Cornell et al v. Denver C.A.R.E.S. et al
Filing
94
ORDER. All claims by plaintiffs Michael Cornell, Lauren Rodriguez, and Jeremy Cordova and all claims against defendants John Does #3 and #4 are dismissed with prejudice. The Motion to Dismiss Plaintiffs' First Amended Complaint and Jury Demand [ 61] is GRANTED in part and DENIED in part. Plaintiff Jon Banks' first claim, second claim (insofar as it is based on the United States Constitution), and third claim against defendants Paul Rose and Alicia Portillo are dismissed without prejudi ce on the basis of qualified immunity. Plaintiff Jon Banks' first claim, second claim (insofar as it is based on the United States Constitution), and third claim against defendant Denver C.A.R.E.S. are dismissed without prejudice pursuant to Fe d. R. Civ. P. 12(b)(6). Because the Court declines to exercise supplemental jurisdiction, plaintiff Jon Banks' second claim, insofar as it is based on the Colorado Constitution, and plaintiff Jon Banks' fourth claim are dismissed without prejudice. Within 14 days of the entry of this Order, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. This case is closed.By Judge Philip A. Brimmer on 3/13/18. (pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02915-PAB-KLM
MICHAEL CORNELL,
LAUREN RODRIGUEZ,
JON BANKS, and
JEREMY CORDOVA,
Plaintiff,
v.
DENVER C.A.R.E.S., a behavioral health facility operated by Denver Health Medical
Center/Denver Health and Hospital Authority,
ALICIA PORTILLO,
PAUL ROSE, and
JOHN DOES #3 and #4, employees of DENVER C.A.R.E.S.,
Defendants.
ORDER
This matter is before the Court on the Motion to Dismiss Plaintiffs’ First Amended
Complaint and Jury Demand [DOC #54] [Docket No. 61] filed by “Denver Health and
Hospital Authority,” Nicole McLean, Alicia Portillo, Rene McQuiller, Ava Walston, and
Paul Rose (collectively, “defendants”).1 The Court has jurisdiction pursuant to 28
1
The parties stipulated to the dismissal with prejudice of all claims against
former defendants Denver Police Department; Robert C. White, Denver Police Chief;
John Does #1 and #2; Nicole McLean; Rene McQuiller; and Ava Walston. Docket Nos.
84, 86, 91-92. The stipulations did not dismiss plaintiffs Michael Cornell, Lauren
Rodriguez, and Jeremy Cordova. See Docket Nos. 84, 86. However, this appears to
have been an oversight. The notice of partial settlement filed by Mr. Cornell, Ms.
Rodriguez, and Mr. Cordova indicated that, after the parties filed their stipulation to
dismiss, the only claims that would remain pending were those “asserted by Plaintiff
Jon Banks against Defendants Denver C.A.R.E.S., Alicia Portillo, and Paul Rose.”
Docket No. 85 at 2. This result is consistent with the allegations in the amended
complaint. See Docket No. 54. Accordingly, the Court will dismiss with prejudice all
U.S.C. § 1331.
I. BACKGROUND2
On October 1, 2016, plaintiff Jon Banks (“plaintiff”) began vomiting while
watching a football game at a bar in Denver, Colorado. Docket No. 54 at 11, ¶ 76. Bar
staff called an ambulance for plaintiff, which took him to Denver Health Medical Center
where he was treated for intoxication. Id., ¶ 78. After approximately six hours, a van
from defendant Denver C.A.R.E.S. (“Denver CARES”) picked up plaintiff and
transported him to the Denver CARES facility. Id. at 12, ¶¶ 79, 80. Denver CARES is a
behavioral health facility with a mission to provide drug and alcohol detoxification and
rehabilitation services. Id. at 3, ¶ 8. Denver CARES is operated by the Denver Health
and Hospital Authority (“DHHA”), a political subdivision of the State of Colorado. Id.
After plaintiff arrived at Denver CARES, security staff confiscated plaintiff’s
personal belongings, including his wallet and cellular telephone. Docket No. 54 at 13,
¶ 86. Defendant Paul Rose, an employee of Denver CARES, created a “service plan”
for plaintiff’s “safe and humane detox,” which was signed by Alicia Portillo, a registered
nurse. Id. at 4, ¶ 16 and at 13, ¶¶ 87-88. Denver CARES staff told plaintiff that he was
not free to leave the facility until he blew a 0.000 blood alcohol level (“BAL”) on a
breathalyzer test. Id., ¶¶ 90, 92. Plaintiff observed multiple people be placed in solitary
claims by Mr. Cornell, Ms. Rodriguez, and Mr. Cordova and all claims against
defendants John Does #3 and #4 pursuant to the notice of partial settlement and
related stipulation of dismissal. Docket Nos. 85, 86; see also Docket No. 54 at 15,
¶ 108; Fed R. Civ. P. 41(a)(2).
2
The following facts are taken from the first amended complaint and are
assumed to be true for the purposes of this motion.
2
confinement for demanding to know what legal right the facility had to involuntarily
detain them. Id., ¶ 94. Prior to being released from Denver CARES, plaintiff was
required to submit to a fifteen-minute exit interview. Id. at 14, ¶¶ 95-96.
After plaintiff was released, Denver CARES billed plaintiff’s medical insurance
provider for his treatment using information that it took from his wallet while he was at
the facility. Docket No. 54 at 14, ¶ 97. Plaintiff filed a complaint with the DHHA, which
responded that Denver CARES’ clients “may leave whenever they wish unless they
have been placed on a hold,” and that he could hav e left at any time if he had asked to
do so, but he did not. Id., ¶ 98.
On May 8, 2017, plaintiff’s claims against defendants were added to this lawsuit
as part of the first amended complaint. Docket No. 54. Plaintiff brings four claims: (1)
unlawful seizure of his person in violation of the Fourth Amendment of the United
States Constitution, (2) violation of procedural due process in violation of the
Fourteenth Amendment of the United States Constitution and Article II, Section 25 of
the Colorado Constitution, (3) violation of substantive due process in violation of the
Fourteenth Amendment, and (4) common law false imprisonment. Id. at 21-26.3 On
May 22, 2017, defendants filed a motion to dismiss plaintiff’s claims for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6) and asserted that they are entitled to qualified
3
The complaint does not state the statutory basis for plaintiff’s constitutional
claims. See Docket No. 54 at 21-25. Defendants assume that plaintiff’s federal
constitutional claims must be brought pursuant to 42 U.S.C. § 1983. Docket No. 61 at
5. Plaintiff does not dispute defendants’ characterization of his claims as brought
pursuant to § 1983 and relies on caselaw interpreting § 1983 in arguing that he has
stated a claim on which relief can be granted. Docket No. 64 at 4 (citing Bd. of Cty.
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
3
immunity. Docket No. 61 at 1-2. Defendants also asserted that plaintiff’s false
imprisonment claim is barred by the Colorado Governmental Immunity Act (“CGIA”),
Colo. Rev. Stat § 24-10-101, et seq. Docket No. 61 at 14.
II. ANALYSIS
A. Federal Constitutional Claims
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted). Thus, even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.”
Bryson, 534 F.3d at 1286 (alteration marks omitted).
1. Denver CARES
“A municipality may not be held liable under 42 U.S.C. § 1983 sim ply because it
employs a person who violated a plaintiff’s federally protected rights.” Jenkins v. Wood,
81 F.3d 988, 993 (10th Cir. 1996) (citing Monell v. New York City Dep’t of Social Servs.,
436 U.S. 658, 694 (1978). 4 “To establish municipal liability, a plaintiff must show (1) the
4
Although plaintiff alleges that Denver CARES is a “subsidiary” of DHHA, which
is a “political subdivision of the State of Colorado,” Docket No. 54 at 3, ¶ 8, defendants
4
existence of a municipal custom or policy and (2) a direct causal link between the
custom or policy and the violation alleged.” Id. The plaintiff must further show that “the
policy was enacted or maintained with deliberate indifference to an almost inevitable
constitutional injury.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
769 (10th Cir. 2013) (citing Brown, 520 U.S. at 403). “The deliberate indifference
standard may be satisfied when the municipality has actual or constructive notice that
its action or failure to act is substantially certain to result in a constitutional violation,
and it consciously or deliberately chooses to disregard the risk of harm.” Barney v.
Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (citation om itted). Thus, in order to
state a claim under § 1983 for deliberate indifference based on a policy or practice, a
plaintiff must allege “(1) official policy or custom, (2) causation, and (3) state of mind.”
Schneider, 717 F.3d at 769.
Defendants argue that plaintiff fails to state a claim against Denver CARES
because he has not sufficiently alleged an official policy or custom. Docket No. 61 at 67. In response, plaintiff argues that he and the four other individuals discussed in the
amended complaint were treated similarly and that the Court should infer a custom from
their common experience of being “held against his or [her] will for hours” in violation of
the procedures of Colorado’s emergency commitment statute, Colo. Rev. Stat. 27-81111. Docket No. 64 at 4-5.
do not argue that Denver CARES cannot be considered a person under § 1983 or that
it is entitled to Eleventh Amendment immunity as an arm of the state. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its of ficials
acting in their official capacities are ‘persons’ under § 1983.”); Johns v. Stewart, 57 F.3d
1544, 1552 (10th Cir. 1995) (“[T]he Eleventh Amendment bars a suit brought in federal
court by the citizens of a state against the state or its agencies.” (citation omitted)).
5
An “official policy or custom may be inferred from a complaint’s allegations,”
Starstead v. City of Superior, 533 F. Supp. 1365, 1369 (W .D. Wis. 1982) (citing Powe v.
City of Chicago, 664 F.2d 639 (7th Cir. 1981)), and courts have done so where a
“systematic pattern” suggests a policy or custom “in some form was the motivating
force.” Id. at 1369-70. The amended complaint alleges several policies and customs,
but each is stated in conclusory fashion in terms of a legal violation. For example,
plaintiff alleges that Denver CARES has a policy and custom of “unlawfully committing
intoxicated individuals who do not pose a threat to themselves or others,” Docket No.
54 at 18, ¶ 130, and has a policy and custom of “rounding up intoxicated individuals
who they believe have the means to pay for Denver CARES’ services and committing
them to the Denver CARES facility without their consent and in violation of the Colorado
emergency commitment statute.” Id. at 18-19, ¶ 134. These allegations do little more
than claim that Denver CARES has a policy or custom of committing constitutional or
statutory violations. Such allegations are insufficient because they do not provide
specific facts that support an inference that there is policy or custom that was the
“moving force” leading to the resulting constitutional deprivations. Jiron v. City of
Lakewood, 392 F.3d 410, 419 (10th Cir. 2004); see also Smith v. D.C., 674 F. Supp. 2d
209, 212 (D.D.C. 2009) (dismissing case where plaintiff alleged “systemic problems”
with inmate medical treatment but did “nothing more than recite the requisite causal
elements of custom or policy liability based on deliberate indifference”); compare
Lawson v. Dallas Cty., 286 F.3d 257, 263 (5th Cir. 2002) (finding deliberate indifference
where institutional policies prevented nurses from seeing patients regularly and
6
providing sufficient care). The similarity among the five individuals discussed in the
complaint is that they were held against their will.5 Instead of identifying a specific
policy that caused them to be held, plaintiff claims generically that plaintiff and the
others were “detained pursuant to some set of procedures that treated them like they
were simply medical patients who elected to be at the facility.” Docket No. 64 at 5. But
the circumstances of each individual’s alleged detention varied, and plaintiff does not
point to or allege a particular policy or custom that could have led to each incident. See
Turpin v. Mailet, 619 F.2d 196, 203 (2d Cir. 1980) (overturning a jury verdict based on a
pattern or practice of police harassment because poor decisions made “in the regular
course of . . . business” did not indicate a policy or practice of “encouraging police
harassment”).
