Kolesnikov v. Austin et al

Filing 22

ORDER; Defendants' Motion to Dismiss 8 is GRANTED. The claims against Defendants Austin, Klaus, Blea, Swint, and the Denver Police Department aredismissed with prejudice. The claims against Defendant City and County of Denver are dismissed without prejudice. On or before October 17, 2014, Plaintiff shall show cause in writing why his claims against the John Doe Defendant should not be dismissed pursuant to Fed. R. Civ. P. 4(m), by Magistrate Judge Kathleen M. Tafoya on 10/10/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–00879–KMT
ANDREY KOLESNIKOV,
Plaintiff,
v.
OFFICER BENJAMIN AUSTIN, individually and in his capacity as a paid peace office and as
an employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER BRIAN KLAUS, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
CORPORAL JOHN BLEA, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER DAN SWINT, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER JOHN DOE, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
DENVER POLICE DEPARTMENT, in its capacity as an agent and/or independent contractor of
the City and County of Denver, in its capacity as a governmental entity, the employee and/or
supervisor of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint,
Officer John Doe, and
CITY AND COUNTY OF DENVER, in its capacity as a governmental entity and/or as the
employer of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint,
Officer John Doe, and the Denver Police Department,
Defendants.

ORDER

This case involves claims that Defendants violated Plaintiff’s constitutional rights and
Colorado law. This matter is before the court on Defendants’ “Motion to Dismiss” (Doc. No. 8
[Mot.], filed March 27, 2014). Plaintiff filed his response on April 30, 2014 (Doc. No. 18

[Resp.]), and Defendants filed their reply on May 13, 2014 (Doc. No. 19 [Reply]). This motion
is ripe for ruling.
STATEMENT OF THE CASE
Plaintiff’s Complaint is not a model of clarity. Plaintiff alleges on February 20, 2012,
Defendants Austin and Klaus responded to a call at a Walgreens store. (Doc. No. 2 [Compl.], ¶
12.) Plaintiff states the officers found him lying on the ground being attended by medical
responders and that “he was under arrest at this time due to a DUI offense and Car Accident prior
to him on the ground at Walgreens.” (Id.) In the next paragraph, Plaintiff states he was being
treated for a head injury related to a fall inside Walgreens.1 (Id. at 13.) Plaintiff states he was
transported by ambulance to Denver Health Medical Center and then released to the custody of
Defendant Officer Blea. (Id., ¶ 13.) Plaintiff alleges at the hospital he was handcuffed to a
gurney. (Id., ¶ 14.) Plaintiff alleges he could not feel his left hand because the handcuffs were
too tight, but when he asked an unnamed officer to loosen the cuffs, the officer refused and told
Plaintiff he was “going down.” (Id.) Plaintiff alleges he started yelling for help, and the officer
wheeled Plaintiff down the hall into a maintenance/storage closet, where Plaintiff was left for six
hours. (Id.) After he was removed from the closet, Plaintiff was driven to the Denver Detention
Center and then released from custody. (Id.)
Plaintiff alleges thirteen days later, the Denver Police found him in his home with severe
swelling, blistering, and bruising on his left arm. (Id., ¶ 15.) Plaintiff states he was taken to
Denver Health Medical Center, where he was diagnosed with compartment syndrome, and

