Quintana v. City and County of Denver

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 20-cv-0214-WJM-KLM

MARY QUINTANA,

Plaintiff,

v.

CITY AND COUNTY OF DENVER, a municipality,

POLICE CHIEF PAUL PAZEN, in his individual and official capacities,

JUSTIN DODGE, in his individual and official capacities,

RICHARD EBERHARTER, in his individual and official capacities,

BRENT KOHLS, in his individual and official capacities,

MARDIE PEREZ, in her individual and official capacities, and

MYRON ALEXANDER, in his individual and official capacities,

Defendants.

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT

This civil rights action arises out of an armed standoff between Plaintiff Mary

Quintana’s son and Denver Police Department (“DPD”) officers, which resulted in two

officers being shot and Plaintiff’s house being burned down. (ECF No. 21.) Plaintiff

sues the City and County of Denver (“Denver”), as well as Defendants Paul Pazen,

Justin Dodge, Richard Eberharter, Brent Kohls, Mardie Perez, and Myron Alexander in

their individual and official capacities (collectively, the “Individual Defendants”) for

negligence and various constitutional violations under 42 U.S.C. § 1983. (Id.)

This matter is before the Court on Defendants’ Motion to Dismiss Pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (“Motion”). (ECF No. 24.) For

the reasons explained below, the Motion is granted in part and denied in part.

I. BACKGROUND

The following factual summary is drawn from Plaintiff’s First Amended Complaint

and Jury Demand (“Amended Complaint”) (ECF No. 21), except where otherwise

stated. The Court assumes the allegations contained in the Complaint are true for the

purpose of deciding the Motion. See Ridge at Red Hawk, L.L.C. v. Schneider, 493

F.3d 1174, 1177 (10th Cir. 2007).

A. The Initial Armed Standoff

On January 27, 2019 at 11:41 a.m., the DPD received a call about shots being

fired around 6th Avenue and Inca Street in Denver, Colorado, and dispatched DPD

officers to investigate the call. (¶ 23.)1 The DPD officers who responded to the call

found at least one spent ammunition cartridge outside Plaintiff’s home at 622 Inca

Street (the “Residence”). (¶ 24.) They also discovered that Plaintiff’s son, Joseph

Quintana (“J. Quintana”), had a warrant for his arrest and may be residing in the

Residence. (¶ 25.)

DPD officers contacted Plaintiff, who was not home at the time but voluntarily

met them outside the Residence at around 1:00 p.m. (¶¶ 27–29.) Plaintiff was

unaware whether J. Quintana was in her home at the time, but she gave DPD officers

permission to enter the Residence. (¶¶ 30–31.) Plaintiff’s second son, Phillip

Quintana (“P. Quintana”), unlocked the door for the DPD officers, who “pushed P.

Quintana aside and burst into the [Residence].” (¶¶ 29, 33–34.) P. Quintana waited

outside while DPD officers inspected the Residence. (¶ 25.)

1 Citations to paragraph numbers, without more, e.g. (¶__), are to paragraphs in the

Amended Complaint. (ECF No. 21.)

2

DPD officers found J. Quintana in the basement of the Residence. (¶ 37.)

They ordered J. Quintana to exit the basement, but instead he opened fire, hitting one

DPD officer in the Kevlar vest around his abdomen. (¶¶ 37–39.) DPD officers

returned fire into the basement. (¶ 40.) After pulling the wounded DPD officer to

safety, the DPD officers “retreated from the [Residence] to the front of the house.” (¶¶

40, 42.) Thereafter, “more shots came from inside the home and a bullet struck a

second [DPD] officer in the leg.” (¶ 43.)

Within minutes after the two DPD officers were shot, dozens of DPD

officers—including Metro SWAT members—descended on the house and took positions

around the perimeter of Plaintiff’s home. (¶¶ 45–46.) Over the course of the next

several hours, J. Quintana remained in the Residence while DPD officers “attempted to

convince him to leave the [R]esidence and surrender.” (¶ 50.)

B. DPD’s Use of Chemical Agents

At some point during the standoff, Metro SWAT officers devised a plan to use

chemical agents to force J. Quintana to leave the Residence. (¶¶ 59–60.) Defendant

Pazen, the DPD chief of police, “issued orders to individual Defendants, and/or agreed

to strategies and plans involving the use of flammable chemical ammunition, specifically

and conspicuously rated for outdoor use, to be fired into or thrown into” the Residence.

(¶¶ 51, 61.) “With [Metro] Command and the Command Post’s approval, Defendant

Dodge, as a sergeant, was given authority as a decisionmaker to use flammable

chemical agents, specifically and conspicuously rated for outdoor use, inside of [the

Residence].” (¶ 64.)

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Thereafter, between 4:32 p.m. and 5:27 p.m., Defendants Kohls and Eberharter

prepared and threw chemical agents into the Residence. (¶¶ 68, 74, 78.) These

chemical agents included: (1) at least one round of “flameless” chemical agent; and (2)

“several rounds of flammable chemical agents,” which were thrown into the Residence

inside vented metal boxes known as “burn boxes.” (¶¶ 69–71.) These burn boxes

were “just randomly thrown inside the house without any care for placement or whether

the boxes would land near flammable materials.” (¶ 79.)

At around 5:27 p.m., the Residence caught fire. (¶ 80.) Metro SWAT prohibited

Denver Fire Department (“DFD”) from fighting the fire; instead, Metro SWAT

officers—who are not trained as firefighters—fought the fire until it was confirmed that J.

Quintana had been arrested. (¶¶ 81–83.) The fire destroyed a significant portion of

the Residence, rendering Plaintiff homeless. (¶¶ 84, 86.)

The DFD later investigated the source of the fire. (¶ 87.) They observed that a

“CN/CS grenade within a burn box ‘was observed on the metal frame of the futon, at the

northwest corner.’” (¶ 88.) The DFD concluded that the CN/CS grenade was the

probable ignition source for the fire. (¶¶ 89–90.) Documents from Defense

Technology, the CN/CS grenade’s manufacturer, specifically state that the CN/CS

grenade is “[d]esigned specifically for outdoor use in crowd control situations” and

“should NOT be deployed onto rooftops, in crawl spaces, or indoors due to its

fire-producing capability.” (¶ 93.)

