Burnam et al v. Weld County Sheriffs, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00151-NYW-NRN
ERIC BURNAM,
ERIN CIENFUEGOS, and
MICHELLE ERICKSON,
Plaintiffs,
v.
THE WELD COUNTY SHERIFFS,
THE DEPARTMENT OF HUMAN SERVICES OF WELD COUNTY,
THE COUNTY ATTORNEYS OFFICE OF WELD COUNTY,
ASHLEY HUGHES,
ANGELA TIMOTHY-FLEECE,
DONOVAN PECORELLA,
TRAVIS DENNING,
PETE JONES,
JARED PATTERSON,
DANIEL CHAPMAN,
DANIEL TRUJILLO, and
LARRY NUEGEBAUER,
Defendants.
REPORT AND RECOMMENDATION ON
PLAINTIFFS’ MOTION FOR LEAVE TO PROCEED WITH AMENDED COMPLAINT
PURSUANT TO FED. R. CIV. 15 AND 24 (ECF No. 68)
N. Reid Neureiter
United States Magistrate Judge
This case is before the Court pursuant to an Order, ECF No. 70, issued by Judge
Nina Y. Wang referring Plaintiffs Eric Burnam, Erin Cienfuegos, and Michelle Erickson’s
(collectively “Plaintiffs”)1 Motion for Leave to Proceed with Amended Complaint
1 Because Plaintiffs proceed pro se, the Court “review[s their] pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
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Pursuant to Fed. R. Civ. P. 15 and 242 (“Motion to Amend”), ECF No. 68. Defendants
Weld County Sheriffs, Department of Human Services of Weld County, and County
Attorneys Office of Weld County (collectively “County Defendants”), along with
Defendants Jared Patterson, Daniel Chapman, Larry Nuegebauer, Travis Denning,
Angela Timothy-Fleece, and Ashley Hughes (collectively “Individual Defendants”), filed
a response. ECF No. 72. No reply was filed.
The Court has taken judicial notice of the docket and considered the applicable
Federal Rules of Civil Procedure and case law. Now, being fully informed and for the
reasons discussed below, the Court RECOMMENDS that the Motion to Amend, ECF
No. 68, be DENIED.
BACKGROUND3
For a detailed recitation of the background of this case, the Court refers the
reader to the undersigned’s Report and Recommendation on Motion to Dismiss
Plaintiffs’ Complaint and Motion to Quash Alleged Service of Process of, or in
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
2 Rule 24 of the Federal Rules of Civil Procedure governs intervention and is
inapplicable to the matter before the Court.
3 All citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
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Alternative to Dismiss, Plaintiffs’ Complaint (“R&R”), ECF No. 46, and Judge Wang’s
Order Adopting Magistrate Judge’s Recommendation, ECF No. 56. Briefly, this lawsuit
arises from events that occurred in late-2020 and early-2021 that resulted in several
searches of Plaintiffs’ property by Weld County law enforcement officers, the
confiscation of millions of dollars’ worth of Plaintiffs’ property, and Mr. Burnham’s arrest.
See generally ECF No. 1.
Judge Wang dismissed Plaintiffs’ Complaint on several grounds. First, she found
that “Plaintiffs’ claims, to the extent they are based on the events of December 9, 15,
29, or 30, 2020, or January 15, 2021, except to the extent Plaintiffs assert a malicious
prosecution claim,” are untimely and barred by the statute of limitations. ECF No. 56 at
12–14. Next, she determined that even if most of Plaintiffs’ claims were not time-barred,
their First, Fifth, Sixth, and Eighth Amendment Claims were still subject to dismissal
under Rule 12(b)(6). Id. at 14–18. Judge Wang also dismissed Plaintiffs’ Fourth
Amendment Claims for unlawful search and malicious prosecution; the former because
the only non-time-barred search (on January 29, 2021) was conducted pursuant to a
search warrant, the latter because Mr. Burnam cannot show that the criminal
prosecution ended without a conviction as he entered guilty pleas and was convicted of
two charges in his criminal case. Id. at 18–25. Finally, Judge Wang ruled that that the
Complaint did not plausibly allege Fourteenth Amendment Claims for conspiracy or
procedural due process violations. Id. at 25–27.
Judge Wang gave Plaintiffs the opportunity to file a motion to amend by April 10,
2024, but reminded them that any pleading must comply with the Local and Federal
Rules of Civil Procedure, including Rule 8’s requirement that a complaint “articulate
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clear causes of action which clearly set forth the legal basis for each claim” and “set
forth factual allegations supporting each claim.” Id at 29–30 (citations omitted).
