Opinion
Civil Action No. 18-cv-01004-RM-MEH
02-05-2020
TRAVIS JAMES MATTHEWS, Plaintiff, v. DARCY KOFFEL, individually and in her official capacity, GEORGE BRAUCHLER, individually and in his official capacity, ADAM WRIGHT, individually and in his official capacity, BLAKE SCHNITKER, individually and in his official capacity, NICOLA GESI, individually and in her official capacity, and WILLIAM WARREN, individually and in his official capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are a Motion to Dismiss from Defendants George Brauchler and Darcy Koffel ("DA Defendants") (ECF 104) and the "DEA Defendants' Motion to Dismiss" filed by drug enforcement agents Blake Schnitker, Nicola Gesi, and William Warren (ECF 106). The matters are referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c). For the reasons that follow, this Court respectfully recommends that the Honorable Raymond P. Moore grant the Defendants' motions.
The operative Second Amended Complaint names Adam Wright in the caption and list of parties; however, Plaintiff (who does not proceed in this case in forma pauperis (ECF 11)) does not identify Wright in the factual allegations or claims for relief. See ECF 103; see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (personal participation is an essential allegation in a civil rights action). Wright has neither answered nor otherwise responded to the Second Amended Complaint. Notably, at a Status Conference on February 4, 2019, this Court dismissed Wright as a Defendant without prejudice and specifically excluded him when ordering Plaintiff to file the Second Amended Complaint. See Minutes, ECF 72. Nevertheless, to the extent that the District Court construes the operative pleading as raising claims against Wright, the Court recommends that the District Judge issue an order to show cause why it should not enter default against Wright pursuant to Fed. R. Civ. P. 55(a).
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
BACKGROUND
Plaintiff Travis James Matthews initiated this action pro se, then he was appointed pro bono counsel in April 2019. With the Court's permission, Plaintiff filed the operative Second Amended Complaint, through counsel (ECF 103), on August 1, 2019.
I. Statement of Facts
The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in the Second Amended Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) and under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff was recruited by the law enforcement Defendants in February 2016 to act as a confidential informant, specifically due to his role in an international drug trafficking conspiracy. The conspiracy involved a Mexican cartel trafficking methamphetamine from Mexico through Denver and, eventually, into Wyoming for the purpose of interstate drug trafficking. Plaintiff was assured in writing and verbally by Defendants Schnitker, Gesi, and Warren that his safety would be guaranteed, and his identity would be protected and unknown to anyone other than the people in the room. This protection was crucial to Plaintiff given his belief that Mexican drug cartels have murdered confidential informants and cooperating witnesses. The DEA Defendants informed Plaintiff that if they became aware the situation was becoming dangerous for him, pursuant to their agreement, he would be "brought in" -- that is, removed from duty.
The first named target of the DEA operation was Jesse Collin Lowe, a methamphetamine and heroin trafficker who was an acquaintance of the Plaintiff. The plan was to introduce Defendant Gesi to Lowe with the hope that Lowe would attempt to, and use, Gesi as a narcotics trafficker. As part of the operation run and supervised by Defendants Kofol and Brauchler, Lowe was arrested and convicted for drug trafficking. Due to Plaintiff's efforts, twenty-five pounds of methamphetamine and heroin were taken off the streets, and $78,000.00 was seized from Lowe.
Prior to trial, and although Plaintiff had been assured in writing and orally that disclosure of his name would be unnecessary to secure a conviction, and that his code name agreement with the DEA would protect his identity, Defendants Brauchler and Kofol disclosed Plaintiff's identity to Lowe, thereby putting Plaintiff's life in danger. Lowe was released on bond pending trial and, while on bond, Lowe contacted the 211 gang (allegedly responsible for killing the former head of the Colorado Department of Corrections, Tom Clements) to initiate a contract for the murder of the Plaintiff. The person allegedly tasked with killing the Plaintiff was Eugene Hickman, a "violent" gang member and associate of Lowe's.
