Opinion
Civil Action 18-cv-01930-WJM-STV
07-11-2022
ERIC ST. GEORGE, Plaintiff, v. CITY OF LAKEWOOD, COLORADO, DEVON TRIMMER, a/k/a DEVON MYERS, JASON MAINES, JEFF LARSON, and DAN MCCASKY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants' Motion to Dismiss (the “Motion”) [#153], which has been referred to this Court [#154]. This 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, this Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Fifth Amended Complaint (the “Complaint”) [#149] and the Affidavit submitted with the Fifth Amended Complaint [#149-1], which must be taken as true when considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). Plaintiff also submitted numerous other exhibits, many of which are not referenced in the Complaint or whose relevance remains unclear. [##149-3-149-13] The Court therefore does not consider those exhibits because their inclusion violates the “short and plain statement” requirement of Federal Rule of Civil Procedure 8 and “it is not the Court's responsibility to sift through those exhibits to determine how they might support the claims [Plaintiff] is asserting in this action.” Cohen v. Vandello, No. 09-cv-00736-BNB, 2009 WL 1034217, at *1 (D. Colo. Apr. 9, 2009); see also Schupper v. Edie, 193 Fed.Appx. 744, 745 (10th Cir. 2006) (upholding dismissal of 38-page complaint containing 292 paragraphs, plus 120 pages of exhibits, as violative of the “short and plain statement” requirement).
A. Facts
On July 31, 2016, Plaintiff contacted a female escort through a website known for advertising sex workers. [#149-1 at 10-11] At approximately 9:00 p.m. that night, the escort arrived at Plaintiff's residence in Lakewood and took $220 in cash off Plaintiff's kitchen counter as payment for services. [Id. at 11] After she took the cash Plaintiff asked for the money back, stating that he did not believe that she was what he was looking for that evening. [Id.] The escort refused to refund the money and called her agency. [Id.]
Plaintiff was “alarmed” that the escort contacted an agency because she had advertised herself as a “solo operator.” [Id.] Nonetheless, he spoke with the agent and agreed to receive a massage and “body glide” from the escort. [Id.] Throughout the course of her service, the escort made multiple phone calls and text messages, which Plaintiff found suspicious. [Id. at 12] After thirty minutes of the one-hour service, the escort announced her intention to leave. [Id.] Plaintiff demanded that she return his money; the escort refused, pushing Plaintiff and exiting the residence. [Id.] Fearing that he was being robbed and that the escort may have a pimp waiting in the parking lot, Plaintiff armed himself with a small handgun. [Id.] When the escort was within a few feet of her vehicle, she turned and confronted Plaintiff with a can of mace. [Id. at 13] Plaintiff raised his arm overhead and fired one round into the air. [Id.] Plaintiff then lowered his arm and took aim at the escort, who fled. [Id.] Shortly after the incident, the escort contacted the Lakewood Police Department (“LPD”) through a 911 call. [Id. at 13] She told LPD that Plaintiff had made illicit sexual contact with her and that Plaintiff had fired two shots, one in the air and one at her. [Id.] She “identified herself as an ‘escort,' [] presented herself histrionically, and [wa]s refusing to meet with law enforcement in person.” [Id. at 14]
According to Plaintiff, he only fired his weapon once, into the air, and the escort lied about the second shot. [#149-1 at 13-14].
After the incident, Plaintiff left his residence and went to a restaurant for dinner and drinks. [Id. at 14] Plaintiff was not aware at the time that the escort had called the police, but he “did anticipate that a neighbor might contact police to report the sound of a gunshot, or might report excessive noise to neighborhood management.” [Id.] Plaintiff, who had a history of noise complaints with management, thought that if the police were responding to an excessive noise complaint, they would simply perform a perfunctory investigation and leave. [Id. at 15] On the other hand, if the police were responding to a reported gunshot, Plaintiff believed they would respond promptly, be visible when Plaintiff returned from the restaurant, and would knock on Plaintiff's door to question him. [Id.]
LPD officers responded to Plaintiff's private gated community at 10:13 p.m. [Id. at 16] LPD officers did not contact Plaintiff to gain entrance to the neighborhood but instead used a code provided to them by dispatch. [Id.] LPD deliberately parked marked vehicles in a location that could not be observed from Plaintiff's residence. [Id.] LPD officers investigated the scene attempting to corroborate the escort's allegations. [Id.] A neighbor, who identified herself as a former law enforcement officer, told Defendant LPD Agent Devon Trimmer that she heard “a car backfire, or a bottle rocket,” not a gunshot. [Id.] Officers did not find bullet casings on the street, nor did they observe bullet holes or ricochet marks in the nearby surroundings. [Id. at 17] LPD Agent Eric Brennan confirmed that there had not been any other reports of gunshots in the area, and Agent Trimmer noted that, at that point in the investigation, there was no imminent threat of danger. [Id.]
Plaintiff returned home from dinner at approximately 11:15 p.m. [Id. at 16] He did not see the police vehicles and was not contacted by the police. [Id.] LPD officers walked along Plaintiff's backyard and observed Plaintiff inside with a glass of wine, seated at his computer. [Id.] The officers confirmed that Plaintiff had a lack of criminal or violent history, did not have any outstanding warrants, and had two phone numbers, including the one Plaintiff had given to the escort. [Id. at 15, 17-18] The officers discussed applying for “some type of warrant” but determined that they lacked probable cause for a warrant. [Id. at 18]
Plaintiff used the other phone number to communicate with his neighborhood management. [#149-1 at 15, 18]
At 12:17 a.m. on August 1, 2016, Agent Brennan called Plaintiff at the number Plaintiff had used to contact the escort. [Id. at 15, 18] The caller ID was blocked, and Plaintiff did not answer. [Id. at 18] at 12:20 a.m., Agent Brennan called again. [Id. at 19] Though the caller ID was blocked, Plaintiff nonetheless answered the phone. [Id.] Agent Brennan identified himself as an agent with the LPD and instructed Plaintiff to come outside and talk to the police. [Id.] Plaintiff opened the front door, looked outside, and did not see any LPD officers. [Id.] LPD officers did not call out or announce their presence. [Id.]