C. Plaintiff’s Detention

After Plaintiff voluntarily drove to the Residence at DPD’s request at around 1:00

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p.m. and let DPD into the Residence, DPD officers took Plaintiff to an area about a

block away from her house and placed her inside a police vehicle and in the custody of

Defendants Perez and Alexander. (¶¶ 99–100, 102–03.) Plaintiff was not allowed to

leave the vehicle without an armed police officer for the next five hours. (¶ 104.)

Defendants Perez and Alexander asked Plaintiff constant questions about J. Quintana,

which she answered to the best of her ability. (¶¶ 105–06, 154.) Although Plaintiff

repeatedly asked to speak with her son to “talk him out of the house,” DPD denied her

requests. (¶¶ 107–08.) During this time, Plaintiff felt like a prisoner and “knew that

she was not free to leave at any point.” (¶ 112.)

At approximately 6:58 p.m., an hour and a half after J. Quintana was placed into

DPD custody, the DPD released Plaintiff. (¶ 113.)

D. The Instant Action

Plaintiff filed this action on January 27, 2020 (ECF No. 1) and filed the Amended

Complaint on April 27, 2020 (ECF No. 21). Plaintiff asserts: (1) Dodge, Eberharter, and

Kohls acted negligently and negligently per se by throwing flammable chemical

munitions into the Residence (¶¶ 135–151); (2) Denver, Perez, and Alexander

unlawfully seized Plaintiff in violation of the Fourth Amendment (¶¶ 152–61); (3) Denver,

Pazen, Dodge, Eberharter, and Kohls unlawfully seized Plaintiff’s property in violation of

the Fourth Amendment (¶¶ 163–68); (4) Denver, Pazen, Dodge, Eberharter, and Kohls

violated Plaintiff’s right to Due Process under the Fourteenth Amendment (¶¶ 169–82);

and (5) Denver failed to train and supervise its officers (¶¶ 183–99).

Defendants filed the Motion on May 7, 2020. (ECF No. 24.) Plaintiff responded

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on September 22, 2020 (ECF No. 58), and Defendants replied on October 20, 2020

(ECF No. 67).

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

As courts of limited jurisdiction, federal courts may only adjudicate cases that the

Constitution and Congress have granted them authority to hear. See U.S. Const. art.

III, § 2; Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). Statutes

conferring jurisdiction on federal courts must be construed strictly. See F&S Constr.

Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964).

Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a

complaint for “lack of jurisdiction over the subject matter.” A Rule 12(b)(1) motion to

dismiss “must be determined from the allegations of fact in the complaint, without regard

to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674,

677 (10th Cir. 1971). A party challenging the Court’s jurisdiction may go beyond

allegations contained in the complaint and challenge the facts upon which subject

matter jurisdiction depends. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.

1995). When reviewing a factual attack on subject matter jurisdiction, a district court

may not presume the truthfulness of the complaint’s factual allegations. See id. A

court has wide discretion to allow affidavits, other documents, and may conduct a

limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).

See id.

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B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

claim in a complaint for “failure to state a claim upon which relief can be granted.” In

reviewing a motion to dismiss under Rule 12(b)(6), the Court will “assume the truth of

the plaintiff’s well-pleaded factual allegations and view them in the light most favorable

to the plaintiff.” Ridge at Red Hawk, L.L.C., 493 F.3d at 1177. “[T]o withstand a

motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim

to relief that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th

Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means

that “[t]he 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. ‘Factual allegations must

be enough to raise a right to relief above the speculative level.’” Id. (quoting Twombly,

550 U.S. at 545 & 556). The plaintiff “does not need detailed factual allegations” but

must plead more than merely “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action.” Id. “[A] well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is improbable, and that a recovery

is very remote and unlikely.” Ridge at Red Hawk, L.L.C., 493 F.3d at 1177 (quoting

Twombly, 550 U.S. at 556).

III. ANALYSIS

A. Claims One and Two: Negligence and Negligence Per Se

Plaintiff brings negligence and negligence per se claims against Defendants

Dodge, Eberharter, and Kohls based on their use of CN/CS grenades inside the

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Residence.2 (¶¶ 135–51.) Specifically, Plaintiff alleges that “Defendants were aware

that the fire-producing grenades they prepared and threw into [Plaintiff’s] home were

specific for outdoor use and were not to be used indoors,” and that “Defendants’ acts

and conduct were willfully and wantonly committed, which they knew was dangerous,

done heedlessly and recklessly, without regard to consequences, or of the rights and

safety of others, particularly [Plaintiff].” (¶¶ 136, 143.) Defendants move to dismiss

Plaintiff’s negligence and negligence per se claims under Rule 12(b)(1), arguing that

they are immune from suit under the Colorado Government Immunity Act (“CGIA”).

(ECF No. 24 at 6–9.)

“A public employee is immune from liability on tort claims arising out of an act or

omission of the employee during the performance of his or her duties and within the

scope of his or her employment, unless the act or omission causing such injury was

willful and wanton.” Carothers v. Archuleta Cnty. Sheriff, 159 P.3d 647, 650 (Colo.

App. 2006) (citing Colo. Rev. Stat. § 24-10-118). Colorado courts have adopted the

definition of “willful and wanton conduct” from Colorado’s exemplary damages statute,

which defines it as “conduct purposefully committed which the actor must have realized

as dangerous, done heedlessly and recklessly, without regard to the consequences, or

the rights and safety of others, particularly the plaintiff.” Colo. Rev. Stat.

§ 13-21-102(1)(b); Drake v. City & Cnty. of Denver, 953 F. Supp. 1150, 1160 (D. Colo.

1997); Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (en banc).

2 The negligence per se claim is predicated on Colorado Revised Statute § 18-4-105,

which provides that “[a] person who knowingly or recklessly starts or maintains a fire or causes

an explosion, on his own property or that of another, and by so doing places another in danger

of death or serious bodily injury or places any building or occupied structure of another in

danger of damage commits fourth degree arson.”

