ESTATE OF JOSEPH VALVERDE, by and through ISABELLE PADILLA, as representative and next of kin of the decedent v. JUSTIN DODGE, and THE CITY AND COUNTY OF DENVER, COLORADO
Civil Action No. 16-cv-01703-MSK-MEH
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Michael E. Hegarty, United States Magistrate Judge
May 9, 2017
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendants’ Motion to Dismiss First Amended Complaint [filed October 25, 2016; ECF No. 30]. On April 17, 2017, the Honorable Marcia S. Krieger referred the motion to this Court for recommendation. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication. Defendants’ motion asks the Court to determine whether Plaintiff’s Amended Complaint states individual and municipal liability claims against Defendants under
I. Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in the Amended Complaint, which are taken as true for analysis under
On July 2, 2014, the Denver Police Department ( “DPD” ) arranged an undercover drug bust operation, where DPD’s officers planned to arrest Joseph Valverde after selling him cocaine. Am. Compl. ¶ 12, ECF No. 27. During the deal, a white SUV drove into a nearby parking lot, and approximately seven members of the DPD SWAT team exited the vehicle and surrounded Valverde. Id. at ¶ 17. Immediately after Valverde noticed the SWAT team, he discarded his handgun on the ground without pointing it at any officers or bystanders. Id. at ¶¶ 18, 21. Valverde then raised both of his hands near his head in an obvious position of surrender. Id. at ¶ 19. While Valverde’s gun was on the ground and his empty hands were in the air, Defendant Dodge discharged his assault rifle multiple times at Valverde, which eventually led to his death. Id. at ¶ 20.
After the incident, Dodge gave false accounts of the shooting to investigators and other personnel, including a statement that he fired his weapon after he saw Valverde raise the gun towards him. Id. at ¶ 25. Additionally, Denver issued public statements designed to cover up and conceal the use of unnecessary deadly force. Id. at ¶ 27. Specifically, Denver stated that Dodge shot Valverde only after Valverde advanced on Dodge’s fellow officers with a raised weapon. Id. at ¶
II. Procedural History
Based on these factual allegations, Plaintiff filed its original Complaint on July 3, 2016. On September 22, 2016, Defendants filed a Motion to Dismiss the Complaint. ECF No. 17. In response to Defendants’ motion, Plaintiff filed the operative Amended Complaint as a matter of course. ECF No. 27. Plaintiff’s Amended Complaint asserts two causes of action under
On October 25, 2016, Defendants filed the present Motion to Dismiss for Failure to State a Claim. ECF No. 30. First, Defendants argue that, in deciding their motion, the Court should consider video evidence of the alleged incident. Defs.’ Mot. 2–4. Incorporating this evidence, Defendants contend Dodge is entitled to qualified immunity, because the shooting did not violate clearly established federal law. Id. at 5–13. Next, Defendants argue Plaintiff fails to assert a plausible municipal liability claim against Denver. Id. at 13–26. In its response, Plaintiff contends the Court’s analysis must be confined to the four corners of the Amended Complaint, Dodge’s actions violate clearly established federal law, and “Plaintiff has presented a robust set of Monell allegations against Denver.” Pl.’s Resp. ECF No. 37. Defendants filed a Reply in Support of their Motion on December 5, 2016. ECF No. 38. After the Honorable Kathleen M. Tafoya recused herself from this case, it was reassigned to this Court on April 17, 2017. ECF No. 40.
LEGAL STANDARDS
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’ ” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the
ANALYSIS
The issues before the Court are whether it should consider Defendants’ video evidence at this stage of the proceeding, whether Plaintiff has alleged Dodge’s actions violated clearly established constitutional law, and whether Plaintiff sufficiently pleads a municipal liability claim against
I. Consideration of Video Evidence
Defendants first argue that, in determining whether Plaintiff’s Amended Complaint states a claim, the Court should consider video evidence of the underlying incident. Defs.’ Mot. 2–4. According to Defendants, this is proper, because Plaintiff referenced the video in the original Complaint, and the Amended Complaint refers to the incident depicted in the video. Id.; Defs.’ Reply 2. Plaintiff contends the Court cannot consider the evidence, because it did not specifically reference or incorporate the video into the Amended Complaint. Pl.’s Resp. 8–9. The Court agrees with Plaintiff.