At 12:23 a.m., LPD officers made a third phone call to Plaintiff. [Id. at 20] Once again, the caller ID was blocked, and Plaintiff did not answer. [Id.] One minute later, LPD Sergeant Nathan Muller called Plaintiff. [Id.] The Caller ID was blocked, but Plaintiff nonetheless answered the call. [Id.] Sergeant Muller identified himself as a sergeant with the LPD, told Plaintiff that his “friends” were in the backyard of Plaintiff's residence and could see Plaintiff through the window, and told Plaintiff to come outside to talk to the police. [Id.] During the call, Sergeant Muller radioed to Defendant LPD Sergeant Jason Maines to ask whether Plaintiff had a gun in his hand, and Sergeant Maines responded, no, Plaintiff had a cellular telephone in his hand. [Id. at 21] Sergeant Muller has reported that Plaintiff was upset, unsettled, and paranoid, and that Plaintiff did not believe that the call was from an LPD officer. [Id.] Plaintiff turned off the light in his master bedroom so that he could try to see who was outside. [Id.]
At 12:30 a.m., LPD officers placed a fifth call to Plaintiff. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] Plaintiff, unarmed, exited his residence onto the patio in his backyard to try to identify who has been calling him. [Id. at 21-22] Sergeant Maines and Agent Trimmer were in the backyard, hiding in the shadows along the fence line. [Id. at 22] Sergeant Maines radioed that Plaintiff had exited his residence. [Id.] Sergeant Maines reported that Plaintiff “looked tentative” and that Sergeant Maines was waiting for Plaintiff to take additional steps away from the house so that Sergeant Maines could grab him. [Id.] The officers did not identify themselves and, at 12:32 a.m., Plaintiff went back inside his home. [Id.] Plaintiff believed that the callers were not police officers, but instead were individuals sent by the escort to hurt Plaintiff. [Id. at 23]
After Plaintiff returned inside his home, Sergeant Muller again called Plaintiff's cell phone. [Id. at 24] Once again, the caller ID was blocked, but Plaintiff answered the call. [Id.] Sergeant Muller told Plaintiff that he was with the police and that there were police outside. [Id.] Plaintiff, having not seen the police on his previous trips outside, told Sergeant Muller “you aren't (out) there.” [Id.] Sergeant Muller told Plaintiff to come out with nothing in his hands, to which Plaintiff responded, “I have something in my hands.” [Id.] In response to Plaintiff's comment, Agent Brennan aired on the radio that Plaintiff was being threatening on the phone. [Id.] Plaintiff, believing somebody was impersonating a police officer and was luring him outside, grabbed a shotgun and once again exited the door leading to the backyard. [Id.] Plaintiff loudly pumped the action of his shotgun, ejecting a shell to the ground. [Id.] Agent Trimmer aired by radio, “Did you hear that gun rack?” [Id.]
At this point, Agent Trimmer and Sergeant Maines hid behind a truck, but did not confront Plaintiff. [Id.] At 12:38 a.m., Sergeant Maines radioed: “Okay, yeah, send us some more cars, he just came out and racked a gun. We moved around to the [e]ast side of the apartment building.” [Id.] Sergeant Muller and Agent Brennan positioned themselves on the west end of Plaintiff's building, and Sergeant Maines moved behind some foliage on the northwest corner of the adjacent apartment building. [Id. at 24-25] Sergeant Maines observed the light of Plaintiff's cell phone but did not see Plaintiff holding a shotgun. [Id. at 25] Sergeant Muller radioed, “Okay, so we don't have a crossfire situation [Agent Brennan] and I are gonna move up to the white truck and maintain our position there.” [Id.]
Plaintiff began to walk at an average speed from the backyard to the front of the building, around the east side of the building. [Id. at 26, 28] At 12:43 a.m., five minutes and 43 seconds after Plaintiff had racked the shotgun, Sergeant Maines radioed, “Alright [Agent Trimmer], he's coming [e]ast, he's walkin' fast, straight towards you.” [Id. at 26] Agent Trimmer, who was hiding behind a truck in a communal driveway between Plaintiff's apartment building and the adjacent apartment building, has reported that she heard crunching gravel and footfalls and hoped that Plaintiff would not know where she was located. [Id. at 26-27] Agent Trimmer observed Plaintiff walking through the communal driveway between the two apartment buildings, with his weapon pointed downward in the “low ready” position. [Id. at 27] At 12:44 a.m., when Plaintiff came into her view, Agent Trimmer shot Plaintiff in the leg. [Id.] In the approximately six minutes between Plaintiff exiting his home and Agent Trimmer shooting Plaintiff, none of the LPD officers announced a warning. [Id. at 24-27]
After being shot, Plaintiff returned fire on Agent Trimmer. [Id. at 28] Plaintiff retreated north, and Agent Trimmer fired a second round at Plaintiff, missing him. [Id. at 29] Plaintiff again returned fire. [Id.] Agent Trimmer then fired a third shot at Plaintiff, missing him. [Id.] Sergeant Maines, who was hidden behind a bush on the northwest corner of one of the apartment buildings, activated a flashlight under the barrel of his handgun and aimed it at Plaintiff. [Id.] Plaintiff, still not realizing any of the individuals were police officers, fired at Sergeant Maines. [Id.] Plaintiff fired three times, twice striking an apartment building and once striking a tree. [Id.] Sergeant Maines radioed, “he's got a shotgun,” but still did not identify himself. [Id.] The exchange of gunshots between Plaintiff and the officers occurred in a timespan of less than 90 seconds. [Id. at 30]
Plaintiff then retreated to his residence where he called 911. [Id.] At the time, Plaintiff still did not know that the individuals outside were police officers, and 911 dispatch did not advise Plaintiff that police were already on the scene. [Id. at 30-31] Plaintiff began to crawl out of his home on his hands and knees to look for the paramedics outside. [Id. at 31] He made his way down the hallway and out of his front door, firing a shot with his handgun to warn away any would-be intruders. [Id.] Plaintiff then fired three additional shots from inside the house. [Id. at 31, 34] LPD officers then opened the front door, and Plaintiff fired an additional shot into the ceiling. [Id. at 31] When the police officer commanded Plaintiff to show them his hands, he complied immediately. [Id.] Plaintiff was then taken into custody at 1:00 a.m. [Id.]