Plaintiffs filed their first motion to amend on April 12, 2024. ECF No. 58. Judge
Wang ordered that the motion be stricken for failing to comply with her prior order and
Rule 8. ECF No. 59; see id. at 2 (“The Proposed Amended Complaint is 50 pages long
(80 including exhibits) and simply fails to contain a short and plain statement of
Plaintiffs’ claims for relief. Any relevant factual allegations are interspersed between
large swaths of unintelligible or irrelevant text, which renders it impossible for
Defendants to meaningfully respond to Plaintiffs’ factual allegations.”).
Plaintiffs’ second attempt to amend, ECF No. 64, was likewise stricken because
the proposed pleading was not accompanied by a motion, ECF No. 66.
Finally, Plaintiffs filed the subject Motion to Amend. ECF No. 68. Although
Plaintiffs were ordered to file both a clean and red-lined copy of the proposed pleading,
see ECF No. 56 at 29–30, the “red-lined” form they submitted bears no relationship to
the proposed Amended Complaint. Compare ECF Nos. 68-1, with 68-2. Moreover, even
a cursory review of the 61-page proposed Amended Complaint indicates that Plaintiffs
failed to take to heart Judge Wang’s admonition that “[a] lengthy complaint made
‘unintelligible by scattering and concealing in a morass of irrelevancies the few
allegations that matter’ fails to comply with Rule 8.” ECF No. 59 at 2 (quoting Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007)). Thus, the Court would be within its
right to strike the motion for a third time. However, given that the County and Individual
Defendants have filed a response, the Court will address the merits of the motion.
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LEGAL STANDARD
Rule 15(a)(2) of the Federal Rules of Civil Procedure states, in relevant
part, that “a party may amend its pleading only with the opposing party’s written consent
or the court’s leave.” Leave to amend shall be freely granted when justice so requires.
See, e.g., Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995). “If
the underlying facts or circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman
v. Davis, 371 U.S. 178, 182 (1962). However, the court may exercise its discretion to
deny a motion to amend upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously
allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993).
“A proposed amendment is futile if the complaint, as amended, would be subject
to dismissal. . . . The relevant standard in determining whether claims are futile is the
same standard that is applied to a motion to dismiss under Fed. R. Civ. P. 12(b)(6).”
Dorough v. Am. Fam. Mut. Ins. Co., No. 15-cv-02388-MSK-KMT, 2016 WL 1426968, at
*2 (D. Colo. Apr. 11, 2016).
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
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“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1109. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “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 679–81. Second, the court
considers 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 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc. v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does the complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a
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defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider
documents incorporated by reference, documents referred to in the complaint that are
central to the claims, and matters of which a court may take judicial notice. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject
to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d
1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007); Trusdale v. Bell, 85 F. App’x 691, 693 (10th Cir. 2003).
ANALYSIS
I. The Statute of Limitations Still Bars Almost All of Plaintiffs’ Claims
The Amended Complaint’s 30-page4 “Cause of Action” section explicitly
organizes its claims against Defendants by date, and, with one exception, all the dates
are in December 2020. As the Court has explained, “the relevant statute of limitations
for a [42 U.S.C.] § 1983 claim ‘is that which the State [in which the cause of action
arose] provides for personal-injury torts.’” Eden v. Webb, No. 22-3064, 2022 WL
17576354, at *1 (10th Cir. Dec. 12, 2022) (quoting Wallace v. Kato, 549 U.S. 384, 387
(2007)). In Colorado, a plaintiff has two years to bring suit under § 1983. See Colo. Rev.
Stat. § 13-80-102; Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“We have
made clear that the statute of limitations for § 1983 actions brought in Colorado is two
4 There appears to be a missing page that details the allegations against
Defendant Neugebauer.
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years from the time the cause of action accrued.”). Here, Plaintiffs filed suit on January
18, 2023. Thus, all claims that accrued prior to January 18, 2021 are time-barred.
II. The Non-Barred Claim
The only claim that falls within the applicable statute of limitations period is a First
Amendment Claim asserted against Defendant Pecorella for actions that occurred on
January 29, 2021.5 See ECF No. 68-1 at 32. This is when law enforcement officers
searched Plaintiffs’ property and “located and dug up the deceased fetus” of Plaintiffs
Burnam and Cienfuegos. Id. at 9. The Court addressed this claim in its R&R:
The Free Exercise Clause provides that “Congress shall make no law . . .
prohibiting the free exercise [of religion].” U.S. Const. amend I. It protects
against government regulation of religious belief or conduct and has been
applied to the states through the Fourteenth Amendment’s Due Process
Clause. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Even giving it
the most liberal construction possible, a Free Exercise claim cannot be
gleaned from the Complaint. In any event, neither the Complaint nor the
response identifies Plaintiffs’ religious beliefs or suggests that the officers
who searched the property on January 29, 2021—pursuant to a valid
warrant—were aware of Plaintiffs’ religion or motivated by any religious
animus.