At the motion to dismiss stage, courts generally cannot consider evidence outside of the pleadings. See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) ( “Generally, the sufficiency of a complaint must rest on its contents alone.” ). The only exceptions to this well-established rule are for “(1) documents that the complaint incorporates by reference, (2) ‘documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,’ and (3) ‘matters of which a court may take judicial notice.’ ” Id. (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)) (internal citations omitted).
Here, Defendants first argue that consideration of the outside evidence is proper, because Plaintiff specifically referenced the video in the original Complaint. Defs.’ Mot. 3. However, “it is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665 (2d. Cir. 1977)). Because the original Complaint is of no
In their reply brief, Defendants contend that the Amended Complaint references the video, because the alleged conduct is depicted on the video. Defs.’ Reply 9. However, the limited exceptions to what the court can consider at this stage require that the plaintiff specifically reference or incorporate the evidence. Gee, 627 F.3d at 1186. Plaintiff does not mention the video in its amended pleading. Indeed, after reading the Amended Complaint, the Court was not aware that a video of the incident exists. Moreover, because Plaintiff did not rely on the video in asserting its claims for relief, the rationale underlying the exception does not apply. See GFF Corp. v. Assoc. Wholesale Grp. Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997) (stating that the exception for documents referenced in the complaint exists, because “if the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss by not attaching a dispositive document on which the plaintiff relied” ).
The cases Defendants cite do not support their position. First, Defendants rely on Jackson v. Alexander, 465 F.2d 1389, 1390 (10th Cir. 1972), for the proposition that courts need not accept as true allegations in the complaint to the extent they are contradicted by undisputed video evidence. Defs.’ Mot. 3. However, the Jackson court held only that courts need not accept as true “allegations of fact that are at variance with the express terms of an instrument attached to the complaint as an exhibit and made a part thereof.” Id. at 1390 (emphasis added). Because Plaintiff did not attach the video to the Amended Complaint, Jackson does not support Defendants’ argument.
II. Individual Capacity Claim
Plaintiff’s first cause of action asserts an excessive force claim against Dodge in his individual capacity. Am. Compl. ¶¶ 42–49. Defendants argue Dodge is entitled to qualified immunity, because Plaintiff fails to allege that Dodge’s actions violated clearly established constitutional law. The Court disagrees and holds that Plaintiff pleads a constitutional violation.
Qualified immunity protects a public official whose possible violation of a plaintiff’s civil rights was not clearly established at the time of the official’s actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006). “A qualified immunity defense is only available to parties sued in their individual capacity.” Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005). “When faced with a qualified immunity defense, the plaintiff must establish ‘(1) that the
A. Constitutional Violation
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). The “reasonableness” inquiry is an objective one—i.e. “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. In determining whether an exercise of force was reasonable under the Fourth Amendment, courts consider: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.
Specific to the use of deadly force, such “force is justified under the Fourth Amendment if a reasonable officer in Defendants’ position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)
Accepting Plaintiff’s allegations as true, the Court holds that Plaintiff has asserted a plausible Fourth Amendment violation. Regarding the factors articulated in Graham, Valverde was unarmed, had not threatened police, and had his hands above his head in a position of surrender. Am. Compl. ¶¶ 18–21. Therefore, although drug crimes are relatively serious, Valverde did not pose an immediate threat to the safety of the officers or others, and he was not resisting arrest. To the contrary, Valverde had allegedly surrendered to the officers by placing himself in a vulnerable position. Moreover, the factors specific to the use of deadly force further support Plaintiff’s argument that Dodge unreasonably fired his rifle. Although the officers never ordered Valverde to drop his weapon, he allegedly did so without “brandish[ing], rais[ing], threaten[ing], or point[ing] the weapon at anyone.” Id. at ¶¶ 22–23. The Amended Complaint does not state the distance separating Dodge and Valverde, but Plaintiff alleges that by placing his hands above his head, Valverde demonstrated his intent “to disarm himself of his weapon and surrender . . . .” Id. at ¶ 22. Because Plaintiff’s allegations plausibly state that Dodge’s use of force was unreasonable, Plaintiff has stated a Fourth Amendment claim.
None of Defendants’ arguments to the contrary are availing. First, many of Defendants’ contentions rest on the notion that Valverde was armed when Dodge shot him. According to
Second, Defendants claim that even if the Court does not accept the video evidence at this stage, the fact that Valverde pulled his gun out just seconds before the shooting makes the use of force inherently reasonable. Defs.’ Reply 9–10. According to Defendants, Tenth Circuit precedent makes clear that courts must not focus on the threat to the officers at the exact moment of the shooting, but should look at the totality of the circumstances. Defs.’ Reply 10 (citing Thomson, 584 F.3d at 1318 (rejecting an argument that a use of deadly force was unreasonable because the suspect pointed his gun at his own head immediately before the officer fired the shot)). However, the Amended Complaint does not state that Valverde disarmed himself just seconds before the shooting.
B. Clearly Established Law
That a complaint states a constitutional violation against an officer is not sufficient to withstand a
Plaintiff also relies on Estate of Larsen and Thomson for the proposition that, to pose an imminent threat so as to justify the use of deadly force, the suspect must take some dangerous action beyond merely possessing a weapon at some point. Pl.’s Resp. 29. In Estate of Larsen, the Tenth Circuit found that a use of deadly force was justified, because the suspect threatened violence and took a step towards one of the officers with a knife pointed towards the officer. 511 F.3d at 1260. Similarly, in Thomson, the armed suspect was known to have threatened his wife and refused instructions to put his weapon down. 584 F.3d at 1318–19. The Court holds that Estate of Larsen, and Thomson would put a reasonable officer on notice that it would be unconstitutional to use deadly force on a suspect who does not possess a weapon, has not threatened violence, and is voluntarily surrendering. Therefore, the Court recommends holding that Dodge is not entitled to qualified immunity at this stage. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) ( “[I]t is unreasonable
III. Municipal Liability Claim
Plaintiff’s second claim for relief asserts Denver is liable for the violation of Plaintiff’s Fourth Amendment rights, because Denver’s policies and practices were a moving force behind the violation. Local governments can be liable under Section 1983 “only for their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011). Hence, “[a] municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff.” Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 692 (1978)). Rather, to prove a Section 1983 claim against a municipality, a plaintiff must demonstrate the existence of a municipal policy or custom, which directly caused the alleged injury. Hinton, 997 F.2d at 782 (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). A plaintiff may show a municipal policy or custom in the form of any of the following:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Brammer-Hoetler v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)) (internal quotations omitted). To establish the second element, causation, the plaintiff must assert that the municipality’s conduct is “closely related to the ultimate injury.” Harris, 489 U.S. at 391. To require anything less would
In this case, Plaintiff makes four separate arguments to establish a municipal policy or custom—a formal policy, an informal custom, Denver’s ratification of Dodge’s actions, and Denver’s failure to adequately train or supervise its officers. Am. Compl. ¶¶ 51–59; Pl.’s Resp. 33–36. Albeit barely, the Court recommends holding that Plaintiff has met its burden of alleging a plausible entity liability claim. The Court finds Plaintiff asserts an unconstitutional informal custom and a failure to adequately train. However, Plaintiff has not alleged the existence of a constitutionally defective formal policy or that Denver’s ratification of Dodge’s actions caused Valverde’s injuries. The Court will address each theory of liability in turn.
A. Informal Custom
To establish an informal custom or practice, a plaintiff must prove:
(1) The existence of a continuing, persistent and widespread practice of unconstitutional misconduct . . .; (2) Deliberate indifference to or tacit approval of such misconduct by the [municipality’s] policymaking officials . . . after notice to the officials of that particular misconduct; and (3) That the plaintiff was injured by virtue of the unconstitutional acts pursuant to the . . . custom.”
Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cty. Kan., 996 F.2d 1035, 1040 (10th Cir. 1993). Plaintiffs generally show a widespread practice of unconstitutional misconduct by pointing to a record of complaints, statistics, or similar violations. Bryson, 627 F.3d at 789 (finding that the plaintiff did not assert a municipal liability claim, in part because, “the City has not yet received any complaints or criticisms of [similar conduct].” ); Young v. City of Albuquerque, 77 F. Supp. 3d 1154, 1187 (D.N.M. 2014) (holding that the plaintiff did not plead an informal custom, because he “has
Here, Plaintiff alleges Denver fostered an informal “shoot first, ask later” custom. Am. Compl. ¶¶ 33, 54. The Court holds that, although a close call, Plaintiff provides sufficient allegations to demonstrate an informal policy. First, Plaintiff references a complaint in a separate case, which in turn asserts that Denver’s officers have been involved in five fatal shootings since 2004.2 Am. Compl. ¶ 35; see Ronquillo v. Denver, No. 16-cv-01664-CMA-NYW, ECF No. 1, at 29–30; Booker v. Denver, No. 11-cv-00645-RBJ-KMT, ECF No. 36, at 28, 32. Moreover, the 2009 shootings referenced in Booker were of unarmed individuals, one of whom had recently dropped a weapon. The Court finds these cases sufficiently similar to at least provide some evidence of an informal “shoot first” custom within DPD.