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Plaintiff argues the CGIA does not bar her negligence claims because the

“Individual Defendants’ actions of deploying flammable chemical munitions inside of

Plaintiff’s home was willful and wanton.” (ECF No. 58 at 6.) Among other things,

Plaintiff cites the following facts in support of her contention that the Individual

Defendants’ conduct was willful and wonton:

• Defense Technologies’ product specifications state that the CN/CS

grenades “should NOT be deployed indoors due to its fire-producing

capabilities” (id. at 7);

• In response to Plaintiff’s discovery requests, Denver represented that it

could not locate information related to specific training courses or written

training matters that the Individual Defendants received involving the use

of flammable CS grenades inside of buildings or the use of burn boxes (id.

at 6–7);

• Defendant Dodge admitted that Defendants had access to other

“non-pyrotechnic munitions” during the armed standoff (ECF No. 58-4 at 7,

¶ 7) and recognized that “there is a risk of fire in deploying a CS

pyrotechnic munition within a structure, however, with the munition

enclosed within a burn box he believed that it was highly unlikely that it

would cause a fire” (id. at 12, ¶ 5); and

• Defendant Eberharter admitted that “he was unable to look into the home

while deploying the final burn box because the threat posed by [J.]

Quintana” (ECF No. 58-7 at 13 ¶ 10).

Defendants argue that the Individual Defendants’ conduct was not negligent—let

alone undertaken in reckless disregard of the safety of others—based on the fact that

the grenades “had been used widely without causing structure fires, and the SWAT

team took steps to mitigate any risk of fire by encasing the munitions within burn boxes.”

(ECF No. 24 at 8.) In support, Defendants provided a declaration from Adam Giggey, a

technician for the DPD’s Metro SWAT unit, who stated that “deployment of CS grenades

within burn boxes inside of a structure is a nationwide best practice amongst SWAT

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teams when confronted with an armed, barricaded suspect who is unresponsive to

negotiation attempts” and that “[a]part from the incident on January 27, 2019, at [the

Residence], I have neither personally observed nor heard secondhand of a CS grenade

deployed within a burn box causing fire damage to a structure.” (ECF No. 24-4 at 2,

¶¶ 4–5.) Moreover, Defendants contend that their decision to use burn boxes “cannot

be viewed in a vacuum—the Defendants were faced with an armed, barricaded suspect

who had already shot two officers and was unresponsive to negotiation attempts.”

(ECF No. 24 at 8.) Thus, according to Defendants, “[u]se of the chemical agents

represented a far safer alternative for bringing Plaintiff’s son into custody than

attempting to enter her home for the second time,” and the fact that a fire broke out

“does not transform the SWAT team’s reasonable actions into willful and wanton

conduct.” (Id.)

It may be true that Defendants’ use of flammable grenades was the least

dangerous alternative available to DPD to end the armed standoff with J. Quintana.

However, whether the armed standoff justified Defendants’ use of the flammable

munitions is not for the Court to decide today. Plaintiff has plausibly alleged that

Defendants were on notice that the flammable CN/CS grenades were not designed for

indoor use, but nonetheless heedlessly used the grenades. Such allegations are

sufficient to establish a claim that Defendants’ conduct was willful and wanton under

Colorado law.3 Accordingly, the CGIA does not bar Plaintiff’s negligence and

negligence per se claims against Defendants Dodge, Eberharter, and Kohls .

3 For the same reasons, the Court finds that Plaintiff has plausibly alleged that

Defendants Dodge, Eberharter and Kohls recklessly started a fire by consciously disregarding

the associated risks, as required for Plaintiff’s negligence per se claim.

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B. Official Capacity Claims Against the Individual Defendants

Plaintiff sues the Individual Defendants in both their individual and official

capacities. (ECF No. 21 at 1.) Defendants seek dismissal of the official capacity

claims against the Individual Defendants, arguing that they are duplicative of Plaintiff’s

claims against Denver.

“[A]n official capacity suit is, in all respects other than name, to be treated as a

suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); Couser v. Gay,

959 F.3d 1018, 1023 (10th Cir. 2020) (recognizing that official capacity suits “impose[ ]

liability on the entity that [the sued public servant] represents” (quoting Brandon v. Holt,

469 U.S. 464, 471 (1985)). Because Plaintiff has named Denver in each of the

constitutional claims brought against the Individual Defendants under § 1983 (see

¶¶ 150–82), these official capacity claims are duplicative of Plaintiff’s claims against

Denver and must be dismissed.

C. Constitutional Claims Against the Individual Defendants

1. Qualified Immunity Standard

“Individual defendants named in a § 1983 action may raise a defense of qualified

immunity, which shields public officials . . . from damages actions unless their conduct

was unreasonable in light of clearly established law.” Gutierrez v. Cobos, 841 F.3d

895, 899 (10th Cir. 2016) (internal quotation marks omitted). “Once the qualified

immunity defense is asserted,” as the Individual Defendants have done here, “the

plaintiff bears a heavy two-part burden to show, first, the defendant[s’] actions violated a

constitutional or statutory right, and, second, that the right was clearly established at the

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time of the conduct at issue.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)

(internal quotation marks omitted). “If the plaintiff fails to satisfy either part of the

inquiry, the court must grant qualified immunity.” Carabajal v. City of Cheyenne, 847

F.3d 1203, 1208 (10th Cir. 2017), cert. denied, 138 S. Ct. 211 (2017). “The judges of

the district courts . . . [may] exercise their sound discretion in deciding 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.” Pearson v. Callahan, 555 U.S. 223, 236

(2009).

“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.”

Gutierrez, 841 F.3d at 900 (internal quotation marks omitted). “A plaintiff need not

show the very act in question previously was held unlawful in order to establish an

absence of qualified immunity.” Id. (internal quotation marks omitted). But “[a]n officer

cannot be said to have violated a clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in his shoes would have understood

that he was violating it.” City and Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765,

1774 (2015) (internal quotation marks omitted).

“The dispositive question is ‘whether the violative nature of particular conduct is

clearly established.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis in original)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Therefore, a plaintiff may not

defeat qualified immunity “simply by alleging violation of extremely abstract rights.”

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White v. Pauly, 137 S. Ct. 548, 552 (2017). Nonetheless, the clearly established

inquiry “involves more than a scavenger hunt for prior cases with precisely the same

facts. The more obviously egregious the conduct in light of prevailing constitutional

principles, the less specificity is required from prior case law to clearly establish the

violation.” Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (internal quotation

marks and citation omitted).

