Waller v. City and County of Denver et al

Filing 88

RECOMMENDATION RE 46 Motion for Leave; RE 21 Motion to Dismiss; RE 22 Motion to Dismiss. By Magistrate Judge Nina Y. Wang on 4-20-15. (nywlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action 1:14-cv-02109-WYD-NYW
ANTHONY WALLER,
Plaintiff,
v
CITY AND COUNTY OF DENVER, a municipal corporation,
BRADY LOVINGIER, individually and in her official capacity, and
GINA MCCALL, individually and in her official capacity,
Defendants.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Brady Lovingier’s (“Defendant
Lovingier” or “Detective Lovingier”) Motion to Dismiss [#21], filed on September 10, 2014;
Defendants City of and County of Denver (the “City”) and Gina McCall’s (“Defendant McCall”)
Motion to Dismiss and Strike Portions of the Complaint [#22], filed on September 10, 2014
(collectively with Defendant Lovingier’s Motion, Defendants’ “Motions to Dismiss”);

and

Plaintiff Anthony Waller’s (also “Mr. Waller” or “Plaintiff”) Motion for Leave to File Amended
Complaint [#46], filed November 13, 2015 (the “Motion for Leave to Amend”) (collectively
with Defendants’ Motions to Dismiss, the “Motions”). Pursuant to the Order of Reference dated
July 30, 2014 [#5] and the Memoranda dated November 13, 2014 [#48] and March 5, 2015
[#87], the Motions are before this Magistrate Judge.

1

The court has carefully considered the motions and related briefing, the parties’
arguments at the March 3, 2015 motions hearing, and the applicable case law. For the following
reasons, I respectfully RECOMMEND that:
(1)

Defendants McCall and the City and County of Denver be GRANTED;

(2)

Defendant Lovingier’s Motion to Dismiss be GRANTED;

(3)

Plaintiff’s Motion for Leave to Amend be GRANTED IN PART, and DENIED
IN PART to permit Plaintiff to assert claims for excessive force and retaliation
based on the exercise of First Amendment rights; and

(4)

Plaintiff be ORDERED to file a Second Amended Complaint consistent with this
ruling, to which Defendant Lovingier will answer or otherwise respond.
BACKGROUND

I.

Plaintiff’s Original Complaint
Plaintiff Anthony Waller filed his original and operative Complaint (the “Original

Complaint”) in this matter on July 30, 2014. [#1]. The following is a summary and recitation of
the allegations contained in Plaintiff’s Original Complaint, which are presumed to be true for the
purposes of Defendants’ Motions to Dismiss.
On September 11, 2012, Mr. Waller was in pre-trial detention. [Id. at ¶¶ 2, 13]. That
same day, Defendant Lovingier, a deputy in the City’s Sherriff’s Department, escorted Mr.
Waller to an advisement hearing before Judge Doris Burd of the Denver County Court. [Id. at ¶
13]. Mr. Waller was restrained by “handcuffs, leg irons and a belly chain all of which were
joined in a box at Mr. Waller’s waist.” [Id. at ¶ 15]. During the course of the advisement, Mr.
Waller interjected “I’d like to object to her (the alleged victim) story. If I’m under investigation,
I thought the investigation came first, then the arrest came.” [Id. at ¶ 16]. Shortly thereafter and

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“without warning, justification or provocation,” Defendant Lovingier, “who was directly behind
Mr. Waller, grabbed Plaintiff’s belly chain and shirt, spun Mr. Waller around and threw him face
first into the metal frame entrance into the glassed-in court prisoner detention area.” [Id. at ¶ 17].
As Mr. Waller lay “moaning” on the courtroom floor, Defendant Lovingier directed Plaintiff to
“Get up, get up, get up. Get on your feet. You don’t turn on me boy.” [Id. at ¶ 22]. As a result
of Defendant Lovingier’s use of force, Mr. Waller was taken to the “Denver Health Medical
Center to be treated for his injuries,” which are said to have “included severe bodily injuries to
his head, including a deep head laceration, closed head injury and left orbital blowout fracture
and injuries to his back, neck, legs, arms, ankles, including a hernia and his teeth were knocked
out.” [Id. at ¶ 27].
After his alleged assault on Mr. Waller, Defendant Lovingier “contacted the Denver
Police Department (DPD) to file criminal charges against Mr. Waller for resistance.” [Id. at ¶
28]. The DPD officers who responded to Defendant Lovingier’s outreach declined to “press
charges.” [Id.] Defendant McCall, a Captain in the City’s Sheriff’s Department, “subsequently
called the DPD supervisor and demanded that a Denver police officer return to take the report
and file criminal charges against the Plaintiff Mr. Waller.” [Id.] A criminal complaint was then
filed against Mr. Waller.

[Id. at ¶ 29].

