek dismissal of Plaintiff’s §1983 claim against them for
failure to state a claim upon which relief can be granted based on the defense of qualified

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immunity. The doctrine of qualified immunity protects government officials from liability for
civil damages insofar 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, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
The Fed. R. Civ. P. 12(b)(6) standard to survive a motion to dismiss requires that a
plaintiff’s pleadings must “nudge[ ] their claims across the line from conceivable to plausible.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
The Supreme Court applied this standard to a motion to dismiss based on qualified immunity,
and formulated the test as follows:
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. 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 v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quotations and
citations omitted). In reviewing a motion to dismiss, “all well-pleaded factual allegations in the
. . . complaint are accepted as true and viewed in the light most favorable to the nonmoving
party.” Brown v. Montoya, 662 F.3d 1152, 1162-63 (10th Cir. 2011)(quoting Moore v. Guthrie,
438 F.3d 1036, 1039 (10th Cir. 2006)).
III. ANALYSIS
Plaintiff’s §1983 claim is premised on his contention that Defendants knowingly acted to

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arrest and prosecute him for attempted manslaughter and attempted assault in the second degree,
by drafting and executing a probable cause affidavit that failed to reveal there was no identifiable
human victim of Plaintiff’s criminal acts in driving under the influence of alcohol. In this
motion, Defendants argue that they are protected by qualified immunity in that the decision of
Defendant Dorscheid to draft (and Defendant Knight to approve) the probable cause affidavit in
support of charging Plaintiff with attempted manslaughter and attempted second degree assault,
when there was no direct identifiable human victim of his actions, “was grounded in a reasonable
interpretation of applicable precedent.”
Title 42 U.S.C. §1983 provides that “[e]very person who, under color of any statute . . .
subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured.” In suits brought against officials in their individual capacities, officials may raise the
defense of qualified immunity. Kentucky v. Graham, 473 U.S. 159, 166–67, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985). Once a defendant asserts qualified immunity, the plaintiff bears the burden
of satisfying a “strict two-part test. ” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010)
(quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). That is “[t]he plaintiff must
establish (1) that the defendant violated a constitutional or statutory right, and (2) that this right
was clearly established at the time of the defendant’s conduct . . . ”. Id.
Defendants agree that the knowing or reckless falsification or omission of evidence in the
pre-arrest and post-arrest stages of prosecution runs afoul of an accused’s constitutional rights
under the Fourth Amendment. See Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004)
(relying on Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).

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Defendants argue, however, that they are entitled to immunity under the second prong of the
qualified immunity defense because their conduct, as alleged, was objectively reasonable in light
of clearly established law at the time. Pierce v. Gilchrist, supra, 359 F.3d at 1297 (citing
Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Colorado law recognizes the crime of attempted reckless manslaughter. See People v.
Thomas, 729 P.2d 972 (Colo. 1986). The elements of the crime of attempted reckless
manslaughter – as defined by Colorado case law – do not specifically require that the conduct be
directed at a named potential victim, but rather that the accused commence the acts or conduct
“with a conscious disregard of a substantial and unjustifiable risk that the acts or conduct will
cause the death of another person.” Id. at 975; see also People v. Hennion, 923 P.2d 256, 258-59
(Colo. App. 1995)(setting forth the elements of the crime of attempted reckless manslaughter);
Colo. Rev. Stat. §18-3-104(1)(a)(providing that a person commits the crime of manslaughter if
he “recklessly causes the death of another person”); Colo. Rev. Stat. §18-3-203(1)(d)(providing
that a person commits the crime of assault in the second degree if he “recklessly causes serious
bodily injury to another person by means of a deadly weapon”).
At issue then, is what Colorado law required at the time Defendants’ drafted and
approved the probable cause affidavit in July 2009 to show that a defendant’s actions amounted
to a disregard of a real risk that his or her acts would cause the death or serious bodily injury to
“another person.” In People v. Thomas, supra, the Colorado Supreme Court reviewed a
conviction for attempted manslaughter when the defendant shot at the victim three times – once
accidently and twice as warning shots – but did not hurt him. In finding attempted reckless