Because qualified immunity is immunity from suit, rather than a mere defense to

liability, Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016), a court may

dismiss the case with or without prejudice if it finds that a defendant is subject to

qualified immunity. Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232

F.3d 1334, 1342 (10th Cir. 2000).

2. Claim Three: Fourth Amendment Seizure of Plaintiff

Plaintiff brings a Fourth Amendment claim against Defendants Perez and

Alexander arising from Plaintiff’s 6-hour detention during the armed standoff between

DPD and J. Quintana. (¶¶152–62.) The Court will assume, for purposes of this Order

only, that Plaintiff has adequately pled a Fourth Amendment claim arising from the

Individual Defendants’ seizure of Plaintiff and will turn to whether qualified immunity

applies.

The Court has discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first. See Pearson, 555 U.S. at 236.

Considering the circumstances of this case, the Court finds that the second

prong—whether the constitutional right was clearly established at the time of the

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Individual Defendants’ unlawful conduct—should be addressed first.

The Individual Defendants argue that the defense of qualified immunity applies

because Plaintiff has failed to demonstrate that the Individual Defendants acted in

contravention of clearly established law in detaining Plaintiff. (ECF No. 24 at 14.)

In response, Plaintiff argues that her detention is similar to the detention of the

Tina Cortez in Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007). In Cortez, after

hearing unsubstantiated allegations that Ms. Cortez’s husband may have molested a

child, law enforcement entered the plaintiffs’ house without a warrant, escorted Ms.

Cortez from the home, placed her into a patrol vehicle, and questioned her in the back

seat of a locked patrol vehicle. Id. at 1113–14, 1122. The Tenth Circuit concluded

that Ms. Cortez demonstrated that her “clearly established constitutional right has been

violated” as a result of law enforcement’s decision to conduct an investigatory detention

that was not supported by exigent circumstances. Id. at 1123.

Although the clearly established inquiry is not intended to be a “scavenger hunt

for prior cases with precisely the same facts,” Perea, 817 F.3d at 1204, Cortez does not

establish that the particular conduct at issue in this litigation was clearly established at

the time Officers Perez and Alexander detained Plaintiff. This case, unlike Cortez,

involved an exigent situation in which the Individual Defendants and J. Quintana were

engaged in an active armed standoff inside Plaintiff’s house, the shooting of two DPD

officers, and a fire.4 Although it is undisputed that Plaintiff was neither under arrest nor

4 The Court recognizes that Plaintiff alleges that “[t]here were no exigent circumstances

that would justify her detention.” This conclusory allegation is contradicted, however, the

Plaintiff’s other allegations in the Amended Complaint. See, e.g., Linton v. Comm’r of Internal

Revenue, 764 F. App’x 674, 679 (10th Cir. 2019) (recognizing that a court is not bound by [the

plaintiff’s] conclusory allegations, unwarranted inferences, or legal conclusions” on a Rule

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suspected of engaging in any crime when she was detained, Plaintiff has not

established that the violation of her rights were clearly established in light of the

unfolding exigent situation and her status as an witness with pertinent information. Cf.

Chivers v. Reaves, 2017 WL 4296726, at *30 (D. Utah Sept. 26, 2017), aff’d, 750 F.

App’x 769 (10th Cir. 2019) (recognizing that it “strains credulity to insist that any officer

was required to turn [p]laintiff out into the cold and allow her to wander into the police

milieu surrounding an active standoff with an armed, severely intoxicated suspect who

had already fired at police”).

Because Plaintiff has not demonstrated that the Defendants Perez and

Alexander violated a clearly established right by detaining Plaintiff, she has not met her

burden to overcome the defense of qualified immunity. Accordingly, Claim Four is

dismissed against the Officers Perez and Alexander without prejudice.

3. Claim Four: Fourth Amendment Seizure of the Residence

Plaintiff brings a Fourth Amendment claim for unlawful seizure against

Defendants Pazen, Dodge, Eberharter, and Kohls for their roles in seizing and

destroying the Residence. (¶¶ 163–67.)

i. Whether Plaintiff has Adequately Pled a Fourth Amendment Claim

The Individual Defendants argue that Plaintiff has not stated a valid Fourth

Amendment claim relating to their seizure of the Residence because Plaintiff “does not

allege that any of the [Individual Defendants] intended to seize or burn her home.”

(ECF No. 24 at 15.)

In Brower v. County of Inyo, 489 U.S. 593 (1989), the Supreme Court recognized

12(b)(6) motion (quoting Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994)).

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that a “[v]iolation of the Fourth Amendment requires an intentional acquisition of

physical control.” Brower, 489 U.S. at 596. Although a “seizure occurs even when an

unintended person or thing is the object of the detention or taking,” the “detention or

taking itself must be willful.” Id. The Supreme Court provided the following example

illustrating this principle:

Thus, if a parked and unoccupied police car slips its brake

and pins a passerby against a wall, it is likely that a tort has

occurred, but not a violation of the Fourth Amendment. And

the situation would not change if the passerby happened, by

lucky chance, to be a serial murderer for whom there was an

outstanding arrest warrant—even if, at the time he was thus

pinned, he was in the process of running away from two

pursuing constables. It is clear, in other words, that a

Fourth Amendment seizure does not occur whenever there

is a governmentally caused termination of an individual’s

freedom of movement (the innocent passerby), nor even

whenever there is a governmentally caused and

governmentally desired termination of an individual’s

freedom of movement (the fleeing felon), but only when

there is a governmental termination of freedom of movement

through means intentionally applied.

. . .

In determining whether the means that terminates the

freedom of movement is the very means that the

government intended we cannot draw too fine a line, or we

will be driven to saying that one is not seized who has been

stopped by the accidental discharge of a gun with which he

was meant only to be bludgeoned, or by a bullet in the heart

that was meant only for the leg. We think it enough for a

seizure that a person be stopped by the very instrumentality

set in motion or put in place in order to achieve that result.

Id. at 596–99. “In sum, the Fourth Amendment addresses ‘misuse of power,’ not the

accidental effects of otherwise lawful government conduct.” Id. at 596 (internal

citations omitted).

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Courts applying this principle have determined that actions by law enforcement

officers that unintentionally seize a person or thing do not violate the Fourth Amendment

even when the underlying conduct was intentional. For example, in Childress v. City of

Arapaho, 210 F.3d 1154 (10th Cir. 2000), the Tenth Circuit determined that officers did

not “seize” hostages held by escaped inmates in the hostages’ vehicle when officers,

with knowledge of the hostages’ presence, fired upon the vehicle at a roadblock and

accidentally struck the hostages. Id. at 1157. Because the “officers intended to

restrain the minivan and the fugitives, not [plaintiffs],” the “injuries inflicted were the

unfortunate but not unconstitutional ‘accidental effects of otherwise lawful conduct.’” Id.

(quoting Brower, 489 U.S. at 596); see also Bublitz v. Cottey, 327 F.3d 485, 489 (7th

Cir. 2003) (finding that officers’ actions in using a tire-deflation device to stop a fleeing

robbery suspect, which subsequently caused an accident injuring an innocent driver and

killing driver’s wife and child, did not constitute a “seizure” under the Fourth

Amendment); Rucker v. Harford Cnty., Md., 946 F.2d 278, 279 (4th Cir. 1991) (holding

that no seizure occurred when officers wounded a bystander in an attempt to shoot the

tires of a fugitive’s car).

Here, Plaintiff has alleged that the Individual Defendants intentionally prepared

and fired flammable and flameless chemical agents into the Residence. (¶¶ 68–71,

165.) However, this intentional conduct does not transform the Individual Defendants’

conduct into a Fourth Amendment seizure where Plaintiff has not alleged that the

Individual Defendants intended to seize the Residence itself. Because Plaintiff has not

alleged that the Individual Defendants’ conduct was set in motion or put in place to

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achieve a seizure of the Residence itself, Plaintiff has not stated a Fourth Amendment

claim.

ii. Whether the Defense of Qualified Immunity Applies

Even assuming that Plaintiff had plausibly alleged a Fourth Amendment claim,

the Court finds that the defense of qualified immunity would apply because Plaintiff has

not demonstrated that that the Individual Defendants’ actions violated clearly

established law.

Defendants represent they are unaware of any Tenth Circuit authority

“recognizing a Fourth Amendment cause of action on behalf of third parties whose

property is damaged during efforts to apprehend a criminal suspect.” (ECF No. 24 at

15.)

In response, Plaintiff cites the Fourth Amendment and United States v.

Jacobsen, 466 U.S. 109 (1984) for the general proposition that a “‘seizure’ of property

occurs when there is some meaningful interference with an individual’s possessory

interests in that property.” Jacobsen, 466 U.S. at 113. These propositions, which

define Plaintiff’s rights “at a high level of generality,” do not demonstrate that the

violative nature of the Individual Defendants’ particularized conduct was clearly

established. See White, 137 S. Ct. at 552 (recognizing that an alternate approach

would allow plaintiffs to convert the rule of qualified immunity “into a rule of virtually

unqualified liability simply by alleging violation of extremely abstract rights”).

The other cases Plaintiff cites suggest that law enforcement may violate the

Fourth Amendment depending on the police tactics used. See Santistevan v. City of

18

Colorado Springs, 983 F. Supp. 2d 1295, 1319 (D. Colo. 2013) (recognizing that

officers’ use of “commando-style tactics” may “run the risk of violating the Fourth

Amendment” but holding that “the Court cannot find that Sergeant Krammer violated

clearly established law by deciding to use a SWAT team in this case to make a dynamic

entry into Plaintiff's residence”); United States v. Myers, 106 F.3d 936, 940 (10th Cir.

1997) (recognizing that the “use of a ‘flashbang’ device in a house where innocent and

unsuspecting children sleep gives us great pause,” but ultimately determining that “we

cannot say that their actions were objectively unreasonable” under the Fourth

Amendment); Pauly v. White, 814 F.3d 1060 (10th Cir. 2016), vacated, 137 S. Ct. 548

(2017) (recognizing that the “dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted”). These cases do not demonstrate that the

“violative nature [the Individual Defendants’] particular conduct is clearly established.”

Mullenix, 577 U.S. at 12 (emphasis in original).

Finally, Plaintiff argues that “[e]ven in the circumstances of a barricaded suspect,

a reasonable officer would know that burning down Plaintiff’s home to apprehend a

suspect would be unlawful in the situation he confronted” such that the Individual

Defendants should have been on notice that their conduct violated established law

despite the novel circumstances. (ECF No. 58 at 17.) As an initial matter, this

description mischaracterizes Plaintiff’s pleading of the factual events. Plaintiff does not

allege that the Individual Officers intentionally burned down the Residence to capture J.

Quintana. Instead, the question is whether a reasonable officer should recognize that

19

they would violate the Fourth Amendment by damaging a third party’s property while

attempting to apprehend a criminal suspect. The Court cannot say a reasonable officer

should have made this determination.5

Because Plaintiff has not demonstrated that the Individual Defendants violated a

clearly established right, Plaintiff has not met her burden to overcome the defense of

qualified immunity. Accordingly, Claim Four is dismissed against Defendants Pazen,

Dodge, Eberharter, and Kohls with prejudice.

4. Claim Five: Fourteenth Amendment Due Process / Excessive Force Claim

Plaintiff asserts a “Fourteenth Amendment Due Process / Excessive Force” claim

against Defendants Pazen, Dodge, Eberharter, and Kohls. (¶¶ 169–82.) Plaintiff

alleges that “while operating under the color of law, Defendants’ use of fire-producing

grenades that were rated for outdoor use was an arbitrary governmental action, taken

without due process.” (¶ 170.) She further alleges that “Defendants actively

participated in the excessive force by developing plans, having those plans approved by

decisionmakers, securing fire-producing chemical agents in metal boxes, and throwing

the metal boxes into Plaintiff’s home,” which resulted in the destruction of the Residence

and Plaintiff’s personal effects. (¶¶ 174, 176.)

i. Whether Plaintiff has Adequately Pled a Fourteenth Amendment

Procedural Due Process Claim

Defendant argues that to the extent Plaintiff alleges a procedural due process

5 For example, in a case decided after the events giving rise to this lawsuit, the Tenth

Circuit held that police officers’ destruction of a home while attempting to apprehend criminal

suspect barricaded inside home was not a compensable taking under the Takings Clause, even

though homeowners were innocent. See Lech v. Jackson, 791 F. App’x 711, 718–19 (10th Cir.

2019), cert. denied, 141 S. Ct. 160 (2020).

20

claim, this claim must be dismissed because Plaintiff has an adequate state law

remedy. (ECF No. 24 at 18.) The Court agrees.

A procedural due process claim is precluded by the existence of an adequate

post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). As

Plaintiff has plausibly alleged that Defendants’ decision to deploy flammable munitions

inside of the Residence was willful and wanton, Plaintiff already “has an adequate

post-deprivation remedy” in the form of a tort claim because Colorado public employees

“are ‘not immune from liability’ for tortious activities that are ‘willful and wanton.’” Cary

v. Goodrich, 820 F. App’x 681, 683–84 (10th Cir. 2020) (dismissing due process claim

where plaintiff possessed adequate post-deprivation remedies); Colo. Rev. Stat.

§ 24-10-118.

Thus, the Court grants the Motion to the extent it seeks dismissal of a procedural

due process claim without prejudice.

ii. Whether Plaintiff has Adequately Pled a Fourteenth Amendment

Substantive Due Process Claim

To state a substantive due process claim, Plaintiff must plausibly allege that she

was deprived of her property “in a manner so arbitrary as to shock the judicial

conscience.” Lindsey v. Hyler, 918 F.3d 1109, 1115 (10th Cir. 2019). Plaintiff’s

pleadings do not meet this standard.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court

analyzed whether the parents of a motorcyclist killed in a high-speed police chase could

bring a substantive due process claim under the Fourteenth Amendment. Recognizing

that “due process guarantee does not entail a body of constitutional law imposing

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liability whenever someone cloaked with state authority causes harm,” the Supreme

Court stated that “conduct intended to injure in some way unjustifiable by any

government interest is the sort of official action most likely to rise to the

conscience-shocking level.” Id. at 848–89. The Lewis Court then acknowledged that

police officers often must make decisions under high-pressure scenarios and held that

[i]n the circumstances of a high-speed chase aimed at

apprehending a suspected offender, where unforeseen

circumstances demand an instant judgment on the part of an

officer who feels the pulls of competing obligations, only a

purpose to cause harm unrelated to the legitimate object of

arrest will satisfy the shocks-the-conscience test.

Id. at 834. The Tenth Circuit has subsequently stated that “[w]hen an officer is in a

high-pressure situation where time is of the essence, there must be evidence of a

purpose to cause harm unrelated to the legitimate object of the arrest to satisfy the

element of arbitrary conduct shocking to the conscience for a due process violation.”

Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1102 (10th Cir. 2009).

Here, Plaintiff’s allegations in the Amended Complaint demonstrate that the

Individual Defendants encountered an exigent and high-pressured situation on January

27, 2019 resulting from an armed standoff with an individual who had barricaded himself

in the Residence after shooting two DPD officers.6 Although Plaintiff has alleged facts

6 In Doe v. Heil, 533 F. App’x 831 (10th Cir. 2013), the Tenth Circuit recognized that

“where governmental actors . . . have time for reflection and are not operating under exigent,

pressurized circumstances—such as exist during a prison riot or a police car chase—they may

be subjected to substantive due process liability for operating with deliberate indifference, rather

than a more culpable mental state like an intent to harm.” 533 F. App’x at 844. However,

because Plaintiff’s pleadings suggest that Defendants were operating under exigent

circumstances without time for extensive deliberation, the Court analyzes whether Plaintiff has

alleged facts under the intent to harm standard rather than the deliberate indifference standard.

See Perez v. Unified Gov’t of Wyandotte Cnty./Kansas City, Kan., 432 F.3d 1163, 1167 (10th

Cir. 2005) (recognizing that the “intent to harm standard is not limited to situations calling for

split-second reactions” but instead applies “whenever decisions must be made in haste, under

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suggesting that the Individual Defendants’ decision to throw flammable munitions into

the Residence was reckless, Plaintiff has not alleged that the Individual Defendants

intended to cause a fire at the Residence, i.e., intended to cause harm unrelated to the

legitimate arrest of J. Quintana. See Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.

1998) (applying Lewis and dismissing due process claim brought on behalf of innocent

bystander killed during police struggle with a suspect). Accordingly, the Court finds

that Plaintiff has not plausibly alleged arbitrary conduct shocking to the conscience, and

Plaintiff’s substantive due process claim is dismissed without prejudice.

iii. Whether the Defense of Qualified Immunity Applies

Moreover, even assuming that Plaintiff had plausibly alleged a Fourteenth

Amendment claim, the Court still finds that the defense of qualified immunity applies.

The Individual Defendants argue that “in the absence of any prior, similar case in

which the Tenth Circuit or Supreme Court has determined that incidental property

damage caused by a chemical agent used by officers to effectuate an arrest could rise

to the level of a procedural or substantive due process violation,” Plaintiff has not

demonstrated a violation of clearly established law. (ECF No. 24 at 20.)

In response, Plaintiff argues that the Tenth Circuit telegraphed in Lech v.

Jackson “that law enforcement’s excessive zeal to root out [a] barricade[d] suspect by

destroying an innocent’s person’s home is subject to constitutional scrutiny under the

Due Process Clause of the United States Constitution. (ECF No. 58 (citing Lech, 791

F. App’x at 719).)

pressure, and frequently without the luxury of a second chance”).

23

In Lech, the Tenth Circuit considered whether law enforcement violated the

Takings Clause of the Fifth Amendment by damaging the plaintiffs’ home “during an

attempt to apprehend a criminal suspect and later by refusing to compensate plaintiffs

for this alleged taking.” 791 F. App’x at 712. After determining that law enforcement’s

actions fell within the scope of the police power and did not constitute a “taking”, the

Tenth Circuit recognized that “the police power is subject to the requirements of the Due

Process Clause.” Id. at 719. However, the Lech court did not analyze whether law

enforcement’s destruction of the plaintiff’s house actually violated the Due Process

Clause. As such, Lech does not demonstrate that the Individual Defendants’ actions

violated clearly established law. See Carabajal, 847 F.3d at 1213 (recognizing that “a

hint as to what the law may be cannot substitute for clearly established law”).