At the time of the incident, LPD officers had not obtained an arrest warrant for Plaintiff. [Id. at 32] Plaintiff alleges that during the ensuing investigation, the LPD officers and the escort made numerous false statements to Defendant Detective Jeff Larson and the other officers conducting the investigation. [Id. at 33-36] On August 2, 2016, Detective Larson filed an affidavit in support of a warrant for Plaintiff's arrest. [Id. at 36] Plaintiff maintains that Detective Larson's affidavit was false and that his entire investigation was “mired in fraud.” [Id. at 37-39] Plaintiff also maintains that Detective Larson perjured himself at a subsequent preliminary hearing. [Id. at 39-41] According to Plaintiff, the escort, Agent Trimmer, and Sergeant Maines all perjured themselves during Plaintiff's criminal trial in February 2018. [Id. at 42-43]
B. Procedural Posture
On July 30, 2018, Plaintiff filed the instant action. [#1] On May 13, 2019, this Court issued a Recommendation that all claims in the then-operative Third Amended Complaint be dismissed. [#62] On September 16, 2019, Judge Martinez adopted this Court's Recommendation as modified. [#76] Specifically, Judge Martinez: (1) dismissed Plaintiff's excessive force claim against Agent Trimmer and Plaintiff's failure to prevent excessive force claim against Sergeant Maines without prejudice; (2) dismissed Plaintiff's due process claims against all Defendants based upon their alleged perjury and withholding of evidence without prejudice, with leave to re-file should his criminal conviction be overturned; (3) dismissed Plaintiff's supervisory liability for excessive force claim against Defendant LPD Chief of Police Dan McCasky with prejudice; (4) dismissed Plaintiff's municipal liability for excessive force claim against the City of Lakewood with prejudice; and (5) dismissed Plaintiff's due process claims related to Defendants' alleged failure to comply with LPD policies with prejudice. [Id. at 43-44] Judge Martinez did not address the merits of Plaintiff's state law claims and deferred decision on whether the Court would exercise supplemental jurisdiction over the state law claims. [Id. at 42-43, 45-46] Judge Martinez allowed Plaintiff leave to file a Fourth Amended Complaint, but held that “such a complaint shall only include, at most, [Plaintiff's:] (1) excessive force claim against Defendant Agent Trimmer; (2) failure to prevent excessive force claim against Defendant Sergeant Maines; (3) [and] state tort claims against the Defendants that are currently alleged in the Third Amended Complaint.” [Id. at 45] Judge Martinez cautioned Plaintiff that “no further amendment w[ould] be permitted without a showing of substantial good cause arising out of truly compelling circumstances.” [Id. at 44-45]
On October 28, 2019, Plaintiff filed a Fourth Amended Complaint. [#82] The Fourth Amended Complaint asserted the following claims: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, and (3) various state law tort claims against all Defendants. [See generally id.] On December 23, 2019, Defendants filed a motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) seeking dismissal of Plaintiff's Fourth Amended Complaint. [#89] On April 10, 2020, this Court issued a Recommendation that Defendants' motion to dismiss be granted, that Plaintiff's excessive force claims against Agent Trimmer and Sergeant Maines be dismissed with prejudice because Plaintiff had failed to plausibly allege a violation of his constitutional rights, and that Plaintiff's state law claims be dismissed without prejudice with leave to refile in state court. [#105] On June 30, 2020, Judge Martinez adopted this Court's Recommendation [#108] and judgment was entered in favor of Defendants [#109].
The Fourth Amended Complaint also included causes of action for: (1) supervisory liability for excessive force claims against Chief McCasky and the City of Lakewood, (2) due process claims against all Defendants for failure to follow promulgated policies, and (3) due process claims against all Defendants for perjury and the withholding of evidence. [#82 at 19] However, Plaintiff acknowledged that these claims were dismissed by Judge Martinez without leave to be included in the Fourth Amended Complaint, and the Fourth Amended Complaint did not include any substantive allegations in support of the claims. [Id.]
On July 9, 2020, Plaintiff filed a timely notice of appeal as to Judge Martinez's Order adopting this Court's Recommendation. [#110] On August 20, 2021, the Tenth Circuit reversed, finding that Plaintiff had pleaded a plausible claim of excessive force against Agent Trimmer. St. George v. City of Lakewood, No. 20-1259, 2021 WL 3700918 (10th Cir. 2021). Nonetheless, the Tenth Circuit left open the possibility that the Defendant officers may be entitled to qualified immunity if the law was not clearly established at the time of the episode. Id. at *8.
On November 26, 2021, Plaintiff filed a Motion to Reinstate, which asked the Court to “reinstate” Claim Nine of the Fourth Amended Complaint. [#134] On December 9, 2021, Judge Martinez granted the Motion to Reinstate and ordered Plaintiff to file a Fifth Amended Complaint. [#138] Consistent with Judge Martinez's Order, on January 28, 2022, Plaintiff filed the operative Fifth Amended Complaint. [#149] The Fifth Amended Complaint asserts nine claims: (1) excessive force in violation of the Fourth Amendment against Agent Trimmer (Claim One); (2) failure to prevent excessive force in violation of the Fourth Amendment against Sergeant Maines (Claim Two); (3) emotional distress by outrageous conduct, a Colorado state tort, against Sergeant Maines and Agent Trimmer (Claim Three); (4) civil fraud, a Colorado state tort, against Chief McCasky, Sergeant Maines, and Agent Trimmer (Claim Four); (5) injury to property, a Colorado state tort, against all Defendants (Claim Five); (6) personal injury, a Colorado state tort, against all Defendants (Claim Six); (7) civil trespass, a Colorado state tort, against all Defendants (Claim Seven); (8) civil negligence, a Colorado state tort, against all Defendants (Claim Eight); and (9) supervisory liability for excessive force against Chief McCasky and the City of Lakewood (Claim Nine). [Id.]
Claim Nine of the Fourth Amended Complaint had asserted a claim for supervisory liability for excessive force against Chief McCasky and municipal liability for excessive force against the City of Lakewood, claims which had been previously dismissed by Judge Martinez without leave to refile in response to Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint. See supra n.2.
The Fifth Amended Complaint also contains two claims that Plaintiff acknowledges were previously dismissed and Plaintiff does not appear to be pursuing these claims as part of the Fifth Amended Complaint.
On February 7, 2022, Defendants filed the instant Motion. [#153] The Motion argues: (1) the excessive force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2) the individual Defendants are entitled to qualified immunity on the excessive force claims; (3) Plaintiff has failed to plausibly allege a claim for municipal liability or supervisory liability on his excessive force claims; and (4) the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims if his federal claims are dismissed. [Id.] Plaintiff has responded to the Motion [#161] and Defendants have replied [#162]
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The Court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Through the Motion, Defendants seek dismissal of Plaintiff's excessive force claims arguing that such claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). [#153 at 9-15] Alternatively, Defendants argue that Agent Trimmer and Sergeant Maines are entitled to qualified immunity on Plaintiff's excessive force claims. [Id. at 15-18] Next, Defendants argue that Plaintiff's supervisory liability claim against the City of Lakewood and Chief McCasky should be dismissed for failure to state a claim. [Id. at 18-23] To the extent these federal claims are dismissed, Defendants argue that the Court should refrain from exercising supplemental jurisdiction over Plaintiff's state law claims. [Id. at 24] The Court addresses each of these arguments in turn.