However, on October 8, 2015, the city attorney

responsible for the criminal complaint against Mr. Waller filed a motion to dismiss the
complaint. [Id. at ¶ 30]. Defendant Lovingier was later formally sanctioned and disciplined for
his use of excessive force against Mr. Waller. [Id. at ¶¶ 31-37].
According to the Complaint, “Denver law enforcement officers have engaged in a
persistent practice of use of excessive force, including failing to report, lying and cover ups and
the officials responsible for assuring that such misconduct does not occur have consistently

3

failed to properly train, supervise, and discipline individual officers who have engaged in such
misconduct and have failed to stop the use of excessive force by Denver law enforcement.” [Id.
at ¶ 50]. Much of the remainder of Plaintiff’s Complaint consists of recitations of incidents
purportedly involving uses of excessive force by officers belonging to either the Denver Sheriff’s
Department or the Denver Police Department pre-dating the alleged September 11, 2012 assault
forming the gravamen of Plaintiff’s Complaint. [Id. at ¶¶ 52-103].
Based on these allegations, Plaintiff asserted four claims pursuant to 42 U.S.C. § 1983,
and a fifth conspiracy claim asserted pursuant to both 42 U.S.C. §§ 1983 and 1985. Mr. Waller’s
first claim for relief asserted excessive force claims arising under the Fourth, Eighth, and
Fourteenth Amendments against Defendant Lovingier and the City relating to the September 11,
2012 assault. [Id. at ¶¶ 105-124]. As to the City, Plaintiff alleges that “Defendant Denver’s
failure to train, supervise, and/or discipline on matters of excessive force and use of force
generally, as described herein, was a legal and proximate cause of Plaintiff’s injuries.”1 [Id. at ¶
116].
Plaintiff’s second claim for relief against Defendant Lovingier and the City asserts that
“Mr. Waller had a constitutional right under the Sixth Amendment to the United States
Constitution to appear in court, to be advised of his rights including the right to be able to ask
questions of the court without being brutally attacked, beaten and dragged from the courtroom”
[id. at ¶ 125] which was breached by Mr. Lovingier’s assault. [Id. at ¶¶ 124-142]. Plaintiff again
asserts that “Defendant Denver failed to properly train, supervise and/or discipline its employees
regarding use of excessive force and the constitutional rights of persons which continues to be

1

Claims against municipal entities that are based on policies and practices that proximately
cause constitutional injuries are often referred to as “Monell claims.” Monell v. Dept. of Social
Servs. of the City of New York, 436 U.S. 658 (1978).
4

the moving force and proximate cause of the violation of Mr. Waller’s constitutional rights and
the rights of other inmates.” [Id. at ¶ 135].
Plaintiff’s third claim for relief against the City for “Failure to Train, Supervise, and
Discipline” reincorporates, recites, and reiterates Mr. Waller’s theories of municipal liability as
to the City. [Id. at ¶¶ 143-158].
Plaintiff’s fourth claim for relief is for “malicious prosecution” under the Fourth, Fifth,
Sixth, and Fourteenth amendments as against Defendant Lovingier, Defendant McCall, and the
City. [Id. at ¶¶ 159-168]. The Complaint avers that Defendant Lovingier and Defendant
McCall, prior to and/or in the course of recommending that criminal charges be brought against
Mr. Waller, “conspired and/or acted in concert to institute criminal proceeding against the
Plaintiff Mr. Waller without probable cause and sought to obtain a conviction against him in an
attempt to insulate Defendants from scrutiny and potential criminal and civil liability.” [Id. at
162]. Mr. Waller—who was already by his own account detained as of September 11, 2012—
does not however at any point in his Complaint allege that he was ever seized, detained, or
further detained as a result of the purported malicious prosecution. [Id. at ¶¶ 1-179].
Plaintiff’s fifth claim for relief attempts to state a cause of action for “Conspiracy to
Violate Civil Rights” under both 42 U.S.C. §§ 1983 and 1985. [Id. at ¶¶ 169-179]. According to
the Complaint, “Defendants Lovingier and McCall did conspire and agree between and among
themselves to a series of formal and informal policies and practices adopted by the Defendant,
the City and County of Denver through its official and unofficial decision making channels to
deny the Plaintiff and other African American/Black and/or Hispanic/Latinos of their rights,
immunities, privileges and liberties as guaranteed by the laws and Constitution of the United
States of America and the laws and Constitution of the State of Colorado and by Title 42 U.S.C.

5

§§ 1983 and 1985 . . .” [Id. at ¶ 170]. Plaintiff avers that, “as a result of these formal and
informal policies and practices, Defendants Lovingier and McCall were allowed to assault and
batter Mr. Waller, an African American/Black man, and prevent him from asking questions of
the court and then to maliciously prosecute Mr. Waller on false charges to cover up the
Defendants’ constitutional violations.” [Id. at ¶ 171].
Based on the misconduct alleged in his Complaint, Plaintiff seeks injunctive relief against
the Denver Sheriff’s Department. [Id. at ¶¶ 175-79 & Prayer for Relief]. According to Plaintiff,
“[t]he use of excessive force by the Denver Sheriff’s Department (DSD) and Denver Police
Department (DPD) is a systemic problem, existing in Denver for decades,” and “if an injunction
is not entered irreparable injury will continue to be inflicted upon the citizens and persons with
which the DSD and DPD have daily contact and they will suffer severe and substantial injuries
similar to the Plaintiff.” [Id. at ¶¶ 177, 179].
II.

