Mwangi v. Norman et al
Filing
79
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).
Bark v. Chacon, Not Reported in F.Supp.2d (2011)
2011 WL 1884691
2011 WL 1884691
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Evan BARK, Plaintiff,
v.
Detective Mark CHACON, Colorado Springs Police
Department (in his personal capacity); Sergeant
Dale Fox, Colorado Springs Police Department (in
his personal capacity); Sergeant Mike Freeman,
Colorado Springs Police Department (in his
personal capacity); Sergeant Joshua Benner,
Colorado Springs Police Department (in his
personal capacity); Officer Felix Juliano, Colorado
Springs Police Department (in his personal
capacity); Officer Daniel Mork, Colorado Springs
Police Department (in his personal capacity);
Officer Christopher Laabs, Colorado Springs
Police Department (in his personal capacity);
Andrew Holmes, Deputy Sheriff, El Paso County
Sheriff's office (in his personal capacity); The City
of Colorado Springs, Colorado, a municipality;
and El Paso County, Colorado, Defendants.
Civil Action No. 10–cv–01570–WYD–MJW.
|
May 18, 2011.
Attorneys and Law Firms
Alison Lee Ruttenberg, Attorney at Law, Boulder, CO,
for Plaintiff.
Elliot David Fladen, Shane Matthew White, Colorado
Springs City Attorney's Office, Amy R. Folsom, El Paso
County Attorney's Office, Colorado Springs, CO, for
Defendants.
ORDER
WILEY Y. DANIEL, Chief Judge.
I. INTRODUCTION AND BACKGROUND
*1 THIS MATTER is before the Court on the City
Defendants' Motion to Dismiss, filed November 18, 2010
[ECF No. 23], and the County Defendants' Motion to
Dismiss Amended Complaint, filed November 22, 2010
[ECF No 25]. Plaintiff filed a response on December 26,
2010, and the Defendants filed replies on January 7, 2011,
and January 10, 2011, respectively.
Plaintiff filed an Amended Complaint in this case on
November 4, 2010, pursuant to 42 U.S.C. § 1983, asserting
claims against all Defendants for unreasonable detention,
false imprisonment, unlawful search and seizure, and
arrest without probable cause in violation of his rights
under the Fourth, Fifth and Fourteenth Amendments.
In the Amended Complaint, Plaintiff alleges that
on December 31, 2009, at 1:30 a.m., the individual
Defendants came to his residence to investigate an armed
robbery that had occurred the previous day. The robbery
involved two suspects, both of whom were described as
African American males. Plaintiff is a Caucasian male,
and is self employed as a handyman. Plaintiff contends
that when he answered his door at 1:30 a.m., unarmed and
wearing only his pajama bottoms, he encountered at least
ten law enforcement officers on his property, six of whom
had their guns drawn and pointed at him. The six officers
ordered Plaintiff to exit his home and two of them dropped
him to his knees in the snow, where he was forced to
remain for approximately ten minutes. Some of the other
officers entered Plaintiff's home without a search warrant
and without Plaintiff's permission. Several minutes later,
the officers forcibly walked Plaintiff back into him home
and placed him on his couch. Plaintiff was not permitted
to put on any clothes and was informed by Defendant
Chacon or another Defendant that he was detained in
his home and could not leave. Another Defendant read
Plaintiff his Miranda rights, but when Plaintiff asked to
call his mother, who is a paralegal, the Defendant took his
cell phone and Plaintiff was unable to call an attorney or
a family member.
Detective Chacon or another Defendant told Plaintiff
that the officers were going to impound his vehicles
unless he gave consent to a search of his home and
vehicles. Plaintiff alleges that he was in an extreme state
of emotional distress at this time, and gave consent
to the search under duress. The individual Defendants
then proceeded to search Plaintiff's car, truck, trailers
and home, and removed several items from Plaintiff's
home. Plaintiff did not see what items were removed
because Defendants would not allow him to move from
the couch. After the search, Plaintiff was interrogated
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bark v. Chacon, Not Reported in F.Supp.2d (2011)
2011 WL 1884691
for approximately three hours by different Defendants
concerning the armed robbery. During the interrogation,
Detective Chacon or another Defendant told Plaintiff that
he had been identified by four eye witnesses and caught
on surveillance cameras committing the robbery. Plaintiff
asserts that, upon information and belief, there are no
witness statements that identified him as a perpetrator of
the armed robbery. After the interrogation, the individual
Defendants left without arresting Plaintiff.
