Derosier v. Balltrip et al

Filing 22

Memorandum Opinion and Order on Motion to Dismiss. Defendants' Motion 10 is GRANTED IN PART and DENIED IN PART. Defendants' Motion to Dismiss is DENIED as to Plaintiff's First Second, and Third Claims for Relief, DENIED as to Def endant Sanchez as to Plaintiffs Fourth and Fifth claims for relief, and GRANTED as to the Town of Johnston on Plaintiff's Fourth and Fifth Claims for Relief. Defendants Motion to Stay 11 is DENIED AS MOOT. The Town of Johnston is DISMISSED as a defendant in this action. Signed by Judge John L. Kane on 03/08/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01026-JLK
LAWRENCE RAYMOND DEROSIER,
Plaintiff,
v.
OFFICER KENNETH BALLTRIP, in his individual capacity,
COMMANDER AARON SANCHEZ, in his individual and official capacity, and
TOWN OF JOHNSTOWN, a government municipality,
Defendants.

MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS
Kane, J.
Introduction
Exasperated with the Greeley Tribune’s repeated littering of his yard despite his
numerous complaints, Plaintiff Lawrence Derosier called the paper and suggested that he would
“take a shot at” the next delivery person to visit his property. The next day, the Johnstown police
arrested Plaintiff at his home for the crimes of menacing and telephone harassment. The charges
were subsequently dropped, and Plaintiff now brings five 42 U.S.C. § 1983 claims for violation
of the First and Fourth Amendment against the arresting officer, that officer’s supervisor, and the
Town of Johnston. The Defendants have moved to dismiss all of Plaintiff’s claims on the
grounds that they are barred by the doctrine of qualified immunity. For the reasons that follow,
Defendants’ motion is GRANTED IN PART and DENIED IN PART.
Background

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Plaintiff, a resident of Johnstown, alleges that the Greely Tribune repeatedly placed an
advertising circular called “The TribExtra” onto his yard. Doc. 121 at ¶ 15. Because the
TribExtra would not always be secured by a rubber band, the pages littered Plaintiff’s yard. Id.
Over the course of two years, Plaintiff called the Greely Tribune multiple times and asked that
they stop dumping the TribExtra on his property, but the deliveries continued. Id. at ¶¶ 16-17.
On July 16, 2013, Plaintiff called the Greely Tribune and spoke with employee Brooke
Brown. He again asked that the deliveries of the TribExtra be stopped and stated in pertinent
part that “I want this to stop and I want an explanation for why it hasn’t stopped . . . I’ve had it.
The next guy who comes and throws that TribExtra onto my property, I’m going to take a shot
at.” Id. at ¶ 19. Brown asked if Plaintiff was “threatening her driver,” and Plaintiff responded
“[n]o, but I am telling you that this needs to stop.” Id. at ¶ 20. Brown contacted the Johnstown
Police Department and spoke with Defendant Kenneth Balltrip. Id. at ¶ 21. After speaking with
Ms. Brown, Officer Balltrip had a conversation with Commander Sanchez and they agreed that
there was probable cause to arrest Plaintiff for menacing and telephone harassment. Id. at ¶ 23.
Officer Balltrip and another officer went to Plaintiff’s home to arrest him, but he was not there.
Id. at ¶ 24.
On July 17, 2013, Officer Balltrip called Plaintiff and asked him to come down to the
station. Id. at ¶ 25. Plaintiff declined to do so, and when asked by Officer Balltrip if he had
threatened to shoot a courier for the Greely Tribune, Plaintiff said “he had not threatened to
shoot anyone and that he did not even own a firearm.” Id. After this phone call and another
meeting with Commander Sanchez, Officer Balltrip and Officer Steven Bakovich2 each took a
squad car to Plaintiff’s home and entered his property. Id. at ¶¶ 26-28. The officers banged on
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After Defendants’ motion to dismiss was filed, Plaintiff filed an amended complaint. Doc. 12.
Officer Bakovich was originally named as defendant in this case, but has since been dismissed by stipulation of the
parties. Doc. 21.
2

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Plaintiff’s front door, and Plaintiff opened it “just a crack” but refused to come outside. Id. at ¶¶
29-30. Officer Balltrip then displayed his firearm and told Plaintiff “he had no choice,” at which
point Plaintiff was placed under arrest. Id. at ¶ 30. Plaintiff was held in Weld County Jail for
twelve hours and was released on bond the following day. Id. at ¶ 32. On July 7, 2014, the
Weld County District Attorney dropped the charges and closed the case. Id. at ¶ 34.
On May 14, 2015, Plaintiff filed suit under 42 U.S.C. § 1983, alleging (1) a Fourth
Amendment violation for false arrest (an arrest without probable cause) against Officers Balltrip
and Commander Sanchez; (2) a First Amendment violation against Officers Balltrip and
Commander Sanchez; (3) a Fourth Amendment violation for false arrest (imprisonment) against
Officers Balltrip and Commander Sanchez; (4) a First and Fourth Amendment violation for
unconstitutional custom or practice against Commander Sanchez and the Town of Johnstown;
and (5) a First and Fourth Amendment violation for failure to train or supervise against
Commander Sanchez and the Town of Johnstown. Doc. 12 at ¶¶ 36-87. Defendants have
moved to dismiss all five claims on the grounds that they are barred by the doctrine of qualified
immunity. Doc. 10.
Legal Standards
42 U.S.C. § 1983 imposes civil liability upon
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws . . .
Qualified immunity is an affirmative defense to a 42 U.S.C. § 1983 action, providing immunity
from suit from the outset. DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). Because
qualified immunity is “an immunity from suit rather than a mere defense to liability . . . it is
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effectively lost if a case is erroneously permitted to go to trial.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). Accordingly, if the defense of qualified immunity is asserted, it should be
resolved “at the earliest possible stage in litigation.” Id.
To “survive a motion to dismiss based on qualified immunity, the plaintiff must allege
sufficient facts that show—when taken as true—the defendant plausibly violated his
constitutional rights, which were clearly established at the time of violation.” Sanchez v.
Hartley, 65 F. Supp. 3d 1111, 1122 (D. Colo. 2014) (quoting Schwartz v. Booker, 702 F.3d 573,
579 (10th Cir. 2012)). “In order for a constitutional right to be clearly established, the contours
of the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Quinn v. Young, 780 F.3d 998, 1005-06 (10th Cir. 2015) (quoting
Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (internal alterations and quotations
omitted)). In addition, for a right to be clearly established, “there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Weise v. Casper, 593 F.3d 1163, 1167
(10th Cir. 2010) (quoting Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th Cir. 2007)).

Discussion
A.
Fourth Amendment violation for false arrest (an arrest without probable cause) against
Officers Balltrip, and Commander Sanchez
Plaintiff’s first claim is that his Fourth Amendment rights were violated when he was
arrested on his property without a warrant, and allegedly without probable cause, on July 17,
2013. See Doc. 12 at ¶¶ 37-38.
“When a warrantless arrest is the subject of a § 1983 action, the defendant is entitled to
qualified immunity if a reasonable officer could have believed that probable cause existed to

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arrest or detain the plaintiff.” Stearns v. Clarkson, 615 F.3d 1278, 1283 (10th Cir. 2010)
(quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)). “Whether probable
cause exists depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing
Maryland v. Pringle, 540 U.S. 366, 371 (2003)). This analysis looks to the totality of the
circumstances, and whether a reasonable person would believe that an offense has been
committed by the person arrested. Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (quoting
United States v. Martin, 613 F.3d 1295, 1302 (10th Cir. 2010)).
In Colorado, “[a] person commits the crime of menacing if, by any threat . . . he or she
knowingly places or attempts to place another person in fear of imminent serious bodily injury.”
C.R.S. § 18-3-206(1). In determining whether the defendant knowingly placed or attempted to
place another person in fear of imminent serious bodily injury, the proper focus is on the intent
and conduct of the actor, not of the victim. People v. Shawn, 107 P.3d 1033, 1035 (Colo. App.
2004). The prosecution need only prove the defendant was aware that his or her conduct was
practically certain to cause fear. Id.; see People v. Saltray, 969 P.2d 729, 731 (Colo. App. 1998).
“A person commits harassment if, with intent to harass, annoy, or alarm another person, he or
she . . . initiates communication with a person or directs language toward another person . . . by
telephone . . . intended to harass or threaten bodily injury.” C.R.S. § 18-9-111(1). “The
gravamen of the offense is the thrusting of an offensive and unwanted communication on one
who is unable to ignore it.” People v. Weeks, 591 P.2d 91, 96 (Colo. 1979); see People v.
McBurney, 750 P.2d 916, 917 (Colo. 1988) (“In order to be found guilty under the present
telephone harassment statute, the prosecution must show that the defendant had the specific
intent to ‘harass, annoy, or alarm’ another while committing the offense of initiating a telephone

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communication ‘in a manner intended to harass or threaten bodily injury or property damage,’ or
makes an obscene telephone ‘comment, request, suggestion or proposal.’”).
In deciding this motion, I “must view all reasonable inferences in favor of the plaintiff,
and the pleadings must be liberally construed.” Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th
Cir. 2002). Thus viewed, the facts are these: immediately after making the alleged threat to Ms.
Brown to “take a shot at” the next delivery person who threw the TribExtra onto his property,
Doc. 12 at ¶ 19, Ms. Brown asked “Are you threatening my driver?” and Plaintiff replied “No,
but I am telling you that this needs to stop,” id. at ¶ 20. Ms. Brown immediately called the
Johnstown Police Department and told them she was “not scared” but was “alarmed and
concerned for the delivery driver.” Id. at ¶ 21. The next day, Officer Balltrip spoke with
Plaintiff on the phone, and asked him “if he threatened to shoot the TribExtra courier.” Id. at ¶
25. Plaintiff responded that “he had not threatened to shoot anyone with anything and that he did
not even own a firearm,” and explained that he had made his “take a shot” comment “in jest and
to communicate . . . his exasperation” with the Tribune’s repeated littering of his property. Id.
Shortly after this phone conversation, Plaintiff was arrested. See id. at ¶¶ 26-30.
With respect to the crime of menacing, and viewing the facts in the light most favorable
to the Plaintiff, I cannot agree that Plaintiff’s conduct was “practically certain to cause fear.”
Shawn, 107 P.3d at 1035. Immediately after making his “take a shot” comment, the Plaintiff was
asked if he was “threatening [the] driver,” and he responded “No.” Doc. 12 at ¶ 20. Ms. Brown,
to whom the comment was made, told the officers that she was “not scared.” Id. at ¶ 21; see
People v. Gagnon, 703 P.2d 661, 663 (Colo. App. 1985) (“[W]hat the victim saw or heard, and
his reactions thereto, are relevant considerations in determining whether defendant had the
requisite intent to place him in fear.”). The context of Plaintiff’s remarks, the reaction thereto,

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and simple logic compel the conclusion that there was no probable cause to arrest Plaintiff for
the crime of menacing. See Brickey v. Weyler, No. 11-CV-02175-MSK-MEH, 2013 WL
1137132, at *5 (D. Colo. Mar. 19, 2013) (finding dispute of fact as to whether there was
probable cause for menacing arrest based on statement to police officers about a bomb that was
“plainly sarcastic”).
Similarly, viewing the facts in the light most favorable to the Plaintiff, there was no
probable cause to arrest Plaintiff for harassment. Harassment requires “specific intent to ‘harass,
annoy, or alarm’ another,” C.R.S. § 18-9-111, but the facts as alleged show clearly that
Plaintiff’s intent was to stop the littering of his property by the Greeley Tribune. See Doc. 12 at
¶¶ 19-20, 25. In fact, Plaintiff explained, both to Ms. Brown and to Officer Balltrip, before his
arrest, that he did not intend to threaten anyone, that his comment was made “in jest and to
communicate . . . his exasperation,” and that he did not even own a firearm. See id. at ¶ 25;
Brickey, 2013 WL 1137132 at *5.
Finally, the law on this issue was “clearly established” at the time of Plaintiff’s arrest.
See, e.g., Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir. 2007) (“The law was and is
unambiguous: a government official must have probable cause to arrest an individual.”); Brickey,
2013 WL 1137132 at *6 (“[T]he general contours of a person's 4th Amendment right to be free
from a warrantless arrest, unsupported by probable cause, is so axiomatic as to require no
particular citation.”). Indeed, it has been so for hundreds of years. See Turbervell v. Savage,
(1669) 86 Eng. Rep. 684 (K.B.). Accordingly, Defendants are not entitled to qualified immunity
on Plaintiff’s first claim.

B.