Defendants were aware of the contract against the Plaintiff because Hickman disclosed it to them in exchange for sentencing consideration in a District of Wyoming case, in which Hickman and Lowe were co-defendants. It is also possible that Defendants were made aware of this plot, as Derek J. Cobb informed the Denver District Attorney's office of Lowe's plan as part of his proffer in state court cases 2017CR100 and 2017CR102. Defendants did not warn the Plaintiff of the threat on his life. Kofol allegedly was not experienced enough in intricate matters such as the DEA's operation to understand the seriousness of the threat against the Plaintiff, and Brauchler did not closely supervise Kofol. Kofol directed the DEA Defendants not to remove the Plaintiff from danger, due to ongoing parallel criminal cases.
Plaintiff's boyfriend, Ryan Kaase, was killed, execution style, on June 9, 2016 in Englewood, Colorado, only blocks from the Plaintiff's home. Though Kaase had been killed, Defendants Blake and Gesi solicited the Plaintiff to continue to work for them -- this time in exchange for financial remuneration based on the amount of money seized. Plaintiff did not know that his identity had been disclosed and that a contract to kill him was initiated; however, he was hesitant because his boyfriend had been murdered. The Defendants attempted to convince the Plaintiff to engage in undercover work, allegedly knowing how credible the threats against him were.
Subsequently, the Plaintiff was shot by John Whiteside, a known 211 gang member and associate of Lowe's. In February 2017, the Plaintiff was assaulted and brutally beaten by another 211 gang member, Nick Krapapolis. Krapopolis is also a known associate of Lowe's. The Defendants failed to act because they valued the potential arrests and intelligence that the Plaintiff could provide by working for them.
On April 27, 2017, Defendants Blake and Gesi arrested the Plaintiff, allegedly to protect him from credible threats against his life. However, in reality, the Plaintiff was prosecuted for trafficking narcotics, a violation of his agreement with Defendants.
II. Procedural History
In response to the Second Amended Complaint, the DA Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12 (b)(6), arguing that they are immune from liability for their conduct as prosecutors; in the alternative, the DA Defendants contend that Plaintiff fails to state a claim for substantive due process and, without such claim, fails to state a claim for municipal liability. ECF 104. Plaintiff responded conceding that dismissal of the official capacity/municipal liability claims was proper, but arguing that he alleges plausible claims for substantive due process against the individual Defendants, who are protected from neither prosecutorial nor qualified immunity.
The DEA Defendants also responded to the operative pleading by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting they are federal employees and, thus, not subject to 42 U.S.C. § 1983; no Bivens remedies apply; as individuals, they are entitled to qualified immunity; and sovereign immunity applies to the claims against them in their official capacities. ECF 106. Plaintiff filed a brief in opposition to Defendants' motion on September 12, 2019, contending that Defendants were acting under color of state law and, thus, he properly raises claims under Section 1983; he has stated plausible state-created danger claims; and Defendants are not entitled to qualified immunity.
LEGAL STANDARDS
I. Dismissal under Fed. R. Civ. P. 12(b)(1)
Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of subject matter jurisdiction." Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (recognizing federal courts are courts of limited jurisdiction and "there is a presumption against our jurisdiction"). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion to dismiss under Rule 12(b) "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015). Accordingly, Plaintiff bears the burden in this case of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th 1995).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Id. at 1002-03 (citations omitted); see also Pueblo of Jemez, 790 F.3d at 1148 n.4. The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the Second Amended Complaint's factual allegations as true for its Rule 12(b)(1) analysis.
II. Dismissal under Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). "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.'" Iqbal, 556 U.S. at 662 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
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." S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).
ANALYSIS
Typically, "[w]hen a defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the court must decide first the 12(b)(1) motion for the 12(b)(6) challenge would be moot if the court lacked subject matter jurisdiction." Kenney v. Helix TCS, Inc., 284 F. Supp. 3d 1186, 1188 (D. Colo. 2018), aff'd, 939 F.3d 1106 (10th Cir. 2019).
I. Does Plaintiff Allege "State Action" Against the DEA Defendants Sufficient to Invoke Jurisdiction under 28 U.S.C. §1343?
