Opinion
Civil Action 1:23-cv-02973-SKC-STV
05-20-2024
TATIANA FEIGENBLATT-BLAZQUEZ, Plaintiff, v. CITY AND COUNTY OF DENVER, and DOMINICK SALINAS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Rule 12(f) Motion to Strike Defendant Dominick Salinas' Common Law Immunity Affirmative Defense (the “Motion”) [#19], which has been referred to this Court [#20]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.
Because the Motion could be construed as dispositive as it relates to an affirmative defense, out of an abundance of caution, the Court proceeds by Recommendation.
For background, the Court refers to the allegations in the Complaint.
This action arises out of an encounter between Plaintiff and Defendant Salinas, a Denver police officer, at Denver International Airport (“DIA”). [See generally #3] On March 12, 2023, Plaintiff, a “well-known and respected member of the Colorado LGBTQ community,” was exiting the main terminal at DIA to greet her partner. [Id. at ¶¶ 11, 13, 16] Plaintiff “briefly hugged and kissed her partner” before loading luggage into her partner's car and preparing to leave the pick-up area. [Id. at ¶¶ 16, 18-21] As they entered the vehicle, Plaintiff heard Defendant Salinas yelling, ordering Plaintiff and her partner to move their vehicle. [Id. at ¶¶ 22-24] Defendant Salinas then approached Plaintiff's partner, threatening to give her a ticket. [Id. at ¶ 28] Plaintiff exited the vehicle and asked Defendant Salinas why he was threatening them with a ticket when they were leaving. [Id. at ¶ 29] Defendant Salinas “threatened to arrest [her] for not letting him do his job.” [Id. at ¶ 30] After a brief, exchange, Defendant Salinas ordered Plaintiff to the sidewalk. [Id. at ¶¶ 31, 34] Plaintiff did not immediately comply with the order, so Defendant Salinas told Plaintiff she was under arrest and handcuffed her in the arrival lane. [Id. at ¶¶ 35-36] Defendant Salinas then moved Plaintiff to a public vestibule, while “pulling and pushing [her] around,” and then forced her to “sit down on the floor, handcuffed.” [Id. at ¶¶ 43, 46] Plaintiff asked Defendant Salinas why she was being placed under arrest and she complained that Defendant Salinas' behavior was motivated by homophobia. [Id. at ¶¶ 52, 55] Plaintiff was transported to a detention facility within the DIA where she was placed in a locked holding cell for hours. [Id. at ¶¶ 59, 62-63] Upon release, Plaintiff was given a ticket for “interference.” [Id. at ¶ 65] Plaintiff then immediately sought medical attention as a result of pain in her shoulder, where doctors “confirmed that [she] suffered a wrist sprain and bruising to her shoulder.” [Id. at ¶¶ 66-67]
On October 4, 2023 Plaintiff filed her Complaint in the District Court for the City and County of Denver. [#3] The Complaint asserts claims against Defendant Salinas for unreasonable seizure, excessive force, and equal protection violations under the Colorado Constitution and Colo. Rev. Stat. § 13-21-131. [Id. at ¶¶ 115-149] Plaintiff has also raised a failure to train claim against Defendant City and County of Denver (“Defendant Denver”) under 42 U.S.C. § 1983. [Id. at ¶¶ 150-160]
Defendants removed the action to this Court on November 9, 2023. [#1] On December 14, 2023, Defendants filed an Answer, which in addition to answering the allegations in Plaintiff's Complaint, asserted an affirmative defense alleging that Defendant Salinas is entitled to common law immunity. [#14 at 18] On January 4, 2024, Plaintiff filed the instant Motion to Strike Defendant Salinas' common law immunity affirmative defense. [#19] On January 25, 2024, Defendant Denver filed its response to the Motion [#24], and on January 30, 2024, Plaintiff replied [#25].
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(f), the Court-sua sponte or on a motion made by a party-”may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “The Court ‘possesses considerable discretion in disposing of a Rule 12(f) motion to strike' and ‘[a]ny doubt about whether the challenged material is redundant, immaterial, impertinent, or scandalous should be resolved in favor of the non-moving party.'” Menapace v. Alaska Nat'l Ins. Co., No. 20-CV-00053-REB-STV, 2021 WL 2012324, at *5 (D. Colo. May 20, 2021) (quoting 5C Charles A. Wright et al., Fed. Prac. & Proc. § 1382 (3d ed. 2019)). “[A]s a general matter, motions to strike under Rule 12(f) are disfavored.” Broach v. Yegappan, No. 17-CV-02791-MSK-NYW, 2019 WL 6724246, at *2 (D. Colo. Dec. 11, 2019) (quotation omitted). “[B]ecause federal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12(f) motions to strike on any of the[ ] grounds [articulated in the text of the Rule] are not favored, often being considered purely cosmetic or ‘time wasters,' there appears to be general judicial agreement, as reflected in the extensive case law on the subject, that they should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy.” 5C Charles A. Wright et al., Fed. Prac. & Proc. § 1382 (3d ed. 2019) (footnotes omitted). Before granting a motion to strike a defense, a “[c]ourt must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed.” Friends of Santa Fe Cnty. v. LAC Minerals, Inc., 892 F.Supp. 1333, 1343 (D.N.M. 1995) (emphasis added) (quoting Carter-Wallace, Inc. v. Riverton Lab., Inc., 47 F.R.D. 366, 368 (S.D.N.Y. 1969)).
III. ANALYSIS
Colorado's Enhanced Law Enforcement Integrity Act (the “Act”) created a cause of action for Individuals to seek redress for police conduct that violates constitutional rights under article II of the Colorado Constitution:
A peace officer, as defined in section 24-31-901(3) who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any individual rights that create binding obligations on government actors secured by the bill of rights, article II of the state constitution, is liable to the injured party for legal or equitable relief or any other appropriate relief.
Colo. Rev. Stat. § 13-21-131(1). The Act expressly eliminated statutory immunities, qualified immunity, and the Colorado Governmental Immunity Act (“CGIA”):
(2)(a) Statutory immunities and statutory limitations on liability, damages, or attorney fees do not apply to claims brought pursuant to this section. The “Colorado Governmental Immunity Act”, article 10 of title 24, does not apply to claims brought pursuant to this section.
(b) Qualified immunity is not a defense to liability pursuant to this section.
Colo. Rev. Stat. § 13-21-131(2). The Act preserved, however, a “good faith and reasonable belief” defense for indemnification purposes. Colo. Rev. Stat. § 13-21-131(4)(a).
Plaintiff argues that Defendant Salinas' common law public official immunity defense must be stricken from the Answer because the Act eliminated common law immunity. [#19 at 1-2] Plaintiff makes two arguments in support of its Motion. First, Plaintiff argues that because the CGIA affords public officials statutory immunities in “addition to any common-law immunities applicable to a public employee,” Colo. Rev. Stat. § 24-10-118(4), in eliminating the CGIA from the Act, the General Assembly expressly “eliminat[ed] all protections afforded to police officers through the CGIA,” which “necessarily means that common law immunities specifically referenced in § 24-10-118(4) of the CGIA do not apply to claims under the Act.” [#19 at 3-5] Second, Plaintiff cites a Colorado Supreme Court case for the proposition that the legislature's intent to modify or abrogate the common law is sufficiently clear where there is no statutory reference preserving a common law doctrine despite the inclusion of other such doctrines. [Id. at 7-9 (citing Vigil v. Franklin, 103 P.3d 322, 331 (Colo. 2004) (“absence of a statutory reference to the open and obvious danger doctrine is especially instructive when contrasted with the General Assembly's inclusion of the attractive nuisance doctrine, another common law defense to the imposition of landowner duties”))] Citing Vigil, Plaintiff argues that the General Assembly intended to eliminate the common law public official immunity defense where the General Assembly included the doctrine of good faith and reasonable belief into the Act for indemnification purposes, § 13-21-131(4)(a), but wholly excluded the common law public official immunity defense. [#19 at 8]
In its response, Defendant argues that the affirmative defense of common law immunity has a legal basis for success because the Boulder County District Court, in Termin v. Johnson, et al., Case No. 22CV30614, found that the common law public official immunity doctrine was available to claims brought under Section 12-21-131. [## 24 at 2; 24-1] In Termin, the court reasoned that the legislative history of the Act, including the revision of the immunities subsection 2(b), reveals the legislature's intent to eliminate only federal qualified immunity and to preserve the ability of police officers to assert good faith, reasonable actions as a defense when performing discretionary functions. [#24-1 at 8-11] In the reply in support of the Motion, Plaintiff argues Termin was incorrectly decided. [#25 at 2-3]
The initial draft of the bill stated that: “Neither qualified immunity, nor a defendant's good faith but erroneous belief in the lawfulness of his or her conduct, is a defense to liability pursuant to this section.” [#24-1 at 8] The amended version of the bill stated: “Qualified immunity is not a defense to liability pursuant to this section.” Colo. Rev. Stat. § 13-21-131(2)(b).
“The determination of whether a privilege or immunity applies is generally a question of law for the court.” Beyer Laser Ctr., LLC v. Polomsky, No. 16-CV-03099-MEH, 2017 WL 818659, at *3 (D. Colo. Mar. 2, 2017). Neither the Colorado Supreme Court nor the Tenth Circuit has addressed whether the Act abrogated state common law public immunity defenses. To date, the Boulder County District Court case also appears to be the only written Colorado state court opinion addressing this topic. As is apparent from the briefing, this question of law is unclear and in dispute, and motions to strike are an improper vehicle for resolution of defenses raising disputed and substantial questions of law. Medina v. Safeway Inc., No. 20-CV-03726-NYW, 2021 WL 5068109, at *2 (D. Colo. Oct. 15, 2021) (“[E]ven when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits.” (quotation omitted)); Ramos v. Hertz Corp., No. 17-CV-02576-CMA-NRN, 2018 WL 4635972, at *5 (D. Colo. Sept. 26, 2018) (“The Court is not prepared to decide this important legal question, to which there is no immediate clear answer, on a motion to strike”); Alarid v. Biomet, Inc., No. 14-CV-02667-REB-NYW, 2015 WL 6376171, at *3 (D. Colo. Sept. 22, 2015) (“this court is particularly reluctant to adjudicate the merits of affirmative defenses that might raise . . . disputed or substantial issues of law”); see also Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) (“the courts generally are not willing to determine disputed and substantial questions of law upon a motion to strike”); Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., No. 4:08-CV-243 JCH, 2008 WL 2817106, at *2 (E.D. Mo. July 21, 2008) (courts should “refrain from deciding new or close questions of law on a motion to strike due to the risk of offering an advisory opinion”); Mohegan Tribe v. State of Conn., 528 F.Supp. 1359, 1362 (D. Conn. 1982) (“The presence of a substantial or seriously disputed question of law will preclude a district court from granting a motion to strike.”).
While Plaintiff's interpretation of the statute may be supported by the Colorado Supreme Court's line of reasoning in Vigil, there remains some doubt as to the insufficiency of the defense. Because any such doubt is to be resolved in favor of the non-moving party, the legal question is not adequately settled and undisputed to justify striking the affirmative defense at this point. Chavaria v. Peak Vista Cmty. Health Centers, No. 08-cv-01466-LTB-MJW, 2008 WL 4830792, at *1 (D. Colo. Nov. 5, 2008) (“A defense should not be stricken if there is any real doubt about its validity.” (quotation omitted)). Accordingly, this Court respectfully RECOMMENDS that the Motion be DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Plaintiff's Motion to Strike [#19] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).