Estate of Loretta Barela et al v. City and County of Denver et al

Filing 106

ORDER OVERRULING OBJECTIONS AND ADOPTINGRECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Granting 90 Report and Recommendations; Granting 42 City and County of DenversMotion To Dismiss; Granting 52 Motion To Dismiss of TimothyPackman; Granting 63 Denver Defendants Motion ToDismiss. Signed by Judge Robert E. Blackburn on 3/16/2015.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-03094-REB-NYW
ESTATE OF LORETTA BARELA,
MARIE CRUZ,
EDDIE ROSA,
RAY ROSA,
CLEOTILDE ROLL, as parent and next friend of JAZMIN TRUJILLO,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER,
TIMOTHY HUCKSOLL, individually,
BRIDGET RHODES, individually,
TIMOTHY PACKMAN, individually,
SCOTT CRAWFORD, individually,
OFFICER SUSAN MERCADO, individually,
OFFICER JENNIFER FRANCE, individually, and
CHRISTOPHER PEREA,
Defendants.

ORDER OVERRULING OBJECTIONS AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the City and County of Denver’s Motion To
Dismiss [#42]1 filed April 3, 2015; (2) the Motion To Dismiss [#52] of Timothy
Packman, filed April 21, 2015; (3) the Denver Defendants’ Motion To Dismiss [#63]
filed May 1, 2015; and (4) the related Recommendation of United States Magistrate
Judge [#90], filed June 23, 2015. The plaintiff filed objections [#95] to the
1

“[#42]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

recommendation to which the defendants filed responses [#96 & #97]. I overrule the
objections, approve and adopt the recommendation, and grant the motions to dismiss.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, objections, and applicable case law, as well as the arguments raised,
authorities cited, and evidence presented by the parties. The motions at issue are
motions to dismiss for failure to state a claim. Thus, the facts alleged by the plaintiffs in
their complaint [#33] are assumed to be true.
I. FACTS ALLEGED & CLAIMS
This case arises from the November 18, 2012, death of Loretta Barela. In the
early morning hours of November 18, defendant Christopher Perea and Ms. Barela
were engaged in a violent dispute at their home in Denver, Colorado. At approximately
2:00 a.m., a partially clothed Ms. Barela fled the house seeking help. She awakened a
neighbor across the street, Rita Espinoza, by pounding on her door. After opening the
door, Ms. Espinoza retreated into her home in search of a shirt for Ms. Barela. When
she returned to the front door, Ms. Espinoza saw Christopher Perea dragging Ms.
Barela by her hair across the street and into the couple’s home.
At 1:56 a.m., Ms. Espinoza dialed 911 and stated to the responding dispatcher,
defendant Timothy Hucksoll:
My neighbor came and was pounding on my door and she had pants on
and no shirt on. Her boyfriend came out and was pulling her across the
street. He locked the door and hitting her. And she’s a very small woman
and he’s a pretty big man.
[Id. at ¶ 8]. Mr. Hucksoll told Ms. Espinoza that “they would ‘get the officers to go over
there.’” [Id. at ¶¶ 9, 40]. Ms. Espinoza watched the Barela home for 45 minutes and
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noted that no officers arrived. At 2:45 a.m., Ms. Espinoza called 911 a second time.
The 911 dispatcher, defendant Bridgett Rhodes, responded:
Alright. Yeah, no. We haven’t forgotten about you. We’ve just been
extremely busy tonight…We do have a call for officers to head out and
check on them – or check her I should say.
[Id. at ¶¶ 11, 46]. At the time, police officers had not been dispatched to the Barela
home. The plaintiffs allege that the dispatchers mis-categorized and under-prioritized
the call concerning Ms. Barela.
At 3:03 a.m., police were dispatched to the Barela home. Approximately one
hour and six minutes passed between the first call to 911 by Ms. Espinoza and the time
when police were dispatched to the Barela home. The plaintiffs allege that during the
time between Ms. Espinoza’s first phone call to 911 and the time when the police were
dispatched, defendant dispatcher Timothy Packman reset a system timer three times
and dispatcher defendant Scott Crawford reset the system timer once. Resetting this
timer delayed the dispatch of police officers to the home of Ms. Barela. Officers arrived
at the Barela home about four minutes after they were dispatched. Ms. Espinoza
observed the officers knock on the door of the Barela home and shine lights into the
house before departing without further investigation, approximately eighteen minutes
after they arrived. The plaintiffs allege that defendant police officers Jennifer France
and Susan Mercado were the officers who conducted this investigation at the Barela
home.
At 8:15 a.m. that morning, Christopher Perea contacted the Denver police to
report that Ms. Barela was dead. He said he believed he had killed her. Ms. Barela
later was pronounced dead at the scene. Her death was a result of blunt force injury
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and strangulation. Her estimated time of death was between 4:00 a.m. and 6:00 a.m.
Christopher Perea was convicted of first degree murder and is serving a life sentence.
Based on these facts, the plaintiffs assert five claims: (1) a Fourteenth
Amendment due process claim against the dispatchers who handled the calls of Ms.
Espinoza and the police officers who responded to the Barela residence; (2) a
Fourteenth Amendment equal protection claim against the dispatchers who handled the
calls of Ms. Espinoza; (3) a claim of deliberately indifferent training and supervision
and deliberately indifferent failure to adopt policies necessary to prevent constitutional
violations against the City and county of Denver; (4) a claim of willful and wanton
conduct resulting in wrongful death against the dispatchers; and (5) a claim of felonious
killing resulting in wrongful death against defendant Christopher Perea. The Estate of
Loretta Barella is the only plaintiff named in claims one through three.
II. RECOMMENDATION
A. Substantive Due Process
The due process claim of the Estate of Loretta Barela is based on the
substantive due process theory of state created danger. The magistrate judge
recommends that this claim be dismissed for failure to state a claim on which relief can
be granted.
Nothing in the Due Process Clause requires the state to protect the life, liberty, or
property of its citizens against invasion by private actors. DeShaney v. Winnebago
County Dept. of Social Services, 489 U.S. 189, 195 (1989). “The Clause is phrased
as a limitation on the State's power to act, not as a guarantee of certain minimal levels
of safety and security.” Id. One key aspect of a substantive due process claim is
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conduct by a state actor which affirmatively places an individual in a position of danger,
“effectively stripping a person of her ability to defend herself, or cutting off potential
sources of private aid.” Armijo By and Through Chavez v. Wagon Mound Public
Schools, 159 F.3d 1253, 1263 (10th Cir. 1998). “(I)f the danger to the plaintiff existed
prior to the state's intervention, then even if the state put the plaintiff back in that same
danger, the state would not be liable because it could not have created a danger that
already existed.” Id. “In the substantive due process analysis, it is the State's
affirmative act of restraining the individual's freedom to act on his own behalf—through
incarceration, institutionalization, or other similar restraint of personal liberty—which is
the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms inflicted by other means.”
DeShaney, 489 U.S. at 200.
In the objections [#95], the Estate of Loretta Barela contends the magistrate
judge improperly viewed affirmative acts by the defendants as inaction and improperly
analyzed certain alleged affirmative acts of the defendants. I disagree. Affirmative
conduct by a state actor is only one part of a substantive due process claim. Such a
claim is viable only when the conduct or, on some occasions, inaction of a state actor
caused the danger at issue by altering the status quo and placing the plaintiff in a worse
position than she would have been without action by a state actor. See DeShaney, 489
U.S. at 198 - 201. “The affirmative duty to protect arises not from the State's knowledge
of the individual's predicament or from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own behalf.” Id. at 200.
The Estate of Ms. Barela contends the promises of the dispatcher to Ms.
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Espinoza that police were on the way to the Barela residence effectively prevented Ms.