Section 1343 provides that the "district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;28 U.S.C.A. § 1343(a). Plaintiff invoked this Court's jurisdiction pursuant to both Section 1343 and 28 U.S.C. § 1331. Am. Compl. ¶ 2, ECF 103; see also Mehdipour v. Matthews, 386 F. App'x 775, 778 n.3 (10th Cir. 2010). The DEA Defendants, all federal employees, contend that this Court lacks jurisdiction because Plaintiff improperly raises his claims against them pursuant to 42 U.S.C. § 1983 rather than under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See Mehdipour, 386 F. App'x at 778 n.3 ("a plaintiff's failure to properly allege a 'state action' in a § 1983 complaint strips the district court of subject matter jurisdiction only if jurisdiction is alleged under 28 U.S.C. § 1343(3).").
(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."
Defendants contend, and the Plaintiff does not dispute, that Plaintiff's Section 1983 claims are raised pursuant to 28 U.S.C. § 1343(a)(3) "[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation . . . ."
The Tenth Circuit has held that "Section 1983 is not directed at conduct by federal officials. Instead, it provides a remedy against state actors who violate a federal right, pursuant to state authority." Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 869 (10th Cir. 2016) (citations omitted). Accordingly, "federal employees are rarely § 1983 defendants, and 'actions of the Federal Government and its officers are at least facially exempt from [§ 1983] proscriptions.'" Id. (quoting District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973)).
However, "in some cases, federal officials may in fact act under 'color of state law' for § 1983 purposes." Id. For example, a federal official may act under color of state law if he or she "conspire[s] with state officials to infringe a protected constitutional right." Id. (citations omitted). In fact, "[m]ost courts agree that conspiracy with state actors is a requirement to finding that federal actors jointly acted under color of state law." Id. (citing Strickland ex rel. Strickland v. Shalala, 123 F.3d 863, 866-67 (6th Cir. 1997) ("[C]ourts finding that a federal official has acted under color of state law have done so only when there is evidence that federal and state officials engaged in a conspiracy or 'symbiotic' venture to violate a person's rights under the Constitution or federal law.")).
In Big Cats, the Tenth Circuit found the challenged allegations insufficient to state a plausible claim that the federal and state defendants conspired. "[U]nder established case law, the fundamental characteristic of a conspiracy is a joint commitment to an 'endeavor which, if completed, would satisfy all of the elements of the underlying substantive criminal offense.'" Id. (quoting Ocasio v. United States, - U.S. -, 136 S. Ct. 1423, 1429, 194 L.Ed.2d 520 (2016)). "The complaint must allege (1) an agreement between two or more persons, with (2) an intent to achieve an unlawful act." Id. at 869-70 (citations omitted). "To hold federal officials subject to § 1983 liability based on joint action, [a] plaintiff must at least allege that federal and state actors shared a 'common, unconstitutional goal,' or point to a 'substantial degree of cooperative action' or 'overt and significant state participation.'" Id. at 870 (quoting Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1157 (10th Cir. 2016)); see also Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000) (requiring conspiracy such that the state and non-state actors "'share[d] a common, unconstitutional goal'").
Here, the Plaintiff alleges all Defendants are liable for violation of the Fourteenth Amendment under a "state-created danger" theory. This theory is an "exception to the general rule that a state actor may not be held liable for harm a private individual inflicts upon a victim." Matthews v. Bergdorf, 889 F.3d 1136, 1150 (10th Cir. 2018). The state-created danger exception is "narrow": "a state actor, absent some prior affirmative act by the actor giving rise to a duty to protect, cannot be held liable under the state-created danger exception for the failure to protect a plaintiff from harm." Id. (emphasis in original). Thus, "[i]n addition to adequately pleading affirmative conduct and private violence as part and parcel of any claim arising under the state-created danger exception," the Plaintiff here must also plausibly allege:
There is no indication that Plaintiff alleges the "special relationship" exception to the general rule. See, e.g., Estate of Place v. Anderson, 398 F. Supp. 3d 816, 821 (D. Colo. 2019) ("claim one is premised on the 'special relationship doctrine,' and claim two is premised on the 'state-created danger theory.'"). A "special relationship" typically involves the state placing the plaintiff within its custody, such as imprisonment or involuntary institutionalization or, in the case of minors, in foster care. See Matthews, 889 F.3d at 1148-49. However, a "special relationship" does not include non-custodial relationships such as that existing between a confidential informant and the government. See Matican v. City of New York, 524 F.3d 151, 156 (2d Cir. 2008).