Plaintiff’s Proposed Amended Complaint
On November 13, 2014, Plaintiff filed a motion for leave to amend his Original

Complaint. [#46]. According to his opening moving papers, “Plaintiff seeks to amend the
Complaint to voluntarily remove any allegations of excessive force by the Denver Police
Department contained in ¶¶ 52, 59-73 and 75-103 of Plaintiff’s Original Complaint [Claim I];
adding factual material to support Plaintiff’s malicious prosecution [Claim IV] and conspiracy
claims [Claim V]; and, adding Christopher Colbruno, who is currently incarcerated at the Denver
Detention Center as a party Plaintiff.” [Id. at 2]. The Proposed Amended Complaint also seeks
to add a First Amendment retaliation theory of recovery based on Defendant Lovingier’s alleged
assault on Plaintiff, and to supplement Plaintiff’s allegations of improper hiring by the City in
support of Plaintiff’s Monell claims.

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As to Christopher Colbruno, the Proposed Amended Complaint alleges that on
“September 4, 2013 Christopher Colbruno was arrested without a warrant by Denver police and
was released to the DSD at the Denver Detention Center (DDC).” [#47 at ¶ 7] (the “Proposed
Amended Complaint”). During his confinement, “Mr. Colbruno was held for several hours and
was required to sit in a chair.” [Id.] Mr. Colbruno, who was “extremely tired and sleepy,” was
initially “forced to sit up” whenever he fell asleep. [Id.] Mr. Colbruno subsequently requested
“to go to his cell so that he would lay down and sleep;” instead of complying with this request,
unnamed officers in Denver Sheriff’s Department “‘crucified’ [Mr. Colbruno] by [] handcuff[ing] [him] with each hand on opposite walls.” [Id.] Mr. Colbruno “thrash[ed]” around in
pain, “John Doe and Jane Doe deputy sheriffs restrained him in a ‘restraint chair,’” and a deputy
sheriff “slammed [Mr. Colbruno’s] head into the arm of the chair causing a deep laceration
above his left eyebrow.” [Id.]
Subsequently, “Plaintiff Colbruno has remained in custody at the DDC since September
4, 2013.” [Id. at ¶ 8]. According to the Proposed Amended Complaint, “[d]uring this time Mr.
Colbruno has been subjected to multiple instance of use of excessive force and has been tased on
several occasions, the last time approximately six months ago when he was in his jail cell and
guards entered and shot him in the back with a taser.” [Id.] At the hearing, defense counsel
conceded that the individuals who were involved with Mr. Waller’s alleged abuse were not the
same as those who were alleged to have abused Mr. Colbruno. Rather, counsel asserted that the
nexus was the Denver Sheriff Department’s systematic abuse of individuals in custody that
warranted the amendment to include Mr. Colbruno.

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ANALYSIS
I.

Standard of Review
As an initial matter, Plaintiff’s Motion to Amend fails to provide any justification for the

proposed amendments. [#46]. Nor does Plaintiff comply with Local Rule of Practice 15.1,
which requires a party filing an amended pleading to attach as an exhibit “a copy of the proposed
amended pleading which strikes through (e.g. strikes through) the text to be deleted and
underlines (e.g. underlines) the text to be added.” D.C.COLO.LCivR 15.1(b).

It also appears

counsel for Plaintiff failed to meet and confer meaningfully as to any proposed amendment in
advance of filing the Motion to Amend, as required by Local Rule of Practice 7.1(a). [#60 at 34]. Each of these deficiencies is sufficient ground alone to strike Mr. Waller’s Motion to
Amend. Nevertheless, in recognition of Rule 1’s precept that civil actions should be adjudicated
in a manner to secure just, speedy, and inexpensive determination of every action, Fed. R. Civ. P.
1, I address and respectfully recommend ruling substantively on all proposed amendments to the
extent the court can discern them. [#60 at 3-4]. In an attempt to organize this Recommendation,
the court first addresses Plaintiff’s request to include a second plaintiff, Christopher Calbruno, to
the case. Then, I consider whether Mr. Waller has stated a cognizable municipal claim against
the City for any of the asserted claims. Next, I take each cause of action against the individual
Defendants Lovingier and McCall, in the order pled in the Original Complaint, i.e., (1) § 1983
claims based excessive force in violation of the Fourth, Eighth, and Fourteenth Amendments
against Defendant Lovingier (and the City); (2) § 1983 claims based Sixth Amendment
violations against Defendant Lovingier (and the City); (3) § 1983 claims of malicious
prosecution against Defendants Lovingier, McCall (and the City); and (5) §§ 1983 and 1985
claims based on conspiracy against Defendants Lovingier, McCall (and the City). Where Mr.

8

Waller seeks to amend by adding additional facts to support existing claims, I have accounted for
the additional factual allegations in analyzing the pending Motions to Dismiss to avoid another
round of motions practice related to the pleadings.
A.

Motion for Leave to Amend

The deadline for joinder of parties and amendment of pleadings was set for December 22,
2014. [#81]. Because Mr. Waller sought leave to amend prior to that deadline (but after the time
period under Rule 15(a) (1) for amending as a matter of course), the court only considers
whether leave should be granted under Rule 15(a)(2) of the Federal Rules of Civil Procedure.
See Fernandez v. Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000).
While Rule 15(a)(2) provides that leave shall be freely granted in the interests of justice, a court
may deny a motion for leave to amend a complaint when the proposed amendment would be
futile. See Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d
848, 859 (10th Cir. 1999); Corporate Stock Transfer, Inc. v. AE Biofuels, Inc., 663 F.Supp.2d
1056, 1061 (D. Colo. 2009). The non-moving party bears the burden of showing that the
proposed amendment is sought in bad faith, that it is futile, or that it would cause substantial
prejudice, undue delay or injustice. Id.
B.

Motions to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant McCall and the City seek dismissal of the
Original Complaint’s claims as to Defendant McCall and dismissal of all claims as to the City on
the ground that that the Original Complaint fails to state facts sufficient to support any form of
municipal liability. [#22]. Pursuant to Fed. R. Civ. P. 12(f), Defendant McCall and the City also
seek to strike the Original Complaint’s allegations as to the Denver Police Department. [Id.].
Finally, pursuant to Fed. R. Civ. P. Rule 12(b)(1) and Article III of the Constitution, Defendant

9

McCall and the City seek dismissal of the Original Complaint’s injunctive relief claims on the
ground that Plaintiff does not have standing to pursue them before this court. [Id.]
Defendant Lovingier seeks partial dismissal of the Original Complaint’s first claim for
relief for “excessive force” on the ground that such a claim as framed would be cognizable (if at
all) only under the Fourteenth Amendment.

[#21 at 3].

Defendant Lovingier also seeks

dismissal of the Original Complaint’s second claim for relief for the alleged violation of Mr.
Waller’s Sixth Amendment rights [id.], dismissal of the Original Complaint’s conspiracy count
and allegations (Claim V) [id.], and a determination that Plaintiff’s malicious prosecution claim
(if cognizable at all) could arise only under the Fourth Amendment (Claim IV) [id.].
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding such a motion, the court must
“accept as true all well pleaded factual allegations … and view these allegations in the light most
favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely
on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Twombly).
Instead, “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, 129 S. Ct. 1937, 1949 (2009)
(Iqbal). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007), “the mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the
court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support
for these claims.” The plaintiff must frame a complaint with enough factual matter, when taken

10

as true, to suggest that he or she is entitled to relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008) (quoting Twombley, 550 U.S. at 556). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges facts supporting all the elements necessary
to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
II.

Application to Plaintiff’s Claims and Proposed Amendments
A.

Additional Plaintiff

The court first addresses whether Plaintiff may add Mr. Colbruno as an additional
plaintiff to the action. In analyzing whether an effort to add new claims as to a new plaintiff
would be futile, this court must turn to the requirements of Fed. R. Civ. P. 20(a)(2) as to
permissive joinder. MDM Group Associates, Inc. v. Midgett Realty, Inc., No. 07–cv–02543–
WDM–CBS, 2008 WL 2756926 at *3 (D. Colo. July 14, 2008) (ruling on motion for leave
complaint to add additional defendants). Under that Rule, joinder is permitted only if the
plaintiffs “assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences,” and in
conjunction, “any question of law or fact common to all plaintiffs will arise in the action.” Id.
Plaintiff’s claims all arise from Defendant Lovingier’s alleged assault on Plaintiff on
September 11, 2012 in the Denver County Court., [#1 at ¶¶ 2, 13], and an ensuing alleged
malicious prosecution that, by Plaintiff’s own account, concluded less than a month later. [Id. at
¶ 30].

By contrast, Mr. Colbruno’s claims arise out of alleged assaults by a number of

unidentified Jane and John Doe defendants beginning nearly a year later in the fall of 2013 at the
Denver Detention Center. [#47 at ¶ ¶ 54-67]. At oral argument, Plaintiff’s counsel admitted that

11

there was no factual relationship between the incidents involving Mr. Waller and Mr. Colbruno,
or the specific perpetrators of the alleged constitutional violations.
These new allegations plainly do not arise out of the “same transaction, occurrence, or
series of transactions or occurrences,” even though the same entity Defendant—the City—is
implicated by the discrete purported wrongs alleged by Plaintiff and Mr. Colbruno. On this
basis, I recommend that Plaintiff’s Motion for Leave to Amend be denied to the extent leave is
sought to add allegations concerning Mr. Colbruno.

Indeed, I note that adjudicating Mr.

Colbruno’s claims in this proceeding threatens to multiply the burdens of this litigation, and
could pose a risk of undue prejudice to the existing Defendants, particularly the individually
named Defendants Lovingier and McCall, if the disparate claims asserted by Plaintiff and Mr.
Colbruno are tried together.2 As a result, I respectfully recommend that Mr. Waller’s Motion to
Amend to add Mr. Colbruno as a plaintiff be denied.
B.

Monnell Claims Against the City: Claims 1-5

As an initial matter, Plaintiff’s Motion for Leave to Amend “seeks to amend the
Complaint to voluntarily remove any allegations of excessive force by the Denver Police
Department contained in ¶¶ 52, 59-73 and 75-103 of Plaintiff’s Original Complaint.” [#46, at 2].
The City does not object to the voluntarily removal of these allegations. [#60]. Accordingly, I
recommend that leave to do so be granted, and I do not consider these allegations in evaluating
the pending Motions to Dismiss.
The City argues that even when construed in light most favorable to Plaintiff, the
complaint states no plausible ground for municipal liability for any claim, including but not

2

In so ruling, the court does not pass on whether the facts as alleged by Mr. Colbruno in the
proposed Amended Complaint state a cognizable claim, but simply that such allegations do not
have a sufficient nexus to the claims asserted by Mr. Waller to be included in a single action.
12

limited to Claim III in the Original Complaint that is entitled “Failure to Train, Supervise and
Discipline.” [#1 at 41]. To prevail on a municipal liability claim, Plaintiff must establish (1) that
a municipal employee committed a constitutional violation complained of, and (2) that a
municipal policy or custom was the moving force behind the constitutional deprivation. Myers v.
Okla. Cnty. Bd. of Cnty. Commr’s, 151 F.3d 1313, 1316 (10th Cir. 1998). Such a municipal
“policy or custom” could include (1) an officially promulgated policy; (2) a custom or persistent
practice; (3) deliberately indifferent training that results in the violation of a plaintiff’s federal
protected rights; (4) a single decision by an official with final decision-making authority; or (5)
ratification by an official with final decision-making authority of subordinates’ decisions.
Brammer–Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010).
Plaintiff’s Monell claims against the City as stated in the Original Complaint appear to be
grounded primarily in a purported failure by the City to properly “train, supervise and discipline”
officers in the Sheriff’s Department. [#22, at 11-12]. But Plaintiff’s Original and Proposed
Amended Complaints fail to allege specific, identifiable facts that are clearly linked to the
alleged constitutional deprivations Plaintiff asserts to support a claim for excessive force based
on a failure to train, supervise, and discipline (or of any other “policy or custom”). For example,
Mr. Waller alleges, inter alia, that “Defendant Denver failed to properly train, supervise and
discipline its employees and to otherwise monitor and protect inmates and avoid the use of
excessive force” [#1, at ¶ 144] and that “[a]s a direct and proximate cause and consequence of
Denver’s failure to train, supervise and discipline, Plaintiff was denied his civil rights and Mr.
Waller has sustained injuries including, but not limited to severe bodily injuries” [id. at 157].
In the Proposed Amended Complaint, Plaintiff seeks leave to add allegations that
Defendant Lovingier was improperly hired as a result of nepotism, in an attempt to add “Failure

13

to Hire” as a basis for liability. [#46, ¶¶ 84-86; #47 at 30-31]. Standing alone or even coupled
with Plaintiff’s other factual assertions, Mr. Waller has still failed to state a cognizable Monell
claim for inadequate hiring under Section 1983. As held in Board of the County Commissioners
v. Brown, 520 U.S. 397, 4411 (1997), in the context of claims asserting that a municipality failed
to adequately screen a particular applicant, it is only in instances where the “plainly obvious
consequence of the decision to hire the applicant would be the deprivation of a third party’s
federally protected right” that the “failure to adequately scrutinize the applicant's background
constitute” would constitute the “‘deliberate indifference’” necessary to hold the municipality
liable. Simply put, Plaintiff’s Proposed Amended Complaint fails to plead any facts at all to
suggest that Defendant Lovingier’s background was such that a decision to hire him (even if
indeed motivated by nepotism) would as a “plainly obvious consequence” lead to the deprivation
of any “third party’s federally protected right.”
Simply put, Mr. Waller provides insufficient factual support for his conclusory
statements in either the Original or Proposed Amended Complaint to overcome the City’s
Motion to Dismiss and Opposition to the Motion for Leave to Amend with respect to deficient
policies or practices with respect to hiring, training, supervising, or disciplining.

Bare

allegations standing alone cannot support a plausible inference for either prong of the standard
for municipal liability, i.e., a specific municipal policy or custom that resulted in constitutional
deprivations, or the existence of a direct causal link between the policy or custom and the injury
alleged.

See Rodriguez v. Chavez, 2014 WL 4627274, * 4 (D. Colo. Sept. 16, 2014) (J.

Brimmer) (citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)). Moreover, to
the extent Plaintiff’s Original and Proposed Amended Complaints reference purported
deficiencies in the investigation of inmate grievances by the Denver Sheriff’s Department,

14

e.g.[#1, at ¶¶ 38-47], no allegation links any such deficiency to the constitutional violations of
which Mr. Waller complains.
Therefore, I respectfully recommend that Mr. Waller’s municipal liability claims asserted
pursuant to 42 U.S.C. § 1983 against the City be dismissed, and Mr. Waller’s Motion for Leave
to Amend be denied with respect to these five claims be denied, including but not limited to the
additional theory for inadequate hiring.
C.

Claim I Against Defendant Lovinger: Excessive Force

In Mr. Waller’s Original Complaint, he alleges that both Defendant Lovingier and the
City violated his Fourth, Eighth, and Fourteenth Amendment rights by using excessive force
against him. [#1 at 35-36]. Defendant Lovingier moves to dismiss Plaintiff’s excessive force
claim against him to the extent it is purported to state a prayer for relief under the Fourth and
Eighth Amendments. [#21, at 4-7]. In response, Plaintiff argues that “Defendant Lovingier
misreads Plaintiff’s original Complaint [to state that] a judicial determination of probable cause
had been made to hold Mr. Waller when Judge Burd was advising him when he was assaulted by
Defendant Lovingier,” and that under Walton v. Gomez (In re Estate of Booker), 745 F.3d 405
(10th Cir. 2014), post-seizure claims of excessive force absent a probable cause determination
are governed by the Fourth Amendment.3 [#44 at 8]. Plaintiff further asserts that “[w]hen Mr.
Waller appeared before Judge Burd on September 11, 2012 he had been arrested for
investigation of crimes against him.

Since it was a warrantless arrest, no probable cause

determination had been made by at court prior to his arrest and Judge Burd did not make any
probable cause determination.” [# 44 at 7].

3

In Walton, the Court of Appeals for the Tenth Circuit reaffirmed that “the Fourth Amendment,
not the Fourteenth, governs excessive force claims arising from treatment of [an] arrestee
detained without a warrant and prior to any probable cause hearing.” Walton, 745 F.3d at 419.
15

Contrary to Mr. Waller’s arguments, I am unable to find any plain factual statement in
Plaintiff’s Original or Proposed Amended Complaints alleging that Mr. Waller was seized absent
probable cause prior to his advisement hearing before Judge Burd. In the interest of judicial
efficiency, I recommend that Defendant Lovingier’s Motion to Dismiss as to this claim be
granted, but that Mr. Waller be granted leave to amend his Original Complaint in a form
clarifying that Mr. Waller had been arrested without a probable cause determination, and that no
such determination had been made prior to the September 11, 2012 incident.
D.

Claim II: Retaliation Claim

Claim II of Plaintiff’s Original Complaint asserts that “Mr. Waller had a constitutional
right under the Sixth Amendment to the United States Constitution to appear in court, to be
advised of his rights including the right to be able to ask questions of the court without being
brutally attacked, beaten and dragged from the courtroom” that was interfered with by Defendant
Lovingier’s alleged assault on Mr. Waller. [#1, ¶ 126]. By its terms, the Sixth Amendment
provides that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.
U.S. Const. Amend. VI. The rights enumerated therein do not facially implicate a “right to be
able to ask questions of the court,” and Plaintiff has not any alleged any facts allowing for a
plausible inference that e.g. the alleged assault prevented Mr. Waller from being “informed of
the nature and cause of the accusation” in the underlying prosecution that brought Mr. Waller
before Judge Burd at the September 11, 2012 advisement hearing. Therefore, dismissal of Claim

16

II as pled in Mr. Waller’s Original Complaint against both Defendant Lovinger and the City is
proper.
Plaintiff’s Proposed Amended Complaint attempts to re-style Mr. Waller’s Second Claim
as both a First Amendment and Sixth Amendment deprivation. [#47, ¶¶ 115-32]. Even restyled, Mr. Waller fails to allege any facts to support a policy or procedure resulting in First
Amendment violations by the City. [#47 at ¶¶ 115-132]. Nevertheless, in view of the liberal
policies governing amendment of pleadings and the absence of briefing by Defendants as to
whether such amendment would be futile, I recommend that Plaintiff’s Motion for Leave to
Amend with respect to Claim II be granted only insofar as Plaintiff be permitted to assert such
Second Claim against Defendant Lovingier based on a violation of Mr. Waller’s First
Amendment rights. In doing so, the court does not consider whether such amendment is
ultimately viable in this action.
E.