*2 Plaintiff alleges that following this incident he suffered
a complete emotion breakdown and was unable to eat,
sleep or work. On January 4, 2010, Defendant Chacon
contacted Plaintiff and informed him that he was no
longer considered a suspect in the armed robbery. Plaintiff
was never charged with any crime arising out of the armed
robbery.
Plaintiff contends that Defendants lacked probable cause
to search his home, or to seize, detain and arrest him.
In addition, Plaintiff asserts that the City of Colorado
Springs, the El Paso County Sheriff's Department and El
Paso County failed to properly train and supervise the
individual Defendants.
II. ANALYSIS
1. Standard of Review
The Federal Rules of Civil Procedure provide that a
defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule
12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether
the plaintiff's complaint alone is legally sufficient to state
a claim for which relief may be granted.” Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations
and quotation marks omitted). “A court reviewing the
sufficiency of a complaint presumes all of plaintiff's
factual allegations are true and construes them in the light
most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir.1991).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ “ Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff pled facts which allow “the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. If the allegations state a
plausible claim for relief, such claim survives the motion
to dismiss. Id. at 1950. However, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Iqbal, 129
S.Ct. at 1949. Moreover, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires “more
than labels and conclusions, and a formulaic recitation of
a cause of action's elements will not do.” Twombly, 550
U.S. at 546. In addition, the “[f]actual allegations in the
complaint must be enough to raise a right to relief above
the speculative level.” Id. at 555.
2. Motions to Dismiss
Defendants the City of Colorado Springs, Fox, Freeman,
Benner, Juliano, Mork, and Laabs 1 (collectively, the
“City Defendants”), and El Paso County and Defendant
Holmes (collectively, the “County Defendants”), move to
dismiss all claims against them.
a. The Institutional Defendants
*3 The City of Colorado Springs (the “City”) and El
Paso County (the “County”) contend that the facts alleged
in the Amended Complaint are insufficient to give rise
to claims for failure to train or supervise because the
Amended Complaint does not allege a custom, policy, or
practice, and because it does not allege facts indicating
how the City and County failed to trail or supervise its
officers.
The Supreme Court held in Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 689–90 (1978),
that municipalities and other local governmental bodies
are “persons” within the meaning of 42 U.S.C. § 1983.
To establish municipal liability, a plaintiff must show: (1)
the existence of a municipal policy or custom and (2) a
direct causal link between the policy or custom and the
injury alleged. City of Canton v. Harris, 489 U.S. 378, 385
(1989). “Locating a ‘policy’ ensures that a municipality is
held liable only for those deprivations resulting from the
decisions of its duly constituted legislative body or of those
officials whose acts may fairly be said to be those of the
municipality.” Board of County Com'rs. of Bryan County,
Okl. v. Brown, 520 U.S. 397, 403–04 (1997).
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bark v. Chacon, Not Reported in F.Supp.2d (2011)
2011 WL 1884691
In City of Canton, supra, the Supreme Court made
clear that a municipality could be liable under certain
circumstances for its employee's conduct. Although it
could not be liable for the negligence of an employee under
the doctrine of respondeat superior, it could be liable
under a failure to train theory if its “failure to train in
a relevant respect evidences a ‘deliberate indifference’ to
the rights of its inhabitants....” City of Canton, 489 U.S.
at 388. Only then “can such a shortcoming be properly
thought of as a city ‘policy or custom’ that is actionable
under § 1983.” Id. at 389. Further, the Supreme Court
made clear that the Plaintiff must show that the deficiency
in training was closely related to the ultimate injury, that
the police officer's lack of training actually caused the
injury. Id. at 391. Thus, the Supreme Court held that a
city can be liable if “... in the light of the duties assigned
to specific officers or employees the need for more or
different training is so 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....” Id. at 390.