ECF No. 46 at 12. These deficiencies were not cured by the Amended Complaint. It
would be futile to permit amendment as to this claim.
III. Municipal Liability Claims
The R&R recommended that Plaintiffs’ municipal liability claims be dismissed
because Plaintiffs “neither plausibly allege a constitutional violation nor identify any
municipal policy or custom that was the moving force behind a constitutional
deprivation.” ECF No. 46 at 24. Plaintiffs did not object to this portion of the R&R and
5 The Amended Complaint mistakenly identifies the date as “January 29, 2023.”
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Judge Wang dismissed the claims without prejudice under Rule 12(b)(6). ECF No. 56 at
11.
Plaintiffs reassert their municipal liability claims against the County Defendants in
the Amended Complaint. However, the allegations remain conclusory.
“Local governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 690 (1978) (footnote omitted). To state a claim for municipal
liability, a plaintiff must plausibly allege the existence of a municipal policy or custom
and a causal link between the policy or custom and the injury alleged. See Mocek v.
City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015). He must also “show that the
policy was enacted or maintained with deliberate indifference to an almost inevitable
constitutional injury.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
769 (10th Cir. 2013). A municipality can be liable under § 1983 only where the
municipality itself causes the constitutional violation at issue. Monell, 436 U.S. at 690–
91. Thus, to prove a municipality is liable under § 1983 for the acts of one of its
employees, a plaintiff must show (1) that a municipal employee committed a
constitutional violation and (2) that a municipal policy or custom was the moving force
behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th
Cir. 2004).
An official policy or custom may take one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by written
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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) (quotation and
alteration marks omitted). 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.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
Plaintiffs’ municipal liability claim is premised on failure to train and supervise. In
these instances, the Tenth Circuit has explained,
a plaintiff “must demonstrate that the municipal action was taken with
‘deliberate indifference’ as to its known or obvious consequences.” Brown,
520 U.S. at 407. “‘Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action,’” Connick v. Thompson, 563 U.S. 51, 61 (2011)
(quoting Brown, 520 U.S. at 410) (internal quotation marks and brackets
omitted), as “[a] less stringent standard of fault for a failure-to-train claim
‘would result in de facto respondeat superior liability on municipalities,’” id.
at 62 (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)). “The
deliberate indifference standard may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially
certain to result in a constitutional violation, and it consciously or
deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143
F.3d 1299, 1307 (10th Cir. 1998). “In most instances, notice can be
established by proving the existence of a pattern of tortious conduct.” Id.
Deliberate indifference “may be found absent a pattern of unconstitutional
behavior” only in “a ‘narrow range of circumstances’” where “a violation of
federal rights is a ‘highly predictable’ or ‘plainly obvious’ consequence of a
municipality’s action or inaction.” Id. at 1307–08 (quoting Brown, 520 U.S.
at 409).
Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019).
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Plaintiffs’ allegations are entirely conclusory and vague. A party asserting a Monell
claim must, at a minimum, plead sufficient facts to identify the unconstitutional custom or
policy that was promulgated and the means by which that custom or policy caused the
constitutional violation. In other words,
[t]he plaintiff cannot simply allege that there is a policy in place, but, rather,
must plead facts that, if true, would give rise to a plausible inference that
such a policy exists. With formal or written policies, satisfying this pleading
standard is easy; the plaintiff can simply allege what the policy is and where
it is codified. With informal, unwritten policies, customs, or practices, the
plaintiff can plead either a pattern of multiple similar instances of
misconduct—no set number is required, and the more unique the
misconduct is, and the more similar the incidents are to one another, the
smaller the required number will be to render the alleged policy plausible—
or use other evidence, such as a police officers’ statements attesting to the
policy’s existence. The Tenth Circuit has not explicitly held that to be
pleading requirements, but they have implied that district courts should
analyze policies, practices, or customs under Monell as “legal conclusions”
at the pleading stage—must evidence factual support, rather than
conclusorily alleged—and not “facts” in and of themselves, to be taken as
true at face value.
Abila v. Funk, No. CV 14-1002 JB/SMV, 2016 WL 9021834, at *17 (D.N.M. Dec. 14,
2016). Plaintiffs’ allegations are insufficient to meet this stringent standard. Accordingly,
their municipal liability claims would not survive a Rule 12(b)(6) challenge and
amendment should not be permitted.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that
Plaintiffs’ Motion for Leave to Proceed with Amended Complaint Pursuant to Fed. R.
Civ. P. 15 and 24, ECF No. 68, be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
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Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
BY THE COURT
Date: January 2, 2025 ______
Denver, Colorado N. Reid Neureiter
United States Magistrate Judge
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