(1) the state actor created the danger or increased the plaintiff's vulnerability to the danger in some way, (2) plaintiff was a member of a limited and specifically definable group, (3) the state actor's conduct put plaintiff at substantial risk of serious, immediate, and proximate harm, (4) the risk was obvious or known, (5) the state actor acted recklessly in conscious disregard of the risk, and (6) such conduct, when viewed in total, was conscience shocking.Id. (citations omitted).
Accordingly, to plausibly state the DEA Defendants "acted under color of state law," the Plaintiff must allege that the DEA Defendants (Schnitker, Gesi, and Warren) shared with the DA Defendants (Brauchler and Kofol) the "common, unconstitutional goal" of creating a danger or increasing the Plaintiff's vulnerability to danger that put the Plaintiff at a known, substantial risk of serious, immediate, and proximate harm, which the Defendants recklessly and consciously disregarded. Here, Plaintiff alleges that the DEA Defendants recruited him in February 2016 as a confidential informant to assist with an operation "run and supervised" by the DA Defendants, to "take down" a "drug trafficking conspiracy"; the DEA Defendants executed an agreement with Plaintiff, which included a provision that Plaintiff's identity would be kept confidential; the DA Defendants disclosed Plaintiff's identity to Lowe, a 211 gang member, who then arranged for another member, Hickman, to kill Plaintiff; Hickman told the Defendants about the arrangement in exchange for sentencing consideration in a District of Wyoming criminal case; Defendants did not warn the Plaintiff about the arrangement and continued to use him as a confidential informant for several more months, during which time Plaintiff's boyfriend was killed on June 9, 2016, Plaintiff was shot by a known associate of Lowe's (date not alleged), and Plaintiff was beaten in February 2017 by another gang member and known associate of Lowe's; and, "[t]he defendants failed to act because they valued the potential arrests and intelligence that the Plaintiff could provide by working for them - even though he had already been shot." Am. Compl. ¶¶ 13-39.
Defendants contend that Plaintiff's allegations are merely conclusory and "[t]he DEA Defendants' cooperation with state officials, which is explicitly contemplated as part of their duties by federal statute, does not establish that they were acting under color of state law." Mot. 5-6; Reply 4 (emphasis in original). The Court disagrees; taking the allegations as true and to the extent that Plaintiff states a plausible violation of a clearly established right against substantive due process (see infra), the Court finds the Plaintiff plausibly alleges the DEA Defendants and DA Defendants shared a common, unconstitutional goal in subjecting Plaintiff to danger and a substantial risk of serious, proximate harm by determining not to warn Plaintiff about Lowe's arrangement so that he would continue to serve as a confidential informant for the operation run and supervised by the DA Defendants. In fact, Plaintiff alleges that Deputy District Attorney Kofol "had direct knowledge of the plot against the Plaintiff, and instructed the [DEA] defendants not to remove the Plaintiff from danger, due to the ongoing parallel criminal cases." Am. Compl. ¶ 61. The facts here are unlike the circumstances in Big Cats, in which the plaintiff alleged that the federal inspector defendants falsely represented to the county deputy defendants that they had a court order to seize the subject property (tiger cubs); the Big Cats court found:
Defendants' motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the Second Amended Complaint's factual allegations as true for its Rule 12(b)(1) analysis. Holt, 46 F.3d at 1002-03.
Read most favorably to Big Cats, the most that can be said is that the deputies were facilitating entry to the Big Cats premises on the false representation and mistaken impression that the inspectors had a court order to enter the facility. There was no agreement to violate law; indeed, the El Paso County incident report in the record states the deputies thought their actions were supported by a court order and a need to check on the cubs' welfare.Big Cats of Serenity Springs, Inc., 843 F.3d at 870. Here, taken as true, the allegations demonstrate the DA Defendants and DEA Defendants together knew of the arrangement made by the 211 gang to kill the Plaintiff, but determined not to tell him and to continue to use him as a confidential informant for the drug trafficking operation. The Court recommends that Judge Moore find the allegations sufficient to state that the DEA Defendants "acted under color of state law" pursuant to Section 1983 and that the Court has jurisdiction to determine whether Plaintiff's claims state a plausible claim for relief. Accordingly, the Court need not address the Defendants' argument concerning whether Plaintiff plausibly states one of the few approved claims under Bivens.