Plaintiff does allege a specific fact in common with another individual discussed
in the complaint that could be viewed as a policy or custom. Plaintiff alleges that
unnamed “staff” told him upon arrival that he was being “detained for his level of
intoxication and that he was not free to leave until he blew .000 BAL on a breathalyzer
test.” Docket No. 54 at 13, ¶ 90. The complaint also alleges that staff told Jeremy
Cordova that he “would be permitted to leave when his breath alcohol test registered
‘triple zeros,’ or .000,” twelve hours after he arrived at the facility. Id. at 16, ¶ 112. But
these two similar facts are not enough for the Court to plausibly infer systematic
conduct, particularly where, as here, plaintiff does not allege or argue that Denver
5
As part of this detention, each individual was allegedly required to submit to an
intrusive exit interview before being released. See Docket No. 54 at 10, ¶ 70, at 14,
¶ 95, and at 18, ¶ 128. Plaintiff’s response does not discuss this aspect of plaintiff’s
experience or argue that it is a consequence of a particular policy.
7
CARES has a policy or custom of refusing to release individuals who cannot register a
.000 on a breathalyzer test. See Atwell v. Gabow, No. 06-cv-02262-JLK, 2008 WL
906105, at *8 (D. Colo. Mar. 31, 2008) (“Simply aggregating eight individual claims and
calling them the result of a ‘custom or policy of discrimination’ is insufficient.”), aff’d, 311
F. App’x 122 (10th Cir. 2009). Therefore, the Court will dismiss plaintiff’s federal
constitutional claims against Denver CARES for failing to allege a policy or custom that
was the moving force behind the alleged constitutional violation.
2. Individual Defendants
Plaintiff alleges that Mr. Rose and Ms. Portillo (collectively, the “individual
defendants”) “completed” plaintiff’s service plan form and signed it, respectively.
Docket No. 54 at 13, ¶¶ 87-88.
Defendants assert that the individual defendants are entitled to qualified
immunity. Docket No. 61 at 7. “Qualified immunity balances two important interests –
the need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity provides immunity from trial and the other burdens of litigation such
as discovery, rather than merely providing a defense to liability. See Saucier v. Katz,
533 U.S. 194, 200 (2001), overruled on other grounds by Pearson, 555 U.S. 223.
Therefore, a court should resolve questions of qualified immunity at the earliest
possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).
However, a plaintiff facing a qualified immunity challenge still does not have a
8
heightened pleading standard. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001);
see id. at 914 (although qualified immunity protects public officials “from the costs
associated with defending against lawsuits, particularly baseless ones, it d[oes] not
follow that a defendant’s claim of qualified immunity c[an] always be resolved before at
least some discovery [is] conducted.”) (citing Crawford-El v. Britton, 523 U.S. 574, 59193 & 593 n.14 (1998)).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Upon a public official’s assertion of a qualified immunity defense, plaintiff
bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque,
549 F.3d 1269, 1277 (10th Cir. 2008). Under the f irst prong of the analysis, the plaintiff
is required to “establish that the defendant’s actions violated a constitutional or statutory
right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of
whether a violation occurred under the first prong of the qualified immunity analysis
turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights,
509 F.3d 1278, 1282-83 (10th Cir. 2007). Under the second prong , the plaintiff must
show that the right at issue was “clearly established” at the time of the defendant’s
alleged misconduct. Saucier, 533 U.S. at 201.
When evaluating a claim of qualified immunity, “‘clearly established law’ should
9
not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552
(2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))). “‘The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Casey, 509 F.3d at 1283-84 (quoting Saucier, 533 U.S. at 202); see also
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “A plaintiff can demonstrate that a
constitutional right is clearly established by reference to cases from the Supreme Court,
the Tenth Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d
1090, 1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir.
2006)) (internal quotation marks omitted).
That being said, factual novelty alone will not automatically provide a state
official with the protections of qualified immunity. See Casey, 509 F.3d at 1284 (noting
that in the Fourth Amendment context, “there will almost never be a previously
published opinion involving exactly the same circumstances”); Blake, 469 F.3d at 914
(“[A] general constitutional rule that has already been established can apply with
obvious clarity to the specific conduct in question, even though the very action in
question has not previously been held unlawful.” (internal quotation marks and
alteration marks omitted)). The Tenth Circuit employs a “sliding scale” in identifying
clearly established law: “[t]he more obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required from prior case law to clearly
establish the violation.” Casey, 509 F.3d at 1284 (quoting Pierce v. Gilchrist, 359 F.3d
1279, 1298 (10th Cir. 2004)); see also Pauly, 137 S. Ct. at 552 (“‘Garner and Graham
10
do not by themselves create clearly established law outside ‘an obvious case.’” (quoting
Brosseau v. Haugen, 543 U.S. 194, 199 (2004))).
a. Fourth Amendment Claim
The Court will first address plaintiff’s allegations under the Fourth Amendment.6
The Fourth Amendment provides that the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV. A “seizure” of one’s person occurs
when a government actor terminates one’s freedom of movement through means
intentionally applied. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989); Scott
v. Harris, 550 U.S. 372, 381 (2007). A government official “may make a seizure by a
show of authority and without the use of physical force, but there is no seizure without
actual submission” to the official’s show of authority. Brendlin v. California, 551 U.S.
249, 254 (2007); see also United States v. Mosley, 743 F.3d 1317, 1324 (10th Cir.
2014).
Defendants argue that plaintiff has not alleged a constitutional violation because
he has not alleged personal participation by the individual defendants. Docket No. 61
at 11-12. Defendants further argue that the amended complaint lacks specific
allegations supporting the conclusion that the individual defendants’ actions led to an
unlawful seizure. Id. at 12.
6
The Fourth Amendment applies to state actors by way of incorporation into the
due process clause of the Fourteenth Amendment. See United States v.
Rodriguez-Rodriguez, 550 F.3d 1223, 1225 n.1 (10th Cir. 2008) (citing Mapp v. Ohio,
367 U.S. 643, 655 (1961)). For ease of reference, the Court refers herein only to the
Fourth Amendment.
11
Plaintiff responds that the individual defendants personally participated by
“setting in motion the course of events that caused [his] rights to be violated.” Docket
No. 64 at 6. Plaintiff claims that, by preparing the service plan form, the individual
defendants “demonstrate[d] that they are the people responsible for ratifying and
executing the unconstitutional detention of . . . Mr. Banks.” Id. at 7. Plaintiff further
argues that the individual defendants’ actions were clearly established as constitutional
violations pursuant to Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013), as
amended on denial of reh’g (Jan. 8, 2014), and the requirements of Colorado’s
emergency commitment statute, Colo. Rev. Stat. 27-81-111(1)(a). Docket No. 64 at 8.
The Court finds that plaintiff has not carried his burden to show that the
individual defendants violated clearly established law. In Myers, the Tenth Circuit
determined that the Fourth Amendment claim at issue was for malicious prosecution,
not unlawful seizure, and remanded for the trial court to determine whether the
defendant was entitled to qualified immunity. 738 F.3d at 1194-96. The court did not
address whether the plaintiff’s allegations stated a claim; it simply found that, because
the plaintiff was detained after legal process had been initiated, the claim was
necessarily in the nature of malicious prosecution. Id. at 1195. Given that the court did
not address whether the plaintiff’s allegations had stated a constitutional violation, it is
unclear how Myers could have put the individual defendants on notice that their actions
violated plaintiff’s constitutional rights, and plaintiff provides no explanation. See
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
12
violates that right.”). Moreover, plaintiff’s argument that the individual defendants
should have known that they were violating his rights because they were not in
compliance with Colorado’s emergency commitment statute is contrary to controlling
law. Plaintiff cites no authority for the proposition that a state statute should ha ve put
the individual defendants on notice that they were violating plaintiff’s federal
constitutional rights. In fact, the Tenth Circuit has held that alleged violations of state
law cannot support claims brought under § 1983. Wilder v. Turner, 490 F.3d 810, 814
(10th Cir. 2007) (“Of course a ‘violation of state law cannot give rise to a claim under
Section 1983.’” (quoting Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157,
1164 (10th Cir. 2003))).
Although the Tenth Circuit employs a sliding scale approach to determinations of
whether a constitutional violation was clearly established, plaintiff makes no argument
that the individual defendants’ conduct was particularly egregious such that it would
warrant a finding that the law was clearly established under this approach. See Casey,
509 F.3d at 1284. As plaintiff acknowledges, the individual defendants merely filled out
or signed the service plan, see Docket No. 64 at 7, and there is no allegation that the
individual defendants falsified the contents of that plan. Compare Snell v. Tunnell, 920
F.2d 673, 700-01 (10th Cir. 1990). In fact, the amended complaint does not allege with
any detail what a service plan is and what it is used for. See Docket No. 54. Because
plaintiff has not shown that there is clearly established law that would have put
individual defendants on notice that they were violating plaintiff’s constitutional rights by
completing or signing a service plan, the Court will dismiss plaintiff’s first claim on
13
qualified immunity grounds.
b. Due Process Claims
As with the first claim, defendants argue that plaintiff does not allege any action
by the individual defendants that deprived plaintiff of substantive or procedural due
process. Docket No. 61 at 13. In particular, def endants argue that plaintiff has not
alleged a show of authority by the individual defendants or that they physically
restrained him. Id. Defendants further argue that plaintiff cannot point to a decision
showing what process plaintiff was due in his particular circumstances. Id. at 14
Plaintiff responds again that the individual defendants are liable for setting in
motion the chain of events that led to plaintiff’s due process rights being violated.
Docket No. 64 at 9-10 (citing Snell, 920 F.2d 673). 7 Plaintiff further argues that
requiring him to make a showing of what process he was due places a heightened
pleading requirement on him that is impermissible, id. at 10 (citing Anderson, 483 U.S.
at 640), and that the individual defendants failed to comply with the requirements of
Colorado’s emergency commitment statute. Id.
7
Plaintiff claims that defendants made “no argument that the Individual
Defendants are entitled to qualified immunity with regard to [his] substantive due
process claim” and therefore states that he will not address it. Docket No. 64 at 8 n.1.
Defendants raised qualified immunity with respect to all of plaintiff’s claims against the
individual defendants. Docket No. 61 at 7 (asserting qualified immunity regarding
claims two and three) and at 15 (seeking dismissal of plaintiff’s claims “in their
entirety”); Docket No. 72 at 8 (aguing that plaintiff’s “Due Process claims fail”); see also
Gomez v. Toledo, 446 U.S. 635, 639-641 (1980) (holding that the burden of asserting
qualified immunity is on the defendant). Accordingly, the Court addresses both of
plaintiff’s due process claims insofar as they are based on the United States
Constitution. As explained below, the Court declines to exercise supplemental
jurisdiction over plaintiff’s second claim insofar as it is brought under the Colorado
Constitution.
14
The Court finds that plaintiff has failed to show that law regarding his due
process claims was clearly established. While plaintiff is correct that there is no
heightened pleading standard for claims subject to a qualified immunity defense, see
Currier v. Doran, 242 F.3d 905, 915 (10th Cir. 2001), plaintif f nonetheless has the
burden to show that there was clearly established law that would have put the individual
defendants on notice that their alleged actions violated his constitutional rights. Id. at
923. Plaintiff does not attempt to meet this burden and cites only cases stating general
principles of due process law that bear no factual similarity to the allegations at issue.
See Docket No. 64 at 8-9. The Supreme Court has repeatedly rejected the proposition
that such general principles suffice to make the law clearly established. Pauly, 137 S.
Ct. at 552.8 Because plaintiff has not shown that the law regarding the individual
defendants’ alleged violation of his substantive and procedural due process rights was
clearly established, the Court will dismiss, on qualified immunity grounds, plaintiff’s
second claim insofar as it is based on the United States Constitution and plaintif f’s third
claim.