Nor do the remaining cases cited by Plaintiff make “the unlawfulness of the

officers’ actions apparent.” Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011).

Plaintiff cites Lowther v. United States, 480 F.2d 1031 (10th Cir. 1973) for the

proposition that law enforcement’s destruction of property without authority to do so is

contrary to the Due Process Clause. (ECF No. 58 at 20.) Lowther is distinguishable,

however, as it involved firearms seized from a criminal defendant during the execution

of a search warrant that were destroyed by federal agents after the defendant was

acquitted of charges. See id. at 1032–33. Likewise, the cases cited by Plaintiff for the

proposition that officers are responsible for their use of excessive force are

distinguishable. See Estate of Booker v. Gomez, 745 F.3d 405, 434 (10th Cir. 2014)

(finding pretrial detainee’s right to be free of excessive force, including use of neck

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restraint, stun gun, and pressure on his back, while he was on his stomach and not

resisting was clearly established); Mick v. Brewer, 76 F.3d 1127, 1135–36 (10th Cir.

1996) (analyzing excessive force during a Terry stop).7 These cases are a far cry from

analyzing the constitutionality of the destruction of property during law enforcement’s

attempts to capture a criminal suspect during an armed standoff.

Because Plaintiff has not demonstrated that the Individual Defendants violated a

clearly established right, Plaintiff has not met her burden to overcome the defense of

qualified immunity. Accordingly, Claim Five is dismissed against the Individual Officers

without prejudice.

D. Municipal Liability Claims

Plaintiff has brought the following claims against Denver: (1) a Fourth

Amendment claim arising from Defendants’ seizure of Plaintiff (¶¶ 152–62); (2) a Fourth

Amendment claim arising from Defendants’ seizure of the Residence (¶¶ 163–68); (3) a

Fourteenth Amendment due process claim arising from Defendants’ use of excessive

force (¶¶ 169–82); and (4) a failure to train and supervise claim (¶¶ 183–99).

1. Monell Liability

Section 1983 imposes liability on

[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected,

7 It is true that law enforcement officials have an affirmative duty to intervene to prevent

another law enforcement official’s use of excessive force. See Mick, 76 F.3d at 1136.

However, because Plaintiff has not cited case law demonstrating that the Individual Defendants’

conduct actually constituted excessive force, the Court cannot analyze Plaintiff’s contention that

the other Defendants’ failure to intervene to prevent the excessive force violates § 1983. (ECF

Nos. 20–21.)

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any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws . . . .

42 U.S.C. § 1983. The Supreme Court held in Monell v. Department of Social Services

that “person,” as used in this statute, includes “municipalities and other local

government units,” more specifically, “local government units which are not considered

part of the State for Eleventh Amendment purposes.” 436 U.S. 658, 691 & n.54

(1978).8

However, a local government unit can be liable for damages under 42 U.S.C.

§ 1983 only when the its “policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the

[constitutional] injury.” Id. at 694. The Supreme Court has thus “required a plaintiff

seeking to impose liability on a municipality under § 1983 to identify a municipal ‘policy’

or ‘custom’ that caused the plaintiff’s injury,” thereby “ensur[ing] that a municipality is

held liable only for those deprivations resulting from the decisions of its duly constituted

legislative body or of those officials whose acts may fairly be said to be those of the

municipality,” rather than holding the municipality liable simply because it employed a

constitutional wrongdoer. Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

403–04 (1997).

The relevant policy or custom can take several forms, including:

8 The Eleventh Amendment reads, “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Supreme Court construes this language to mean, among other things, that states may not

be sued (even by their own citizens) for money damages in federal court. See Hans v.

Louisiana, 134 U.S. 1, 10–15 (1890).

26

(1) a formal regulation or policy statement; (2) an informal

custom amounting to a widespread practice that, although

not authorized by written law or express municipal policy, is

so permanent and well settled as to constitute a custom or

usage with the force of law; (3) the decisions of employees

with final policymaking authority; (4) the ratification by such

final policymakers of the decisions—and the basis for

them—of subordinates to whom authority was delegated

subject to these policymakers’ review and approval; or

(5) the failure to adequately train or supervise employees, so

long as that failure results from deliberate indifference to the

injuries that may be caused.

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation

marks omitted; alterations incorporated). But, whatever species of policy or custom is

alleged,

[t]he plaintiff must also demonstrate that, through its

deliberate conduct, the municipality was the “moving force”

behind the injury alleged. That is, a plaintiff must show that

the municipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link

between the municipal action and the deprivation of federal

rights.

Bryan County, 520 U.S. at 404 (emphasis in original).

2. Claim Six: Failure to Train & Supervise

Plaintiff alleges that “Denver failed to properly train, supervise, and discipline its

employees, with respect to unlawful seizure, excessive force, and the due process

rights of residents,” which constitutes a “custom, policy, or practice of Denver and [was]

a driving force behind the constitutional violations” alleged in the lawsuit. (¶¶ 187,

190.) She further argues that “Denver has settled numerous excessive force, illegal

seizure, failure to train, and failure to supervise complaints in the amount of millions of

taxpayer dollars,” and that “Denver was deliberately indifferent to the constitutional

27

rights of its residents.” (¶¶ 194–96.)

Under a failure to train claim, a plaintiff must ordinarily show a defendant had

“actual or constructive notice that a particular omission in a [training] program caused

official to violate citizens’ constitutional rights” and nonetheless “made a conscious

choice to retain [the] deficient training program.” Connick v. Thompson, 563 U.S. 51,

61 (2011). A plaintiff must prove that “the need for more or different training is so

obvious, and the inadequacy so likely to result in the violation of constitutional rights,

that the policymakers of the city can reasonably said to have been deliberately

indifferent to the need” for additional training. City of Canton v. Harris, 489 U.S. 378,

390 (1989); see Whitewater v. Goss, 192 F. App’x 794, 797 (10th Cir. 2006)

(recognizing that claims for failure to supervise are treated under the same deliberate

indifference standard).

