Varney v. City of Colorado Springs, Colorado

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Charlotte N. Sweeney

Civil Action No. 23-cv-01768-CNS-MDB

REBECCA VARNEY,

Plaintiff,

v.

CITY OF COLORADO SPRINGS, COLORADO,

COLORADO SPRINGS POLICE CHIEF ADRIAN VASQUEZ, in his official capacity,

OFFICER DAVID KESTER, in his individual capacity, and

OFFICER CARLOTTA RIVERA, in her individual capacity,

Defendants.

ORDER

Defendants move to dismiss Plaintiff Rebecca Varney’s complaint under Federal

Rules of Civil Procedure 8 and 12(b)(6). ECF Nos. 70, 71. For the reasons below, the

Court dismisses Ms. Varney’s federal claims against Defendants and declines to exercise

jurisdiction over her remaining state law claims.

I. FACTUAL BACKGROUND1

This case arises out of an investigation by Officers David Kester and Carlotta

Rivera, both Colorado Springs police officers. ECF No. 62 (first amended complaint), ¶¶

1 The background facts are taken from the well-pleaded allegations in Ms. Varney’s first amended

complaint, ECF No. 62. For purposes of these motions, the Court accepts as true, and views in the light

most favorable to Ms. Varney, all factual allegations contained in her complaint. See Smith v. United States,

561 F.3d 1090, 1098 (10th Cir. 2009). Additionally, as explained in below in Section IV, A, the Court

considers Defendants’ exhibits—including the relevant body-worn camera and search warrant material—in

47–52. On Sunday, July 18, 2021, Ms. Varney called the police to report that David

Wainright, her husband at the time, had entered their home the day before (on July 17)

and taken her property while she was at Evans Army Community Hospital2 being treated

for an injured wrist caused by Mr. Wainwright two nights before (on July 16). Id., ¶¶ 48–

49.3

When Officers Kester and Rivera arrived at the house on July 18, Ms. Varney told

them that Mr. Wainwright had assaulted her two nights prior. Id., ¶ 55. During the visit,

Ms. Varney showed the officers a home video of the alleged assault on her phone. Id., ¶¶

122–23, 126, 128, 141–42. Both officers recorded the entire interaction on their respective

body-worn cameras. Id., ¶ 52.

The home video Ms. Varney played for the officers during the visit shows Ms.

Varney attempting to force her way into a room, and Mr. Wainwright attempting to prevent

her from entering the room. ECF No. 70-3 (“Video of July 16 Incident” or “home video”).

During the altercation, Mr. Wainwright shouts—at least three times in the 20-second

home video—to “leave me alone,” as he attempted to shut the door to the room he was

in. Id. Ms. Varney injured her wrist when she used her arm to prevent the door from

shutting by placing it between the door and the doorjamb while Mr. Wainwright attempted

to slam the door shut. Id., ECF No. 62, ¶ 30.

its consideration of Defendants’ motions to dismiss. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941

(10th Cir. 2002).

2 Because Mr. Wainwright was in the military at the time of the incident, Ms. Varney went to the military

hospital on Fort Carson, Colorado. ECF No. 62, ¶ 36.

3 Ms. Varney explains in her first amended complaint that she and Mr. Wainright were married at the time

of these events but states that they are now divorced. ECF No. 62 at 1 n.1. She also refers to the home as

their “communal home.” Id. at 2.

At the time of the July 16 incident, Ms. Varney was subject to a mandatory

protection order that ordered her to not “harass, molest, [or] intimidate” Mr. Wainwright.

ECF No. 62, ¶ 105; ECF No. 71-3 (Mandatory Protection Order Pursuant to Colo. Rev.

Stat. § 18-1-1001). After watching the home video on Ms. Varney’s phone, Officers Kester

and Rivera left Ms. Varney’s home to have a private conversation. Id., ¶ 144. After 20

minutes, they tried to speak with Ms. Varney again. Id., ¶ 147. The officers knocked on

the door (and purportedly attempted to call Ms. Varney’s phone), but Ms. Varney did not

answer because she was in the shower. Id., ¶¶ 148–50.

Later in the afternoon of July 18, 2021, Officer Rivera and Mr. Wainwright

discussed the July 16 incident over the phone. Id., ¶¶ 160–61. Officer Rivera captured

this 40-minute call on her body-worn camera. Id., ¶ 161; ECF No. 70-4 (Officer Rivera’s

body-worn camera recording of her call with Mr. Wainwright). Mr. Wainwright stated that

on July 16, 2021, he and Ms. Varney were arguing, and after the argument escalated, he

attempted to retreat to another room. Id. at 2:00. According to Mr. Wainwright, Ms. Varney

followed him to the room and wanted to continue the argument. Id. After telling Ms. Varney

to leave him alone “like 25 times,” Mr. Wainwright tried to shut the door. Id. at 4:40.

However, Ms. Varney began forcing her way into the room. Id. During the call, Mr.

Wainwright stated that he felt harassed by Ms. Varney. Id. at 7:47; 34:20.

Ms. Varney alleges that Officer Rivera coerced and manipulated Mr. Wainwright

to state that Ms. Varney harassed him. ECF No. 62, ¶¶ 162–71. For example, Officer

Rivera asked, “Do you find [Ms. Varney’s behavior] to be a violation of your restraining

order at all?” Id., ¶ 165. And when he did not answer immediately, she asked, “Do you

feel harassed, annoyed, alarmed, concerned for your safety, irritated by her behavior?”

Id., ¶ 166. Mr. Wainright struggled with a response, explaining that it was a “really hard”

and “heavy” question. Id., ¶ 167. Officer Rivera then explained that his answer determined

whether this matter was criminal. Id., ¶ 168. Ms. Varney alleges that, “[c]ontrary to Ms.

Varney’s explicit statement that she was not looking to press charges,” Officer Rivera told

Mr. Wainwright that Ms. Varney was “calling in today to try to get [Mr. Wainwright] arrested

for breaking her arm during that incident.” Id., ¶ 169. Mr. Wainwright immediately

responded, “Yeah, it definitely was harassment.” Id., ¶ 170. According to Ms. Varney, Mr.

Wainwright later recanted these statements and described that he had felt “very

pressured into cooperating with the police.” Id., ¶ 171.

Officer Kester applied for an arrest warrant for Ms. Varney. In the arrest warrant

affidavit, Officer Kester stated that he was dispatched to investigate a “possible assault”

that occurred two nights prior, and that “Ms. Varney . . . informed me of an altercation

where she was trying to get into the room where the dogs are kept because she was in

fear David [Wainwright] would beat the dogs based on his past history of abuse to the

dogs.” ECF No. 71-4 at 4. Officer Kester further declared that Ms. Varney told him that,

while attempting to enter the room, Mr. Wainwright “tried to shut the door and during this

altercation, her arm got stuck in the door as he was closing it,” resulting in her arm being

“fractured.” Id. According to Ms. Varney, Officer Kester omitted essential facts and

contained selective evidence in the application. ECF No. 62, ¶¶ 183–95. Specifically, she

alleged that Officer Kester omitted the following facts: allegations of the assault against

Ms. Varney; that Ms. Varney was attempting to force her way into the room occupied by

Mr. Wainwright not to harass him but to protect her dogs4; that Ms. Varney was appointed

a domestic violence advocate5; that the military served Mr. Wainwright with a military

protective order following the incident on July 16; and that there were un-interviewed

witnesses. Id., ¶¶ 183–99. Eventually a judge issued an arrest warrant for Ms. Varney for

violations of the protection order and harassment. Id., ¶ 195.

Following her interview with Mr. Wainwright, Officer Rivera texted Ms. Varney that

the Colorado Springs Police Department was “putting in a warrant for [her] arrest.” Id., ¶

182. She explained that it “took some time to get a hold of [Mr. Wainwright] to verify

whether or not he was harassed by [her] actions,” and explained that Mr. Wainwright

confirmed that he did feel harassed. Id., ¶ 183. Officer Rivera added, “[a]t this time there

are charges of harassment and restraining order violation against you.” Id.

The next day, Ms. Varney filed a complaint with the Colorado Springs Police

Department regarding the conduct of Officers Kester and Rivera. Id., ¶ 200. The Colorado

Springs Police Department Internal Affairs (IA) investigation concluded that both officers’

conduct had violated department policy by failing to investigate Ms. Varney’s report of

domestic violence and by failing to make an accurate report of sexual assault. Id., ¶ 201.

The IA report made several findings, including that Officers Kester and Rivera failed to

interview non-party witnesses to the domestic violence incident. Id., ¶ 203. The report,

4 These first two facts, as noted, were included in the warrant application. ECF No. 71-4 at 4.

5 The Army hospital provided Ms. Varney both a domestic violence advocate as well as a Sexual Assault

Response Coordinator through the Sexual Harassment/Assault Response Program. ECF No. 62, ¶ 45. Ms.

Varney does not state the role of the advocate or how or why she was assigned the advocate—only that

the hospital provided her with one.

however, made “no findings regarding Defendants Kester’s and Rivera’s exclusion of

pertinent evidence from the probable cause affidavit.” Id., ¶ 209.

Ms. Varney was charged with violation of probation and harassment. Id., ¶ 285.

She turned herself in on October 20, 2021, and spent 36 hours in jail.6 Id., ¶ 284. She

was released on bail on October 21, 2021, and eight days later, the El Paso District

Attorney’s office voluntarily dismissed the charges against Ms. Varney. Id., ¶ 287.

II. PROCEDURAL BACKGROUND

On July 12, 2023, Ms. Varney filed a 69-page, 436-paragraph initial complaint.

ECF No. 1. She brought seven claims for relief, including malicious prosecution, violations

of the Equal Protection Clause, and substantive due process violations—all three under

both the United States and Colorado Constitutions—and a Fourth Amendment municipal

liability claim. Defendants moved to dismiss all claims. ECF Nos. 20, 29. Rather than

responding, Ms. Varney filed a 92-page, 554-paragrah amended complaint. ECF No. 41.

On November 17, 2023, Magistrate Judge Dominguez Braswell issued an order striking

the amended complaint for failure to comply with Federal Rule of Civil Procedure 8. ECF

No. 58. Ms. Varney then filed her operative first amended complaint. ECF No. 62.7 This

third complaint, like the first, is 69 pages long. Id. Defendants City of Colorado Springs

and Police Chief Adrian Vasquez (the City Defendants) move to dismiss the first amended

complaint on Federal Rules of Civil Procedure 12(b)(6) and 8 grounds. ECF No. 70.

6 The judge signed the arrest warrant on July 18, 2021. ECF No. 71-4. Ms. Varney states that she repeatedly

attempted to quash the warrant and get the case against her dismissed but was unsuccessful. ECF No. 62,

¶ 283. The Court thus assumes that her attempted motions to quash explain the delay between July 18 and

October 20.

7 Despite being the second amended complaint, Ms. Varney titles her third iteration as the “first amended

complaint.” ECF No. 62. The Court will do the same to avoid any confusion.

Similarly, Defendants Officers Kester and Rivera (the Officer Defendants) move to

dismiss on the same grounds. ECF No. 71. The Court addresses each in turn.8

III. LEGAL STANDARDS

A. Rule 8

Federal Rule of Civil Procedure 8 provides that a “pleading that states a claim for

relief must contain . . . a short and plain statement of the claim showing that the pleader

is entitled to relief . . . .” Fed. R. Civ. P. 8(a). “Each allegation must be simple, concise,

and direct.” Id. at (d)(1).

B. Rule 12(b)(6)

“To survive a [Federal Rule of Civil Procedure 12(b)(6)] 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248–49 (10th Cir.

2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238

(10th Cir. 2019) (internal quotation marks omitted). In making this determination, the

“court accepts as true all well pleaded factual allegations in [the] complaint and views

those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909

F.3d 1280, 1287 (10th Cir. 2018). But “legal conclusions” contained in the complaint are

not entitled to the assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656

8 Magistrate Judge Dominguez Braswell stayed discovery pending resolution of Defendants’ motions. ECF

No. 67.

F.3d 1210, 1214 (10th Cir. 2011). The standard, however, remains a liberal pleading

standard, and “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.”

Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted).

IV. ANALYSIS

A. Documents Referenced in Ms. Varney’s First Amended Complaint

To start, the parties argue extensively over whether the Court should consider

documents referenced throughout Ms. Varney’s complaint. The City Defendants attach

four exhibits to their motion to dismiss: (1) Officer Kester’s body-worn camera recording

from the July 18, 2021 interaction with Ms. Varney in her home; (2) Officer Rivera’s body-

worn camera recording of the same interaction; (3) Ms. Varney’s video of the July 16,

2021 incident involving her and Mr. Wainwright (the home video); and (4) Officer Rivera’s

body-worn camera recording of her phone call with Mr. Wainwright. ECF Nos. 70-1–70–

4. Similarly, the Officer Defendants attach five exhibits to their motion to dismiss: (1) the

July 16, 2021 home video; (2) the transcript of Officer Rivera’s July 18, 2021 telephone

interview of Wainwright; (3) the mandatory protective order; (4) the affidavit in support of

Ms. Varney’s arrest warrant; and (5) Officer Rivera’s affidavit attesting to the accuracy of

the interview transcript. ECF Nos. 71-1–71-5.

“Generally, the sufficiency of a complaint must rest on its contents alone.” Gee v.

Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, a “district court may consider

documents referred to in the complaint if the documents are central to the plaintiff’s claim

and the parties do not dispute the documents’ authenticity.” Jacobsen v. Deseret Book

Co., 287 F.3d 936, 941 (10th Cir. 2002).

Defendants argue that each exhibit is referenced in Mr. Varney’s complaint and

central to her claims, and the exhibits’ authenticity cannot be questioned. ECF No. 70 at

4–5; ECF No. 71 at 3–4. Ms. Varney argues that the Court should decline to exercise its

discretion to consider these materials because they only represent a “select universe of

documents” referenced in her complaint. ECF No. 80 at 5. Critically, Ms. Varney does not

dispute that the documents are referenced and quoted extensively throughout her

complaint.9 And except for one exhibit,10 she does not challenge the authenticity of the

exhibits. Thus, upon reviewing the complaint and the parties’ positions, the Court finds

that considering these exhibits is proper without converting Defendants’ motions to

dismiss to summary judgment motions. It will, however, view the evidence in light most

favorable to Ms. Varney, including any video footage, “except where the video ‘blatantly

contradicts’ Plaintiff’s version of the events.” Est. of Ronquillo by & through Est. of

9 Ms. Varney references the body-worn camera recordings—or quotes the recordings—in over 40 separate

paragraphs. See ECF No. 62, ¶¶ 52, 55, 58–59, 70, 73, 74, 78–79, 86–88, 91, 93-97, 106–10, 113, 116,

118–20, 126, 129, 131–32, 136–39, 141, 143–44, 154, 308, 324. Similarly, in her complaint, Ms. Varney

notes that Officer Rivera recorded her conversation with Mr. Wainwright and then repeatedly quotes it. Id.,

¶¶ 161–63, 165–67, 169, 170, 174–77. Finally, Ms. Varney’s complaint references the home video of the

incident between her and Mr. Wainwright multiple times in her complaint. Id., ¶¶ 111, 113, 122–23, 126,

128–29, 135, 141–42, 153, 185–87, 190–91, 194, 197–98, 232, 241, 307, 397.

10 As noted above, City Defendants attached Officer Rivera’s body-worn camera recording of her phone

call with Mr. Wainwright. ECF No. 70-4. However, the Officer Defendants opted to transcribe that call by a

certified reporter instead of attaching the recording. ECF No. 71-2. Ms. Varney notes that this transcript

was “never referenced in – let alone central to – Plaintiff’s FAC,” and she disputes the authenticity of the

transcript, arguing that the “bare reproduction of the words spoken during the interview does not reflect the

coercive nature of the call.” ECF No. 80 at 5 n.2. That objection is questionable, but because Ms. Varney

challenges the authenticity of the transcript, and because the City Defendants attached the body-worn

camera recording of the phone call, the Court will not consider the transcript in resolving Defendants’

motions. See Jacobsen, 287 F.3d at 941.

Sanchez v. City & Cnty. of Denver, No. 16-CV-01664-CMA-KMT, 2016 WL 10843787, at

*2 (D. Colo. Nov. 17, 2016) (citations omitted), aff’d, 720 F. App’x 434 (10th Cir. 2017).

B. Fourth Amendment Malicious Prosecution (Claim 1)

Ms. Varney brings a malicious prosecution claim against the Officer Defendants

under the Fourth Amendment through 42 U.S.C. § 1983. ECF No. 62, ¶¶ 298–312. The

Officer Defendants contend that Ms. Varney’s malicious prosecution claim should be

dismissed under the doctrine of qualified immunity. ECF No. 71 at 8–17.

1. Qualified Immunity

The qualified immunity doctrine shields government officials performing

discretionary functions from liability for civil damages insofar as their conduct does not

violate “clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine

“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).

When a defendant raises the defense of qualified immunity, a “plaintiff carries a

two-part burden to show: (1) that the defendant’s actions violated a federal constitutional

or statutory right, and if so, (2) that the right was clearly established at the time of the

defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)

(internal quotations omitted). “The record must clearly demonstrate the plaintiff has

satisfied [her] heavy two-part burden; otherwise, the defendants are entitled to qualified

immunity.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877–78 (10th Cir. 2014)

(citation and quotations omitted). When a plaintiff fails to satisfy either prong, the Court

must grant qualified immunity. Id.

In its discretion, the Court may begin its analysis with either prong. Cox v. Wilson,

971 F.3d 1159, 1171 (10th Cir. 2020). Here, the Court elects to begin its analysis with the

clearly established law prong.

a. Clearly Established Law Prong

Ms. Varney alleges that the Officer Defendants violated her Fourth Amendment

rights by maliciously prosecuting her and thus brings a § 1983 malicious prosecution

claim.11 Specifically, Ms. Varney alleges that the Officer Defendants lacked probable

cause—or even arguable probable cause—to seek an arrest warrant on July 18, 2021,

because they knowingly or recklessly misrepresented and omitted critical information in

the warrant (relating to the events of July 16, 2021), including reports of sexual and

physical abuse, the existence of a military protective order against Mr. Wainwright,

photographs of her injuries, and a description of her visibly splinted wrist. ECF No. 62, ¶¶

303–04. Ms. Varney further alleges that, had the Officer Defendants conducted an

11 A § 1983 malicious prosecution claim includes five elements: “(1) the defendant caused the plaintiff’s

continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no

probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant

acted with malice; and (5) the plaintiff sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th

Cir. 2008); Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023). The Officer Defendants challenge two

of the elements, arguing that Ms. Varney failed to sufficiently plead the lack of probable cause or malice on

the part of the Officer Defendants. ECF No. 71 at 11–16.

adequate investigation of the July 16, 2021 incident, arguable probable cause would not

have existed to arrest her. Id., ¶ 306.

In response, the Officer Defendants argue that Ms. Varney’s allegations, taken

together with documents referenced in and central to her claims, easily support probable

cause to arrest her for violating her protective order. ECF No. 71 at 11–15; ECF No. 84

at 4–5. And in any event, Ms. Varney merely identifies high-level legal principles without

identifying a single case involving similar circumstances. ECF No. 84 at 7–10. The Court

agrees with the Officer Defendants on both points. It begins its analysis with their second

argument.

The Court reiterates that it is Ms. Varney’s “heavy” burden to identify caselaw

where an officer acting under similar circumstances as the Officer Defendants was shown

to violate clearly established constitutional law (i.e., where arguable probable cause did

not exist to arrest an individual under similar circumstances ). Thomas v. Kaven, 765 F.3d

1183, 1194 (10th Cir. 2014) (quoting Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.

2008)). Ms. Varney points to two cases. ECF No. 80 at 18. First, she cites Pierce v.

Gilchrist for the proposition that “[n]o one could doubt that the prohibition on falsification

or omission of evidence, knowingly or with reckless disregard for the truth, was firmly

established as of 1986, in the context of information supplied to support a warrant for

arrest.” 359 F.3d 1279, 1298 (10th Cir. 2004).12 Second, Ms. Varney cites Chavez-Torres

12 Pierce v. Gilchrist involved a complaint of fabrication of inculpatory evidence and the disregarding of

exculpatory evidence specifically concerning forensic test results for hair and blood samples which resulted

in Pierce’s arrest and imprisonment for a rape he did not commit. 359 F.3d at 1281–82. The Tenth Circuit

has since limited the holding of Pierce, stating that it “put[] the constitutionality of certain conduct beyond

debate, but it is limited to its factual context. For example, under Pierce, an officer will lack immunity for

omitting forensic hair and blood tests from an arrest warrant where those tests exculpate the subject of the

v. City of Greeley for the same general concept—that malicious prosecution undertaken

without probable cause constitutes a constitutional violation. No. 14-CV-01187-RBJ, 2015

WL 1850648, *7 (D. Colo. Apr. 21, 2015).13 Although true statements of law, the facts of

these two cases are distinguishable from Ms. Varney’s situation—perhaps the reason

why Ms. Varney does not address the facts or circumstances of these cases in her brief.

The Court is therefore left with nothing more than clearly established law at a “high

level of generality,” which the Supreme Court has consistently warned is insufficient.

White v. Pauly, 580 U.S. 73, 79–81 (2017) (“Today, it is again necessary to reiterate the

longstanding principle that clearly established law should not be defined at a high level of

generality.” (citation and quotation marks omitted)). Rather, Ms. Varney was obligated to

present clearly established law that is “particularized” to the facts of her case, which she

warrant.” Kapinski v. City of Albuquerque, 964 F.3d 900, 912 (10th Cir. 2020). The Kapinski court held that,

under the facts of the Kapinski case, it had “little trouble concluding a reasonable officer in Detective

Juarez’s position would not take Pierce as guiding or clarifying with respect to whether to include the

[allegedly exculpatory surveillance] footage in her warrant affidavit.” Id. The same is true here: neither

Pierce nor Kapinski provide fair notice to the Officer Defendants that their failure to include the purportedly

exculpatory evidence (that Ms. Varney was appointed a victim’s advocate, that Mr. Wainwright was issued

a military protective order, that there were un-interviewed witnesses, and photographs of Ms. Varney’s

injuries) was unconstitutional or would vitiate probable cause.

13 Chavez-Torres v. City of Greeley originated when an unknown woman presented a driver’s license

belonging to the plaintiff and attempted to cash a fraudulent check at a Greeley, Colorado bank. No. 14-

CV-01187-RBJ, 2015 WL 1850648, at *1 (D. Colo. Apr. 21, 2015). The woman hastily left the bank after an

employee began to investigate whether the check was legitimate. Id. The next day, a Greely police officer

began investigating the alleged crime. Id. The officer went to the plaintiff’s home and arrested her in front

of her three children despite the plaintiff strongly denying that she was the person who attempted to cash

the fraudulent check. Id. The plaintiff was charged with forgery. Id. At a hearing the day after her arrest, a

judge found probable cause existed for the arrest. Id. It appears the plaintiff spent over a month in jail. Id.

The case, however, was ultimately dismissed by the prosecution “due to [its] inability to meet its burden of

proof in a criminal case since the Plaintiff had not committed a crime.” Id. Plaintiff then brought a false

arrest/false imprisonment claim under both the Fourth and Fourteenth Amendments and a malicious

prosecution claim under those same amendments. Id. at *3. Given the factual distinctions, Chavez-Torres,

like Pierce, is not “particularized to the facts of the case.” Flores v. Henderson, 101 F.4th 1185, 1197 (10th

Cir. 2024) (internal quotation marks omitted).

failed to do. Id.; Flores v. Henderson, 101 F.4th 1185, 1197 (10th Cir. 2024) (“[T]he clearly

established law must be particularized to the facts of the case.” (citation and quotation

marks omitted)); id. at 1199 (reversing denial of qualified immunity for defendant officers

because “[n]either the district court nor plaintiffs have identified precedent determining a

Fourth Amendment violation occurred under similar circumstances”).

In addition to failing to identify “particularized” clearly established law, the Officer

Defendants’ conclusion that probable cause existed to find that Ms. Varney violated Colo.

Rev. Stat. §§ 18-6-803.5(1)(a) and 18-9-111(1)(h) was objectively reasonable.14 See

Stonecipher, 759 F.3d at 1141. As noted above, probable cause “is not a high bar.” Hinkle,

962 F.3d at 1220 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014) (citations

omitted)). “In the context of a qualified immunity defense on an unlawful search or arrest

claim, [the Court] ascertain[s] whether a defendant violated clearly established law by

asking whether there was arguable probable cause for the challenged conduct.”

Stonecipher, 759 F.3d at 1141 (internal citation and quotations omitted); A.M. v. Holmes,

830 F.3d 1123, 1139 (10th Cir. 2016) (recognizing that the “arguable probable cause”

inquiry is part of qualified immunity’s second prong—whether the law was clearly

established). “Arguable probable cause is another way of saying that the officers’

conclusions rest on an objectively reasonable, even if mistaken, belief that probable

14 The arrest warrant application stated that probable cause existed to believe that Ms. Varney violated

Colo. Rev. Stat. § 18-6-803.5—violation of protection order—and Colo. Rev. Stat. § 18-9-111—harassment.

ECF No. 71-4. As relevant here, a violation of a protection order under § 18-6-803.5(1)(a) requires that the

restrained person (Ms. Varney) have actual knowledge of the contents of the order, which she does not

dispute, and that she “harasses, injures, intimidates, molests, threatens” or violates any other conduct

prohibited by the protection order. Harassment under § 18-9-111(1)(h) provides that “a person commits

harassment if, with intent to harass, annoy, or alarm another person, he or she . . . [r]epeatedly insults,

taunts, challenges . . . another [person] in a manner to likely provoke a violent or disorderly response.”

cause exists.” Stonecipher, 759 F.3d at 1141. “A defendant is entitled to qualified

immunity if a reasonable officer could have believed that probable cause existed to arrest

or detain the plaintiff.” Id. (citation and quotations omitted). The Court is particularly

swayed by three facts.

First, the July 16 incident leading to Ms. Varney’s arrest in this matter was

preserved by body camera and audio recordings. ECF No. 62, ¶¶ 52, 161; ECF Nos. 70-

1–70-4. Ms. Varney is seen on the video recordings attempting to force her way through

a bedroom door occupied by Mr. Wainwright. ECF No. 70-3. Conversely, Mr. Wainwright

is seen attempting to keep the bedroom door closed to prevent Ms. Varney’s entry into

the room. Id. He is also heard repeatedly asking Ms. Varney to leave him alone—pleas

that were ignored. Id.

Second, in addition to video evidence, Ms. Varney admitted that she attempted to

force her way into the bedroom against Mr. Wainwright’s will. ECF No. 62, ¶ 30 (“Ms.

Varney attempted to protect her dogs by pushing her way into the room where they were

being held by her ex-husband.” (emphasis added)); ECF No. 70-1 at 11:15 (same). She

also admits that she was subject to a mandatory protection order at the time of the incident

which required her to not harass Mr. Wainwright. ECF No. 62, ¶ 105; ECF No. 71-3.

Third, Mr. Wainwright, in a pre-arrest interview recorded by Officer Rivera’s body-

worn camera, described Ms. Varney’s forceful attempt to physically push her way into the

bedroom against his will despite his pleas to be left alone, explaining that he felt harassed.

ECF No. 62, ¶¶ 160–70 (“Yeah, it definitely was harassment.”); ECF No. 70-4.

Even viewing the facts alleged in light most favorable to Ms. Varney, the Court

concludes that Ms. Varney has not demonstrated that, under clearly established law,

reasonable officers in the Officer Defendants’ position would have had fair warning that

they lacked probable cause to arrest Ms. Varney for violating of Colo. Rev. Stat. §§ 18-6-

803.5(1)(a) and 18-9-111(1)(h).15 A.M. v. Holmes, 830 F.3d 1123, 1139–40 (10th Cir.

2016). Stated another way, similarly situated officers could have reasonably believed—

even if mistakenly—that they possessed probable cause under §§ 18-6-803.5(1)(a) and

18-9-111(1)(h) to arrest Ms. Varney.16 Id.

* * *

15 Because the Court determines that arguable probable cause supported the arrest for violations of the

protection order and harassment, the Court need not analyze whether the Officer Defendants acted with

malice. See Wilkins, 528 F.3d at 799.

16 The Court pauses to address the CSPD IA investigation mentioned in Ms. Varney’s complaint. ECF No.

62, ¶¶ 200–21. As noted in the background, Ms. Varney filed a complaint against the Officer Defendants

following the incident, and the IA investigation concluded that the Officer Defendants’ conduct violated

CSPD policy by failing to investigate Ms. Varney’s report of domestic violence and by failing to make an

accurate report of sexual assault. Id., ¶ 201. The City Defendants acknowledge as much in their response.

ECF No. 70 at 11 n.6. However, the City Defendants correctly point out that the IA report does not indicate

a constitutional violation, id., as there is “no constitutional right to have law enforcement investigate

complaints against other parties.” Butler v. Atchison Police Dep’t, No. 19-3167-SAC, 2019 WL 4640582, at

*2 (D. Kan. Sept. 24, 2019) (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) for the

proposition that there is no due process right to have someone else arrested for a crime, Webb v. Caldwell,

664 F. App’x 695, 696 (10th Cir. 2016) for the proposition that there is no constitutional right to have action

taken against a person who threatened plaintiff, and collecting other cases for the same). Ms. Varney barely

addresses the IA report in her response to Defendants’ motions. She does confirm, however, that she is

not claiming “that the Officer Defendants’ failure to arrest her ex-husband constitutes a constitutional

violation. Rather, she alleges that their decision to arrest her and not him as well, despite having at least

as much evidence that he committed a crime, illustrates their discriminatory motive.” ECF No. 80 at 28 n.14.

Thus, although the Court does not condone the conduct that violated CSPD policy, the Court finds that it

does not invalidate the arguable probable cause in this case.

Because Ms. Varney has not identified precedent determining a Fourth

Amendment malicious prosecution violation occurred under similar circumstances

encountered by the Officer Defendants, and because the Court finds that arguable

probable cause existed under existing precedent, Ms. Varney has failed to satisfy her

burden with respect to the clearly established law prong. The Court need not address the

first prong and therefore dismisses her first claim with prejudice. Felders, 755 F.3d at

877–78 (10th Cir. 2014) (failure to satisfy either prong requires dismissal on qualified

immunity grounds); Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010 (dismissal based

on qualified immunity should be with prejudice); Lybrook v. Members of Farmington Mun.

Sch. Bd. of Educ., 232 F.3d 1334, 1342 (10th Cir. 2000) (same).

C. Fourteenth Amendment Municipal Policy Claim (Claim 5)17

Ms. Varney alleges that Defendants Colorado Springs and Police Chief Vasquez

failed to properly train, supervise, and discipline the Officer Defendants leading up to and

following the incident, and such failure, according to Ms. Varney, constitutes an

unconstitutional policy, procedure, custom, and practice that was a moving force behind

the Officer Defendants’ malicious prosecution of Ms. Varney. ECF No. 62, ¶¶ 369–82.

City Defendants argue that they should be dismissed from this case because the Officer

Defendants had probable cause to believe that Ms. Varney violated her restraining order

on July 16, 2021. ECF No. 70 at 3. Thus, they did not violate her constitutional rights by

seeking a warrant for her arrest, and as such, Ms. Varney’s municipal liability claims

17 It is unclear to the Court whether Ms. Varney’s Monell claim relates to her equal protection and

substantive due process claims as well, but as explained below, the Court also dismisses those claims.

against the City Defendants must fail. Id. at 3, 5–7. The Court agrees with the City

Defendants.

The Court has already determined that the Officer Defendants had arguable

probable cause to seek an arrest warrant against Ms. Varney, and thus, they are entitled

to qualified immunity on that claim. Plaintiff therefore cannot show a violation of her

Fourth Amendment rights. “[A]bsent a constitutional violation by the individual police

officers whose conduct directly caused [Ms. Varney’s] injuries, there can be no municipal

liability imposed on the City of [Colorado Springs] on account of its policies, customs,

and/or supervision with regard to the individual defendants.” Trigalet v. City of Tulsa,

Oklahoma, 239 F.3d 1150, 1156 (10th Cir. 2001).18

Accordingly, Plaintiff’s fifth claim for relief is dismissed without prejudice.

18 For this same reason, the Court also dismisses the Monell claim against Chief Vasquez, who is sued in

his official capacity, for the same reasons as the City. The Court further notes that, in some narrow

circumstances, “municipal liability under Monell may exist without individual liability.” Quintana v. Santa Fe

Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1033–34 (10th Cir. 2020) (citing Garcia v. Salt Lake Cnty., 768 F.2d

303, 310 (10th Cir. 1985)). This general principle appears limited to situations involving multiple employees

where the combined action or inaction of multiple actors causes a constitutional violation, but no individual

actor rises to that level. See id. (“[W]e concluded in Garcia that even where ‘acts or omissions of no one

employee may violate an individual’s constitutional rights, the combined acts or omissions of several

employees acting under a governmental policy or custom may violate an individual’s constitutional rights.’”

(quoting Garcia, 768 F.2d at 310)); Crowson v. Washington Cnty., Utah, 983 F.3d 1166, 1191 (10th Cir.

2020) (“The general rule in Trigalet is that there must be a constitutional violation, not just an

unconstitutional policy, for a municipality to be held liable. In most cases, this makes the question of whether

a municipality is liable dependent on whether a specific municipal officer violated an individual’s

constitutional rights. But Garcia remains as a limited exception where the alleged violation occurred as a

result of multiple officials’ actions or inactions.”). Although not specifically limited to claims of inadequate

medical care, the overwhelming majority of cases relying on this holding involve such claims. See, e.g.,

Beseau v. Cooper, No. 18-CV-01670-PAB-KMT, 2021 WL 1192899, at *1 (D. Colo. Mar. 30, 2021); Bowlds

v. Turn Key Health, No. CIV-19-726-SLP, 2021 WL 354109, at *3 (W.D. Okla. Feb. 2, 2021); Woodson v.

Armor Corr. Health Servs., Inc., No. 20-CV-00186-RM-KMT, 2021 WL 1300596, at *11 (D. Colo. Feb. 8,

2021), report and recommendation adopted, No. 20-CV-00186-RM-KMT, 2021 WL 1050009 (D. Colo. Mar.

19, 2021); DeVargas v. Bd. of Cnty. Comm’rs for Santa Fe Cnty., No. CIV 21-0271 RB/SCY, 2021 WL

D. Fourteenth Amendment Equal Protection Claim (Claim 3)

Ms. Varney alleges in her third claim that Officer Rivera “treated Ms. Varney

differently compared to her ex-husband, who was similarly situated to her in that both

faced domestic violence allegations arising from the same set of facts.” ECF No. 80 at

28; ECF No. 62, ¶¶ 329–53.19 Officer Rivera argues that Ms. Varney has not met her

burden of pleading that gender was a motivating factor in her arrest because she only

cited one purported occasion in which Officer Rivera had a similar complaint made

against her prior to Ms. Varney’s arrest. ECF No. 71 at 18–19.

“Although there is no general constitutional right to police protection,” police

officers “may not discriminate in providing such protection.” Watson v. City of Kansas City,

857 F.2d 690, 694 (10th Cir. 1988). “To assert a viable equal protection claim, plaintiffs

must first make a threshold showing that they were treated differently from others who

were similarly situated to them.” Brown v. Montoya, 662 F.3d 1152, 1172–73 (10th Cir.

2011) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998)). Additionally,

4864478, at *1 (D.N.M. Oct. 19, 2021). Under the facts of this case, the Court finds that Quintana does not

apply.

19 Ms. Varney clarified her Equal Protection claim in her response as follows: “Contrary to the Officer

Defendants’ suggestion that Plaintiff believes she was ‘entitled to the arrest of Wainwright,’ ECF No. 71 at

3, Plaintiff does not claim that the Officer Defendants’ failure to arrest her ex-husband constitutes a

constitutional violation. Rather, she alleges that their decision to arrest her and not him as well, despite

having at least as much evidence that he committed a crime, illustrates their discriminatory motive.” ECF

No. 80 at 28 n.14. The Court acknowledges that Ms. Varney provides extensive allegations with respect to

one other case where Officer Rivera purportedly arrested a woman (identified as the Complainant in Ms.

Varney’s complaint) who was a victim of domestic violence by her ex-boyfriend instead of the ex-boyfriend.

ECF No. 62, ¶¶ 242–60. In the event Ms. Varney is attempting to bring an Equal Protection claim that is

broader than just the situation between her and Mr. Wainwright, the Court would still find that Ms. Varney

is not similarly situated as the Complainant largely for the same reason that it finds that Ms. Varney and

Mr. Wainwright are not similarly situated—namely that she does not allege that the Complainant’s ex-

boyfriend (unlike Mr. Wainwright here) was protected from harassment by a court-ordered mandatory

protection order.

a “plaintiff in an equal protection action has the burden of demonstrating discriminatory

intent.” Watson, 857 F.2d at 694. Claims of gender discrimination are subject to

intermediate scrutiny, Brown, 662 F.3d at 1172, under which a plaintiff must plead

sufficient facts to show that the alleged unconstitutional conduct is not “substantially

related to a legitimate state interest,” Mills v. Habluetzel, 456 U.S. 91, 99 (1982).

The Court construes Ms. Varney’s claim as a “class of one claim.” “Class of one

doctrine focuses on discrimination not between classes or groups of persons, as

‘traditional’ equal protection doctrine does, but on discrimination against a specific

individual.” SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012). The traditional

principles, however, associated with equal protection class discrimination claims still

apply, and Ms. Varney must show that she was “intentionally treated differently from

others similarly situated.” Id. (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000)).

Ms. Varney argues that she and Mr. Wainwright were “similarly situated” in that

they “both faced domestic violence allegations arising from the same set of facts.” ECF

No. 80 at 28. The Court is not convinced.

To be “similarly situated,” the individuals must be “identical in all relevant respects

or directly comparable . . . in all material respects. Although this is not a precise formula,

it is nonetheless clear that similarly situated individuals must be very similar indeed.” U.S.

v. Moore, 543 F.3d 891, 896–97 (7th Cir. 2008) (internal citations and quotation marks

omitted); see also A.B. ex rel. B.S. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d

1226, 1253 (D. Colo. 2011) (quoting Moore, 543 F.3d at 896–97). The “similarly situated”

requirement is an “exacting burden.” Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d

1202, 1209 (10th Cir. 2006) (“[C]ourts have imposed exacting burdens on plaintiffs to

demonstrate similarity in class-of-one cases.”).

Applying this exacting burden, the Court finds that Ms. Varney failed to plausibly

allege facts to allow the Court to draw the reasonable inference that Officer Rivera

intentionally treated her differently from Mr. Wainwright because of her gender. It may be

true that both individuals faced domestic violence allegations arising from the same set

of facts. But at the time of the incident, Mr. Wainwright—not Ms. Varney—possessed a

court-ordered mandatory protection order against Ms. Varney which prevented her from

harassing him.20 ECF No. 62, ¶ 105. And Ms. Varney was observed on the home video

trying to enter the room where Mr. Wainwright had attempted to barricade himself—a

point Ms. Varney admits. Id., ¶ 30. In sum, Ms. Varney and Mr. Wainwright were not

similarly situated.

Accordingly, Ms. Varney’s Fourteenth Amendment Equal Protection claim is

dismissed without prejudice.

E. Fourteenth Amendment Substantive Due Process Claim (Claim 6)

Ms. Varney brings her § 1983 Substantive Due Process claim against all

Defendants. ECF No. 62, ¶¶ 383–412. She first alleges that the Officer Defendants “made

20 The Court acknowledges that Mr. Wainwright was “immediately served with a Military Protective Order

(“MPO”)” by his superiors after the July 16, 2021 event that prohibited him from contacting Ms. Varney.

ECF No. 62 at 2; id., ¶ 37 (“The same day, July 17, 2021, Ms. Varney’s ex-husband’s superior officers

issued an MPO forbidding him from contacting Ms. Varney.”); id., ¶ 178. However, Ms. Varney

acknowledges that Mr. Wainwright received permission from his superiors to return to their “shared home”

while Ms. Varney was “away,” presumably to collect personal belongings. Id., ¶ 38 (“While Ms. Varney was

away from their shared home, her ex-husband obtained permission from his superior officers to return to

the home.”).

the deliberate decision to manipulate a judicial officer into believing that probable cause

existed, thus depriving Ms. Varney of her constitutional rights, subjecting her

unnecessarily to the criminal legal system, further trapping her in her abusive marriage,

and preventing her from moving out of state away from her ex-husband.” ECF No. 80 at

31 (citing ECF No. 62, ¶¶ 182–99, 279–95, 402–04). She goes on to allege that the

“manufacturing of putative probable cause and the prosecution of women who call for

help as victims of domestic violence are common and widespread practices within CSPD”

and the “City Defendants took no action to prevent such constitutional deprivations

through training, supervision, or discipline, instead condoning the behavior and allowing

such conduct to continue unchecked.” Id. (citing ECF No. 62, ¶¶ 222–24).

The Officer Defendants argue that in Albright v. Oliver, 510 U.S. 266 (1994), the

Supreme Court foreclosed a substantive due process malicious prosecution claim where

Colorado provides an adequate post-deprivation remedy. ECF No. 71 at 19–20. The City

Defendants argue that Ms. Varney simply failed to allege conduct that “shocks the

conscience.” ECF No. 71 at 12–13. The Court agrees with Defendants on both points.

The Tenth Circuit recognizes a § 1983 claim for a violation of Fourteenth

Amendment substantive due process rights only “in the narrowest of circumstances.”

Becker v. Kroll, 494 F.3d 904, 922 (10th Cir. 2007); see also Collins v. City of Harker

Heights, Tex., 503 U.S. 115, 125 (1992) (Justice Stevens, writing for a unanimous Court,

explained that, “[a]s a general matter, the Court has always been reluctant to expand the

concept of substantive due process because guideposts for responsible decisionmaking

in this unchartered area are scarce and open-ended”). The conduct alleged “must do

more than show that the government actor intentionally or recklessly caused injury to the

plaintiff by abusing or misusing government power [It] must demonstrate a degree

of outrageousness and a magnitude of potential or actual harm that is truly conscience

shocking.” Becker, 494 F.3d at 922–23 (quoting Livsey v. Salt Lake Cnty., 275 F.3d 952,

957–58 (10th Cir. 2001). “The ultimate standard for determining whether there has been

a substantive due process violation is whether the challenged government action shocks

the conscience of federal judges.” Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)

(citation and quotations omitted).

The Tenth Circuit has said that this “standard is met in only the most extreme

circumstances, typically involving some violation of physical liberty or personal physical

integrity.” Id. at 923. “The protections of substantive due process have for the most part

been accorded to matters relating to marriage, family, procreation, and the right to bodily

integrity.” Id. (quoting Albright, 510 U.S. at 272).

Even accepting as true the allegations in Ms. Varney’s complaint,21 the conduct

alleged does not meet the rigorous standards set forth above. To start, the conduct does

not directly relate to marriage, family, procreation, or the right to bodily integrity. See

Albright, 510 U.S. at 272. And although the Court does not condone Defendants’

actions—if true as alleged and argued by Ms. Varney—the Court cannot conclude that

the complained-of conduct was “egregious and outrageous.” Hernandez v. Ridley, 734

F.3d 1254, 1261 (10th Cir. 2013); Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995)

21 Of course, conclusory allegations are not entitled to the presumption. See, e.g., ECF No. 62, ¶ 387

(“Defendants Kester and Rivera both arbitrarily abused their authority or employed their authority as an

instrument of oppression throughout their interactions with Ms. Varney and her ex-husband.”).

(“[T]he plaintiff must demonstrate a degree of outrageousness and a magnitude of

potential or actual harm that is truly conscience shocking. The level of conduct required

to satisfy this additional requirement cannot precisely be defined, but . . . [w]e do know,

however, that the ‘shock the conscience’ standard requires a high level of

outrageousness, because the Supreme Court has specifically admonished that a

substantive due process violation requires more than an ordinary tort and that merely

allowing unreasonable risks to persist in the workplace is not necessarily conscience

shocking.” (citation omitted))

The Court also finds that, under the facts of this case, Albright does, in fact,

foreclose Ms. Varney’s Fourteenth Amendment Substantive Due Process claim. In Est.

of Papadakos v. Norton, the Tenth Circuit stated that, in “light of the Supreme Court's

holding in Albright and our opinions in Becker and Taylor, we conclude that [the plaintiff]

had no substantive due process right under the Fourteenth Amendment to remain free

from being arrested for, or charged with, a crime based on the allegedly coerced

statements of a third party.” 663 F. App’x 651, 658 (10th Cir. 2016) (citing Taylor v.

Meacham, 82 F.3d 1556, 1560 (10th Cir. 1996) for the proposition that “Fourteenth

Amendment substantive due process standards ha[d] no applicability” to the plaintiff’s

allegation “that his wrongful arrest and seven-week detention constituted an

unreasonable seizure and deprivation of his liberty, in violation of the Fourth, Fifth and

Fourteenth Amendments,” and proceeding to address the plaintiff’s claim solely under

Fourth Amendment framework).22

The reason Albright forecloses these claims is because they generally arise in

conjunction with alleged Fourth Amendment and related state law violations. For that

reason, scholars have found that Albright “did eliminate all § 1983 malicious prosecution

claims based on substantive due process, substantial deprivation of liberty or not, where

the state provides an adequate postdeprivation remedy.” Sheldon Nahmod, Civil Rights

& Civil Liberties Litigation: The Law of Section 1983, § 3:68 (2023-2024 ed.) (second

emphasis added); see also Becker, 494 F.3d at 922 (citing Torres v. McLaughlin, 163

F.3d 169, 173 (3d Cir. 1998) to support holding that Albright forecloses substantive due

process analysis only if the claim “is covered by the Fourth Amendment” and Darrah v.

City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) for the same support, namely that Ҥ

1983 malicious prosecution claims may still be available pursuant to the Fourteenth

Amendment’s substantive due process rights” in cases that do not involve a Fourth

Amendment seizure); see also Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) (citing

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 203 (1989) for the

proposition that “§ 1983 [should] not replace state tort law”).

22 Ms. Varney does not appear to allege or argue that her case fits within the possible exception to the

rule—“where some quantum of harm occurs in the interim period after groundless criminal charges are filed

but before any Fourth Amendment seizure.” See Becker, 494 F.3d at 922 (quoting Albright, 510 U.S. at 291

(Souter, J., concurring)). As the Papadakos court found, that exception would not apply where the plaintiff

was “arrested and charged on the same day.” 663 F. App’x at 658.

Accordingly, because Ms. Varney has brought federal (under the Fourth

Amendment) and state malicious prosecution claims, the Court dismisses Ms. Varney’s

Fourteenth Amendment § 1983 Substantive Due Process claim.

F. Ms. Varney’s State Law Claims

Where, as here, a district court dismisses all federal claims, in its discretion, “the

court may, and usually should, decline to exercise jurisdiction over any remaining state

claims.” Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir.

1998) (emphasis added); see also 28 U.S.C. § 1367(c)(3). Because the Court is

dismissing the federal claims, the Court declines to exercise supplemental jurisdiction of

the state law claims.

Accordingly, Plaintiff’s second, fourth, and seventh claims for relief are dismissed

without prejudice.

V. CONCLUSION23

Consistent with the foregoing analysis, the Court dismisses Ms. Varney’s federal

claims and declines to exercise jurisdiction over her remaining state law claims. Thus, the

City Defendants’ motion to dismiss at ECF No. 70 is GRANTED, and the Officer

Defendants’ motion to dismiss at ECF No. 71 is GRANTED in part and DENIED in part.

The Court orders the following:

(1) Claim One is DISMISSED WITH PREJUDICE under the

doctrine of qualified immunity;

(2) Claims Three, Five, and Six are DISMISSED WITHOUT

PREJUDICE for failure to state a claim;

23 Because the Court concludes that dismissal of Ms. Varney’s federal claims is warranted, the Court does

not address whether the complaint violates Federal Rule of Civil Procedure 8(a).

(3) Having declined to exercise supplemental jurisdiction over

Plaintiff's state law claims, claims Two, Four, and Seven are

DISMISSED WITHOUT PREJUDICE.

(4) The Clerk of Court is directed to close this case.

DATED this 10th day of September 2024.

BY T 7 Yj

y 74

Charlott’ Sweeney

United S District Jadge

27