Although five incidents may not be enough by itself to establish an informal custom, Plaintiff alleges that Denver purposefully made false statements to cover up the use of unreasonable force. Am. Compl. ¶ 28. The Tenth Circuit has stated that “[a] subsequent cover-up might provide
The Court also finds that the alleged policy was the moving force behind the shooting. To carry its burden on causation, Plaintiff must assert that the “shoot first” policy was tied to Dodge’s use of deadly force against Valverde. Martinez, 2013 WL 5366980, at *15. According to the Amended Complaint, Denver’s cultivation of this policy has led to a “belief among officers that prematurely shooting someone to defeat a possible threat that lacks imminence may be reasonable.” Am. Compl. ¶ 40. In accordance with this belief, Dodge fired his weapon while Valverde was unarmed and had his hands up. Id. at ¶ 59. The Court finds this case distinct from Martinez, where the court held that the plaintiffs had not alleged causation. 2013 WL 5366980, at *15. According to the Martinez court, the plaintiffs’ response made “no effort whatsoever to tie the alleged deficiencies in Denver’s policies to the particular violations alleged here, other than [to] draw them all under the general umbrella of ‘excessive force.’ ” Id. Here, Denver’s alleged “shoot first” custom is directly connected to Dodge’s premature decision to fire his weapon at Valverde. Therefore, the
B. Failure to Train or Supervise
Next, Plaintiff claims Denver is liable for failing to adequately train its officers on the imminence of harm. Am. Compl. ¶ 38. “[P]roving that a municipality itself actually caused a constitutional violation by failing to train the offending employee presents ‘difficult problems of proof,’ and we must adhere to a ‘stringent standard of fault,’ lest municipal liability under § 1983 collapse into respondeat superior.” Connick, 563 U.S. at 69. In this context, Plaintiff must allege facts sufficient to suggest that the failure to train “amounts to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” See id. at 61.
Deliberate indifference is established only “when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights,” but they “choose to retain that program.” Id. As explained by the Court in Connick:
[a] pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Policymakers’ “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.” Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.
Here, the Court finds that Plaintiff has plausibly alleged a failure to train. According to the Amended Complaint, “[t]raining failures regarding key issues such as the imminence of harm and
C. Formal Policy
Plaintiff also alleges that Denver has unconstitutional formal policies. Am. Compl. ¶ 37. Specifically, Plaintiff contends Denver’s use of force policy is deficient, because it does not define
D. Ratification
Lastly, Plaintiff alleges Denver is liable for the shooting, because Denver ratified Dodge’s unconstitutional conduct. Am. Compl. ¶¶ 27–32; 52. “[A] municipality will not be found liable under a ratification theory unless a final decisionmaker ratifies an employee’s specific unconstitutional actions, as well as the basis for these actions.” Bryson, 627 F.3d at 790. Here, Plaintiff contends that by declaring the shooting to be within DPD policy, Denver ratified Dodge’s unconstitutional actions. Am. Compl. ¶¶ 27–32. However, even assuming this constitutes ratification, Plaintiff has not alleged “that the ratification [was] the moving force, or cause, of the alleged constitutional violation.” Dempsey v. City of Baldwin, 143 F. App’x 976, 986 (10th Cir. 2005). Indeed, because the alleged ratification happened after the shooting, Plaintiff had already suffered the injury by the time it occurred. Therefore, Denver’s acceptance and praise of Dodge’s conduct did not cause Valverde’s injury. The Court recommends dismissing Plaintiff’s Amended Complaint to the extent it asserts Denver is liable for ratifying Dodge’s conduct.
The Court first holds that it may not consider video evidence of the underlying incident at the motion to dismiss stage. Accepting Plaintiff’s allegations as true, Plaintiff has plausibly asserted a Fourth Amendment violation against Dodge in his individual capacity. Additionally, the Court holds Plaintiff has alleged that Valverde’s shooting was caused by Denver’s informal “shoot first” custom and Denver’s failure to adequately train and supervise its officers. However, the Court holds Plaintiff has not pleaded an unconstitutional formal policy or that Denver’s “ratification” of the shooting caused the alleged harm. Accordingly, the Court respectfully recommends that Defendants’ Motion to Dismiss First Amended Complaint [filed October 25, 2016; ECF No. 30] be granted in part and denied in part.
Entered and dated at Denver, Colorado, this 9th day of May, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge