Board of County Commissioners for Douglas County, Colorado v. Crown Castle USA, Inc. et al

Filing 90

ORDER the court ADOPTS the 72 Report and Recommendations and GRANTS the 30 Motion to Dismiss Count Two of Defendants/Counter-Plaintiffs Counterclaim. Amended Counterclaim Two is DISMISSED with prejudice. ORDERED by Judge Raymond P. Moore on 3/26/2019. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:17-cv-3171-RM-NRN
Board of County Commissioners for
Douglas County Colorado,
Plaintiffs-Counterclaim Defendant,
v.
Crown Castle USA, Inc., and
T-Mobile West LLC,
Defendants-Counterclaim Plaintiffs.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case involves efforts by a wireless telephone provider (T-Mobile) and a facilities
infrastructure company (Crown Castle) to make modifications to an existing cellular telephone
antenna installation in Douglas County, Colorado. Generally, there is a tension between wireless
telephone companies’ desire to expand coverage and local governments’ will to maintain zoning,
historic, and aesthetic standards. Congress has passed legislation, and the Federal
Communications Commission (“FCC”) has issued regulations, providing mechanisms for the
resolution of these competing interests. This dispute zeroes on whether or not the County
properly denied Defendants’ antenna modification application and the legal effect of
communications (and silence) between them. Briefing on Defendants’ objections to the
recommendation (ECF No. 86) on the parties’ cross-motions for summary judgment is
incomplete. At present, the Court is concerned only with whether Defendants’ 42 U.S.C. § 1983
Amended Counterclaim survives the County’s motion to dismiss.

I.

BACKGROUND
After the County initiated this action seeking declaratory relief, Defendants filed three

amended counterclaims (ECF No. 28, at 13–30), from which the Court takes the following
material allegations to be true for the purposes of the County’s present motion to dismiss.
(Motion, ECF No. 30.)
A. Counterclaim Allegations
T-Mobile provides telecommunications, commercial mobile radio, and personal and
advanced wireless services to businesses and the general public. (Am. Countercl. ¶¶ 16, 19.)
Crown Castle owns, operates, and maintains an infrastructure network, upon which its
customers, like T-Mobile, have situated facilities that provide these wireless services. (Id. ¶ 14.)
A wireless facility serves a particular geographic area and normally consists of several antennas,
which may be attached to a tower, monopole, or other structure in public right-of-way or private
utility easements, along with ancillary equipment necessary for the operation of that facility. (Id.
at 20–21.) T-Mobile must periodically upgrade and modify its existing facilities, including
through adding capacity, using new technologies, and adding new spectrum bands as authorized
by the FCC. (Id. at 23.)
Federal law permits, but limits, a local government’s control over modifications to
wireless facilities, including its ability to deny applications to construct those modifications. See
47 U.S.C. § 1455 (“Spectrum Act”); see also 47 U.S.C. § 332. “[A] State or local government
may not deny, and shall approve, any eligible facilities request [(“EFR”)] for a modification of
an existing wireless tower or base station that does not substantially change the physical
dimensions of such tower or base station.” 47 U.S.C. § 1455(a)(1). FCC regulations require a
local government to approve EFR applications within 60 days of their submission (“shot clock”).

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47 C.F.R. § 1.6100(c)(2).1 The 60-day period may only be tolled by mutual agreement between
the local government and applicant or if the local government determines that the application is
incomplete. 47 C.F.R. § 1.6100(c)(3). If an application is incomplete, the local government must
provide written notice of that circumstance, including what information is missing, within 30
days of the application submission. 47 C.F.R. § 1.6100(c)(3)(i). When the applicant submits
supplemental information, the shot clock resumes running, and the local government has 10 days
to notify the applicant of any further deficiencies. 47 C.F.R. § 1.6100(c)(3)(ii)–(iii). If a local
government fails to timely approve or deny an EFR, “the [EFR] shall be deemed granted. The
deemed grant does not become effective until the applicant notifies the applicable reviewing
authority in writing after the review period has expired (accounting for any tolling).” 47 C.F.R. §
1.6100(c)(4). Applicants subject to adverse decisions by local governments may bring claims
related to this process in any court of competent jurisdiction within 30 days of such decision. 47
U.S.C. § 332(c)(7)(B)(5); 47 C.F.R. § 1.6100(c)(5).
The County provides a form for submitting EFRs. (Am. Countercl. ¶ 32.) On April 27,
2017, Crown Castle, on behalf of T-Mobile, submitted an EFR application to the County to
modify a communications tower located at 4545 E. Highway 86, Castle Rock, CO, 80104
(“Application”). (Id. ¶ 25.) That tower uses concealment panels to hide the antennas and
associated equipment from view, reducing the visual impact of the tower, and the Application
proposed to modify the tower by replacing and adding facilities that would grow the concealment
shroud from 18 inches to 38 inches wide and from 10 feet to 11 feet high—increasing the height
of the tower from 35 feet to 36 feet. (Id. ¶¶ 26–27.) Following the modification, the
communications tower would still use concealment panels to hide the antennas and associated
1

In their briefing, the parties cite these regulations as 47 C.F.R. § 1.40001, which was redesignated as 47 CFR §
1.6100. 83 FR 51886 (Oct. 15, 2018).

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equipment from view, and no antennas or associated equipment would be visible following the
modification. (Id. ¶¶ 30–31.) The Application—which expressly noted that it was an EFR as
recognized by federal law and was not merely for pre-submittal review—included a cover letter,
project narrative, photo simulation, preliminary drawings, structural analysis, an application fee,
and letters of authorization from the tower and land owners. (Id. ¶¶ 33, 36–37.) The Application
further explained why Defendants believed the modification satisfied the federal EFR
requirements. (Id. ¶ 38.) On May 4, 2017, a planning technician with the County Department of
Community Development (“Department”) confirmed that he received the EFR Application and
sent Crown Castle a site-improvement plan to redline and return. (Id. ¶¶ 40–41.)2 On May 18,
2017, Crown Castle returned a redlined site improvement plan to Douglas County. (Id. ¶ 43.)
Although it had submitted a complete application earlier, Defendants agreed to treat the 60-day
shot clock as beginning on May 18, 2017, when the redlined site improvement plan was returned.
(Id. ¶ 44.)
On June 22, 2017, Defendants met with staff from the County to discuss the Application.
(Id. ¶ 45.) On June 29, 2017, the County sent Defendants a document with the heading
“Presubmittal Review” containing comments on the Application.3 (Id. ¶ 46.) The County
specified that its “design standards for personal wireless communication facilities do not support

2

See also Am. Countercl. ¶ 69 (“The Douglas County Department of Community Development acknowledged
that it received the application materials, including the Application for Eligible Facilities Request.”). Other than
communicating by letter with the Assistant County Attorney when disagreement arose over whether the
proposal would substantially change the existing structure, Defendants have not alleged that they had any
contact with any County personnel or officials outside of the Department of Community Development
(“Department”). Nor have they alleged any decision by that or any other department outside the context of the
singular application at issue here.

3

While the County previously took the position that Defendants had not submitted a formal application before
the June 22, 2017 review, it has changed course, and the parties now agree that the Application was submitted
pursuant to the EFR process and complete by at least May 18, 2017. (See, e.g., Compl. ¶¶ 54–57, ECF No. 1;
Am. Countercl. ¶¶ 25–62.) However, because it takes the position that the proposed modifications would
“substantially change” the existing structure, the County does not consider it to be a true EFR (i.e., an eligible
facilities request).

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a 38 [inches] canister or pole diameter for this site,” because “[a]n expansion to 38 [inches] no
longer provides a stealth design” and that the “original cell site was approved and constructed as
a stealth utility pole.” (Id. ¶ 47.) The County suggested that “[s]ince the proposed design does
not meet the approval standards, we recommend that you consider alternative designs or
locations that can accommodate the increased antennas and other equipment in a stealth
manner.” (Id.) The County went on: “In this instance, the monopole is directly visible to the
adjoining state highway and several surrounding residential and agricultural properties. A stealth
windmill or silo design could be an appropriate choice for this location.” (Id. at Ex. F, ECF No.
15-6, at 3.) While the document contains language indicating that Defendants could submit
additional materials, the parties agree that the Application had been complete since May 18,
2017. (Id. ¶ 68.) Defendants maintain that this “Presubmittal Review” document was not a
formal denial of the Application and an EFR. (Id. ¶ 48.)
On July 11, 2017, Defendants and the County exchanged e-mails regarding alternative
designs, and the County reiterated its concerns with the Application as submitted. (Id. ¶¶ 52–53.)
On October 24, 2017, counsel for T-Mobile sent a letter to the County explaining its position that
the County’s conclusions concerning the Application were incorrect. Specifically, T-Mobile
argued that the modifications comprehended by the Application would not “substantially change
the existing structure” within the meaning of federal law. (Id. ¶ 55, Ex. G.) That letter also stated
that “it constitutes T-Mobile’s response to” the “Presubmittal Review, requesting additional
information.” T-Mobile took the position that the “Presubmittal Review” was not a final
decision, but it had instead tolled the 60-day shot clock, and “T-Mobile is therefore restarting the
shot clock” with its provision of additional information. (Id. at Ex. G.)4

4

While the October 24, 2017 letter represents itself as providing “additional information,” the Court sees no such
additional information contained therein other than additional argument in support of the same information and

5

On November 7, 2017, fourteen days later, the County sent a letter to Defendants
reiterating its claim that the submittal would result in a substantial modification of the tower, and
stating that the shot clock did not apply because T-Mobile submitted a “Presubmittal Review
Request,” not a formal EFR application. (Id. ¶ 58.)5 This letter unequivocally iterates the
County’s position that Defendants’ submission was not a valid EFR:
What had appeared as an innocuous unused pole with nothing on it
(thus the “stealth” designation) would change into what is clearly
some sort of wireless communications facility with a large cylinder
located at the top. Exasperating this proposed new condition is the
location in a highly visible and trafficked urbanized area. This
would clearly ‘defeat the concealment elements’ as contemplated
in 47 C.F.R. § 1.40001(b)(7)(v) and is therefore a ‘substantial
change’ that does not qualify for approval under 47 U.S.C. §
1455(a)(1).
(ECF No. 28-8.) On November 14, 2017, Defendants responded, taking the position that it had
submitted an EFR subject to the shot clock and the County’s presubmittal review process was
unlawful. (Id. ¶ 59.) On December 1, 2017, Defendant sent the County another letter, in which it
submitted that the shot clock had run on November 18, 2017, Defendants’ Application was
“deemed granted” as a matter of law, and Defendants intended to commence construction. (Id. ¶
60–61.) The County did not issue a permit for Defendants’ modification. (Id. ¶ 62.)
B. Procedural Posture
On December 29, 2017, the County filed this action seeking declaratory relief, invoking
the Court’s federal question jurisdiction. (Compl., ECF No. 1.) Generally, the County asks this
Court to confirm that it did, in fact, deny the Application; the Application is no longer subject to
challenge; and that Defendants’ letter notice that the Application is “deemed granted” is of no
proposals contained in the original Application. (Compare Am. Countercl. Ex A with id. Ex. G.) While the
letter may provide additional characterization of the previously submitted materials, it is incontrovertible that
Defendants never provided any information concerning the proposal after May 18, 2017.
5

But see note 2, supra.

6

legal effect. (Compl. at 23–24.) On January 23, 2018, Defendants answered and filed three
counterclaims. (See generally Am. Countercl.) Counterclaim One alleges a violation of 47
U.S.C. § 1455, specifically that the County misinterpreted the act and failed to approve a
proposal that would not allegedly effect a substantial change. (Id. ¶¶ 105–21.) Counterclaim
Three alleges an illegal prohibition by the County of Defendants’ ability to provide wireless
services. (Id. ¶¶ 126–29.) Counterclaim Two alleges, in toto:
COUNT TWO
Violation of 42 U.S.C. § 1983
122. Applicants incorporate Paragraphs 1-104 above as if fully
restated herein.
123. [47 U.S.C. § 1455] creates a federal right because it requires
State and local governments to approve a wireless carrier’s eligible
facilities request.
124. Douglas County’s Department of Community Development’s
failure to approve Applicants’ Application constitutes an official
action by Douglas County.
125. By failing to approve Applicants’ Application, Douglas
County has deprived Applicants of a right, privilege, or immunity
secured by the Constitution and laws, specifically Section 6409, in
violation of 42 U.S.C. § 1983.
(Id. ¶¶ 117–19.) The County moved to dismiss Counterclaim Two (See generally Motion; Reply,
ECF No. 40) and Defendants opposed. (Response, ECF No. 35.) Magistrate Judge Neureiter
considered the Motion and recommended that it be granted. (Recommendation, ECF No. 72.)
The parties’ have also filed cross-motions for summary judgment on all claims, including
Counterclaim Two. (ECF Nos. 61, 62.) Those motions were fully briefed, and the magistrate
judge has recommended that summary judgment be entered in favor of the County. (ECF No.
86.) Defendants filed an unopposed motion for an extension of time to file objections to the
magistrate judge’s report and recommendation, which this Court granted. (ECF No. 88.) Those
objections are due April 2, 2019. (Id.)

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II.

ANALYSIS
The Court reviews timely objections to a magistrate judge’s recommendation de novo.

Fed. R. Civ. P. 72(b)(3). At issue here is whether Counterclaim Two states a plausible claim
upon which relief can be granted against the familiar (and difficult) showing required to invoke
local government liability pursuant to 42 U.S.C. § 1983 set forth in Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658 (1978), and its progeny.
A. Plausibility Pleading
The County argues that Count Two of the Counterclaim should be dismissed pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The relevant legal inquiry on such a motion is
ubiquitous and routine. A court must accept as true all well-pleaded factual allegations in the
complaint, view those allegations in the light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff’s favor. Brokers’ Choice of America, Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1135–36 (10th Cir. 2014). But a plaintiff must allege “plausible”
entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007). Conclusory
allegations are insufficient. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The
pleading must “nudge[ a plaintiff’s] claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. “In determining the plausibility of a claim, [courts] look to the
elements of the particular cause of action.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865,
878 (10th Cir. 2017) (citation, internal quotation marks, and alteration omitted). Of course, a
court’s analysis on a motion to dismiss is limited to the four corners of the pleading at issue,
together with any incorporated attachments thereto. Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

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B. Local Government Liability Under Monell and its Progeny
Section 1983 demands that
[e]very 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, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
In Monell, the Supreme Court enunciated the rule for imposing Section 1983 liability on a
governmental entity: A plaintiff must identify “a government’s policy or custom” that caused the
injury. Monell, 436 U.S. at 694. In later cases, the Supreme Court required a plaintiff to show
that the policy was enacted or maintained with deliberate indifference to an almost inevitable
constitutional injury. See Brown, 520 U.S. 397, 403 (1997); see also City of Canton v.
Harris, 489 U.S. 378, 389 (1989). Thus, there are three elemental showings that a plaintiff must
plausibly allege: (1) official policy or custom, (2) causation, and (3) state of mind. Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d 760, 769–70 (10th Cir. 2013). The Court will
briefly discuss each in turn.
1. Official Policy or Custom
In Monell, the Supreme Court found that “Congress did not intend municipalities to be
held liable unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” 436 U.S. at 691. “[I]t is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible under §
1983.” Id. at 694. “The ‘official policy’ requirement was intended to distinguish acts of
the municipality from acts of employees of the municipality, and thereby make clear that