II. Claim One: Are the Defendants Entitled to Qualified Immunity?
All Defendants assert the defense of qualified immunity with respect to the substantive due process claims brought against them in their individual capacities. The doctrine of qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) ("The privilege is an immunity from suit rather than a mere defense to liability."). The "driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery." Pearson, 555 U.S. at 231-232 (quoting Anderson v. Creighton, 483 U.S. 635, 640, n.2 (1987)). Accordingly, qualified immunity questions "must be resolved at the earliest possible stage in litigation." Id. at 232. Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. Ahmad, 435 F.3d at 1198 (internal quotations and citations omitted). "Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law." Gutierrez v. Cobos, 841 F.3d 895, 899 (10th Cir. 2016) (quoting Mullenix v. Luna, - U.S. -, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015)).
When the defense of qualified immunity is asserted, the burden shifts to the plaintiff to overcome the alleged immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). Traditionally, there has been a two-step process for resolving qualified immunity questions: "First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right . . . . Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct." Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533 U.S. 194 (2001) (internal citations and quotation marks removed)). The Supreme Court now affords courts the discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
Here, all Defendants contend, inter alia, that Plaintiff fails to state a plausible claim for a violation of his substantive due process right because he fails to allege "affirmative conduct." Mot. 8, ECF 104; Mot. 12-13, ECF 106. Even if the Court were to find the allegations, summarized above, sufficient to state plausible substantive due process claims under the state-created danger exception, the Court finds the Plaintiff has failed to demonstrate his constitutional right was clearly established. An official's conduct violates clearly established law when, at the time of the challenged conduct, "[t]he contours of [a] right [are] sufficiently clear" that every "reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). "After a defendant asserts a qualified-immunity defense, the plaintiff must meet the 'heavy two-part burden' of showing that '(1) a reasonable jury could find facts supporting a violation of a constitutional right, [and] (2) [the constitutional right] was clearly established at the time of the defendant's conduct.'" Farrell v. Montoya, 878 F.3d 933, 936-37 (10th Cir. 2017) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) and Gutierrez, 841 F.3d at 900-01). "In this circuit, to show that a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Id. (quoting Gutierrez, 841 F.3d at 900).
The DA Defendants also argue they are entitled to absolute prosecutorial immunity and that Plaintiff's allegations against them are conclusory. Id. In light of the Court's findings concerning the Defendants' entitlement to qualified immunity, it need not address these additional arguments.
This Court's first duty in determining whether the law supporting Plaintiff's claims is clearly established is to define the challenged constitutional right. See Dist. of Columbia v. Wesby, - U.S. -, 138 S. Ct. 577, 590 (2018) ("We start by defining 'the circumstances with which [the officers] w[ere] confronted.'") (citation omitted). Courts must not define "clearly established law at a high level of generality." T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (citing City & Cty. of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1776, 191 L.Ed.2d 856 (2015)). Instead, "the clearly established law must be 'particularized' to the facts of the case." Id. (quoting White v. Pauly, - U.S. -, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017)). Here, as stated above, Plaintiff alleges that the DEA Defendants executed an agreement with Plaintiff that his identity would be kept confidential and "his safety would be guaranteed," such that, "if [Defendants] became aware of the situation becoming dangerous for the Plaintiff, pursuant to their agreement he would be . . . removed from duty"; however, after the DA Defendants disclosed Plaintiff's identity to a 211 gang member who then arranged for Plaintiff to be killed, the Defendants, who knew about the arrangement, determined not to inform Plaintiff or "remove him from duty" so that he would continue to serve as a confidential informant and, while so serving, Plaintiff was subsequently shot and beaten by associates of the gang member to whom Plaintiff's identity was disclosed. See City of Escondido v. Emmons, - U.S. -, 139 S. Ct. 500, 503 (2019) ("Under our cases, the clearly established right must be defined with specificity.").