Claim IV: Malicious Prosecution

In Claim IV, Plaintiff alleges that Defendant Lovingier, McCall and the City violated his
Fourth, Fifth, Sixth, and Fourteenth Amendment rights by pursuing false charges against him.
[#1 at ¶¶ 159-168]. Under the law of this circuit, in cases such as this “where criminal charges
were brought but dismissed before trial, [a plaintiff] must allege a violation of the Fourth
Amendment in order to proceed on a theory of § 1983 malicious prosecution.” Becker v. Kroll,
494 F.3d 904, 919 (10th Cir. 2007). Moreover, a “‘[v]iolation of the Fourth Amendment
requires an intentional acquisition of physical control.’” Id. at 914 (quoting Brower v. County of
Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)).

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By Plaintiff’s own account, Mr. Waller was already arrested and detained on other
charges throughout the duration of the malicious prosecution alleged. [#1 ¶¶ 2, 13, 162].4
Conversely, there are no allegations that would suggest Mr. Waller’s seizure was renewed or
prolonged by the purported malicious prosecution complained of. [#1, #46]. It remains wellestablished that a “[v]iolation of the Fourth Amendment requires an intentional acquisition of
physical control,” Brower, 489 U.S. at 599. But Mr. Waller was already in custody, and he does
not allege that his incarceration was altered or prolonged due to the charges brought against him.
[#47]. “Because [plaintiff] was already effectively ‘seized,’ throughout the time period in
question, it is doubtful whether the additional prosecution could result in a[] [constitutionally]
actionable seizure.” Turner v. Schultz, 130 F.Supp.2d 1216, 1225 (D. Colo. 2001). Accordingly,
I find that Plaintiff has failed to state a viable malicious prosecution claim either in his Original
Complaint or his Proposed Amended Complaint and I respectfully recommend that Defendants’
Motions to Dismiss be granted and Plaintiffs’ Motion for Leave to Amend be denied with respect
to any malicious prosecution claim.5

4

These allegations were not revised in Mr. Waller’s proposed Amended Complaint.
To overcome the defense of qualified immunity, a plaintiff must make a showing that both (1)
the defendant’s actions violated a federal constitutional or statutory right; and (2) the right was
clearly established at the time of the conduct, Saucier v. Katz, 533 U.S. 194, 201 (2001).
Accordingly, Plaintiff’s malicious prosecution claim, even in proposed amended form, fails to
establish municipal liability as to the City or as against any individual Defendant in his or her
official capacity. In order for a constitutional right to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clear weight of authority from other
circuits must establish the constitutional right. Medina v. City and Cnty. of Denver, 960 F .2d
1493, 1498 (10th Cir. 1992). I could find no Supreme Court or Tenth Circuit decision supportive
of Plaintiff’s position, nor is there a “weight of authority” from other circuits that could suffice to
establish that malicious prosecution is a constitutionally cognizable tort absent an alleged
physical taking arising out of the malicious prosecution.
5

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F.

Claim V: Conspiracy

Mr. Waller’s final claim in the Original Complaint brought pursuant to 42 U.S.C. §§
1983 and 1985 is that Defendants Lovingier and McCall conspired to a series of formal and
informal policies and practices adopted by the City to deny Plaintiff and other African
American/Black and/or Hispanic/Latinos of their constitutional rights. [#1 at ¶¶ 169-174]. A
Section 1983 conspiracy claim is a conspiracy to violate a constitutional right protected by 42
U.S.C. § 1983. Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1449 n.6 (10th Cir.1990). Section
1985(3) generally describes and provides redress for a conspiracy of two or more persons for the
purpose of depriving of another of equal protection of the law, motivated by a class-based,
invidiously discriminatory animus. Id. at 1447.
“[T]o recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only
a conspiracy, but also an actual deprivation of rights. . . .” Id. at 1449. To state such a claim, a
plaintiff must allege specific facts showing an agreement and concerted action amongst
defendants. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). Mr.
Waller does aver specific factual allegations about an agreement between Defendants Lovingier
and McCall to pursue unwarranted charges against him. [#47 at ¶¶ 40-43]. But because the
malicious prosecution claims as pled in Plaintiff’s Original and Proposed Amended Complaints
fail for the reasons stated above, Plaintiff’s conspiracy claim based on malicious prosecution
must also fail.
Any remaining allegations by Plaintiff sounding in conspiracy are not pled with the
specificity required to state a cognizable Section 1983 conspiracy claim.

“[C]onclusory

allegations that defendants acted in ‘concert,’ or ‘conspired’ without specific factual allegations
to support such assertions are insufficient.” Merritt v. Hawk, 153 F. Supp. 2d 1216, 1225 (D.

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Colo. 2001) (citation and quotation omitted). Allegations such as “Defendants Lovingier and
McCall did conspire and agree between and among themselves to a series of formal and informal
policies and practices adopted by the Defendant, the City and County of Denver through its
official and unofficial decision making channels” to deny Plaintiff and others their constitutional
rights, [#1 at ¶ 170], are precisely the sort of conclusory allegations devoid of underlying factual
support that are entitled to no weight in assessing whether a plaintiff has stated a plausible claim
for relief.
Mr. Waller does not fare better with respect to a claim of conspiracy in violation of 42
U.S.C. § 1985(3). To succeed on a § 1985(3) claim, a plaintiff must show: (1) the existence of a
conspiracy; (2) intended to deprive him equal protection under the laws or equal privileges and
immunities of the laws; (3) resulting in an injury or deprivation of a federally-protected right;
and (4) an overt act in furtherance of the object of the conspiracy. See Jemaneh v. Univ. of
Wyoming, -- F. Supp. 3d –, 2015 WL 1143038 at *18 (2015) (citations omitted). As discussed
above, the only specific allegations of a conspiracy relate to Mr. Waller’s malicious prosecution
claim. The remaining allegations in the Original and Proposed Amended Complaints are too
conclusory to support a § 1985(3) conspiracy based on excessive force or a violation of Mr.
Waller’s First Amendment rights, the only potential bases should the District Court adopt this
Recommendation.

Indeed, even accepting Plaintiff’s factual allegations as true, Defendant

McCall did not contact Defendant Lovingier until after the September 11, 2012 incident that
form the basis of Mr. Waller’s constitutional claims, and therefore, could not have conspired
with Defendant Lovingier to commit those acts. [#47 at ¶ 40].
Accordingly, I recommend that Defendants’ Motions to Dismiss be granted and that
Plaintiff’s Motion for Leave to Amend be denied as to Plaintiff’s conspiracy claim.

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G.

Injunctive Relief

In his Original and Proposed Amended Complaint, Plaintiff seeks injunctive relief “[f]or
the decades the Defendant the City and County of Denver has been incapable of stopping the use
of excessive force by its law enforcement.” [#1 at ¶ 176]. Mr. Waller does not allege an
imminent harm or threat to himself.

[#1 at ¶¶175-179; #47 at ¶¶187-192].

Under these

circumstances to justify a demand for injunctive relief, a plaintiff must allege either that “(1) that
all police officers in [in the relevant municipality] always [employ excessive force in the manner
complained of as to] any citizen with whom they happen to have an encounter, whether for the
purpose of arrest, issuing a citation or for questioning or, (2) that the [relevant municipality]
ordered or authorized police officers to act in such manner.” City of Los Angeles v. Lyons, 461
U.S. 95, 106 (1983).
Having reviewed Plaintiff’s Original and Proposed Amended Complaints, I find no
allegations sufficient to meet either predicate under Lyons as to Mr. Waller. Moreover, for the
reasons discussed above, I find that the joinder of Mr. Colbruno would be improper; as such, his
potential standing to seek injunctive relief in an independent lawsuit is immaterial to this action.
I accordingly recommend that the Original Complaint’s injunctive relief claims be dismissed,
and Plaintiff’s Motion for Leave to Amend be denied, as to any demand for injunctive relief.
CONCLUSION
Consistent with the reasons set forth herein, I respectfully RECOMMEND that:
(1)

Defendants McCall and the City and County of Denver’s Motion to Dismiss [#22]

be GRANTED;
(2)

Defendant Brady Lovingier’s Motion to Dismiss [#21] be GRANTED;

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(3)

Plaintiff’s Motion for Leave of Court to File Amended Complaint [#46] be

GRANTED IN PART, and DENIED IN PART, to the extent that Plaintiff be granted leave to
amend his Original Complaint to assert claims pursuant to 42 U.S.C. § 1983, in the form asserted
in the Proposed Amended Complaint, as follows:
a. Paragraphs 52, 59-73 and 75-103 of Plaintiff’s Original Complaint be
stricken;
b. With respect to Claim I against Defendant Lovingier, including additional
factual allegations in support of his claim for excessive force, and clarifying
that Mr. Waller had been arrested without a probable cause determination, and
that no such determination had been made prior to the September 11, 2012
incident;
c. With respect to Claim II against Defendant Lovingier, based on a purported
First Amendment violation; and
(4)

Plaintiff is ORDERED to tender a Second Amended Complaint with two counts

of constitutional violations pursuant to 42 U.S.C. § 1983 against Defendant Lovingier, one for
excessive force and one for retaliation based the exercise of First Amendment rights limited to
the facts as asserted by the Proposed Amended Complaint.6

6

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written
objections to the Magistrate Judge’s proposed findings and recommendations with the Clerk of the United States
District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580,
583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection
will not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma,
73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District
Judge of the Magistrate Judge’s proposed findings and recommendations and will result in a waiver of the right to
appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate
judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate
Judge’s recommendation de novo despite the lack of an objection does not preclude application of the “firm
waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904
(10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge’s order, cross-claimant had waived

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DATED: April 20, 2015

BY THE COURT:
/s/ Nina Y. Wang__________
United States Magistrate Judge

its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by
their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see,
Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the
interests of justice require review).

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