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municipal

liability

is

limited

to

action

for

which

the

municipality

is

actually

responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). A
challenged practice may be deemed an official policy or custom for Section 1983 municipalliability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final
decision

by

a

municipal

policymaker,

or

deliberately

indifferent

training

or

supervision. Schneider, 717 F.3d at 770.
2. Causation
To establish the causation element, the challenged policy or practice must be “closely
related to the violation of the plaintiff’s federally protected right.” Id. This requirement is
satisfied if the plaintiff shows that “the municipality was the ‘moving force’ behind the injury
alleged.” Brown, 520 U.S. at 404. Defendants here must therefore “demonstrate a direct causal
link between the municipal action and the deprivation of federal rights.” Id. As with so-called
supervisory liability discussed above, municipal liability in a Section 1983 case cannot be
established on a theory of vicarious liability. “Where a plaintiff claims that the municipality has
not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous
standards of culpability and causation must be applied to ensure that the municipality is not held
liable solely for the actions of its employee.” Id. at 405. “The causation element is applied with
especial rigor when the municipal policy or practice is itself not unconstitutional, for example,
when the municipal liability claim is based upon inadequate training, supervision, and
deficiencies in hiring.” Schneider, 717 F.3d at 770.

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3. State of Mind
“[A] plaintiff seeking to establish municipal liability on the theory that a facially lawful
municipal action has led an employee to violate a plaintiff’s rights must demonstrate that the
municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Brown, 520 U.S. at 407; see also City of Canton, 489 U.S. at 389.
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. In most instances, notice can be established by
proving the existence of a pattern of tortious conduct. In a narrow
range of circumstances, however, deliberate indifference may be
found absent a pattern of unconstitutional behavior if a violation of
federal rights is a highly predictable or plainly obvious
consequence of a municipality’s action or inaction[.]
Barney v. Pulsipher, 143 F.3d 1299, 1307–08 (10th Cir. 1998) (internal citations omitted).
C. Defendants have failed to allege facts that, even if true, plausibly support County
liability.
As the Recommendation surmised, Section 1983 claims against a local government
involve two showings. Assuming a plaintiff has a statutory right that may be enforced via
Section 1983, to prevail, it must establish “that a municipal employee committed a constitutional
violation [or violation of a federal right], and [ ] that a municipal policy or custom was the
moving force behind the constitutional deprivation.” Myers v. Bd. of Cnty. Comm’rs of
Oklahoma Cnty., 151 F.3d 1313, 1316 (10th Cir. 1998). In their initial briefing, the parties
focused heavily on Monell liability, principally analyzing whether the Department is a final
policymaker. But the Recommendation altered course, avoided Monell, and found that Section
1983 is not an appropriate vehicle for enforcement of limits on local authority to restrict
telecommunication installations. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113

11

(2005) (holding that an individual could not enforce Telecommunications Act limitations on
local zoning authority via Section 1983). (Recommendation at 9–10.) The Objection presents a
thorough rebuttal to the magistrate judge’s position, arguing that the remedial scheme at issue in
Abrams that evidenced congressional intent to foreclose Section 1983 recovery with respect to
the Telecommunications Act does not extend to the Spectrum Act, which contains no internal
remedial structure. (See generally Objection.) However, despite this Objection, the Court need
not decide whether Section 1983 is an appropriate enforcement mechanism for alleged violations
of the Spectrum Act because Defendants have fallen woefully short of alleging Monell liability.6
Assuming that the Spectrum Act requires local governments to approve EFRs,7 which
invests Defendants with some “right” that was violated, Defendants make no claim whatsoever
that this case involves an actual formally promulgated policy, well-settled custom or practice, or
deliberately indifferent training regime of any violative practice. Counterclaim Two states only
that the “County’s Department of Community Development’s failure to approve Applicants’
Application constitutes an official action by Douglas County.” (Am. Countercl. ¶ 124.). As
restated in the Response, Defendants argue only that “[b]ecause [the Department] designed the
process for reviewing eligible facilities requests and is the sole body responsible for reviewing
these requests, the staff are final policymakers for Douglas County, and the County is therefore
responsible for their actions.” (Response at 4.) This threadbare conclusion is not supported by
any well-pleaded allegations.

6

In its response to the Objection, the County argued both that (1) Section 1983 is not an appropriate enforcement
mechanism and (2) Defendants have not pleaded a claim for governmental liability under Monell. (See
generally Objection Response.)

7

The definition of an “eligible facilities request” pre-supposes that such a proposal will not “substantially
change” an existing fixture. 47 U.S.C. § 1455(a)(2); 47 C.F.R. § 1.6100(b)(3). While the parties clearly disagree
as to whether the Application was a true EFR, the Court assumes that the County is required to approve EFRs.

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Initially, the Court notes that Defendants’ reformed argument that the Department
“designed the process” at issue here appears only in the Response, and Defendants have no
business polluting otherwise insufficient allegations with ex post briefing argument. Looking
only to the Amended Counterclaim, and not beyond, the Court can find no allegations that even
describe the Department’s authority, operations, conduct, practices, procedures, or customs.
Defendants do nothing to nudge their unadorned conclusion that the Department is a final
policymaker from conceivable to plausible.
But assuming that Defendants were permitted to salvage Counterclaim Two with
additional explication, they misapprehend entirely the “final policymaker” theory of
governmental liability elucidated by the Supreme Court. In Pembaur, the Court established that
actions taken by a municipality’s final policymakers may give rise to municipal liability, but
only insofar as those acts were fairly equivocal as acts of the governmental institution itself. The
Court held “that municipal liability under § 1983 attaches where—and only where—a deliberate
choice to follow a course of action is made from among various alternatives by the official or
officials responsible for establishing final policy with respect to the subject matter in question.”
Pembaur, 475 U.S. at 469. “The fact that a particular official—even a policymaking official—
has discretion in the exercise of particular functions does not, without more, give rise to
municipal liability based on an exercise of that discretion.” Id. at 481–83. Going deeper, the
Court made clear that “whether an official had final policymaking authority is a question of state
law.” Id. at 483. The Tenth Circuit has identified three factors to consider when deciding whether
someone has final policymaking authority: “(1) whether the official is meaningfully constrained
by policies not of that official’s own making; (2) whether the official’s decisions are final—i.e.,
are they subject to any meaningful review; and (3) whether the policy decision purportedly made

13

by the official is within the realm of the official’s grant of authority.” Randle v. City of Aurora,
69 F.3d 441, 448 (10th Cir. 1995).
Taking the allegations in the Amended Counterclaims to be true, the Court is only
plausibly convinced of one fact—namely, that the Department had some degree of autonomy to
determine, upon submission of an EFR application, whether the proposal contained therein
would substantially change an existing structure. But as stated in Pembaur, the existence of that
discretion, without more, is not enough to confer upon a government liability for the isolated
actions of its employees. Moreover, as the County correctly points out, and the Amended
Complaint conveniently omits, the Department’s decisions are not final. Under Colorado law, the
County is required to provide for a Board of Adjustment to hear appeals of any Department
decisions. Colo. Rev. Stat. Ann. § 30-28-117(1); see also Colo. Rev. Stat. Ann. § 30-28118(1)(a) (“Appeals to the board of adjustment may be taken by any person aggrieved by his
inability to obtain a building permit or by the decision of any administrative officer or agency
based upon or made in the course of the administration or enforcement of the provisions of the
zoning resolution.”).
Finally, the allegations in the Amended Counterclaim severely undermine a showing that
the County or Department acted with deliberate indifference to an almost certain violation of
Defendants’ rights. There is no question that denying EFR applications containing proposals that
would cause substantial change is a facially lawful endeavor. Defendants’ pleading, if true,
suggest that the County extended itself beyond the call in order to assist Defendants in
complying with its restrictions by building a proper EFR application. Moreover, the County was
not at all sluggish in its responses to Defendants or cryptic in its reasoning. In fact, arguably, it is
Defendants, not the County, who are to blame for any indifference to what they believe is their

14

right. Again, arguably, the County isn’t to blame for Defendants’ choice to sleep on this issue for
many months. In any event, County indifference has not been adequately pleaded.
III.

CONCLUSION
Counterclaim Two provides too little and Defendants’ arguments in support of it go too

far. To allow Counterclaim Two to move forward would forsake Monell and its progeny to
confer respondeat superior liability upon the County for the isolated decision of a single actor on
a single occasion. Therefore, the Court does not need to address the main thrust of the
Recommendation. The Court ADOPTS, in result only, the Recommendation (ECF No. 72) and
GRANTS the Motion (ECF No. 30). Amended Counterclaim Two is DISMISSED with
prejudice.

DATED this 26th day of March, 2019.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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