A. Heck
Defendants maintain that Plaintiffs' excessive force claim, failure to prevent excessive force claim, and supervisory and municipal liability claims are precluded by Heck v. Humphrey, 512 U.S. 477 (1994). [#153 at 9-15] In Heck, the Supreme Court held that a prisoner's claim for damages is not cognizable under Section 1983 if a judgment in the plaintiff's favor would imply the invalidity of his conviction or sentence, unless the conviction or sentence already has been overturned or otherwise invalidated. 512 U.S. at 486-87. In other words, if the prisoner's success in the Section 1983 suit for damages “would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749 (2004) (per curiam).
Plaintiff makes three arguments against the application of Heck. First, Plaintiff argues that Defendants waived the application of Heck to Plaintiff's excessive force claims by not raising it in response to Plaintiff's earlier complaints. [#161 at 2-3] Second, Plaintiff maintains that the applicability of Heck to his excessive force claims has already been decided by the Tenth Circuit and the doctrine of law of the case thereby prohibits relitigating the issue. [Id. at 3-4] Finally, Plaintiff argues that his excessive force claims are not necessarily inconsistent with his convictions related to the July 31/August 1 incident, and therefore Heck does not apply. [Id. at 4-9] The Court addresses each argument below.
1. Waiver
First, Plaintiff argues that Defendants waived the application of Heck to Plaintiff's excessive force claims by not raising this argument in response to Plaintiff's earlier complaints. [Id. at 2-3] However, Plaintiff filed an amended complaint-his Fifth Amended Complaint-that asserted a claim not raised in his Fourth Amended Complaint; namely, his municipal and supervisory liability claim. That new claim is necessarily premised upon Agent Trimmer's allegedly unconstitutional use of excessive force, thus requiring the Court to conduct a Heck analysis as to the excessive force claim itself in order to address the municipal and supervisory liability claim. And, as detailed below, the Court would not have needed to address the Heck issue at all had Plaintiff not included the municipal and supervisory liability claim because the Court concludes that Plaintiff's individual excessive force claims should be dismissed based upon the second prong of the qualified immunity analysis. See infra Section III.B.
In any event, even if Defendants should have raised Heck's application to the excessive force claims in their earlier motions to dismiss, “it is clear that [Defendants] could raise [their] new [Heck] arguments in a Rule 12(c) motion[,] [an] option . . . contemplated and permitted under Rule 12(h)(2).” Gilbert v. USA Taekwondo, Inc., No. 18-cv-00981-CMA-MEH, 2020 WL 2800748, at *4 (D. Colo. May 29, 2020). “Therefore, if this Court refused to consider [Defendants' Heck] arguments now, the Court would only cause unneeded delay in a case that has already proceeded for over two years, requiring [Defendant] ‘to take . . . additional steps [that] would [serve] no practical purpose under the circumstances' other than to add delay.” Id. (quoting Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty. Colo., 771 F.3d 697, 703 (10th Cir. 2014)). Accordingly, the Court will not apply the waiver doctrine to Defendants' Heck argument.
2. Law of the Case
Second, Plaintiff maintains that the applicability of Heck to his excessive force claims has already been decided by the Tenth Circuit's order remanding the case and, as a result, the doctrine of law of the case prohibits relitigating the issue. [#161 at 3-4] The Tenth Circuit has explained that “[t]he doctrine [of law of the case] applies to issues previously decided either explicitly or by necessary implication.” Copart, Inc. v. Admin. Rev. Bd., 495 F.3d 1197, 1201 (10th Cir. 2007) (alterations in original and quotation omitted). The Tenth Circuit's opinion on remand did not explicitly decide whether Heck applied to Plaintiff's excessive force (or municipal/supervisory liability) claims. See generally St. George, 2021 WL 3700918. Thus, this Court must determine whether the Tenth Circuit implicitly decided the issue.
The Tenth Circuit has identified three grounds under the law of the case doctrine by which a court may conclude that an issue was implicitly resolved by a prior appeal:
(1) resolution of the issue was a necessary step in resolving the earlier appeal; (2) resolution of the issue would abrogate the prior decision and so must have been considered in the prior appeal; and (3) the issue is so closely related to the earlier appeal its resolution involves no additional consideration and so might have been resolved but unstated.Copart, 495 F.3d at 1201-02 (quotation omitted). Here, none of these grounds applies.
First, resolution of the issue was not a necessary step in resolving the earlier appeal. As Plaintiff acknowledges, Defendants did not raise the application of Heck to Plaintiff's excessive force claims in their prior motion to dismiss. [#161 at 3] Nor is a Heck analysis necessary to assess the plausibility of an excessive force allegation under Section 1983. See St. George, 2021 WL 3700918, at *4-*8 (stating that a “valid Fourth Amendment excessive-force claim requires a plaintiff to show both that a seizure occurred and that the seizure was unreasonable” and applying Graham and Larson factors to assess reasonableness prong (emphasis and quotation omitted)). Moreover, the Tenth Circuit has held that “it is arguable whether Heck's limitation on § 1983 suits is jurisdictional” and therefore neither district courts nor the Tenth Circuit needs to sua sponte address Heck's impact on a claim. Johnson v. Spencer, 950 F.3d 680, 697-98 (10th Cir. 2020). As a result, resolution of Heck's impact on Plaintiff's excessive force claims was not a necessary step in resolving the earlier appeal.
Second, resolution of the issue would not abrogate the Tenth Circuit's prior decision. In the prior decision, the Tenth Circuit concluded that-assuming the truth of the allegations in Plaintiff's Fourth Amended Complaint-Plaintiff plausibly pled an excessive force claim. As detailed below, a finding in favor of Plaintiff on his excessive force claims would necessarily undermine the criminal jury's rejection of Plaintiff's defense of person affirmative defense. See infra Section III.A.3. But, unlike the Tenth Circuit addressing the plausibility of Plaintiff's Fourth Amended Complaint, the criminal jury was not required to accept Plaintiff's version of events. Compare St. George, 2021 WL 3700918, at *1 (accepting as true the facts alleged in the complaint for the purpose of assessing a motion to dismiss) with U.S. v. Smalls, 752 F.3d 1227, 1247 (10th Cir. 2014) (stating duty to “weigh conflicting evidence or consider witness credibility” is “delegated exclusively to the jury”). As a result, a conclusion that Heck bars Plaintiff's excessive force claim does not abrogate the Tenth Circuit's conclusion that Plaintiff plausibly alleged a constitutional violation.
Finally, the issue of whether Heck bars Plaintiff's excessive force claims is not so closely related to the earlier appeal that its resolution involves no additional consideration and so might have been resolved but unstated. As detailed below, resolution of the Heck issue involves a complex legal analysis that includes assessment of the jury instructions from Plaintiff's state criminal case. See infra Section III.A.3. Neither Heck nor the criminal jury instructions were mentioned at all in the prior appeal. See generally St. George, 2021 WL 3700918. Indeed, the Tenth Circuit did not even acknowledge Plaintiff's conviction resulting from the July 31/August 1 incident. Id. Thus, the Court cannot conclude that the Tenth Circuit resolved Heck s application to Plaintiff's excessive force claims but left that resolution unstated.
Accordingly, the Court concludes that the doctrine of law of the case does not preclude an analysis of the application of Heck to Plaintiff's excessive force (and municipal/supervisory liability) claims.
3. Application of Heck
Finally, Plaintiff argues that his excessive force claim is not necessarily inconsistent with his convictions related to the July 31/August 1 incident. [#161 at 4-9] A jury found Plaintiff guilty of numerous charges related to the July 31/August 1 incident, including second degree attempted murder and two counts of assaulting a police officer with a weapon. [#62-1 (Judgment of Conviction and Disposition Record from Colorado v. St. George, No. 2016CR002509, Jefferson County, Colorado District Court)] In defending those charges, Plaintiff raised several affirmative defenses, including defense of person. [#168-1 at 14] With respect to that affirmative defense, the jury was instructed that Plaintiff “was legally authorized to use physical force upon another person without first retreating” if:
The Court takes judicial notice of the proceedings in the criminal action. “[F]acts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). “This includes another court's publicly filed records ‘concerning matters that bear directly upon the disposition of the case at hand.'” Hodgson v. Farmington City, 675 Fed.Appx. 838, 841 (10th Cir. 2017) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)).
1. [H]e used that physical force in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
2. [H]e used a degree of force which he reasonably believed to be necessary for that purpose, and
3. [H]e was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.[Id. ] In finding that Plaintiff was guilty of second degree attempted murder, the jury concluded that the prosecution had “disprove[d], beyond a reasonable doubt, at least one of the above[-]numbered conditions.” [ Id. ] Based upon the facts alleged in the Complaint, any conclusion that Agent Trimmer used unlawful and excessive force against Plaintiff would be inconsistent with the jury's rejection of Plaintiff's defense of person affirmative defense.
Plaintiff alleges that Agent Trimmer “sought to effect an illicit arrest” by luring Plaintiff out of his home and then unlawfully attempted to murder Plaintiff by firing upon him “with intent to kill.” [#149 at ¶¶ 10-14] Plaintiff further alleges that only after Agent Trimmer shot him did he return fire on Agent Trimmer. [#149-1 at 28] Thus, if the allegations in Plaintiff's Complaint are true, Plaintiff only used “physical force in order to defend himself . . . from what he reasonably believed to be the use or imminent use of unlawful physical force by [Agent Trimmer].” [#168-1 at 14 (first element of defense of person affirmative defense)]
Similarly, because Plaintiff alleges that he only returned fire in response to Agent Trimmer shooting with the intent to kill Plaintiff, Plaintiff necessarily alleges that he “used a degree of force which he reasonably believed to be necessary to defend himself.” [ Id. (second element of defense of person affirmative defense)] Finally, Plaintiff alleges that Agent Trimmer, not Plaintiff, was the initial aggressor. [Id. (third element of defense of person affirmative defense)] Thus, acceptance of the allegations in Plaintiff's excessive force claims necessarily requires a rejection of the jury's second degree attempted murder verdict. As a result, Heck bars Plaintiff's excessive force claims. Hooks v. Atoki, 983 F.3d 1193, 1201 (10th Cir. 2020), cert. denied, 141 S.Ct. 2764 (2021) (finding Heck barred plaintiff's excessive force claim where he had pleaded no contest to assaulting police officers, then alleged in his civil action that he “did nothing wrong”); Havens v. Johnson, 783 F.3d 776, 783 (10th Cir. 2015) (finding Heck barred the plaintiff's excessive force claim where the plaintiff was convicted of attempted first degree assault on an officer and his complaint alleged not that the officers used excessive force in response to that first degree assault, but that the plaintiff had not done anything wrong).
This fact is underscored by the Tenth Circuit's conclusion in remanding the matter that “[Plaintiff's] carrying a gun in the low-ready position to protect himself as he walked around his house late at night to see who it was that wanted him to come outside and talk was not a hostile or threatening action.” St. George, 2021 WL 3700918, at *7.
The Hooks court determined:
Mr. Hooks's no contest plea to two counts of assault and battery of a police officer means he admitted repeatedly hitting the officers before he was subdued. For Mr. Hooks to prevail on his excessive force claim with respect to these uses, he would need to prove that it was unreasonable for the officers to defend themselves by subduing him. In other words, Mr. Hooks would need to show he did nothing wrong. That inquiry would necessarily entail an evaluation of whether and to what extent Mr. Hooks used force against the officers, an inquiry that would take aim at the heart of his criminal plea, thereby violating the spirit of Heck.Hooks, 983 F.3d at 1201 (quotation omitted).
Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent it seeks dismissal of Claims One and Two and that those Claims be DISMISSED WITHOUT PREJUDICE with leave to refile should Plaintiff's criminal conviction be overturned. Moreover, because Plaintiff's Ninth Claim for relief-alleging municipal and supervisory liability for excessive force against Chief McCasky and the City of Lakewood-is necessarily premised upon Agent Trimmer's alleged unconstitutional use of excessive force, Plaintiff's municipal and supervisory liability claims are likewise barred by Heck. McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (applying Heck to toll municipal and supervisory liability claims until conviction was overturned when the underlying allegedly unconstitutional action, if determined to be unlawful, would have rendered a conviction or sentence invalid). The Court therefore respectfully RECOMMENDS that the Motion be GRANTED and that Claim Nine be DISMISSED WITHOUT PREJUDICE with leave to refile should Plaintiff's criminal conviction be overturned.
B. Qualified Immunity: Excessive Force Claims
In Claim One, Plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by Agent Trimmer, in violation of Plaintiff's Fourth Amendment rights. [#149 at 6-8] In Claim Two, Plaintiff seeks relief under Section 1983 for Sergeant Maines' alleged failure to prevent Agent Trimmer's use of excessive force. [Id. at 8-11] Agent Trimmer and Sergeant Maines each maintain that that they are entitled to qualified immunity on these claims. [#153 at 15-18] As explained above, the Court believes that Heck bars Plaintiffs' excessive force claims. Nonetheless, because the Tenth Circuit remanded for an analysis of Defendants' qualified immunity defense, and in the event the district court rejects this Court's Heck analysis, the Court separately addresses Defendants' qualified immunity defense.
“Qualified immunity ‘protects governmental officials 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.'” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right (the “constitutional violation prong”), and (2) that the right at issue was “clearly established” at the time of the defendant's alleged misconduct (the “clearly established prong”). See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).
With respect to the constitutional violation prong, “claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “The reasonableness of the use of force is evaluated under an ‘objective' inquiry that pays ‘careful attention to the facts and circumstances of each particular case.'” Cnty. of Los Angeles v. Mendez, 137 S.Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Mendez, 137 S.Ct. at 1546 (quotation omitted). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
With respect to the second Graham factor, because Agent Trimmer used deadly force, her use of force is only justified if she had “probable cause to believe that there was a threat of serious physical harm to [herself] or to others.” Estate of Larsen ex rel Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (quotation omitted). In assessing the degree of threat facing officers, the Tenth Circuit considers four non-exclusive factors (the “Larsen factors”). Id. These include:
“Deadly force is such force that create[s] a substantial risk of causing death or serious bodily harm.” Clark v. Bowcutt, 675 Fed.Appx. 799, 806 (10th Cir. 2017) (emphasis omitted) (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009)). The Tenth Circuit has applied the reasonable use of deadly force standard where the plaintiff was shot but survived. Havens, 783 F.3d at 781-82.
(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.Id. In its earlier opinion, the Tenth Circuit concluded that Plaintiff had plausibly alleged facts satisfying the constitutional violation prong, but remanded the matter for the district court to analyze the clearly established prong. St. George, 2021 WL 3700918, at *8.
The requirement that the right be clearly established presents a “demanding standard” intended to ensure the protection of “all but the plainly incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established. In the Fourth Amendment context, the result depends very much on the facts of each case, and the precedents must squarely govern the present case.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Wesby, 138 S.Ct. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted). “[T]he ‘specificity' of the rule is especially important in the Fourth Amendment context.” Id. (quotation omitted).
Here, Plaintiff cites a single Tenth Circuit case and two out-of-circuit cases in support of his assertion that the right was clearly established. [#161 at 9-12 (citing Pauly v. White, 814 F.3d 1060 (10th Cir. 2016) (“Pauly I”), judgment vacated by White v. Pauly, 137 S.Ct. 548 (2017); Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013); George v. Morris, 736 F.3d 829 (9th Cir. 2013)] The Court agrees with Defendants that these cases do not clearly establish the right at issue here.
Plaintiff also cites to Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004), but he does not appear to cite Jiron for the proposition that it clearly establishes the right at issue. [#161 at 12] In any event, the Jiron Court found that the plaintiff had “failed to allege facts supporting the violation of a constitutional or statutory right.” Id. at 419. As a result, the Court fails to see how Jiron could clearly establish the right at issue in this case.
As another court in this district has recognized:
The Court is mindful that the Tenth Circuit's admonition that a plaintiff bears the burden of citing to the Court clearly established law, see Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010), typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim-where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019).Brandt v. Crone, No. 19-CV-03103-MEH, 2021 WL 681441, at *5 (D. Colo. Feb. 22, 2021), aff'd, No. 21-1093, 2022 WL 898761 (10th Cir. Mar. 28, 2022). “Therefore, the Court has conducted an additional inquiry to determine whether the relevant law was clearly established as of the dates of the events.” Id.
Pauly I was issued on February 9, 2016. 814 F.3d 1060. The incident at the center of the instant case occurred on July 31/August 1, 2016. [See generally #149-1] On January 9, 2017, the Supreme Court vacated Pauly I, holding that “[o]n the record described by the Court of Appeals, [the defendant officer] did not violate clearly established law.” White v. Pauly, 137 S.Ct. at 552. Nonetheless, the Supreme Court remanded to the Tenth Circuit to allow the Tenth Circuit to consider an alternative ground for affirmance. Id. On October 31, 2017, the Tenth Circuit issued an opinion in Pauly v. White, 874 F.3d 1197 (10th Cir. 2017) (Pauly II), finding that the right at issue was not clearly established. Because Pauly I (but not Pauly II) was issued prior to the incident at issue in this case, and because the Supreme Court did not reverse the Pauly I Court's analysis of the excessive force claim, the Court considers whether Pauly I clearly established the right at issue here.
In Pauly I, Daniel Pauly became involved in a road rage incident with two females on the highway, one of whom called 911 to report a drunk driver. 814 F.3d at 1065. A state police dispatcher notified Officer Truesdale about the 911 call. Id. Officer Truesdale met with the women who told him that Daniel was driving recklessly. Id. By that time, Daniel was no longer on the scene. Id. Officers White and Mariscal joined Officer Truesdale and the three officers agreed that they lacked probable cause to arrest Daniel and that no exigent circumstances existed at the time. Id. Officers Mariscal and Truesdale proceeded to Daniel's residence while Officer White remained behind. Id. at 1065-66. Officers Mariscal and Truesdale approached the main house at Daniel's residence but did not see Daniel's vehicle. Id. at 1066. They then decided to approach the second house to attempt to locate Daniel's vehicle. Id. As they walked toward that second house, the officers did not activate their security lights and only intermittently used their flashlights. Id. When they located Daniel's vehicle, they notified Officer White to join them. Id.
At approximately 11:00 p.m., Daniel and his brother Samuel could see “through the front window two blue LED flashlights, five or seven feet apart, coming toward the house.” Id. Daniel could not tell who was holding the flashlight, but he feared it could be intruders related to the prior road rage altercation. Id. The brothers hollered several times seeking identification. Id. In response, the officers laughed and said: “Hi, (expletive), we got you surrounded. Come out or we're coming in.” Id. Though Officer Truesdale shouted once “Open the door, State Police, open the door,” Daniel did not hear anyone say “State Police” until after the altercation was over. Id.
“Believing that an invasion of their home was imminent, Samuel retrieved a loaded handgun for himself as well as a shotgun and ammunition for Daniel.” Id. One of the brothers then hollered, “We have guns.” Id. While Officers Truesdale and Mariscal attempted to coax the brothers outside, Officer White arrived at the scene and approached the house in the back, using his flashlight periodically. Id. Officer White heard the brother say, “We have guns” and he therefore drew his weapon and “took cover behind a stone wall fifty feet away from the front of the brothers' house.” Id. Daniel then stepped partially out of the back door and fired two warning shots while screaming loudly to warn anyone off. Id. at 1066-67. A few seconds later, Officers Mariscal and White observed Samuel open the front window and point a handgun in Officer White's direction. Id. at 1067. Four to five seconds later, Officer White shot Samuel “from his covered position fifty feet away.” Id.
On behalf of Samuel's estate, his father brought an action claiming that the officers had used excessive force in violation of the Fourth Amendment. Id. at 1064. The officers moved for summary judgment, asserting qualified immunity. Id. The district court denied their motions and the Tenth Circuit affirmed that decision. Id.
Three significant differences exist between Pauly I and the instant case, such that Pauly I does not clearly establish the right at issue. First, in Pauly I, it was “unclear from the record what, if any, crime was committed during the road rage incident” and “[a]t best, the incident might be viewed as a minor crime such as reckless driving while intoxicated.” Id. at 1077. As a result, the Pauly I Court concluded that the first Graham factor “weigh[ed] in favor of Plaintiff's estate.” Id. By contrast here, Plaintiff “had committed two offenses: unlawful sexual contact and attempted murder” and, even if the officers did not believe they had probable cause to arrest Plaintiff for these violent offenses, the first Graham factor nonetheless “weighs somewhat in favor of the officers.” St. George, 2021 WL 3700918, at *5.
Second, and perhaps more importantly, the Pauly I Court emphasized that Officer White was behind cover fifty feet away before Samuel even opened the window, and concluded that “for purpose of analysis on summary judgment Samuel Pauly did not pose an immediate threat to the safety of the officers or others.” Pauly 1, 814 F.3d at 1077-78 (emphasis and quotations omitted). Indeed, the Pauly I Court noted that “not only was Officer White fifty feet away from Samuel Pauly, Officer White was sequestered behind a rock wall and Samuel was aiming his gun through the open window of a lighted house toward a target obscured by the dark and rain.” Id. at 1081. By contrast here, “[Plaintiff] and [Agent] Trimmer were separated at most by the width of a pickup truck and some portion of a communal driveway [and Plaintiff] was close enough to [Agent] Trimmer to inflict serious injury on short notice.” St. George, 2021 WL 3700918, at *7.
Third, in this case-unlike in Pauly I-the officers at the scene identified themselves to Plaintiff over the phone on at least three occasions. [#149-1 at 18-20, 24] Crucially, it was Agents Brennan and Muller-not Agent Trimmer or Sergeant Maines- who called Plaintiff. [#149-1 at 18-20, 24] Plaintiff alleges that he was suspicious of the calls because they came from a blocked number [ id. at 18 (“Blocked Caller ID is not the activity of genuine police”)], but admits that a phone call from a number associated to a police department or police officers with displayed Caller-ID is a sufficient way for police to announcement their presence. [Id. at 20] Yet there is no indication that Agent Trimmer or Sergeant Maines knew that the circumstances of the call made Plaintiff doubt whether he was contacted by actual police, nor is there any allegation that they were made aware by radio contact that Plaintiff had questioned the authenticity of Agents Brennan and Muller's claims. [See Id. at 22 (alleging only that radio traffic said Plaintiff was told to come out and talk); 23 (stating that Agent Muller's report said that Plaintiff did not believe it was the police, but not indicating that this information was conveyed to Agent Trimmer or Sergeant Maines); 23 (conclusory allegation that “all officers” were aware that they had “insufficiently identified themselves”)] The Court thus strains to infer that Agent Trimmer was aware that Plaintiff's knowledge of police presence was in question.
Plaintiff criticizes the officers for not further identifying themselves when he stepped outside [id. 18-24], but he does not explain why (or if) he would have been any more likely to believe an individual purporting to be an officer in the dark of night than the same person over the phone. And while the officers can certainly be criticized for not employing their flashing lights-which would have indisputably identified them as police-Plaintiff has not alleged that this was a decision made by Agent Trimmer, as opposed to one made by her supervisory officers. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (stating personal participation is a requirement of a Section 1983 claim).
Indeed, the Fifth Amended Complaint alleges that Agent Trimmer was aware that her supervisors had spoken to Plaintiff by phone [#149-1 at 24], and that “[n]o supervisor on scene ever radio[ed] to Officers on scene, ‘We need to shout out ‘Lakewood PD' and order this man to put down his weapon” [id. at 26]. Instead, Agent Trimmer had been informed over the radio that “[Plaintiff was] being threatening on the phone.” [ Id. at 24] She then heard Plaintiff pump the action of his shotgun and was told that Plaintiff was approaching her position. [ Id.] Thus, her next opportunity to further identify herself came: (1) as Plaintiff was approaching her with a loaded and armed weapon, (2) after she was informed that Plaintiff had received telephone notice that police were on site, (3) after receiving radio communication that Plaintiff was behaving in a threatening manner, and (4) as Plaintiff was becoming “close enough to [Agent] Trimmer to inflict serious injury on short notice.” St. George, 2021 WL 3700918, at *7. This differs drastically from the facts in Pauly I, where Officer White shot Samuel: (1) after arriving late and without announcing himself, (2) without knowing whether the police presence had been announced at all, and (3) from a covered position 50 feet away from any threat. Pauly 1, 814 F.3d at 1077-78.
These distinctions are critical. Given these distinctions, the Court cannot conclude that Pauly I is “clear enough that every reasonable official would interpret it to establish the particular rule [Plaintiff] seeks to apply.” Wesby, 138 S.Ct. at 590. Accordingly, the Court concludes that Pauly I does not clearly establish the right at issue here.
That then leaves the Court with the two out-of-circuit cases cited by Plaintiff. In Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013), the plaintiff lived in a mobile home in rural North Carolina. At about 11:00 p.m., a neighbor called 911 to report a noisy altercation, like “two males screaming at each other,” on the property. Id. at 155 (internal quotations omitted). “The dispatcher did not indicate whether the men were armed or otherwise dangerous.” Id. Two officers in separate vehicles (one a marked patrol car) drove to the vicinity of the home and approached it; the officers heard screaming coming from the property and saw a man (not the plaintiff) on the home's back porch who appeared to see the two cars as they arrived. Id. One officer tapped on the window to alert those inside to their presence, but they failed to identify themselves as officers. See id. Responding to the tapping, the plaintiff “called out for anyone in the yard to identify himself, but no one responded.” Id. He then emerged from his back door “[w]ith the butt of [his shotgun] in his right hand and its muzzle pointed toward the ground.” Id. The plaintiff had made “no sudden moves,” “made no threats,” and “ignored no commands.” Id. at 159. Without warning, the officers shot him multiple times. Id. at 156.
The plaintiff brought suit asserting various federal and state claims. Id. The officers moved for summary judgment asserting qualified immunity. Id. The district court granted summary judgment in favor of the officers on most counts, but denied it on the plaintiff's excessive force claim and certain state law claims. Id. The Fourth Circuit affirmed the district court's denial of qualified immunity. Id. at 158-60.
In George, Carol George called 911 exclaiming “No!” and “My husband has a gun!” 736 F.3d at 832. Deputies were dispatched to the residence for a domestic disturbance involving a firearm. Id. They met Carol at the front door and she asked them to be quiet and not to scare her husband, Donald, as he was on the patio with a gun. Id. The deputies attempted to establish a perimeter around the house. Id. They observed Donald exit the door to a balcony using a walker and holding a firearm. Id. at 832-833. One of the deputies then identified himself as a law enforcement officer and instructed Donald to show his hands. Id. at 832. Twelve seconds after the deputies broadcast that Donald had a firearm, the dispatch log records “shots fired.” Id. at 833. After Donald fell to the ground, a deputy continued to shoot and, in total, three deputies fired approximately nine shots, killing Donald. Id. Carol brought two constitutional claims including a claim for excessive force. Id. The deputy defendants moved for summary judgment asserting qualified immunity. Id. The district court denied summary judgment and the Ninth Circuit affirmed. Id. at 836-39.
Once again, however, important differences exist between Cooper and George and the instant case. In Cooper, as in Pauly I, it is unclear that any crime had even occurred, as the officers were simply responding to two males screaming at each other. 735 F.3d at 155. At most, the officers were aware of a potential minor crime, such as disturbing the peace. Similarly, in George, “it [wa]s undisputed that [Donald] had not committed a crime.” 736 F.3d at 838. Thus, the first Graham factor weighed against the officers in both cases. By contrast here, Plaintiff “had committed two offenses: unlawful sexual contact and attempted murder” and, even if the officers did not believe they had probable cause to arrest Plaintiff for these violent offenses, the first Graham factor nonetheless “weighs somewhat in favor of the officers.” St. George, 2021 WL 3700918, at *5. Indeed, the Cooper Court emphasized that the officers “had no . . . information [besides the plaintiff holding a shotgun in one hand with the muzzle pointed at the ground] that [the plaintiff] might harm them.” Cooper, 735 F.3d at 159. By contrast here, the officers had information that Plaintiff had fired a shot at an escort earlier in the evening. St. George, 2021 WL 3700918, at *1. Moreover, unlike in Cooper, the officers in this case had attempted to notify Plaintiff-on several occasions-of their presence. 735 F.3d at 155. And unlike George, there is evidence here that Agent Trimmer believed that Plaintiff had been behaving in a threatening manner toward the officers. 736 F.3d at 832-33.
Given the lack of similarity between these two cases and the instant case, the Court cannot conclude that the clearly established weight of authority from outside the Tenth Circuit would have put a reasonable official in Agent Trimmer's position on notice that her use of force was excessive. Bird v. Martinez-Ellis, No. 21-CV-0139-SWS, 2022 WL 868179, at *8 (D. Wyo. Jan. 28, 2022) (“Neither does the precedent from four other circuits constitute a clearly established weight of authority which would have put a reasonable official in Warden Pacheco's position on notice that his supervisory conduct related to the COVID-19 vaccine distribution would effect a due process violation.” (quotation omitted)); Walker v. Jemez Mountain Sch. Dist., No. CV 19-714 JAP/GBW, 2020 WL 3402058, at *5 (D.N.M. June 19, 2020) (“In the Court's opinion, cases from three circuits-which are not on all fours with the facts here-do not constitute clearly established weight of authority from other courts[.]” (quotation omitted)); Padilla v. W. Las VegasIndep. Sch. Dist., No. CV 04-916 WJ/DJS, 2006 WL 8444321, at *8 (D.N.M. Mar. 3, 2006) (“Further, two cases from other circuits are clearly not on point, nor do they constitute a weight of authority from other courts.” (quotation omitted)); Prison Legal News, Inc. v. Simmons, 401 F.Supp.2d 1181, 1192 (D. Kan. 2005) (“While there is no bright line of demarcation, a synthesis of [Tenth Circuit] cases shows that ordinarily a court would expect to see cases from at least three other circuits before concluding that a right is clearly established based on the clearly established weight of authority from other courts. . . . [I]n order for the law to be clearly established by a lesser showing, the right at issue ought to be fairly obvious.” (quotation and citation omitted)); cf. Ullery v. Bradley, 949 F.3d 1282, 1297 (10th Cir. 2020) (finding the right clearly established by the authority of six circuits).
Accordingly, the Court concludes that neither Tenth Circuit precedent nor the clearly established weight of authority from other courts at the time of the incident clearly establish the unconstitutionality of Agent Trimmer's actions. As a result, to the extent the district court does not dismiss Claim One based upon Heck, the Court respectfully RECOMMENDS that the Motion be GRANTED to dismiss Claim One based upon qualified immunity. Similarly, because it was not clearly established that Agent Trimmer's use of force was unconstitutional, it was likewise not clearly established that Sergeant Maines had a duty to intervene in preventing Agent Trimmer's use of force. Accordingly, to the extent the district court does not dismiss Claim Two based upon Heck, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent it seeks dismissal of Claim Two based upon qualified immunity.
C. State Tort Claims
Plaintiff also asserts various state tort claims against all Defendants. [#149] A district court may decline to exercise supplemental jurisdiction over a claim if “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 1367(c)(3); see also Gaston v. Ploeger, 297 Fed.Appx. 738, 746 (10th Cir. 2008) (concluding that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over a plaintiff's remaining state-law negligence claims and stating that “we have repeatedly recognized that this is the preferred practice”). Because the Court recommends that all of Plaintiff's federal claims be dismissed, the Court further RECOMMENDS that the Court decline to exercise jurisdiction over Plaintiff's state tort claims and that those claims be DISMISSED WITHOUT PREJUDICE to bringing such claims in state court. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (holding “[n]otions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary,” and such notions support a refusal to exercise supplemental jurisdiction over state law claims when the federal claims have been dismissed (quotation omitted)); Fitzgerald v. Corrs. Corp. of Am., No. 08-cv-01189-CMA-KMT, 2009 WL 1196127, at *5 (D. Colo. Apr. 30, 2009) (“[T]he Tenth Circuit has indicated that if federal claims are dismissed before trial, as in the instant case, leaving only issues of state law, the Court should decline to exercise jurisdiction over the state claims.”), amended on other grounds by, 2009 WL 1765672 (D. Colo. June 22, 2009).
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants' Motion to Dismiss [#153] be GRANTED and that Plaintiff's Fifth Amended Complaint be DISMISSED WITHOUT PREJUDICE.
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).