“That a particular officer may be unsatisfactorily trained
will not alone suffice to fasten liability on the city, for
the officer's shortcomings may have resulted from factors
other than a faulty training program....” Id. at 390–91; see
also Board of County Commissioners of Bryan County, 117
S.Ct. 1382 at 1389–91.
Here, I find that Plaintiff's allegations regarding the City's
and County's failure to adequately train and supervise
its police officers are not sufficient to state a claim
for municipal liability under § 1983 and Fed.R.Civ.P.
12(b)(6). While Plaintiff generally alleges that the City
and County have not properly trained or supervised
the individual Defendants with respect to certain tasks
such as obtaining search warrants, recognizing exigent
circumstances, giving Miranda warnings, questioning
suspects, as well as concepts of reasonable suspicion and
probable cause, he fails to allege specific deficiencies in
training and supervision, or explain how the incident
described in the Amended Complaint could have been
avoided with different or better training and supervision.
Mere conclusory allegations that an officer or group of
officers are unsatisfactorily trained will not “suffice to
fasten liability on the city.” City of Canton, 489 U.S. at
390–91.
*4 In addition, while Plaintiff alleges that the inadequate
training and supervision resulted “in the violation of
Plaintiff's Fourth, Fifth and Fourteen[th] Amendment
rights” that the City and County “knew of, condoned
and approved the wrongful acts of Detective Chacon
and the other individual Defendants,” these allegations
are conclusory in nature and devoid of any supporting
factual allegations that would demonstrate that the City
or County were deliberate indifferent to the need for
more or better training and supervision. City of Canton,
489 U.S. at 390. Plaintiff alleges that his constitutional
rights were violated by the individual Defendants, and
then speculates that the City and Count must have
a policy of inadequate training and supervision and
that such policy is the moving force behind the alleged
constitutional violations, without providing any factual
basis for this conclusory leap. See Martin v. Dist.
of Columbia, 720 F.Supp.2d 19, 23 (D . D.C.2010)
(granting city's motion to dismiss § 1983 claim based
on inadequate training when allegations did “nothing
more than recite the required causal elements of custom
or policy liability based on deliberate indifference” and
plaintiff's “conclusory statements” were “unsupported by
additional factual allegations”); cf. Jordan by Jordan v.
Jackson, 15 F.3d 333, 340 (4th Cir.1994) (holding that the
complaint stated a claim against the county under § 1983
when it alleged existence of several specific customs or
policies, including (1) “a policy of providing inadequate
training to [county] employees both on how to determine
whether a summary removal was proper and on the
statutory procedural requirements following removal”;
and (2) a practice of training employees in a manner
that “encouraged the removal of any child left alone,
regardless of the circumstances”); Anderson v. City of Blue
Island, No. 09C5158, 2010 WL 1710761, at *2 (N.D. Ill.
April 28, 2010) (finding plaintiff's § 1983 claim survived
city's motion to dismiss when plaintiff's allegations of
inadequate training “highlight[ed] a specific deficiency in
the training provided to [police officers] he encountered
on the night in question and present[ed] a plausible
causal connection between the training and constitutional
deprivation he allegedly suffered.”).
Even construing the allegations in the Amended
Complaint in the light most favorable to Plaintiff, I find
that Plaintiff has set forth only a “formulaic recitation”
of the elements of a § 1983 claim based on failure to train
and supervise and, therefore, Plaintiff's claims against
the City and County based on inadequate training and
supervision should be dismissed under Fed.R.Civ.P. 12(b)
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bark v. Chacon, Not Reported in F.Supp.2d (2011)
2011 WL 1884691
(6). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009)
(quoting Twombly, 550 U.S. at 555).
b. The Individual Defendants
The individual Defendants, with the exception of
Defendant Chacon, contend that the claims against them
must be dismissed because Plaintiff has failed to identify
which particular Defendant committed which specific
act alleged in the Amended Complaint. The individual
Defendants assert that the allegations in the Amended
Complaint are insufficient to provide them with adequate
notice as to the nature of the claims against each of them.