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Plaintiff asserts no facts to explain when his auto accident occurred in relation to his fall in the
Walgreens store.
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fasciotomies were performed on his forearm and hand. (Id.) Plaintiff alleges he has had sixteen
surgeries and has lost the ability to use his left hand. (Id.)
Plaintiff asserts five claims for relief. In his First Claim for Relief, Plaintiff claims
Defendants violated his Fourth, Fifth, and Fourteenth Amendment rights. (Id., ¶¶ 20-24.)
Specifically, Plaintiff alleges the defendants violated his right to be free from unreasonable
search and seizure, his right not to be deprived of liberty property without due process, his right
to be free from excessive force, his right to be free from false arrest, and his right to just
compensation for taking of property. (Id., ¶ 21.) In his Second and Third Claims for Relief,
Plaintiff alleges Defendants Blea, Swint, Austin, Klaus, and the City and County of Denver (the
“City”) adopted and implemented careless and reckless policies, customs, and practices in
violation of Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights. (Id., ¶¶ 25-32.) In his
Fourth Claim for Relief, Plaintiff alleges the defendants falsely imprisoned him. (Id., ¶¶ 37-42.)
In his Fifth Claim for Relief, Plaintiff alleges Defendant City is liable for the actions of all of the
defendants under the theory of respondeat superior. (Id., ¶¶ 43-44.) Plaintiff seeks declaratory
and injunctive relief and compensatory and punitive damages. (Id. at 7.)
Defendants move to dismiss Plaintiff’s Amended Complaint on the bases that (1) the
defendants are entitled to qualified immunity in their individual capacities; (2) Plaintiff fails to
allege any facts in support of municipal liability; (3) the claims against the defendants in their
official capacities are duplicative of the claims against Defendant City; (4) the Denver Police
Department is not a separate entity subject to suit; (5) this Court lacks jurisdiction over the state
law claims; (5) Plaintiff’s state law claims must be dismissed for Plaintiff’s failure to allege
willful and wanton conduct; (6) Plaintiff’s state law claim against the defendant police officers is

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barred by the statute of limitations; and (7) Plaintiff’s state law claim against Defendant City
should be dismissed because there is no applicable waiver of governmental immunity. (See
Mot.)
STANDARD OF REVIEW
1.

Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for

lack of subject matter jurisdiction. 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. Rather, it calls for a determination that the
court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than
the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction
when specifically authorized to do so). The burden of establishing subject matter jurisdiction is
on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings
in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that
dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice
is a disposition on the merits which a court lacking jurisdiction may not render).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however,

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the Court may consider matters outside the pleadings without transforming the motion into one
for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a
party challenges the facts upon which subject matter jurisdiction depends, a district court may
not presume the truthfulness of the complaint’s “factual allegations . . . [and] has wide discretion
to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
2.

Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)
(2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are not

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entitled to the assumption of truth,” that is, those allegations which are legal conclusion, bare
assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at
1950.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1940.
Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. at 1949 (citation omitted). “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.’ ” Iqbal, 129 S. Ct. at 1949
(citation omitted).
ANALYSIS
1.

Claims Against Individual Defendants in Their Official Capacities
Plaintiff sues the individual police officer defendants in their official and individual

capacities. (See Compl. at 1.) Defendants argue that the claims asserted against the individual
police officer defendants are duplicative of the claims against the City. (Mot. at 8.)

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Plaintiff’s constitutional claims against the defendants in their official capacities are
treated as claims against the City. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (stating
that an official capacity suit is “another way of pleading an action against an entity of which an
officer is an agent”); Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 n.2 (10th
Cir. 1998). Because the City is a named defendant, the official capacity claims against the
individual police officer defendants are duplicative and are dismissed with prejudice.
2.

Claims Asserted Against the Denver Police Department
Plaintiff asserts claims against the Denver Police Department as well as the City and

County of Denver.
The Denver Police Department is not a separate entity that may be sued. See Martinez v.
Winner, 771 F.2d 424, 444 (10th Cir. 1985) (stating that the “City of Denver Police Department”
is not a separate suable entity, but retaining the City and County of Denver as a defendant in the
case); see also Renalde v. City & Cnty. of Denver, 807 F. Supp. 668, 675 (D. Colo. 1992) (“A
police department is not a suable entity.”) (citing Boren v. City of Colo. Springs, 624 F. Supp.
474, 479 (D. Colo.1985)). As such, the claims against the Denver Police Department are
dismissed with prejudice.
3.