Plaintiff agrees that he carries a "heavy burden" of overcoming the defense of qualified immunity. Resp. 9-10. To support his argument that his constitutional right was clearly established in 2016 and 2017, Plaintiff points to the Tenth Circuit's opinions in Currier v. Doran, 242 F.3d 905, 920 (10th Cir. 2001) and T.D. v. Patton, supra, and to the Supreme Court's opinion in DeShaney v. Winnebago Cty. DSS , 489 U.S. 189, 197 (1989) for the general proposition that circuit courts have recognized the "exception . . . for 'state-created dangers.'" Resp. 10. Plaintiff also relies on an unpublished opinion from the District of Hawaii (id. at 11-12); however, while the court in Hawaii may have (as Plaintiff contends) relied on a Ninth Circuit case to set forth the elements required to allege a plausible claim for substantive due process, the unpublished decision is insufficient to demonstrate the necessary "weight of authority from other courts [that] have found the law to be as the plaintiff maintains." See Farrell, 878 F.3d at 937.
Plaintiff provides neither a citation for the opinion, nor a copy of the opinion for the Court to consider.
In Currier, a case addressing whether social workers were liable under the danger creation theory for the death of a child in foster care, the Tenth Circuit found:
Based on DeShaney, Medina, and the ample case law from other circuits, this court concludes that a reasonable state official would have known in 1993 and 1994 that reckless, conscience shocking conduct that altered the status quo and placed a child at substantial risk of serious, immediate, and proximate harm was unconstitutional.Currier, 242 F.3d at 924 (emphasis added). The court concluded the plaintiff's allegations were sufficient to allege claims under the danger-creation theory and that two defendants—a social worker and his supervisor—were not entitled to qualified immunity based on allegations that the worker failed to investigate injuries to the child and was responsible for a court order awarding custody to the abusive parent; however, the plaintiff's claim against another social worker for allegedly instructing the child's mother to stop making complaints of abuse, while sufficient to state a claim, was not clearly established at the time of the worker's alleged conduct. Id. at 920-25.
The Court finds Currier, which involves facts materially different than those here, does not make "[t]he contours of [Plaintiff's] right sufficiently clear" such that every "reasonable [Defendant] would have understood that what he [or she] is doing violates that right." See al-Kidd, 563 U.S. at 741. The same is true for T.D. v. Patton, in which the Tenth Circuit, relying on Currier, found that the defendant social worker's post-placement recommendations that the minor plaintiff "remain" in his father's temporary custody constituted a clearly established claim under the danger creation theory because the recommendations "further[ed] the danger [that] Mr. Duerson posed to T.D." 868 F.3d at 1230-31.
In his response briefs, Plaintiff cites other Tenth Circuit cases to support his arguments; the Court finds that none of these cases support Plaintiff's proposition that his claim is clearly established. See Schwartz v. Booker, 702 F.3d 573, 588 (10th Cir. 2012) ("it was apparent, in light of pre-existing law, to a reasonable official in [defendant case workers'] positions that failing to investigate the child abuse referrals and dismissing [deceased child's] case without investigation was an abdication of duty that would violate [the child's] substantive due process right to be reasonably safe from harm as a foster child."); Gray v. Univ. of Colorado Hosp. Auth., 672 F.3d 909, 930 (10th Cir. 2012) (court upheld dismissal for failure to state danger creation claim because "[t]he conduct Plaintiffs [estate and family members of hospital patient] allege to be directly responsible for decedent's death [was] neither private nor violent."); Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008) (court upheld dismissal for failure to state danger creation claim on the bases of "negligence in licensing" a daycare facility and "lulling [parents] into a false sense of security"); Armijo By & Through Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1264 (10th Cir. 1998) (affirmed denial of summary judgment as to defendants school principal and counselor who, although they knew special education student expressed threats of suicide, suspended him from school and sent him home alone, but granted summary judgment as to school aide for whom there was no allegation that she caused or created a danger of suicide).
Accordingly, the Court finds that Plaintiff has failed to identify law to support his argument that the constitutional right alleged in this case was clearly established at the time of the alleged unconstitutional conduct. See Quinn v. Young, 780 F.3d 998, 1014-15 (10th Cir. 2015) (rejecting a "generalized approach to clearly-established-law analysis" and concluding the plaintiffs failed to carry their burden "of identifying cases that constitute clearly established law on these facts). Importantly, the Tenth Circuit has unambiguously emphasized that it is a plaintiff's burden to cite to cases that satisfy the burden of demonstrating the asserted law is clearly established. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) ("The plaintiff bears the burden of citing to us what he thinks constitutes clearly established law."); see also Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016) ("Plaintiffs failed to carry their burden of showing that [the defendants] violated clearly established federal law because their counsel did not make any legal argument in the district court to rebut qualified immunity" and "[b]ecause Plaintiffs did not proffer clearly established authority that Ms. Flores was seized, they did not carry their burden to rebut qualified immunity on this illegal seizure claim"); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013) ("given the sparsity of Plaintiff's argument and his failure to point to any authority to support his claims, both here and in the district court, Plaintiff, 'through his counsel, [has simply] failed to carry the burden assigned to him by law.'") (quoting Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013)).
Nevertheless, this Court conducted its own search and found no case in the Tenth Circuit or the Supreme Court that would put Defendants on notice that "[t]he contours of [Plaintiff's asserted substantive due process] right [were] sufficiently clear," such that every "reasonable [Defendant] would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). While the Defendants' conduct, taken as true, might plausibly state a tort or, possibly, a contract claim, the Court finds Plaintiff fails to state a violation of a clearly established constitutional right (as specifically defined above). This Court respectfully recommends that Judge Moore grant the Defendants' motions to dismiss Plaintiff's Claim One alleging a substantive due process violation under the danger creation theory.
III. Claim Two: Does the Plaintiff Plausibly State a Municipal Liability Claim?
Based on the allegations asserted therein, the Court construes Plaintiff's second claim for relief as one for municipal liability pursuant to Monell v. New York, 436 U.S. 658, 690 (1978) against the Defendants in their official capacities. See Davoll v. Webb, 943 F. Supp. 1289, 1295 (D. Colo. 1996), aff'd, 194 F.3d 1116 (10th Cir. 1999), declined to follow on other grounds by Elwell v. State of Oklahoma, 693 F.3d 1303, 1314 (10th Cir. 2012) (a Section 1983 claim is "properly pled against a municipality either by naming the municipality itself or by naming a municipal official in his or her official capacity").
A municipality can be directly sued under § 1983 when its officers commit constitutional violations in accordance with the municipality's official policy. Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1104 (10th Cir. 2009) (citing Monell, 436 U.S. at 690). However, as the Tenth Circuit has acknowledged, "liability will not attach "where there was no underlying constitutional violation by any of [the municipality's] officers." Id. (quoting Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). Here, the Plaintiff has "concede[d] the official capacity and municipal liability claims against the DA Defendants should be dismissed." Resp. 1, ECF 114. Although the Plaintiff does not make the same concession for the DEA Defendants, the Court finds that, because Plaintiff fails to state violations of a clearly established constitutional right against the DEA Defendants, Claim Two should be dismissed against them as well. Therefore, the Court recommends that Judge Moore grant the Defendants' motions to dismiss Claim Two alleging municipal liability against them.
IV. Leave to Amend
Dismissal of a case under Fed. R. Civ. P. 12(b)(6) is "a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)). As such, in this Circuit, a court typically does not dismiss a claim under Fed. R. Civ. P. 12(b)(6) until the plaintiff has been provided notice and an opportunity to amend the complaint to cure the defective allegations. See Bellmon, 935 F.2d at 1109-10. Here, the Plaintiff was notified by the Court of deficiencies in his pleading (ECF 6, 15), then he was appointed pro bono counsel and permitted almost four months to file his second amended pleading (ECF 84, 103). Moreover, the Court finds that Plaintiff's deficiencies in the alleged claims may not be cured by amendment. Consequently, the Court recommends that Judge Moore determine the Plaintiff is not entitled to another opportunity to amend his pleading in this case.
CONCLUSION
This Court finds the Plaintiff has failed to state plausible claims for clearly established substantive due process violations and for municipal liability and, thus, the Court recommends that Judge Moore grant the Motion to Dismiss from Defendants George Brauchler and Darcy Koffel [filed August 16, 2019; ECF 104] and the DEA Defendants' Motion to Dismiss [filed August 16, 2019; ECF 106].
Respectfully submitted at Denver, Colorado, this 5th day of February, 2020.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge