Montgomery v. Lore

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 21-cv-02553-PAB-MEH

WILLIAM MONTGOMERY,

Plaintiff,

v.

TREVOR LORE,

Defendant.

_____________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________________

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion to Dismiss (“Motion”). ECF 17. Plaintiff William

Montgomery (“Plaintiff”) brings this lawsuit against Defendant Travis Lore (“Defendant”), a

police officer for the City of Aurora, Colorado, pursuant to 42 U.S.C. § 1983 for violations of his

Fourth Amendment constitutional rights. Defendant moves for dismissal on the basis of qualified

immunity. The Motion is fully briefed, and the Court finds that oral argument will not materially

assist in its adjudication. The Court respectfully recommends that the Motion be granted.

BACKGROUND

For the purposes of this ruling, the Court accepts as true the factual allegations—as opposed

to any legal conclusions, bare assertions, or conclusory allegations—that Plaintiff raises in his

Complaint. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (accepting as true a plaintiff’s

factual allegations for purposes of Fed. R. Civ. P. 12(b)(6) analysis).

Plaintiff alleges that on September 17, 2019, at approximately 8:36 p.m., he entered a

Walmart Super Store to go shopping. ECF 1 at ¶ 5. Plaintiff purchased some wipe packages,

forgoing the store-provided plastic bags for “environmental reasons.” Id. at ¶ 6. At approximately

9:02 p.m., Plaintiff began to leave the store, carrying the packages in hand. Id. at ¶ 7. Plaintiff

claims he was followed out by Defendant, who was “posted up” at the store’s exit. Id.

Eventually, Defendant caught up to Plaintiff at Plaintiff’s car. Id. at ¶ 8. There, Defendant

asked to see Plaintiff’s receipt. Id. Plaintiff declined and stuffed the wipe packages into his jacket

inside pockets. Id. Defendant made additional requests to see Plaintiff’s receipt and then asked for

Plaintiff’s identification. Id. at ¶ 9. Plaintiff asked if he was being detained, to which Defendant

responded in the affirmative. Id. Defendant then told Plaintiff to sit down on the ground. Id.

Moments later, Defendant asked Plaintiff to stand, and he escorted Plaintiff back into the store for

further investigation. Id. At the store, Plaintiff provided his identification to Defendant. Id.

Defendant then patted down Plaintiff, after which Plaintiff asked Defendant if he thought

he was armed. Id. at ¶ 10. One of Plaintiff’s pant pockets contained two RV body lights, which he

previously purchased before entering the store earlier that night. Id. at ¶ 11. Purportedly, Defendant

acknowledged the lights as “not being weapons.” Id. Defendant then asked Plaintiff if he had stolen

these in addition to the wipe packages. Id. Plaintiff did not respond, and Defendant allegedly

reached into his jacket pockets to retrieve the wipe packages. Id. at ¶ 12. Shortly thereafter, two

more officers arrived at the store to assist Defendant. Id. at ¶ 13. Defendant asked Plaintiff to sit

down once more, and these two officers stood by waiting with Plaintiff. Id. Defendant left Plaintiff

with these officers to “wait next to his vehicle for the store employees to continue their

investigation into the matter.” Id.

About fifteen minutes later, Defendant returned to where the officers and Plaintiff were. Id.

at ¶ 14. Defendant told Plaintiff he would be issuing him a shoplifting citation. Id. Plaintiff asked

if he was also being cited for the RV lights. Id. As alleged, Defendant then reached into Plaintiff’s

pant pockets to retrieve the lights. Id. Defendant told Plaintiff that “he’d be holding onto them

while he started a new investigation with the store.” Id.

After another fifteen minutes, Defendant came back and informed Plaintiff that he would

be citing him for shoplifting the RV lights as well. Id. at ¶ 15. Plaintiff continued to refuse to show

any receipt. Id. A few more minutes elapsed, and Defendant released Plaintiff but did not return

the wipe packages or lights. Id. at ¶ 16. The next day, Plaintiff and Defendant spoke via phone,

and Plaintiff was told that all theft charges against him from this incident would be dropped. Id. at

¶ 17. Plaintiff was instructed to pick up his items from the police department’s evidence room. Id.

LEGAL STANDARDS

I. 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

678 (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).

II. Treatment of a Pro Se Plaintiff’s Complaint

A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

“Th[e] court, however, will not supply additional factual allegations to round out a plaintiff’s

complaint or construct a legal theory on plaintiff’s behalf.” Smith v. U.S., 561 F.3d 1090, 1096

(10th Cir. 2009) (quoting Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth

Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid

claim on which the plaintiff could prevail, [it] should do so despite the plaintiff’s failure to cite

proper legal authority, his confusion of various legal theories, his poor syntax and sentence

construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d

1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is

qualified in that it is not “the proper function of the district court to assume the role of advocate

for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).

ANALYSIS

The Complaint asserts five claims for relief: (1) unreasonable relocation (seizure) of

person, (2) unreasonable search, (3) unreasonable seizure of the wipe packages, (4) unreasonable

seizure of the RV lights, and (5) unreasonable detention (following the seizure of the RV lights).

ECF 1 at 9-14. Plaintiff maintains Defendant did not possess reasonable suspicion, in violation of

the Fourth Amendment. Id. Defendant argues for dismissal of all claims on the grounds of qualified

immunity, as Plaintiff fails to cite to clearly established law and cannot show that Defendant did

not have reasonable suspicion. ECF 17.

I. Qualified Immunity

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 231-32 (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.

When a defendant asserts qualified immunity, the plaintiff has a two-fold burden to

overcome the asserted immunity: “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)). See also Cox v.

Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (stating that plaintiffs must (1) “rebut the

[defendant’s] no-constitutional-rights arguments”; and (2) “demonstrate that any constitutional

violation was grounded in then-extant clearly established law.”) (citing Riggins v. Goodman, 572

F.3d 1101, 1107 (10th Cir. 2009)); see also Felders v. Malcom, 755 F.3d 870, 877-78 (10th Cir.

2014) (“[T]he ‘record must clearly demonstrate the plaintiff has satisfied his heavy two-part

burden; otherwise, the defendants are entitled to qualified immunity.’” (quoting Medina v. Cram,

252 F.3d 1124, 1128 (10th Cir. 2001))). The Supreme Court has afforded 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.” Pearson, 555 U.S. at 232.

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). To satisfy the clearly established prong of the test, the Tenth Circuit requires that “there

must be 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.” Clark v.

Wilson, 625 F.3d 686, 690 (10th Cir. 2010); see also Doe v. Woodard, 912 F.3d 1278, 1289 (10th

Cir.), cert. denied sub nom., I.B. v. Woodard, 139 S. Ct. 2616 (2019); Quinn v. Young, 780 F.3d

998, 1005 (10th Cir. 2015). The Supreme Court has emphasized that the clearly established law

may not be defined at “a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500,

503 (2019). The Court stressed that factual “[s]pecificity is especially important in the Fourth

Amendment context[.]” Id. These analogous situations allow “an officer to determine how the

relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. Therefore,

Plaintiff must identify clearly established law that put Defendant on notice that his conduct violated

Plaintiff’s rights in the situation he confronted.

a) Unreasonable Seizure of Person (Claim One)

Plaintiff’s first claim alleges an unreasonable relocation (seizure) of his person because

Defendant had “nothing more than ‘unfounded naked suspicion’” that Plaintiff stole items. ECF

26 at 3-4. To support this claim, Plaintiff cites to Walmart Stores, Inc. v. Odem, 929 S.W.2d 513

(Tex. App. 1996). In Odem, the defendant store greeter grabbed the plaintiff by the arm, reached

into the plaintiff’s purse, and retrieved a blue package thought to be unpaid merchandise. Odem,

929 S.W.2d at 518. That court found that the defendant was not entitled to the shopkeeper’s

privilege because there was no reasonable basis to believe that the plaintiff had stolen items from

the store. Id. at 520.1

Here, Defendant, a police officer, witnessed Plaintiff walk out of the store with unbagged

items, stuff them into his pockets once approached by Defendant, and refuse to produce a receipt

when asked. ECF 1 at ¶¶ 7-9. There are no allegations of physical contact, save for Defendant

taking Plaintiff’s items after he repeatedly refused to produce a receipt. Id. at ¶ 12, 14. Odem and

the present case are materially different, failing to show that Plaintiff was subject to a sufficiently

similar violation. However, even if Odem was sufficiently similar, it is not a Supreme Court or

Tenth Circuit decision. Woodard, 912 F.3d at 1289. “‘[E]xisting precedent must have placed the

statutory or constitutional question beyond debate’ for a right to be clearly established.” Id.

(quoting Est. of Lockett by & Through Lockett v. Fallin, 841 F.3d 1098, 1107 (10th Cir. 2016)).

Though there “need not be a case precisely on point,” there must at least be a case cited

demonstrating that the law was clearly established. Redmond v. Crowther, 882 F.3d 927, 935 (10th

Cir. 2018).

In his Response, Plaintiff also cites to Huynh v. Walmart Inc., 30 F.4th 448 (5th Cir. 2022)

to argue a lack of reasonable suspicion to seize him. ECF 26 at 7. Again, Plaintiff cites to a case

that presents facts considerably different than those at issue in this case. In Huynh, one plaintiff

began to “punch[], kick[], and bit[e]” one of the defendants, who had grabbed the other plaintiff’s

purse in attempt to stop her. Huynh, 30 F.4th at 452. Eventually, an off-duty officer (the third

1 Shopkeeper’s privilege is a right expressly given to both store employees and police officers to

detain someone for suspected shoplifting. Colo. Rev. Stat. § 18-4-407 (2016).

defendant) intervened to protect the other two defendants. Id. That court never addressed whether

the defendant officer was “acting in an official capacity or as an employee,” because it was not

relevant to the case. Id. at 455. In fact, as that court explained:

[w]hile [plaintiffs] focus their argument on the notion that [the defendant officer]

acted to apprehend shoplifters, their reasoning misses the point. They may be

correct that [the defendant officer] could not have had a reasonable suspicion that

plaintiffs were attempting to steal Walmart merchandise. . . [The] evidence plainly

establishes that [the defendant officer] intervened not to thwart shoplifting, but

rather to protect [one of the other defendants], whom [the defendant officer]

observed being hit, kicked, spat upon—and bitten—by [plaintiffs].

Id.

In this case, Plaintiff was never apprehended due to a physical altercation. Nor was he

stopped by store employees for suspected shoplifting. He was followed then stopped by Defendant,

a police officer, for leaving the store with unbagged items. ECF 1 at ¶¶ 7-8. Defendant moved

Plaintiff into a well-lit area, so the investigative stop did not take place in the dark parking lot. Id.

at ¶ 9. There is little commonality between the facts of these two cases, with the exception that

both occurred near or in a Walmart store, and that there was a stop involved. Aside from Huynh

being considerably different than the present case, Huynh also was not a decision from the Supreme

Court or the Tenth Circuit. It cannot be a predicate decision for finding established law at the time

of the events. Plaintiff has not provided any citation to any material case to demonstrate that police

officers lack reasonable suspicion to stop individuals leaving stores with unbagged items and no

visible receipt.

The Court is mindful of the Tenth Circuit’s admonition that a plaintiff bears the burden of

citing to clearly established law. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010).

The cases following this requirement typically involve plaintiffs who are represented by counsel.

See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d

1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161-62 (10th Cir. 2013). However,

the Tenth Circuit has reversed a trial court’s dismissal of a pro se plaintiff’s excessive force claim—

where the trial court found the plaintiff had failed to identify a case demonstrating his right was

clearly established—by itself pointing to a Supreme Court case sufficiently like the facts alleged

and finding the plaintiff’s right was clearly established. See Ali v. Duboise, 763 F. App’x 645, 651-

52 (10th Cir. 2019). Therefore, the Court has conducted an additional inquiry to determine whether

the relevant law was clearly established as of the dates of these events, finding no authority

concluding that an officer who observes an individual exiting a store with unbagged merchandise

and no visible receipt, accompanied by a direct refusal to produce a receipt, does not have

reasonable suspicion to conduct an investigative detention for possible shoplifting and seize the

merchandise until a receipt is produced. Accordingly, Defendant should be entitled to qualified

immunity on the first claim.

b) Unreasonable Seizure of Items (Claims Three and Four)

Plaintiff’s third and fourth claims allege unreasonable seizure of the wipe packages and the

RV lights. In his Response, Plaintiff cites to Banks v. Food Town, 98 So. 2d 719 (La. Ct. App.

1957) in an attempt to show there was clearly established law. ECF 26 at 5. In Banks, the plaintiff

was accosted by the employee defendant for allegedly hiding something under his shirt. That

plaintiff never purchased anything and walked out of that store with empty hands. There were no

facts present at the time of the incident which would give rise to a reasonable suspicion of

shoplifting. Here though, Plaintiff exited the store with unbagged items. He shoved the items into

his pockets when asked about the receipt for them. He then refused to produce a receipt. The facts

of this case are significantly different than those in Banks, nor did Banks concern the seizure of

one’s items. Moreover, Banks is a Louisiana state court case, and, again, cannot be used to

demonstrate clearly established law.2

Even if Plaintiff had pointed to clearly established law, Defendant maintains that there was

reasonable suspicion to seize the items. ECF 17 at ¶¶ 10-11 (explaining that there was reasonable

suspicion for both the pat-down search and item seizure under the totality of the circumstances).

The seizure of property does not rely on an independent justification from the detention of

Plaintiff’s person. “If, while conducting a legitimate Terry search . . . the officer should . . . discover

contraband other than weapons, he clearly cannot be required to ignore the contraband.” Michigan

v. Long, 463 U.S. 1032, 1050 (1983). The seizure of Plaintiff’s items was, in large part, due to his

refusal to produce a receipt for unbagged items that he stuffed in his pockets. Defendant, believing

that Plaintiff had committed shoplifting, removed both the wipe packages and RV lights from

Plaintiff’s person. The Court finds that Defendant had reasonable suspicion to remove both items

from Plaintiff’s person, and therefore should enjoy qualified immunity.

c) Unreasonable Detention (Claim Five)

Plaintiff claims he was unreasonably detained following the seizure of the RV lights, as

that detention “was a clear ‘fruit of the poisonous tree’ violation.” ECF 26 at 8. Fourth Amendment

detentions require reasonable suspicion. Romero v. Story, 672 F.3d 880, 886 (10th Cir. 2012). “An

officer who ‘stops’ and briefly detains a person for questioning ‘must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.’” Davis, 94 F.3d at1468 (citing Terry, 392 U.S. at 21). “[R]easonable

suspicion may exist ‘even if it is more likely than not that the individual is not involved in any

2 The Court has conducted an inquiry to find clearly established law on this issue as well. It has

not found that any relevant law was clearly established as of the dates of these events.

illegality.’” U.S. v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011) (citing U.S. v. Albert, 579 F.3d

1188, 1197 (10th Cir. 2009)). “The detaining officer needs only to articulate ‘some minimal level

of objective justification’ for the detention.” U.S. v. Briggs, 720 F.3d 1281, 1285 (10th Cir. 2013)

(quoting U.S. v. Sokolow, 490 U.S. 1, 7 (1989)).

In U.S. v. Fisher, the Tenth Circuit held that there was reasonable suspicion to detain a

plaintiff for shoplifting given the totality of the circumstances. 99 F. App’x. 190, 194 (10th Cir.

2004). There, the plaintiff attempted to steal lithium batteries by placing the items in another

section of the store to later retrieve them. Id. A store employee noticed the plaintiff try to hide

something from the electronics aisle as he moved through the store. Id. at 191. The plaintiff made

his way to the snack aisle, placed the items there, and quickly pulled his hand away from them. Id.

The plaintiff then moved his body to shield the items from view of the store employee. Id.

Eventually, the plaintiff left the snack aisle, where the store employee found the batteries. Id. The

store employee contacted the police, as she knew lithium batteries were used to make

methamphetamine. Id. at 192. When considering these facts together, as well as the responding

officers’ experiences, the court held there was reasonable suspicion to detain the plaintiff. Id. at

194.

Similar to the plaintiff in Fisher, Plaintiff’s actions in this case would indicate to the

reasonable person he may be shoplifting. Here, Plaintiff was nonresponsive when asked if the RV

lights were stolen. ECF 1 at ¶¶ 11-12, 14. He would not remove them from his pants pockets. Id.

When cited for the wipe packages, Plaintiff asked if he would be for the RV lights as well. Id. at ¶

14. Defendant detained Plaintiff further to investigate if the RV lights were stolen in addition to

the wipe packages. Id. at ¶ 15. Moreover, Plaintiff had earlier stuffed the wipe packages, thought

to be the products of shoplifting, into his jacket pockets. Id. at ¶ 8. Like the plaintiff in Fisher,

Plaintiff in this case was furtive throughout most of the incident. Considering the totality of the

circumstances, Defendant possessed reasonable suspicion to detain Plaintiff in relation to the RV

lights. The Court finds that Defendant should be entitled to qualified immunity.

d) Unreasonable Search (Claim Two)

When analyzing whether a defendant is entitled to qualified immunity from a Fourth

Amendment claim, courts must determine whether the defendant had arguable reasonable

suspicion—i.e., whether a reasonable officer could have believed that reasonable suspicion

existed. Cortez v. McCauley, 478 F.3d 1108, 1120, 1123 (10th Cir. 2007). A pat-down search, or

frisk, is constitutionally valid only if it is reasonable. U.S. Const. amend. IV; Terry, 392 U.S. at

19. In other words, a pat-down search must be justified by a reasonable suspicion that a person is

armed and dangerous. U.S. v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007); see also U.S. v.

Manjarrez, 348 F.3d 881, 886 (10th Cir. 2003) (“An officer may pat-down a suspect if the facts

available to the officer would warrant a man of reasonable caution to believe that a frisk would be

necessary to protect himself.”). “Although it is of course true that officers need not be absolutely

certain that [an] individual is armed before taking protective measures such as a pat-down search,

such a search is also not to be conducted as a matter of course during every investigative

detention.” U.S. v. Garcia, 459 F.3d at 1063–64 (internal citations and quotation marks omitted).

An officer is permitted to “conduct a pat[-]down search (or ‘frisk’) if he or she ‘harbors an

articulable and reasonable suspicion that the person is armed and dangerous.’” Id. at 1064 (quoting

U.S. v. Hishaw, 235 F.3d 565, 570 (10th Cir. 2000)).

The circumstances necessary to arouse reasonable suspicion fall considerably short of

satisfying a preponderance of the evidence standard. U.S. v. Garcia, 751 F.3d 1139, 1143 (10th Cir.

2014) (citing U.S. v. Arvizu, 534 U.S. 266, 274 (2002)). It must meet only a “minimum level of

objective justification.” Rice, 483 F.3d at 1083 (quotation omitted). In analyzing reasonable

suspicion, a court does not “consider each of an officer’s observations in isolation, but rather”

considers “the totality of the circumstances, taking into account an officer’s reasonable inferences

based on training, experience, and common sense.” Garcia, 751 F.3d at 1143 (quotation omitted);

U.S. v. Fager, 811 F.3d 381, 386 (10th Cir. 2016) (“[A] reasonable suspicion analysis is still first

and foremost a multi-factor test based on the totality of the circumstances.”). The totality of the

circumstances test looks at the officer’s knowledge and observations as well as the circumstances

in which the officer is working. Rice, 483 F.3d at 1084–85.

The primary justification for a pat-down search is an officer’s concern “that [his or her]

safety or that of others was in danger.” Terry, 392 U.S. at 27. “The officer need not be absolutely

certain that the individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was in danger.” Id.

The Tenth Circuit has held that officer safety concerns have justified a pat-down search in

circumstances in which the officer had limited specific information leading him to believe that an

individual was armed or dangerous and no knowledge of the individual’s having possessed a

weapon. See Garcia, 751 F.3d at 1142; see also U.S. v. McRae, 81 F.3d 1528, 1536 (10th Cir.

1996) (concluding an officer had reasonable suspicion to perform a pat-down search of McRae

because the officer might be compelled to turn his back to McRae to search a car, he was alone

with McRae on an isolated stretch of highway, he received information that McRae had a criminal

history, McRae put on his jacket before exiting his vehicle, and “a jacket is a likely place in which

to store a weapon”); U.S. v. Manjarrez, 348 F.3d 881, 886–87 (10th Cir. 2003) (concluding the

officer “could not reasonably be expected to leave [d]efendant in his patrol car, turn his back on

[d]efendant . . . and search the car without first checking [d]efendant for weapons” even when the

officer had no knowledge of any previous criminal history and the defendant was not acting

suspiciously). Additionally, other factors that can influence an officer’s reasonable suspicion

include (but are not limited to) the time of day when and the place where the pat-down occurred,

any previous encounters the officer had with the defendant, the defendant’s criminal history, the

defendant’s nervousness, and the defendant’s history of drug use. Garcia, 751 F.3d at 1144–47.

In U.S. v. Gurule, the Tenth Circuit found reasonable suspicion to search the plaintiff in a

poorly lit gas station lot. 935 F.3d 878, 887 (10th Cir. 2019). There, the plaintiff was stopped in

the lot at 10:30 p.m. Id. The officers observed an unknown item present in the plaintiff’s pocket.

Id. at 886. The plaintiff’s vehicle also presented risks, as the backseat of the plaintiff’s car

contained a “great deal of property” and unknown items. Id. at 886-87. The court also discussed

that there is danger associated with unfamiliar vehicles and persons, but especially if they had been

stopped before. Id. Here, Plaintiff walked out of the store, with unbagged items, into the parking

lot at 9:02 p.m. in late summer. ECF 1 at ¶ 7. Defendant followed Plaintiff to Plaintiff’s car to

review the receipt. Id. When Defendant caught up to Plaintiff and asked for the receipt, Plaintiff

put the items into his jacket inside pockets. Id. at ¶¶ 8, 9. While outside, Defendant was alone and

only caught up after Plaintiff had been at his car for a moment. Id. Considering the Tenth Circuit’s

reasoning in Gurule, it is reasonable to think that Plaintiff may be armed with weapons hidden in

his coat or pant pockets. Plaintiff’s behavior could be interpreted as furtive, given he stuffed his

hands, which held the wipe packages, into his inside jacket pockets. The interaction between the

two of them began in the dark parking lot of the store, late at night. On these facts, accepted as

true, the Court finds that there was reasonable suspicion to search Plaintiff for weapons.

In his Response, Plaintiff references one of his several past lawsuits, Montgomery v. Cruz.

No. 20-cv-03189-PAB-MEH, 2021 WL 8129502 (D. Colo. June 9, 2021). Plaintiff argues that

Cruz establishes that there was not reasonable suspicion to believe he was armed and dangerous.

In Cruz, there was not reasonable suspicion (based on the allegations in the complaint) to search

given the totality of the circumstances. There, Plaintiff was stopped inside a Walmart store in the

afternoon and handcuffed after reaching for his wallet. He was stopped from leaving as he had not

produced a receipt for the items he was carrying out. Crucially, Plaintiff’s items were also seized

without a pat-down. Here, Plaintiff was stopped at his car, late at night, where it would be dark

outside. Defendant was alone with Plaintiff, having only caught up to him after Plaintiff got to his

car. It would be in the interest of Defendant’s safety to search Plaintiff, especially after he stuffed

the items in his pockets. Simply put, the facts in this case are not analogous to those in Cruz.3

II. Leave to Amend

Having found that Plaintiff inadequately pleaded his claims, the Court turns to the issue of

whether dismissal should be with or without prejudice. Generally, in a case involving a pro se

litigant, the Tenth Circuit has held that if “it is at all possible that the party against whom the

dismissal is directed can correct the defect in the pleading or state a claim for relief, the court

should dismiss with leave to amend.” Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990).

“Particularly where deficiencies in a complaint are attributable to oversights likely the result of an

untutored pro se litigant’s ignorance of special pleading requirements, dismissal of the complaint

without prejudice is preferable.” Id. Thus, in this jurisdiction, 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.

3 Because this Recommendation reaches the merits of the qualified immunity analysis, the Court

does not reach the matter of issue preclusion raised by Defendant.

Here, Plaintiff is proceeding pro se, has not previously amended his pleading, and has not

yet received guidance as to any defective allegations from the Court. Plaintiff’s statements in his

Complaint and Response lead the Court to believe that it is possible (even if unlikely) that some

of the deficiencies found herein may be cured. Therefore, because it is not evident that amendment

would be futile, the Court recommends Plaintiff be allowed leave to amend.

CONCLUSION

Defendant should be entitled to qualified immunity because he possessed reasonable

suspicion, and Plaintiff has failed to cite to clearly established law. The Court respectfully

RECOMMENDS Defendant’s Motion [filed May 5, 2022; ECF 17] be GRANTED,‘ and that

Plaintiff’s claims be dismissed without prejudice.

Respectfully submitted this 17th day of August, 2022, at Denver, Colorado.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

‘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)).

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