Claims Against the Defendants in Their Individual Capacities
Defendants, in their individual capacities, raise the defense of qualified immunity to

Plaintiff’s claims. Whether a defendant is entitled to qualified immunity is a legal question.
Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007). To overcome the defendants’ claim of
qualified immunity, the plaintiff must establish that the defendants’ actions violated the
plaintiff’s constitutional or statutory right and that the right at issue was clearly established at the

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time of the defendants’ alleged unlawful conduct. Albright v. Rodriguez, 51 F.3d 1531, 1534
(10th Cir. 1995). “[C]ourts have discretion to decide which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Id. “Qualified immunity is applicable unless” the plaintiff can satisfy both prongs of the
inquiry. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal
quotation marks and citations omitted).
Defendants argue that Plaintiff has failed to allege that any of the defendants personally
participated in the alleged constitutional violations. “Individual liability under [42 U.S.C.] §
1983 must be based on personal involvement in the alleged constitutional violation.” Foote v.
Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (citing Grimsley v. MacKay, 93 F.3d 676, 679
(10th Cir. 1996)); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (“Personal
participation is an essential allegation in a Section 1983 claim.” (citations omitted)). A
defendant was personally involved in an alleged constitutional violation only if there is an
“affirmative link” between his or her conduct and the described violation. Stidham v. Peace
Officer Stds. & Training, 265 F.3d 1144, 1156 (10th Cir. 2001). Because of the “affirmative
link” requirement, a defendant in a position of general supervisory authority cannot be held
vicariously liable for constitutional violations committed by his or her subordinates. Serna v.
Colo. Dep’t of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under
§ 1983 for their own culpable involvement in the violation of a person's constitutional rights.”);
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (“[S]upervisor status by itself is
insufficient to support liability.” (citing Rizzo v. Goode, 423 U.S. 362, 376 (1976))); Ruark v.

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Solano, 928 F.2d 947, 950 (10th Cir. 1991) (“ ‘[T]here is no concept of strict supervisor liability
under section 1983.’ ” (citation omitted)).
The only allegations regarding any of the specific defendants in Plaintiff’s Complaint are
that Defendants Austin and Klaus “responded to a call at Walgreen’s [sic]” on February 20, 2012
and that, upon Plaintiff’s arrival by ambulance at Denver Health Medical Center, he was
“released into the custody of Corporal John Blea.” (Compl., ¶¶ 12-13.) The allegations
regarding Plaintiff being wheeled into a maintenance/storage closet and left for six hours are
directed at an unnamed officer. (See Compl., ¶ 14.) In his response, Plaintiff concedes that he
“does not allege any personal participation by each of the individual defendant’s [sic] because it
is unknown at this time, [sic] which defendant, if not all, participated in violation of Plaintiff’s
constitutional rights.” (Resp. at 5.)
Plaintiff has failed to allege any action taken by any of the individual defendants that
violated his Fourth, Fifth, or Fourteenth Amendment rights. To the extent Plaintiff asserts in his
response that he intends to conduct discovery to determine how each defendant participated in
the alleged constitutional violations (see Resp. at 2), Iqbal and Twombly “disallow such a
practice by placing the burden of factual sufficiency in pleadings on plaintiffs.” Shihadeh v.
Smeal, CIV.A. 10-05674, 2001 WL 1743398, at *3 (E.D. Pa. May 6, 2011). As explained by
another court,
[g]iven that Plaintiff expressly states he needs discovery to determine whether he
has a claim, the allegations in [the Complaint] are “not enough to raise a right to
relief above a speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pre-suit investigation by Plaintiff’s counsel should have revealed
whether Plaintiff could allege these facts. Fed. R. Civ. P. 11(b) (requiring “an
inquiry reasonable under the circumstances” by counsel before making
representations to a court). Discovery is not an appropriate cure for this pleading
defect. “Discovery is authorized solely for parties to develop the facts in a
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lawsuit in which a plaintiff has stated a legally cognizable claim, not in order to
permit a plaintiff to find out whether he has such a claim.” Podany v. Robertson
Stephens, Inc., 350 F. Supp. 2d 375, 378 (S.D.N.Y. 2004) (finding plaintiffs
should not be allowed to take discovery to determine if they could amend the
complaint to state a cognizable claim); see also Liles v. Stuart Weitzman, LLC,
Case No. 09–61448–CIV, 2010 WL 1839229, at *5 (S.D. Fla. May 6, 2010)
(“The Court will not permit discovery of Plaintiff’s prior employment records for
the purpose of seeking to find some evidence of wrongful conduct by Plaintiff.”).
Goldin v. Boce Group, L.C., 773 F. Supp. 2d 1376, 1381 (S.D. Fla. 2011). As such,
Plaintiff’s claims against the individual defendants are dismissed for Plaintiff’s failure to
allege their personal participation in any of the alleged constitutional violations.
Therefore, because Plaintiff has not established that the individual defendants violated
Plaintiff’s constitutional or statutory rights, Defendants Austin, Klaus, Blea, and Swint,
are entitled to qualified immunity on the claims asserted against them in their individual
capacities.
4.