First Amendment violation against Officers Balltrip and Commander Sanchez

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Plaintiff’s second claim is that his arrest was retaliation against him for exercising his
First Amendment rights. Doc. 12 at ¶¶ 45-49. Plaintiff must prove “(1) that [he] was engaged in
constitutionally protected activity; (2) that defendant’s actions caused [him] to suffer an injury
that would chill a person of ordinary firmness from continuing to engage in that activity; and (3)
that the defendant’s adverse action was substantially motivated as a response to the plaintiff’s
exercise of constitutionally protected conduct.” Worell v. Henry, 219 F.3d 1197, 1212 (10th Cir.
2000) (internal quotations omitted). The parties appear to agree that this claim turns on whether
Plaintiff’s “take a shot” comment was a “true threat” outside the protection of the First
Amendment. See Doc. 10 at 7-8; Doc. 15 at 8-11.
For First Amendment purposes, the Tenth Circuit has defined a “threat” as “a declaration
of intention, purpose, design, goal, or determination to inflict punishment, loss, or pain on
another, or to injure another or his property by the commission of some unlawful act.” Nielander
v. Bd. Cty. Comm’rs. of Cty. of Republic, Kan., 582 F.3d 1155, 1167 (10th Cir. 2009) (quoting
United States v. Viefhaus, 168 F.3d 392, 395–96 (10th Cir. 1999)). “It is not necessary to show
that defendant intended to carry out the threat, nor is it necessary to prove he had the apparent
ability to carry out the threat. The question is whether those who hear or read the threat
reasonably consider that an actual threat has been made. It is the making of the threat and not the
intention to carry out the threat that violates the law.” Id. “Whether a statement constitutes a
‘true threat’ is a fact-intensive inquiry, in which the language, the context in which the
statements are made, as well as the recipients’ responses are all relevant.” Id. at 1167-68 (citing
United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001)). The “threat must be made
‘with the intent of placing the victim in fear of bodily harm or death.’ An intent to threaten is

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enough; the further intent to carry out the threat is unnecessary.” United States v. Magleby, 420
F.3d 1136, 1139 (10th Cir. 2005) (quoting Virginia v. Black, 538 U.S. 343, 359-360 (2003)).
For much the same reasons given above in connection with the probable cause analysis, I
conclude that a reasonable officer would necessarily know that Plaintiff was not making a true
threat outside the protection of the First Amendment. Defendants completely ignore the entire
context of Plaintiff’s “take a shot” comment and argue in a conclusory fashion that the statement
was a “declaration of intention to injure another by the commission of an unlawful act.” Doc. 10
at 8. But both the Supreme Court and the Tenth Circuit have made clear that in determining
whether a statement constitutes a true threat, context is everything. See Black, 538 U.S. at 367
(analysis of whether speech is protected by First Amendment requires considering “contextual
factors”); Nielander, 582 F.3d at 1167-68.
The factual context of Plaintiff’s comment, viewed in the light most favorable to him, is
as follows. Plaintiff called the Tribune in order to make a legitimate request that the paper stop
littering his property, and made his “take a shot” comment out of “exasperation.” Doc. 12 at ¶¶
19, 25. Immediately after making the comment, Plaintiff clarified to Ms. Brown that he was “not
threatening [her] driver.” Id. at ¶ 20. Ms. Brown was “not scared” after the conversation, id. at ¶
21, and Plaintiff later explained directly to Officer Balltrip before his arrest that he “had not
threatened to shoot anyone with anything and that he did not even own a firearm.” Id. at ¶ 25.
Given this context, I cannot agree with Defendants that Ms. Brown or Officer Balltrip
“reasonably consider[ed] that an actual threat ha[d] been made,” Nielander, 582 F.3d at 1167, or
that a “reasonable person would find that a threat existed.” Magleby, 241 F.3d at 1311.
The Defendants’ reliance on Nielander itself is misplaced. In Nielander, the plaintiff
stated “that he was afraid to attend another Commissioners' meeting for fear that he would bring

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a gun along,” and that “if the government came to his house to collect his taxes, they would have
another Ruby Ridge.” Nielander, 582 F.3d at 1167. In analyzing the context of Nielander’s
statement, the Tenth Circuit considered that the statement as relayed to the officer writing the
probable cause determination was that “Nielander said he would bring a gun the next time he
went to a Commissioners’ meeting,” id. at 1169 (emphasis in original), rather than a statement
that Nielander would not attend another such meeting, id. at 1167, that Mr. Nielander was
“extremely agitated and yelling,” id. at 1169, and that one witness’s written statement to the
officer indicated that she “did feel somewhat threatened,” id. In this context, the Tenth Circuit
concluded that “we cannot say that a reasonable officer . . . could not conclude that Mr.
Nielander had made a true threat.” Id. Here, by contrast, Plaintiff immediately recanted and
disavowed his “threat” in no uncertain terms, both to the person to whom it was made and to the
officer who arrested him, and Ms. Brown admitted she was “not scared.” Doc. 12 at ¶¶ 20, 21;
25; see Magleby, 241 F.3d at 1311 (the “reaction of the recipient of the alleged threat” is relevant
in determining whether a reasonable person would find that a threat existed); Watts v. United
States, 394 U.S. 705, 708 (1969) (considering “the reaction of the listeners” in determining what
constitutes a true threat).
In addition, since Plaintiff’s arrest in July of 2013, the Tenth Circuit has interpreted Black
“as establishing that a defendant can be constitutionally convicted of making a true threat only if
the defendant intended the recipient of the threat to feel threatened.” United States v. Heineman,
767 F.3d 970, 978 (10th Cir. 2014) (emphasis in original). To the extent that this intent
requirement derives from the Supreme Court’s decision in Black and was thus “clearly
established” at the time of Plaintiff’s July 2013 arrest, it was not satisfied here. See Heineman,
767 F.3d at 975-82; Black, 538 U.S. at 359-60. There was no evidence that Plaintiff intended

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Ms. Brown or her driver to feel threatened, and in fact, Plaintiff expressly disavowed any such
intention, both to Ms. Brown and to Officer Balltrip before his arrest. Doc. 12 at ¶¶ 20, 25.
Accordingly, I find that Defendants are not entitled to qualified immunity on Plaintiff’s second
claim.
C.
Fourth Amendment violation for false arrest (imprisonment) against Officers Balltrip and
Commander Sanchez
Plaintiff’s third claim is for a Fourth Amendment violation based on his warrantless
arrest inside his home on July 17, 2013. Doc. 12 at ¶¶ 50-56.
“In Payton v. New York, the Supreme Court held that, absent exigent circumstances,
police officers may not enter an individual's home without consent to make a warrantless routine
felony arrest even if probable cause to arrest the individual exists.” United States v. Reeves, 524
F.3d 1161, 1165 (10th Cir. 2008) (citing Payton v. New York, 445 U.S. 573, 576 (1980)). “[I]t is
the location of the arrested person, and not the arresting agents, that determines whether an arrest
occurs within a home.” United States v. Maez, 872 F.2d 1444, 1451 (10th Cir. 1989).
The facts of Plaintiff’s arrest, construed in the light most favorable to him, are as follows.
On July 17, 2013, at 10:30 a.m., after speaking with Plaintiff over the phone, Defendant Balltrip
and Officer Bakovich, armed and in uniform, took two squad cars to Plaintiff’s residence,
entered Plaintiff’s property without his consent, and banged on his front door. Doc. 1 at ¶¶ 2829. Plaintiff answered the door, barefoot and in his pajamas. Id. at ¶ 29. When ordered to step
outside, Plaintiff complained that he was barefoot and had a knee injury, id. at ¶ 30, but Officer
Balltrip displayed his firearm and told Plaintiff that he “had no choice.” Id. Plaintiff was then
arrested, put in handcuffs, and put in Officer Balltrip’s squad car. Id.
Under these circumstances, Plaintiff was clearly arrested in violation of the Fourth
Amendment, and Defendants do not seriously argue otherwise. See Doc. 10 at 5-7. It is
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undisputed that Defendants did not have a warrant for Plaintiff’s arrest, and there are no
allegations that any exigent circumstances were present. Even if there were, the minor nature of
Plaintiff’s offenses counsels against excusing the warrant requirement. See Mascorro v. Billings,
656 F.3d 1198, 1206 (10th Cir. 2011) (“[A]pplication of the exigent-circumstances exception in
the context of a home entry should rarely be sanctioned when there is a probable cause to believe
that only a minor offense . . . has been committed.” (citing Welsh v. Wisconsin, 466 U.S. 740,
749 n.11 (1984)). And although it is not necessary to my conclusion, as discussed above, I find a
reasonable officer could not have concluded that there was probable cause to believe even the
minor offenses alleged had been committed. Accordingly, Defendants are not entitled to
qualified immunity on Plaintiff’s third claim.
D.
First and Fourth Amendment violation for unconstitutional custom or practice against
Commander Sanchez and Town of Johnstown
Plaintiff’s next two claims are against the Town of Johnstown and Defendant
Commander Sanchez. Plaintiff claims the Town of Johnstown had “long-standing, departmentwide customs, policies, and actual practices of failure to discipline members of its law
enforcement who engage is unconstitutional behaviors” and Commander Sanchez helped to
implement and maintain these policies and practices. Doc. 12 at ¶¶ 57-87.
a.

Town of Johnston

“A plaintiff suing a municipality under section 1983 for the acts of one of its employees
must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a
municipal policy or custom was the moving force behind the constitutional deprivation.” Myers
v. Okla. Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). In particular, the plaintiff
must sufficiently allege the following: (1) the existence of a continuing, persistent and
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widespread practice of unconstitutional misconduct by the municipality's employees; (2)
deliberate indifference to or tacit approval of such misconduct by the municipality's
policymaking officials after notice to the officials of that particular misconduct; and (3) that the
plaintiff was injured by virtue of the unconstitutional acts pursuant to the custom and that the
custom was the moving force behind the unconstitutional acts. Salazar v. Castillo, No. 12-CV01481-JLK, 2013 WL 69154, at *5-6 (D. Colo. Jan. 7, 2013) (citing Gates v. Unified Sch. Dist.
No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)).
Plaintiff alleges that the Town of Johnston had an “unconstitutional policy, custom and/or
practice of arresting individuals in their homes without first obtaining an arrest warrant or
establishing any exceptions to the arrest warrant requirement.” Doc. 12 at ¶ 58. Other than
repeating this allegation, see, e.g., id. at ¶¶ 63-65, and alleging that the arrest of Plaintiff was
made pursuant to the this “policy, custom, and/or practice,” id. at ¶¶ 65-67, Plaintiff does not
provide any further factual specificity regarding the alleged policies, or any other examples of
the alleged policy or practice in action. See generally id. at ¶¶ 57-71. I conclude that Plaintiff
has failed to state a claim for municipal liability arising out of Plaintiff’s arrest. See Salazar,
2013 WL 69154 at *6 (“Plaintiff cannot state a plausible claim of municipal liability by
identifying a single incident of alleged violations and then, without any further factual
substantiation, contending that such actions were consistent with and caused by a municipal
policy, procedure, or failure to train.”).
b.

Commander Sanchez

In order to establish so-called “supervisory liability” on the part of Commander Sanchez,
Plaintiff must show an “affirmative link” between Sanchez and the alleged constitutional
violation. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013);

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see Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). This showing has three
elements: (1) personal involvement; (2) causation, and (3) state of mind. Schneider, 717 F.3d at
767.
Plaintiff’s allegations concerning Commander Sanchez are that he and Officer Balltrip
discussed Plaintiff’s phone call to the Greeley Tribune and “agreed between themselves that
there was probable cause” for Plaintiff’s arrest and that Commander Sanchez “authorized Officer
Balltrip to act on his desire to effect a warrantless arrest of [Plaintiff] at his home.” Doc. 12 at ¶¶
23, 26. Because Plaintiff has alleged that Commander Sanchez participated directly in the
probable cause determination and directly authorized the warrantless arrest of Plaintiff inside his
home, I find that the first two elements of supervisory liability are satisfied. See Estate of
Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014) (“direct participation” is sufficient to
satisfy the personal involvement element); Dodds, 614 F.3d at 1195-96 (causation element
requires allegations that “defendant set in motion a series of events that the defendant knew or
reasonably should have known would cause others to deprive the plaintiff of her constitutional
rights”). Given my conclusion that the law regarding the alleged constitutional violations was
clearly established, and Plaintiff’s allegations that Commander Sanchez directly participated in
the probable cause determination and authorized the warrantless arrest, I conclude that Plaintiff
has sufficiently alleged the state of mind element. See Schneider, 717 F.3d at 769 (deliberate
indifference state of mind demonstrated where defendant “knowingly created a substantial risk of
constitutional injury”).
Conclusion
For the reasons given above, Defendants’ Motion (Doc. 10) is GRANTED IN PART
and DENIED IN PART. Defendants’ Motion to Dismiss is DENIED as to Plaintiff’s First,

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Second, and Third Claims for Relief, DENIED as to Defendant Sanchez as to Plaintiff’s Fourth
and Fifth claims for relief, and GRANTED as to the Town of Johnston on Plaintiff’s Fourth and
Fifth Claims for Relief. Defendants’ Motion to Stay (Doc. 11) is DENIED AS MOOT. The
Town of Johnston is DISMISSED as a defendant in this action.

Dated: March 8, 2016

s/ John L. Kane
Senior U.S. District Judge

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