Espinoza from calling the son of Ms. Barela to help Ms. Barela. Nothing alleged in the
complaint indicates in any way that the defendants somehow took action which
prevented Ms. Espinoza from calling the son of Ms. Barela. The defendants did not
restrain, preclude, or prohibit Ms. Espinoza from taking any action in addition to calling
911.
The analysis of the magistrate judge concerning the substantive due process
claim is thorough and correct. As to the substantive due process claim, I overrule the
objections [#95] expressed by the Estate of Ms. Barela and approve and adopt the
analysis of the magistrate judge.
B. Equal Protection
The plaintiffs contend the defendant dispatchers who handled the 911 call of Ms.
Espinoza violated the right of Ms. Barela to equal protection of the law. Although there
is no general constitutional right to police protection, the state may not discriminate
unlawfully in providing such protection. Price-Cornelison v. Brooks, 524 F.3d 1103,
1114 (10th Cir. 2008). The magistrate judge recommends that this claim be dismissed
for failure to state a claim on which relief can be granted.
To allege unlawful discrimination by the dispatchers, the estate of Ms. Barlea
compares the police response time based on the calls of Ms. Espinoza to 911 to the
average 911 response times for the Denver Police. In addition, the estate alleges that,
at the time Ms. Espinoza placed her 911 calls, the dispatchers promptly dispatched
police to other calls of similar or lesser urgency, a robbery and two traffic accidents.
These facts, the estate contends, support a reasonable inference that the dispatcher
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defendants intentionally and unlawfully discriminated against Ms. Barela because she
was a victim of domestic violence, she was a resident of police district 4, and/or as a
class of one.
The magistrate judge concluded that these allegations are not sufficient to allege
intentional unlawful discrimination by the police dispatcher defendants. She notes that
the plaintiff does not allege that any of the dispatcher defendants were involved with the
dispatch of police to the robbery or to the two traffic accidents. Further, there are no
allegations indicating how the actions of the dispatcher defendants are or are not
involved in the audit of Denver police response times, the comparator on which the
plaintiff relies. Ultimately, the magistrate judge concludes that the allegations in the
complaint do not include facts which plausibly show that the dispatcher defendants
intentionally discriminated against Ms. Barela as a victim of domestic violence, a
resident of police district 4, or a class of one. I agree with the magistrate judge that
allegations of intentional unlawful discrimination by individuals may not be based soley
on the inferences suggested by the plaintiffs.
The analysis of the magistrate judge concerning the equal protection claim is
thorough and correct. As to the equal protection claim, I overrule the objections [#95]
expressed by the plaintiffs and approve and adopt the analysis of the magistrate judge.
C. Qualified Immunity
The individual defendants have asserted the defense of qualified immunity. To
overcome this defense, a plaintiff must show (1) that the conduct of the defendant
violated a constitutional right; and (2) the law governing that conduct was clearly
established at the time of the alleged violation. Because the plaintiffs have not alleged
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facts to state claims for violations of their right to due process of law or equal protection
of the law by the individual defendants, the plaintiffs have not alleged that the conduct of
the individual defendants violated a constitutional right. Given that conclusion, the
magistrate judge concludes correctly that the individual defendants are entitled to
qualified immunity.
D. Municipal Liability
As the magistrate judge notes, a municipal liability claim is foreclosed in the
absence of a constitutional violation by the individual defendants who are tied to the
municipality. Because the plaintiffs have not adequately alleged constitutional claims
against the individual defendants, the municipal liability claim of the plaintiffs also fails.
E. Supplemental Jurisdiction
The two remaining claims are a state law claim of willful and wanton conduct
resulting in wrongful death, asserted against the dispatchers, and a state law claim of
felonious killing resulting in wrongful death against defendant Christopher Perea. With
the dismissal of all of the federal claims, the magistrate judge recommends that the
court decline to exercise supplemental jurisdiction over the state law claims under 28
U.S.C. § 1367. I agree with this conclusion.
III. CONCLUSION & ORDERS
The magistrate judge notes that the allegations of the plaintiffs are “tragic and
chilling.” Recommendation [#90], p. 19. No doubt, that is true. Even so, for the
reasons detailed by the magistrate judge, the plaintiffs have not alleged facts which are
sufficient to state a claim for violation of their right to due process of law or equal
protection of the law. Given that fact, those claims must be dismissed, and the tethered
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municipal liability claim must be dismissed. Given the dismissal of all of the federal
claims asserted by the plaintiffs, I decline to exercise supplemental jurisdiction over the
remaining state law claims.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#90], filed
June 23, 2015, is approved and adopted as an order of this court;
2. That under Fed. R. Civ. P. 12(b)(6), the City and County of Denver’s
Motion To Dismiss [#42] filed April 3, 2015, is granted;
3. That under Fed. R. Civ. P. 12(b)(6), the Motion To Dismiss [#52] of Timothy
Packman, filed April 21, 2015, is granted;
4. That under Fed. R. Civ. P. 12(b)(6), the Denver Defendants’ Motion To
Dismiss [#63] filed May 1, 2015, is granted;
5. That under Fed. R. Civ. P. 12(b)(6), the due process claim and the equal
protection claim asserted in claims one and two of the Amended Complaint and Jury
Demand [#33] are dismissed;
6. That under Fed. R. Civ. P. 12(b)(6), the failure to train, supervise, and adopt
adequate policies claim asserted against the City & County of Denver in claim three of
the Amended Complaint and Jury Demand [#33] is dismissed;
7. That judgment shall enter in favor of the defendants, City and County of
Denver, Timothy Hucksoll, Bridget Rhodes, Timothy Packman, Scott Crawford, Officer
Susan Mercado, and Officer Jennifer France, and against plaintiff the Estate of Loretta
Barella, on the first, second, and third claims for relief as alleged in the Amended
Complaint and Jury Demand [#33];
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8. That under 28 U.S.C. § 1367, the court declines to exercise supplemental
jurisdiction over the remaining state law claims and, thus, those claims are dismissed;
9. That defendants, except for Christopher Perea, are awarded their costs to be
taxed by the clerk of the court in the time and manner prescribed in Fed. R. Civ. P.
54(d)(1) and D.C.COLO.LCivR 54.1; and
10. That this case is closed.
Dated March 16, 2016, at Denver, Colorado.
BY THE COURT:

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