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manslaughter a cognizable crime, the Court determined that the critical inquiry is potential for
future danger and, thus, “the awareness of a practical certainty of the prohibited result that is
required for knowing conduct cannot be viewed as more dangerous, in any important degree,
than the conscious disregard of a substantial and unjustifiable risk that the proscribed result will
occur – the hallmark of reckless action.” People v. Thomas, supra, 729 P.2d at 976.
Thereafter, in 1996, the Colorado Supreme Court in People v. Deskins, 927 P.2d 368
(Colo. 1996), upheld the defendant’s convictions for reckless child abuse resulting in death when
three children died after the defendant hit a car in which they were passengers – while driving
under the influence – on the theory that “if a person acts recklessly and if that conduct . . . injures
or kills a child or children, criminal liability attaches.” Id. at 373 (finding that the disregarded
risk “was not that children might be in the actual car that [the defendant’s] vehicle hit that night.
On the contrary, what [the defendant] consciously disregarded when he drove while drunk was
the risk that children would be passengers in any of the cars on the road that night”)(italics in
original).
Four years later, in 2000, in People v. Hall, 999 P.2d 207 (Colo. 2000), the Colorado
Supreme Court ruled that probable cause existed to bring the charge of reckless manslaughter
against a ski racer when he “flew off a knoll” and killed another skier – who was traversing the
slope below – by consciously disregarding a substantial and unjustifiable risk that he might
collide with another skier resulting in an accident and causing his death. Id. at 217. In so doing,
the Court ruled that in a reckless manslaughter case, risk of causing death to another person can
be “a risk of death to another generally [as] the actor does not have to risk death to a specific
individual.” Id. at 220 (citing People v. Deskins, supra, 927 P.2d at 373).

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Thereafter, in People v. Whittaker, 181 P.3d 264 (Colo. App. 2006), a panel of the
Colorado Court of Appeals upheld the defendant’s conviction for attempted reckless
manslaughter – when he shot a gun into a car containing a number of passengers, causing serious
bodily injury to one and wounding another – on the theory that he “consciously disregarded the
risk” that the victims/passengers in the car would be killed. Id. at 272; see also People v. Allen,
78 P.3d 751, 753 (Colo. App. 2001), overruled on other grounds by Lopez v. People, 113 P.3d
713, 719 (Colo. 2005)(upholding eighty convictions of attempt to commit manslaughter where
the defendant held a gun out the window of a car – but ultimately failed to hit a police officer or
vehicle – when he “fired it erratically forty-seven times, frequently to the rear in the general
direction of the pursuing officers, but generally up in the air in that direction”).
Thus, at the time Defendants drafted the probable cause affidavit in support of the felony
charges of attempted reckless manslaughter and attempted second degree assault against
Plaintiff, the law in Colorado could be reasonably construed to not require a named or
identifiable human victim. Rather, the legal authority provided only that a defendant
“consciously disregarded the risk” that potential victims/passengers in another car or cars would
be killed by his actions in order to be charged with attempted reckless manslaughter. See People
v. Thomas, supra, 729 P.2d at 974 (ruling that the crime of attempted manslaughter does not
require the specific intent to cause the death of another, but rather it requires that a person
knowingly engage in risk producing conduct that creates a substantial and unjustifiable risk of
causing death); and People v. Deskins, supra, 927 P.2d at 373 (finding that the consciously
disregarded risk in drunk driving required to support a reckless child abuse resulting in death
conviction was only that “children would be passengers in any of the cars on the road that

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night”); People v. Hall, supra, 999 P.2d at 220. In so finding, I note that – although irrelevant to
my analysis here – the issue of whether the government must prove the existence of a particular
person/victim in order to convict a drunk driver who was driving under the influence but was not
in an accident involving another person of attempted reckless manslaughter and attempted
second degree assault, is currently pending before the Colorado Court of Appeals in a case
captioned People v. Isidore Griego, Case No. 10CA2609.
When viewing the factual claims as asserted by Plaintiff as true, I conclude that
Defendants’ act of drafting and approving an affidavit that averred probable cause for the filing
of the felony charges of attempted manslaughter and attempted second degree assault – under
the circumstances alleged here – was novel, but objectively reasonable in light of the applicable
law at the time. In so doing, I note that whether Plaintiff’s criminal conduct in driving under the
influence amounts to probable cause to support these felony charges under Colorado law– as was
decided by the trial court in the case currently pending before the Colorado Supreme Court in
People v. Isidore Griego, supra – or does not support the filing of the charges – as was
apparently ultimately determined by the judge in Plaintiff’s underlying criminal case here – such
legal question is not before me. Rather, I am only to assess whether the decision made by
Defendants was reasonable in light of the law at the time. Based on the forgoing, I conclude that
it was.
Therefore, Plaintiff cannot establish that Defendants’ actions violated a constitutional
right that was clearly established and, as such, Defendants are entitled to dismissal of the §1983
claim asserted against them based on a qualified immunity defense. Pierce v. Gilchrist, supra,
359 F.3d at 1299 (the defense of qualified immunity protects governmental officials from
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liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known).

ACCORDINGLY, I GRANT the Motion to Dismiss [Doc # 9] filed by Defendants Bart
Dorscheid and Michael Knight, in their official capacity as Investigators with the Eighteenth
Judicial District Attorney’s Office, and, as such, I DISMISS WITH PREJUDICE Plaintiff Denny
Lovern’s 42 U.S.C. §1983 claim against them, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, based on the defense of qualified immunity. I ORDER COSTS AWARDED to
Defendants.

Dated: February

7 , 2014, in Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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