Municipal Liability Claims Against the City
In light of Plaintiff’s failure to properly allege constitutional violations on the part of the

individual defendants, the court also must dismiss without prejudice Plaintiff’s claims against
Defendant City and County of Denver. See Estate of Larsen ex. Rel Sturdivan v. Murr, 511 F.3d
1255, 1264 (10th Cir. 2008) (“without the predicate constitutional harm inflicted by an officer,
no municipal liability exists”) (citation omitted); Jiron v. City of Lakewood, 392 F.3d 410, 419
(10th Cir. 2004) (same) (citation omitted). Cf. Olsen v. Layton Hills Mall, 312 F.3d 1304, 131718 (10th Cir. 2002) (“We will not hold a municipality liable [for constitutional violations] when
there was no underlying constitutional violation by any of its officers.”) (internal quotation
marks and citation omitted); Ricciuti v. New York City Transit Authority, 124 F.3d 123, 132 (2d
Cir. 1997) (“a claim of inadequate training and supervision under § 1983 cannot be made out
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against a supervisory body without a finding of a constitutional violation by the persons
supervised”) (citation omitted); Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir. 1996) (“a
municipality may not be held liable where there was no underlying constitutional violation by
any of its officers.”).
Accordingly, Plaintiff’s claims against the City are dismissed without prejudice.
5.

State Law Claims
In his response, Plaintiff agrees to dismiss his state law claims. Therefore, Plaintiff’s

Fourth and Fifth claims are dismissed with prejudice.
6.

Claims Against John Doe
Lastly, it appears Plaintiff has not attempted to identify and serve process on the party

sued as “Officer John Doe.” This case was removed to this Court on March 26, 2014, and
originally filed in Denver District Court on February 17, 2014. Plaintiff is well outside the 120
day limit for identifying and serving the “John Doe” defendant imposed by Fed. R. Civ. P. 4(m).
Therefore, the court will order Plaintiff to show cause why the claims against the John Doe
Defendant should not be dismissed without prejudice pursuant to Rule 4(m).
WHEREFORE, for the foregoing reasons, it is
ORDERED that Defendants’ “Motion to Dismiss” (Doc. No. 8) is GRANTED. The
claims against Defendants Austin, Klaus, Blea, Swint, and the Denver Police Department are
dismissed with prejudice. The claims against Defendant City and County of Denver are
dismissed without prejudice. It is further
ORDERED that, on or before October 17, 2014, Plaintiff shall show cause in writing
why his claims against the John Doe Defendant should not be dismissed pursuant to Fed. R. Civ.

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P. 4(m). If Plaintiff fails to respond to the Order to Show Cause, Plaintiff’s claims against the
John Doe Defendant will be dismissed without prejudice, and judgment will enter against
Plaintiff and in favor of Defendants on all claims asserted in this action.
Dated this 10th day of October, 2014.

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