Adams v. Jonsgaard et al

Filing 7

ORDER TO DISMISS IN PART AND TO DRAW CASE by Judge Lewis T. Babcock on 2/1/16. Defendant City of Aurora and Defendants Jonsgaard, Petering, McCants, Strickland, and Garcia in their official capacities are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02469-GPG
STEPHEN H. ADAMS,
Plaintiff,
v.
GERALD JONSGAARD, Aurora Police Sgt., Individual and Official Capacities,
BENJAMIN PETERING, Aurora Police Officer, Individual and Official Capacities,
JONATHAN McCANTS, Aurora Police Officer, Individual and Official Capacities,
WILLIAM STRICKLAND, Aurora Police Officer, Individual and Official Capacities,
STEVE GARCIA, Aurora Police Officer, Individual and Official Capacities, and
CITY OF AURORA,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff Stephen H. Adams is a prisoner in the custody of the Colorado Department
of Corrections and is currently incarcerated at the Arrowhead Correctional Center in
Cañon City, Colorado. Plaintiff initiated this action by filing, pro se, a Prisoner Complaint
pursuant to 28 U.S.C. ' 1343 and 42 U.S.C. ' 1983 that asserts a deprivation of his
constitutional rights. On December 21, 2015, Magistrate Judge Gordon P. Gallagher
reviewed the Complaint and determined that it was deficient because Plaintiff failed to
comply with Fed. R. Civ. P. 8 and to allege the personal participation of each Defendant in
a deprivation of his constitutional rights. Plaintiff further was instructed that the City of
Aurora may not be held liable under ' 1983 solely because its employees have inflicted
injury on a plaintiff; and he was further instructed that a policy or custom must exist that is
directly related to the injury alleged. The Court, therefore, ordered Plaintiff to file an
amended complaint within thirty days, which Plaintiff did on January 26, 2016. See ECF
1

No. 6.
The Court must construe the Amended Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an
advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed
below, this action will be drawn in part and dismissed in part.
Plaintiff alleges in the Amended Complaint that on December 15, 2013,
Defendants Benjamin Petering, Jonathan McCants, William Strickland, and Steve
Garcia, pursuant to Defendant Sergeant Jonsgaard=s directive, shot fifty-four bullets into
Plaintiff=s vehicle, even though Plaintiff is partially paralyzed and did not pose a threat to
Defendants. Plaintiff further asserts that Defendant City of Aurora violated his
constitutional rights by failing to train the police officers involved and to insure that the
policies set forth are respected and followed by its employees. Plaintiff seeks
compensation for all medical care that has accrued due to the injuries he incurred during
this incident and for future care for him and his family.
Plaintiff cannot maintain a ' 1983 claim against the City of Aurora. Plaintiff was
warned in the January 15 Order that to hold a municipality liable under 42 U.S.C.
' 1983, a plaintiff must show that an unconstitutional policy or custom exists and that
there is a direct causal link between the policy or custom and the injury alleged. City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma County Bd. of
County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Municipalities are not liable
under 42 U.S.C. ' 1983 solely because their employees inflict injury on a plaintiff. Monell
v. New York City Dep=t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of
Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Plaintiff does not identify any custom,
2

practice, or policy of the City of Aurora or allege any facts to suggest a direct causal link
between any action of the local government entity and a constitutional violation. See
Board of County Com=rs of Bryan County, Okl. v. Brown , 520 U.S. 397, 404 (1997);
Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997).
Moreover, Plaintiff seeks to hold the City of Aurora liable under the theory that they
failed to properly supervise and train Defendants Petering, McCants, Strickland, and
Garcia. Plaintiff asserts in a conclusory manner that the City of Aurora is responsible to
train and to insure policies are respected and followed. Plaintiff, however, also states
that Defendant Jonsgaard acted against Aurora City Police policy when he directed the
police officers to open fire on Plaintiff=s vehicle.
Plaintiff does not provide any further factual allegations regarding the alleged
incident. In sum, the claims against the City of Aurora consist of nothing more than
conclusory allegations. There are no well-pled facts that demonstrate the existence of
an established government policy or custom that deprived Plaintiff of his constitutional
rights, or no well-pled facts that demonstrate specific deficiencies in the training or
supervision that actually caused the injuries alleged by Plaintiff. Cf. Kramer v. Wasatch
County Sheriff=s Office, 743 F.3d 726, 759 (10th Cir. 2014) (rejecting plaintiff's ' 1983
causation theory that predicated liability on the defendants= inaction; to establish
deliberate indifference, plaintiff must establish that the need for more or different action
was Aso obvious, and the inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to have been deliberately
indifferent to the need@). Accordingly, Defendant City of Aurora is an improper party to
this action and will be dismissed.

3

The official capacity claims against the remaining Defendants are construed as
claims against the City of Aurora. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating
that claims asserted against government officials in their official capacities are construed
against the governmental entity). A local governmental entity can be liable under ' 1983
if the Afinal policymaker@ takes the unconstitutional action. See Moss v. Koop, 559 F.3d
1155, 1169 (10th Cir. 2009) (citing Melton v. City of Oklahoma City, 879 F.2d 706, 724
(10th Cir.1989), rev=d en banc in part on other grounds, 928 F.2d 920 (10th Cir.1991)).
In addition, if a subordinate=s position is subject to review by the municipality=s authorized
policymakers and the authorized policymakers approve a subordinate=s decision and the
basis for it, their ratification will be chargeable to the municipality. Id. Nothing Plaintiff
asserts demonstrates that Defendants Jonsgaard, Petering, McCants, Strickland, and
Garcia actions were approved by a policymaker.
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
Plaintiff=s ' 1983 claims against Defendants Jonsgaard, Petering, McCants, Strickland,
and Garcia appear to be inappropriate for summary dismissal and that the case should be
drawn in part to a presiding judge and, if appropriate, to a magistrate judge. See
D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that Defendant City of Aurora is DISMISSED from this action for
Plaintiff=s failure to allege the City violated Plaintiff=s constitutional rights. It is
FURTHER ORDERED that the claims asserted against Defendants Jonsgaard,
Petering, McCants, Strickland, and Garcia in their official capacities are
dismissed. It is
FURTHER ORDERED that Plaintiff=s claims against Defendants Jonsgaard,
Petering, McCants, Strickland, and Garcia in their individual capacities shall be drawn to a
4

presiding judge and, if appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR
40.1(a).
DATED at Denver, Colorado, this

1st

day of

February

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

5

, 2016.