Here, Plaintiff argues that Denver’s failure to train and supervise is evidenced by

its inability to demonstrate that it has training programs or materials “involving the use of

flammable chemical munitions inside of buildings or information about the use of burn

boxes.” (ECF No. 58 at 22.) Plaintiff further argues that this failure to train “is a slap in

a face to Tenth Circuit case law that has repeatedly warned law enforcement about the

careless use of incendiary devices.” (Id.) The case cited by Plaintiff, however,

discusses the use of flash-bang devices by police, not the types of flammable devices at

issue in this litigation. See Santistevan, 983 F. Supp. 2d at 1320. Moreover, the

Tenth Circuit has not recognized that the use of flash-bang devices is presumptively

unreasonable; instead, it recognized that the “reasonableness of detonating a

28

flash-bang device depends on the facts and circumstances of each case.” Id. at

1319–20 (citing Kirk v. Watkins, 1999 WL 381119, at *3 (10th Cir. June 11, 1999)).

Thus, Tenth Circuit case law does not give Denver actual or constructive notice that its

particular use of flammable munitions was unlawful.

Moreover, Plaintiff’s citation of prior cases involving Denver does not

demonstrate that Denver had actual or constructive knowledge of training failures

“concerning the Fourth and Fourteenth Amendments, the use of excessive force, the

seizure of people and property, and due process rights of residents.” (¶ 193.)

Although Plaintiff cites several cases involving Denver and its use of excessive force or

illegal seizures of suspects, the cases do not relate to either the use of flammable

munitions, destruction of property during a police encounter, or the detention of potential

witnesses during exigency. See, e.g., Zuchel v. City & Cnty. of Denver, 997 F.2d 730

(10th Cir. 1993) (suspect shot by police officer); Estate of Valverde v. Dodge, 2019 WL

2992027 (D. Colo. July 9, 2019), reversed, 967 F.3d 1049 (10th Cir. 2020) (Defendant

Dodge’s shooting of suspect who pulled out a gun from his waistband during an arrest);

Sanchez, et al. v. City & Cnty. of Denver, 11-cv-780-RBJ-KMT (alleged false arrest

based on allegations of racial profiling).9 Although any uses of police excessive force

are troubling, none of these scenarios come close to the scenario that Plaintiff faced on

January 27, 2019. Thus, Plaintiff has not plausibly alleged that Denver had actual or

constructive notice about its inadequate training regarding either the use of flammable

9 Plaintiff also cites numerous instances involving excessive force in which Denver

settled claims for monetary payouts. (¶¶ 124, 126–30.) Because Plaintiff does not provide

citations to these cases, the Court is unable to evaluate whether these cases should have given

Denver actual or constructive notice regarding any training program and supervision

deficiencies.

29

munitions or the detention of individuals during exigent circumstances. This deficiency

warrants dismissal of Plaintiff’s failure to train and supervise claim.

3. Claim Three: Fourth Amendment Seizure of Plaintiff

Plaintiff sues Denver as part of her Fourth Amendment claim relating to Plaintiff’s

detention, alleging that “[t]he acts and omission of Defendants Perez and Alexander

were pursuant to the custom, policy, or practice of Denver, which encourages,

condones, tolerates, and ratifies the use of the unlawful seizure and deprivation of

constitutionally protected interests by law enforcement officers.” (¶ 22.)

Defendants argue that this claim must be dismissed because the Amended

Complaint “fails to identify any prior instances of substantially similar conduct by Denver

employees but, rather, merely recites a list of various Denver-related lawsuits, none of

which demonstrate that Denver was on notice that it required additional training or

supervision regarding . . . the detention of witnesses during an emergency situation.”

(ECF No. 24 at 22.)

As explained in Part III.D.2, Plaintiff has not plausibly alleged municipal liability

based on a failure to train and supervise theory. Nor has Plaintiff alleged that an

employee with final policymaking authority ordered Plaintiff to be detained or

affirmatively ratified the decision to detain Plaintiff. To the extent Plaintiff is alleging

that Denver has an informal policy or custom of detaining potential witnesses in violation

of the Fourth Amendment that amounts to a widespread practice, this claim is likewise

unavailing. As explained above, Plaintiff has not cited comparable instances in which

Denver violated the Fourth Amendment by detaining potential witnesses.

30

Accordingly, the Motion is granted to the extent it seeks dismissal of Claim Three

against Denver without prejudice.

4. Claim Four: Fourth Amendment Seizure of the Residence

As explained in Part III.C.3, Plaintiff has not plausibly alleged a Fourth

Amendment violation claim against the Individual Defendants related to the seizure of

the Residence. For the same reasons, the Court finds that Plaintiff has not plausibly

alleged a Fourth Amendment claim against Denver related to the seizure of the

Residence. See Ellis ex rel. Estate of Ellis, 589 F.3d at 1104 (recognizing that

municipal liability will not attach “where there was no underlying constitutional violation

by any of [the municipality’s] officers”).

Accordingly, Claim Four is dismissed against Denver without prejudice.

5. Claim 5: Fourteenth Amendment / Excessive Force

As explained in Part III.C.4, Plaintiff has not plausibly alleged a Fourteenth

Amendment Due Process Claim against Individual Defendants. For the same reasons,

the Court finds that Plaintiff has not plausibly alleged a Fourteenth Amendment claim

against Denver. See Ellis ex rel. Estate of Ellis, 589 F.3d at 1104.

Accordingly, Claim Five is dismissed against Denver without prejudice.

IV. CONCLUSION

For the reasons set for above, the Court ORDERS as follows:

1. Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

(ECF No. 24) is GRANTED IN PART AND DENIED IN PART as set forth herein;

a. Claim Four of the Amended Complaint (ECF No. 21) is DISMISSED WITH

31

PREJUDICE against Defendants Dodge, Eberharter, and Kohls and is

DISMISSED WITHOUT PREJUDICE against Defendant Denver;

b. Claims Three, Five, and Six are DISMISSED WITHOUT PREJUDICE;

2. The stay on discovery pending resolution of the Motion to Dismiss (ECF No. 46)

is LIFTED; and

3. The parties are DIRECTED to jointly contact Magistrate Judge Kristen L. Mix’s

chambers by no later than January 25, 2021 to set a Status Conference, or such

other proceeding as Judge Mix deems appropriate to move this action forward.

Dated this 22" day of January, 2021.

BY PHE COURT:

William J™Wartinez

United States District Judge

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