B. State Law Claims
With the dismissal of plaintiff’s federal claims, the only claims that remain are
plaintiff’s state law false imprisonment and constitutional claims. While courts may
exercise supplemental jurisdiction over state law claims if there is a jurisdictional basis
for doing so, 28 U.S.C. § 1367(c)(3) states that a court may decline to exercise
jurisdiction over such claims if “the district court has dismissed all claims over which it
8
Plaintiff does not argue that the individual defendants’ actions were egregious.
See Docket No. 64 at 10.
15
has original jurisdiction.” When § 1367(c)(3) is implicated in the Tenth Circuit, courts
are advised to dismiss pendent state law claims “‘absent compelling reasons to the
contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v.
Renner, 54 F.3d 664, 669 (10th Cir. 1995)) (reversing the district court’s grant of
summary judgment on state law claims); Endris v. Sheridan Cty. Police Dep’t, 415 F.
App’x 34, 36 (10th Cir. 2011) (“any state-law claims for assault and battery or mental
and emotional injury were inappropriate subjects for the exercise of pendent jurisdiction
where all federal claims had been dismissed”) (unpublished). But see Henderson v.
Nat’l R.R. Passenger Corp., 412 F. App’x 74, 79 (10th Cir. 2011) (finding no abuse of
discretion in trial court’s decision to retain jurisdiction over state law claims after plaintiff
voluntarily dismissed claims arising under federal law) (unpublished). Plaintiff has not
identified any reason the Court should retain jurisdiction over the state law claims if the
federal claims are dismissed, and the Court finds no compelling reason to retain
jurisdiction. Plaintiff’s state-law claims will be dismissed without prejudice. See
Thompson v. City of Shawnee, 464 F. App’x 720, 726 (10th Cir. 2012) (holding that,
when declining to exercise supplemental jurisdiction over state-law claims, court “had
discretion either to remand the claims to the state court or to dismiss them”)
(unpublished). As a result, plaintiff’s second claim, insofar as it is based on the
Colorado Constitution, and fourth claim for relief will be dismissed. See Colo. Rev.
Stat. § 13-80-111 (permitting claims properly commenced within the statute of
limitations to be re-filed if involuntarily dismissed because of lack of jurisdiction); Dalal
v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo. App. 1996) (interpreting 28
16
U.S.C. § 1367(d) as tolling the statute of limitations while claim is pending in federal
court); Artis v. District of Columbia, 138 S. Ct. 594, 598 (2018) (holding that 28 U.S.C. §
1367(d) tolls the statute of limitations for state law claims asserted under § 1367(a)
during the pendency of the federal litigation in which such claims are brought and for
thirty days following involuntary dismissal of those claims on jurisdictional grounds).
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that all claims by plaintiffs Michael Cornell, Lauren Rodriguez, and
Jeremy Cordova and all claims against defendants John Does #3 and #4 are dismissed
with prejudice. It is further
ORDERED that Motion to Dismiss Plaintiffs’ First Amended Complaint and Jury
Demand [DOC #54] [Docket No. 61] is GRANTED in part and DENIED in part. It is
further
ORDERED that plaintiff Jon Banks’ first claim, second claim (insofar as it is
based on the United States Constitution), and third claim against defendants Paul Rose
and Alicia Portillo are dismissed without prejudice on the basis of qualified immunity. It
is further
ORDERED that plaintiff Jon Banks’ first claim, second claim (insofar as it is
based on the United States Constitution), and third claim against defendant Denver
C.A.R.E.S. are dismissed without prejudice pursuant to Fed. R. Civ. P. 12(b)(6). It is
further
ORDERED that, because the Court declines to exercise supplemental
17
jurisdiction, plaintiff Jon Banks’ second claim, insofar as it is based on the Colorado
Constitution, and plaintiff Jon Banks’ fourth claim are dismissed without prejudice.
ORDERED that, within 14 days of the entry of this Order, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed.
DATED March 13, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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