In response, Plaintiff contends that during the incident
in question, only Defendant Chacon identified himself by
name, and because Plaintiff is not personally acquainted
with the remaining Defendants, and because they did not
identify themselves during the course of the incident, he
is unable to identify which of the remaining individual
Defendants did what. Plaintiff maintains, however, that
all of the individual Defendants were present at the
incident in question and participated in the events
described in the Amended Complaint. He further notes
that the individual Defendants have admitted that they
were present at the incident.
*5 A complaint must give defendants fair notice of the
claims asserted against them, and the grounds upon which
those claims rest. Conley v. Gibson, 355 U.S. 41, 45–46
(1957). In addition, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ “ Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In their
motions to dismiss, the individual Defendants rely heavily
on Robins v. Oklahoma, 519 F.3d 1242, 1249–50 (10th
Cir.2008), in which the Tenth Circuit noted that in § 1983
cases, where defendants often include both legal entities
and individual actors, “it is particularly important ... that
the complaint make clear exactly who is alleged to have
done what to whom, to provide each individual with
fair notice as the basis of the claims against him or her,
as distinguished from collective allegations against the
state.” In that case, the plaintiff brought claims against the
Oklahoma Department of Human Services, the director
of DHS, various DHS social workers and supervisors,
and another individual following the death of their infant
daughter at a licenced, privately owned daycare facility
in Oklahoma. Robins, 519 F.3d at 1246. However, the
complaint failed to isolate the alleged unconstituional
acts of each defendant and, therefore, did not provide
adequate notice of the claims against each. Id. at 1250.
The Tenth Circuit explained that by using the collective
term “defendants” to refer to a variety of entities and
individuals, “it is impossible for any of these individuals
to ascertain what particular[ ] acts they are alleged to have
committed.” Id. at 1250.
I find that the allegations in the Amended Complaint are
distinguishable from the allegations in Robins in several
important respects. First, the allegations in the Amended
Complaint differentiate between the actions taken by
individual Defendants and actions allegedly taken by
the City and County. In addition, all of the individual
Defendants are law enforcement officials employed by
the City or County, and all are sued in their individual
capacities. Moreover, the allegations pertaining to the
individual Defendants all relate to a single incident, and
all of the individual Defendants are alleged to have been
present at that incident and to have acted in concert.
Unlike Robins, this is not a case where the allegations
against the individual Defendants are “entirely different
in character and therefore ... mistakenly grouped in a
single allegation.” Id. While Plaintiff has not alleged which
specific Defendant committed which specific act during
the incident in question, it would be unfair to require
Plaintiff to do so based on the circumstances alleged in
this case. Here, I find that the allegations in the Amended
Complaint provide sufficient notice to the individual
Defendants of the claims asserted against them and the
grounds upon which those claims rest. Therefore, I deny
the motions to dismiss with respect to the claims asserted
against the individuals Defendants.
III. CONCLUSIONS
*6 Therefore, for the reasons set forth herein, it is hereby
ORDERED that Defendants' Motion to Dismiss, filed
November 18, 2010 [ECF No. 23], and the County
Defendants' Motion to Dismiss Amended Complaint,
filed November 22, 2010 [ECF No 25] are GRANTED
IN PART AND DENIED IN PART. The motions are
granted in that the claims and causes of action asserted
against the City of Colorado Springs and El Paso County
County are dismissed. The motions are denied with respect
to the claims and causes of action asserted against the
remaining individual Defendants.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bark v. Chacon, Not Reported in F.Supp.2d (2011)
2011 WL 1884691
All Citations
Not Reported in F.Supp.2d, 2011 WL 1884691
Footnotes
1
Defendant Chacon is also employed by the City of Colorado Springs, but he does not seek dismissal of the claims against
him.
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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