Estate of Chad Alexander Burnett v. City of Colorado Springs et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-1708-WJM-MDB
ESTATE OF CHAD ALEXANDER BURNETT,
Plaintiff,
v.
CITY OF COLORADO SPRINGS;
JOSEPH DAIGLE, in his individual capacity;
MICHAEL INAZU, in his individual capacity;
MATTHEW FLEMING, in his individual capacity; and
CAROLINE BARTH, in her individual capacity,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
Plaintiff Estate of Chad Alexander Burnett (“the Estate”) brings this action under
42 U.S.C. § 1983 for alleged violations of Chad Burnett’s civil rights under the U.S.
Constitution and Americans with Disabilities Act (“ADA”) against Officer Joseph Daigle,
Sergeant Michael Inazu, Officer Matthew Fleming, and Officer Caroline Barth
(collectively, the “Officers”) individually and the City of Colorado Springs (collectively,
“Defendants”).
Before the Court is Defendants’ Motion to Dismiss (“Motion”) (ECF No. 33), the
Estate’s Response (ECF No. 41), and Defendants’ Reply (ECF No. 42). For the
reasons explained below, the Motion is granted in part and denied in part.
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I. LEGAL STANDARDS
1. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” “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) (internal quotation marks omitted).
The Rule 12(b)(6) standard requires the Court to “assume the truth of the
plaintiff’s well-pleaded factual allegations and view them in the light most favorable to
the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). Thus, in ruling on a Motion to Dismiss under Rule 12(b)(6), the dispositive
inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Granting a motion to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect
the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009) (internal quotation marks omitted). “Thus, ‘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.’” Id. (quoting Twombly, 550 U.S. at 556).
However, “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual
matter (taken as true) to suggest’ that he or she is entitled to relief.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
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“[C]omplaints that are no more than ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action,’ . . . ‘will not do.’” Id. (quoting Twombly, 550 U.S. at
555).
2. Consideration of Body-Worn Camera Videos
Well-settled authority provides that the Court “may consider a document outside
the pleadings, even in a Rule 12(b)(6) analysis, if the document is (1) mentioned in the
complaint, (2) central to the claims at issue, and (3) not challenged as inauthentic.”
Ramirez v. Hotel Equities Grp., LLC, 2019 WL 5964968, at *1 (D. Colo. Nov. 13, 2019)
(quotation marks and alterations omitted) (quoting Toone v. Wells Fargo Bank, N.A.,
716 F.3d 516, 521 (10th Cir. 2013)).
Defendants attach to the Motion body-worn camera (“BWC”) footage from the
Officers. (ECF Nos. 33-1, 33-2, 33-3, 33-4.) They argue the Court may consider the
videos without converting the Motion to a motion for summary judgment under Rule
12(d) because they “clearly contradict” allegations in the Amended Complaint (ECF No.
33 at 3.) In the Motion, Defendants have used the video evidence to include a section
entitled “BWC Video/Movant’s Statement of Material Facts,” in which Defendants
analyze and interpret the video evidence. (Id. at 4–6.) They assert that in light of their
analysis of the BWC footage, the Officers did not act in violation of clearly established
law and are therefore entitled to qualified immunity. (Id. at 6–12.)
The Estate argues the Court should not consider the BWC footage because
neither is it “attached to or referenced in the complaint” nor does it leave the allegations
in the complaint “utterly discredited.” (ECF No. 41 at 3 (quoting Brokers’ Choice of Am.,
Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017); Scott v. Harris, 550
U.S. 372, 380 (2007).) Because of the procedural posture of the Motion and the BWC
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footage’s susceptibility to multiple interpretations, the Estate argues the BWC footage
“should be considered only in the light most favorable to [it], and otherwise
disregarded.” (ECF No. 41 at 3.)
The Court has considered the parties’ arguments, and in its discretion, concludes
it will not consider the BWC footage at this time. Nor will the Court consider
Defendants’ “BWC Video/Movant’s Statement of Material Facts” section. While the
Court will not consider the video footage in ruling on the Motion, nothing precludes
Defendants from raising these arguments and referencing these materials in summary
judgment motion practice.
3. Qualified Immunity
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “The judges of the
district courts . . . [may] exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
Once the qualified immunity defense is raised, the burden shifts to the plaintiff to
demonstrate that the law was clearly established at the relevant time. Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “A right is clearly established in this
circuit when a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must be as the
plaintiff maintains.” Id. (internal quotation marks omitted). Nonetheless, the clearly
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established prong
involves more than a scavenger hunt for prior cases with
precisely the same facts. The more obviously egregious the
conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish
the violation. The Supreme Court has cautioned [lower]
courts not to define clearly established law at a high level of
generality, but to focus on whether the violative nature of
particular conduct is clearly established.
Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (internal quotation marks and
citations omitted).
II. BACKGROUND1
On the day Chad Burnett died, the Colorado Springs Police Department
(“CSPD”) responded to two phone calls alleging Burnett had threatened a neighbor with
a knife. (ECF No. 29 ¶¶ 19–20.) By the time CSPD Officers Daigle and Fleming
arrived, Burnett had returned to his home. (Id. ¶¶ 22–23.) Sergeant Inazu arrived 20
minutes later. (Id. ¶ 24.) Inazu and Fleming approached Burnett’s front door and
repeatedly asked him to come outside. (Id. ¶ 25.) Burnett refused. (Id.) Inazu and
Fleming asked Burnett to exit his home approximately fifty times over the course of
more than an hour and a half. (Id. ¶ 32.) Burnett continued to refuse to come outside.
(Id. ¶ 33.) Burnett told the Officers to leave, and at one point called 911 demanding the
Officers leave. (Id. ¶ 34.)
During this time, Burnett was suffering from a mental health crisis and was
making nonsensical statements. (Id. ¶¶ 26–27.) Sergeant Inazu was familiar with
1 The following factual summary is drawn from the Estate’s Amended Complaint (ECF
No. 29), except where otherwise stated. The Court assumes the allegations in the Amended
Complaint are true for the purposes of deciding the Motion to Dismiss. See Ridge at Red Hawk,
493 F.3d at 1177. 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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Burnett and his mental illness. (Id. ¶ 26.) Despite this familiarity, neither Inazu nor any
of the other Officers called CSPD’s Crisis Intervention Team, which is specially trained
to deescalate situations involving citizens experiencing mental health crises. (Id. ¶ 36.)
Nor did the Officers seek a warrant to arrest Burnett. (Id. ¶ 35.) Instead, the Officers
waited for Burnett to step outside. (Id. ¶¶ 37–38.) Once he did, the Officers began to
speak with Burnett while he was near his front door. (Id. ¶¶ 37–38.) Burnett was
unarmed and instructed the Officers to stay off his property. (Id. ¶ 37.)
During this conversation, Inazu, Fleming, and Daigle ran at Burnett in order to
arrest him. (Id. ¶¶ 38–39.) Burnett ran back into his home and attempted to close the
door, but Inazu, Fleming, and Daigle charged into the house after him. (Id. ¶¶ 40–42.)
Inazu, Fleming, and Daigle tackled Burnett and physically restrained him. (Id. ¶ 40.)
Officer Barth followed with her Taser drawn and, immediately upon entering Burnett’s
home, deployed her Taser. (Id. ¶¶ 48–51.) As Burnett was on his back, held down by
Inazu, Fleming, and Daigle, Barth discharged her Taser two more times. (Id. ¶ 56.)
After these additional Taser deployments, the Officers restrained Burnett in a prone
position and placed their body weight on his back as they handcuffed him. (Id. ¶ 59.)
As the Officers struggled to remove Burnett from his home, his breathing noticeably
worsened. (Id.) While laying prone, Fleming placed his knee on Burnett’s back, despite
his difficulty breathing. (Id. ¶ 59.) Daigle and Barth also placed weight on Burnett’s
neck, shoulders, and back. (Id. ¶ 70.) Burnett remained lying prone in the entryway to
his home while the Officers restrained his legs with “flex cuffs”; when non-defendant
Officer Jacob Carrol arrived, he placed leg shackles on Burnett. (Id. ¶¶ 73, 85.)
Burnett laid motionless for minutes before the Officers noticed something had
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changed. (Id. ¶ 79.) Daigle checked and found Burnett’s pulse but did not check
whether Burnett was breathing. (Id. ¶ 83.) Daigle then placed a “spit sock” over
Burnett’s head. (Id. ¶ 84.) Daigle checked Burnett’s pulse several more times, and the
Officers noticed Burnett was not breathing. (Id. ¶¶ 87, 89, 93.) For the next several
minutes, the Officers stood over Burnett’s limp, unconscious body, and at one point
speculated that Burnett might be “playing possum.” (Id. ¶¶ 88, 91.) Carrol indicated he
was not concerned about Burnett’s breathing so long as he had a “good, strong pulse”
and his chest was visibly rising and falling. (Id. ¶ 92.) The Officers acknowledged they
could not see Burnett’s chest rise and fall, and his pulse was faint. (Id. ¶ 93.) The
Officers did not remove the spit sock or move Burnett onto his back to facilitate his
breathing. (Id. ¶ 97.) About eight minutes after Burnett stopped breathing, the Officers
noticed and began CPR, but neither the Officers nor the emergency medical response
team were able to resuscitate him. (Id. ¶¶ 96, 102.)
Burnett died in the entryway of his home. (Id. ¶ 103.)
III. ANALYSIS
The Estate asserts the Officers violated Burnett’s rights in four ways. (Id. ¶¶
133–204.) Three of its claims assert violations of constitutional rights and one claim
asserts discrimination in violation of the ADA. (Id.) The alleged constitutional violations
are: (1) entering Burnett’s home without a warrant in violation of the Fourth Amendment;
(2) using excessive force to effect Burnett’s arrest in violation of the Fourteenth
Amendment; and failing to provide adequate medical care in violation of the Fourth
Amendment.2 The Estate asserts municipal liability on the basis that the violations of
2 The parties dispute the proper Amendment under which to analyze this claim.
(Compare ECF No. 34 at 9–12 and ECF No. 42 at 4–7 with ECF No. 41 at 9–11.) As discussed
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Burnett’s constitutional rights are the result of Colorado Springs’s policy and custom.
(Id. at ¶¶ 184–196.)
Defendants’ Motion seeks dismissal of the Amended Complaint in full. (ECF No.
33 at 1.) The Officers assert they are shielded from liability for the alleged constitutional
violations by qualified immunity. (Id. at 6.) Colorado Springs asserts the allegations in
the Amended Complaint related to municipal liability are conclusory and therefore
insufficient to state a claim. (Id. at 14.) Defendants assert that because the Estate has
failed to allege the Officers knew Burnett’s needed an accommodation, they have failed
to state a plausible claim. (Id. at 12–14.) The Court first considers the Officers’
entitlement to qualified immunity for each alleged constitutional violation in turn, using
the two-prong test established by the Supreme Court. al-Kidd, 563 U.S. at 735. The
Court next considers Colorado Springs’s liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978). Finally, the Court considers the viability of the Estate’s
ADA claim.
A. Constitutional Violations – Qualified Immunity
1. Warrantless Entry
a. Constitutional Violation
Defendants assert they did not violate Burnett’s Fourth Amendment rights,
despite arresting him in his home without a warrant, on the basis that the Officers were
in “hot pursuit.” (ECF No. 33 at 6.) Defendants argue the Officers had reasonable
suspicion Burnett had committed felony menacing, which ripened into probable cause
when Burnett ran into his home. (Id. at 7.) Therefore, the Officers could legally enter
below in Section III.C.1, the Court does not need to resolve this dispute to rule on the Motion.
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Burnett’s home without a warrant and forcibly arrest him. (Id.) Defendants rely on
Cortez v. McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007), and United States v.
Shelton, 817 F. App’x 629, 633 (10th Cir. 2020), to support the legality of arresting
Burnett in his home.
The Estate argues Burnett’s warrantless arrest in his home violated his
constitutional rights because the Officers were not in “hot pursuit of a felon.” (ECF No.
41 at 4.) The Estate posits three theories why the “hot pursuit” exception does not
apply: (1) the Officers lacked probable cause that Burnett had committed a felony; (2)
the Officers’ pursuit of Burnett was not “immediate or continuous”’ and (3) Burnett had
already been seized before the Officers charged at him. (Id.)
The Estate argues the Officers had probable cause of, at most, “ordinary” (i.e.,
misdemeanor) menacing. (Id.) Therefore, according to the Estate, the warrantless
entry into Burnett’s home was unlawful under Supreme Court and Tenth Circuit
precedent. (Id. at 5 (citing Mascorro v. Billings, 656 F. 3d 1198, 1209 (10th Cir. 2011)).)
The Court disagrees. The Amended Complaint is clear that CSPD had received two
calls from Burnett’s neighbors reporting that he had threatened a neighbor with a knife.3
(ECF No. 29 ¶¶ 19–20.) Under Colorado law, a person is guilty of menacing “if, by
threat or physical action, he or she knowingly places or attempts to place another
person in fear of imminent serious bodily injury.” Colo. Rev. Stat. § 18-3-206.
Menacing is generally a misdemeanor; but it is a felony if “committed by the use of a
firearm, knife, or bludgeon or a simulated firearm, knife, or bludgeon.” Id. Therefore,
the Officers had probable cause to believe that Burnett had committed a felony.
3 After the Officers arrived on the scene, Burnett threw two knives into his front yard.
(ECF No. 29 ¶ 31.)
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The Estate argues that even if the Officers had probable cause to believe
Burnett had committed a felony, the warrantless arrest in his home was unlawful
because the hot pursuit exception “require[s] an ‘immediate or continuous’ pursuit of a
suspect from the crime scene.” (ECF No. 41 at 5 (quoting Attocknie v. Smith, 798 F.3d
1252, 1257 (10th Cir. 2015)).) Defendants argue the crime scene was Burnett’s yard,
so “in contrast to Attocknie, [the] pursuit occurred while officers and Mr. Burnett stood
feet from a fresh crime scene outside the front door.” (ECF No. 42 at 3.) The Court is
unconvinced. Just as Defendants here, the officers in Attocknie relied on United States
v. Santana, 427 U.S. 38 (1976), a case “featur[ing] a pursuit that began in a public place
and immediately continued into private property.” Attocknie, 798 F.3d at 1257–58.
Here, as pleaded in the Amended Complaint, the Burnett was within his home and its
curtilage for the entirety of his encounter with CSPD. (ECF No. 29 ¶¶ 22, 30, 37, 40.)
The area Burnett occupied when the brief chase ensued was “part of the home itself for
Fourth Amendment purposes.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (citing Oliver v.
United States, 466 U.S. 170, 180 (1984)). Taking the Estate’s allegation that Burnett
remained within the curtilage of his home for the entirety of the encounter with the
Officers as true, the Estate has pleaded a plausible Fourth Amendment violation.
The Estate also argues that Burnett’s seizure for Fourth Amendment purposes
occurred long before the Officers chased him into his home and any exigency resulting
from that chase cannot support their warrantless entry into his home. (ECF No. 41 at 6
(citing United States v. Reeves 524 F.3d 1161, 1170 (10th Cir. 2008)).) People can be
seized inside their home, even when they open the door to meet officers waiting
outside, if the decision to open the door was coerced. United States v. Reeves, 524
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F.3d 1161, 1167–69 (10th Cir. 2008); see also United States v. Flowers, 336 F.3d 1222,
1227 n.2 (10th Cir. 2003) (holding that people who open their door involuntarily are
arrested in their home). The Estate argues the timing of Burnett’s seizure is relevant
because a “factor that develops post-seizure cannot be used to justify exigency.” Id. at
1169.
Defendants distinguish Reeves by arguing Burnett voluntarily left his home to
engage with the Officers who had been outside his home—in and out of his front yard,
and at his front door—for more than an hour and a half. (ECF No. 42 at 3; see ECF No.
29 ¶¶ 25, 31, 37, 40.) Defendants point out that unlike in Reeves, “no one was on Mr.
Burnett’s property” when he left his house prior to being chased inside, and it was not
the middle of the night. (ECF No. 42 at 3; see also Reeves, 524 F.3d at 1169
(describing an “encounter [that] began between 2:30 and 3:00 in the morning, a time
which must be taken into consideration when analyzing the coerciveness of the
encounter”).)
These factual distinctions ring hollow. The relevant question is whether “in view
of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554
(1980). And while the Reeves court explained the late hour of the arrest in that case
“must be taken into consideration when analyzing the coerciveness of the encounter,” it
did not suggest that such a seizure could not occur during the day. Reeves, 524 F.3d at
1169. The Estate alleges that four officers waited outside Burnett’s home for more than
an hour and half while repeatedly ignoring his instruction to leave. (ECF No. 29 ¶¶ 32–
35.) During the time the Officers were outside Burnett’s home, they approached his
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door several times and asked him to open it more than 50 times. (Id. at 32.) And when
Burnett walked just outside his door, the Officers charged at him and chased him into
his home. (Id. at 37–42.) Considering the allegations in the Amended Complaint in the
light most favorable to the Estate, the Court finds that it has plausibly alleged that a
reasonable person in Burnett’s position would not feel that they were free to leave.
Therefore, the Court finds the Estate has alleged facts sufficient to state a
violation of Burnett’s Fourth Amendment rights.
b. Clearly Established
Defendants do not argue that even if the Officers did violate Burnett’s
constitutional rights, the violation was not clearly established. (ECF No. 33 at 6–7.)
Although Defendants failed to meaningfully develop their argument with respect to the
second prong of the qualified immunity analysis, the Court will briefly analyze whether
the Estate’s well-pleaded constitutional violation was clearly established in 2020.
The factual distinctions between Reeves and Flowers and this case do not
preclude those cases from clearly establishing that the Officers’ conduct violated
Burnett’s rights. The Court’s task is not to engage in a scavenger hunt for cases with
the same factual pattern as the case before it. Perea, 817 F.3d at 1204 (10th Cir.
2016). The Tenth Circuit has commented: “‘[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning to officers’ that their conduct
violates a constitutional right, and that such statements provide the required notice
when ‘the unlawfulness’ of their conduct is ‘apparent’ from the pre-existing law.”
Stevenson v. City of Albuquerque, 446 F. Supp. 3d 806, 854 (D.N.M. 2020) (quoting
A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1198 (10th Cir. 2019)). According to the
Tenth Circuit, “[i]n other words, ‘[g]eneral statements of the law can clearly establish a
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right for qualified immunity purposes if they apply with obvious clarity to the specific
conduct in question.’ And this is so ‘even though the very action in question has not
previously been held unlawful.’” Id. (quoting A.N. ex rel. Ponder, 928 F.3d at 1198).
Reeves and Flowers make clear that coercive police conduct directed at people
within their homes can effect a seizure upon them, even if they open the door in
response to a show of authority. Defendants contend that Burnett left his home
voluntarily, and the Officers only chased Burnett after he began to run. (ECF No. 42 at
2–3.) Findings by the trier of fact on these factual questions will ultimately determine
whether Defendants are entitled to qualified immunity. If the Defendants’ factual
assertions are credited, they will be entitled to qualified immunity on the warrantless
entry claim. But, at this stage of the litigation, the Court must read the Amended
Complaint in the light most favorable to the Estate and draw all reasonable inferences in
its favor. Ridge at Red Hawk, 493 F.3d at 1177. And if, as he alleges, Burnett had
already been seized for Fourth Amendment purposes by the time the Officers charged
at him, then the fact that he ran back into his home and attempted to close the door
cannot provide the basis of a “hot pursuit” exception to the Fourth Amendment’s warrant
requirement. Reeves 524 F.3d at 1170.
Therefore, the Court finds the Estate has alleged facts that, if found by the jury to
be true, are sufficient to allege a constitutional violation which was clearly established at
the time Burnett was arrested.
2. Excessive Force
a. Constitutional Violation
“[A]ll claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
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should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard
. . . .” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis removed). Under this
standard, “the question is whether the officers’ actions are objectively reasonable in light
of the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012).
Applying this standard “requires careful attention to the facts and circumstances
of each particular case, including [1] the severity of the crime at issue, [2] whether the
suspect poses an immediate threat to the safety of the officers or others, and
[3] whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396; see also Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th
Cir. 2010) (referring to the Graham factors as the “three, non-exclusive factors relevant
to [an] excessive force inquiry”). The Court may further consider whether “the officers’
own reckless or deliberate conduct during the seizure unreasonably created the need to
use such force.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009) (internal
quotation marks and citation omitted).
Relying on the BWC footage, Defendants argue that “all three Graham factors tilt
in the officers’ favor.” (ECF No. 42 at 4.) As an initial matter, the Court agrees with the
Defendants with respect to the first Graham factor. While the Estate correctly points out
that less force is reasonable when the suspected crime is a misdemeanor (ECF No. 41
at 7–8 (citing Casey v. City of Fed. Heights, 590 F.3d 1278, 1285) (10th Cir. 2007))), as
discussed above in Section III.A.1, the Officers had probable cause to believe Burnett
had committed felony menacing. This assessment can be made solely based on the
allegations in the Amended Complaint. (ECF No. 29 ¶¶ 19–20.) Therefore, viewing the
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Amended Complaint in the light most favorable to the Estate, the first Graham factor
cannot favor the Estate.
Defendants make no argument addressing the second Graham factor other than
asserting it supports the Officers’ use of force based on the BWC footage.4 (ECF No.
33 at 7–9; ECF No. 42 at 3–4.) This lack of argument is reason enough to find this
factor favors the Estate.5 Moreover, the Estate plausibly alleges that Burnett was not an
immediate threat to the safety of the Officers or others because he was unarmed and
did not threaten the Officers. (ECF No. 41 at 8.) And while the Officers had reason to
believe Burnett had threatened a neighbor with a knife, they knew that that alleged
event had occurred several hours earlier. (ECF No. 29 ¶¶ 19, 40.) Therefore, viewing
the Amended Complaint in the light most favorable to the Estate, the Court finds that the
second Graham factor favors the Estate.
The third Graham factor—whether Burnett actively resisted arrest or attempted to
evade arrest by flight—is properly considered in light of the Officers’ deliberate conduct.
See Cordova, 569 F.3d at 1188. The Amended Complaint alleges Burnett “offered only
passive resistance” to the Officers’ efforts to arrest him. (ECF No. 29 ¶47.) Defendants
disagree with this characterization, arguing that Burnett attempted to run, refused to be
handcuffed, and attempted to go back into his house after being walked outside by the
Officers. (ECF No. 33 at 2.) The Estate argues that, even if Burnett’s resistance was
4 Though they claim “[t]he videos make clear” that each of the Graham factors support
the officers’ use of force, Defendants do not even cite which portions of the footage are relevant
to the second (or any other) factor. As noted above, the Court does not consider the BWC
footage at this time. The Court notes the lack of citation here, merely to illustrate that
Defendants did not develop their argument.
5 United States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013) (cursory argument not
meaningfully developed by any analysis or citation is deemed waived).
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not passive (which it does not concede), to the extent force was required to overcome
Burnett’s resistance or flight, it was the result of the Officers’ decision to charge at
Burnett and chase him into his home. (ECF No. 41 at 9.) This factor could weigh in
favor of the Estate or the Defendants, depending on whether the Officers created the
need to use force (including three Taser cycles and placing body weight on Burnett
while he was prone). (ECF No. 29 ¶¶ 48–57.)
Excessive force claims require assessing the totality of the circumstances, and
not simply tallying factors on two sides of a ledger. Weigel v. Broad, 544 F.3d 1143,
1151–52 (10th Cir. 2008). Still, two of the three factors could plausibly favor the Estate,
and the Amended Complaint is consistent with both the Estate’s and Defendants’ view
of the events. The Court must consider the allegations in the Amended Complaint in
the light most favorable to the Estate, and therefore, the Court finds the Estate has
alleged facts sufficient to state a violation of Burnett’s Fourth Amendment rights.
b. Clearly Established
As the Tenth Circuit has explained, “Graham establishes that force is least
justified against nonviolent misdemeanants who do not flee or actively resist arrest.”
Casey, 509 F.3d at 1285 (citation omitted); see also Morris v. Noe, 672 F.3d 1185, 1198
(10th Cir. 2012) (citing Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998)
(holding where arrestees had not committed a serious crime, posed no immediate
threat, and did not actively resist arrest, “the officers were not justified in using any
force, and a reasonable officer thus would have recognized that the force used was
excessive”) (emphasis in original). Similarly, in York v. City of Las Cruces, the Tenth
Circuit denied qualified immunity where there was no evidence that the plaintiff, who
struck his head and shoulder on pavement following an officer’s execution of an “arm-
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bar takedown,” was “attempting to evade arrest by flight,” and the allegation that he was
resisting arrest was disputed. 523 F.3d 1205, 1209, 1211 (10th Cir. 2008).
In McCoy v. Meyers, the Tenth Circuit reiterated that cases need not be “factually
identical” to find clearly established law, and “factually analogous” cases may suffice.
887 F.3d 1034, 1052 (10th Cir. 2018) (citing Dixon v. Richer, 922 F.2d 1456 (10th Cir.
1991) and Weigel, 544 F.3d 1143 (10th Cir. 2008) in finding that “it was ‘clearly
established [on March 21, 2011] that officers may not continue to use force against a
suspect who is effectively subdued”) (alterations in original); see also McCowan v.
Morales, 945 F.3d 1276, 1289 (10th Cir. 2019) (“gratuitous application of force to
McCowan, a fully subdued, compliant and non-threatening misdemeanant arrestee,
violated the Fourth Amendment”). None of the cases cited above squarely fit the facts
presented here, but a federal court “cannot find qualified immunity whenever [it] find[s] a
new fact pattern.” For this sound reason, the Tenth Circuit has “adopted a sliding scale
to determine when law is clearly established” in which ‘[t]he more obviously egregious
the conduct in light of prevailing constitutional principles, the less specificity is required
from prior case law to clearly establish the violation.’” Reeves, 745 F.3d at 427 (quoting
Casey, 509 F.3d at 1284) (alteration in original).
If Defendants’ characterization of the events is true—that Burnett was suspected
of a felony, that the Officers only put body weight on Burnett when he was actively
resisting, and that Burnett was not subdued when Officer Barth cycled her Taser three
times—then the Officers would be entitled to qualified immunity. However, if the
allegations viewed in light most favorable to the Estate are true—that Burnett only
offered passive resistance, that the Officers continued to apply their body weight to his
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back while he was prone and subdued, and that Burnett had already been subdued by
the time Barth entered his home and tased him—then the Officers’ use of force would
be in violation of clearly established law. The reasonableness of the Officers’ force is
especially suspect if whatever resistance Burnett offered was provoked by the Officers’
deliberate decision to trick Burnett into leaving his home to circumvent the warrant
requirement. (ECF No. 41 at 2; see Cordova, 569 F.3d at 1188.)
Therefore, the Court finds the Estate has alleged facts that, if true, are sufficiently
analogous to prior cases to show that the alleged constitutional violation was clearly
established at the time Burnett was arrested.
3. Failure to Provide Medical Care
a. Constitutional Violation
The parties dispute which amendment applies to the Estate’s inadequate medical
care claim. The Estate argues that because Burnett was arrested without a warrant and
had not yet had a probable cause hearing, his claim is governed by the Fourth
Amendment. (ECF No. 41 at 9.) Defendants argue that published Tenth Circuit
opinions establish that the Fourteenth Amendment applies. (ECF No. 42 at 5.)
This disagreement is not purely academic; the standard that will apply under
each amendment is different. Lanman v. Hansen, 529 F.3d 673, 679–80 (10th Cir.
2008). Under the Fourth Amendment, the “objectively unreasonable” standard applies,
and under the Fourteenth Amendment, the “deliberate indifference” standard applies.
Id. Traditionally, the “deliberate indifference” standard includes both an objective and
subjective element—and therefore presents a higher bar for a plaintiff to clear. See
Strain v. Regaldo, 977 F.3d 984, 989–90 (2020), cert. denied, 142 S. Ct. 312 (2021). In
2015, the Supreme Court eliminated the subjective component of deliberate indifference
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claims based on excessive force. See Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015). Since Kingsley, “the circuits are split on whether Kingsley eliminated the
subjective component of the deliberate indifference standard by extending to Fourteenth
Amendment claims outside the excessive force context.” Regaldo, 977 F.3d at 990
(2020). The Tenth Circuit declined to extend Kingsley to Fourteenth Amendment claims
beyond those based on excessive force. Id. at 991. Therefore, if the Estate’s claim is
rooted in a violation of Burnett’s Fourteenth Amendment rights, it must allege facts
sufficient to satisfy both the objective and subjective prongs.
The Court need not decide which amendment applies and declines to do so
unnecessarily. Even under the two-pronged deliberate indifference standard, the Court
finds that the Estate has pleaded a plausible claim. The Tenth Circuit explained the
two-prong test as below:
The objective inquiry asks whether “the harm suffered rises
to a level sufficiently serious to be cognizable under the
Cruel and Unusual Punishment Clause of the Eighth
Amendment.” Id. (quoting Mata v. Saiz, 427 F.3d 745, 752–
53 (10th Cir. 2005) (quotation marks omitted)). The
subjective inquiry, in turn, asks whether “the defendants
knew [the detainee] faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures
to abate it.” Id. (quoting Callahan, 471 F.3d at 1159
(quotation marks omitted)).
Quintana v. Santa Fe Cnty. Bd. Comm’rs, 973 F.3d 1022, 1029 (2020) (quoting
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)).
The Amended Complaint has pleaded sufficient facts to satisfy the objective
prong. A “medical need is sufficiently serious if it is one that has been diagnosed by a
physician as mandating treatment or . . . is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Id. (quoting Sealock v.
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Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (alteration in original). The Amended
Complaint alleges Burnett “ceased breathing and lost consciousness.”6 (ECF No. 29 ¶
77). The Officers acknowledged that they could not see physical signs that Burnett was
breathing. (Id. ¶ 93.) It does not take a medical degree to recognize that someone who
is not breathing requires a doctor’s attention.
The Estate has also pleaded sufficient facts to satisfy the subjective prong. To
satisfy that prong, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Quintana, 973 F.3d 1029 (noting “the Supreme Court has insisted upon
actual knowledge”). A factfinder may conclude an official “‘knew of a substantial risk
from the very fact that the risk was obvious’ . . . to the so-called ‘reasonable man.’” Id.;
accord Mata, 427 F.3d at 752. Again, when someone stops breathing, it is obvious that
there is a problem. A reasonable jury could find that when Burnett showed visible signs
he was no longer breathing, there existed a substantial risk to Burnett’s health that was
so obvious that the Officers had actual knowledge of the risk.
The Amended Complaint further alleges facts sufficient for a jury to conclude the
Officers delayed meeting that obvious need and, in doing so, caused Burnett substantial
harm. See Mata, 427 F.3d at 752. The Estate alleges that, while Burnett “laid
motionless for minutes,” the Officers “laughed and joked about how successfully
Sergeant Inazu had executed the warrantless entry into Mr. Burnett’s home.” (ECF No.
6 The Amended Complaint also alleges Burnett “made gasping and moaning noises . . .
[, which] are a clear sign of agonal breathing, an involuntary brainstem reflex caused by heart
failure or respiratory arrest.” (ECF No. 29 ¶ 77; see also id. ¶¶ 78, 84, 90, 96, 122, 172.) The
Tenth Circuit has noted that the symptoms of heart failure are “subtle[.]” Olsen v. Layton Hills
Mall, 312 F.3d 1304, 1317 (10th Cir. 2002).
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29 ¶¶ 79, 82.) It alleges that, despite visible signs Burnett was no longer breathing,
Daigle placed a “spit sock” over his head. (Id. ¶ 84.) Though the Defendants assert
Burnett was “holding his head up” (ECF No. 33 at 4), the Amended Complaint clearly
alleges that for “several minutes, the Officers simply stood over Mr. Burnett’s limp,
unconscious body.” (ECF No. 29 ¶ 91.) The Estate alleges the Officers did not request
expedited medical response until after Burnett stopped breathing, and “[t]he officers did
not attempt to resuscitate Mr. Burnett until approximately eight minutes” later. (Id. ¶ 96.)
Therefore, the Court finds the Estate has alleged facts sufficient to state a
violation of Burnett’s Fourteenth Amendment rights.
b. Clearly Established
The Estate agues the delay the Officers caused violated clearly established law,
relying on Estate of Booker v. Gomes, 745 F.3d 405 (10th Cir. 2014). (ECF No. 41 at
11.) In Estate of Booker, “the Defendants actively participated in producing Mr.
Booker’s serious condition through their use of force against him, which included a
carotid neck hold, considerable weight on his back, and a taser.” 745 F.3d at 431. The
defendants in Estate of Booker “conced[ed] they failed to check Mr. Booker’s vitals or
even look at his face after the incident” in an attempt to avoid liability. Id. The Tenth
Circuit held “the contours of the right are clearly established such that any reasonable
officer in the Defendants’ position (and with their training) would have known that failing
to check Mr. Booker’s vital signs, perform CPR, or seek medical care for three minutes
when he was limp and unconscious as a result of the Defendants’ use of force could
violate the Constitution.” Id. at 434. The Estate argues Estate of Booker put the
Defendants on notice that participating in producing Burnett’s serious medical condition
and then failing to check his breathing, perform CPR, or seek medical care promptly
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was a violation of Burnett’s constitutional rights. (ECF No. 41 at 11.)
The Defendants argue Estate of Booker is distinguishable and did not put the
Officers on notice. (ECF No. 42 at 6–7.) Defendants also note the following factual
distinctions from Estate of Booker: (1) the Officers did not put Burnett in a carotid hold;
(2) there is no allegation of positional asphyxiation; (3) the causal chain between the
Taser deployment and when Burnett stopped breathing is broken; (4) the Officers
repeatedly checked Burnett’s pulse; and (5) the encounter occurred in Burnett’s home
rather than a jail. (Id. at 7.) Defendants also cite Crittenden v. City of Tahlequah, 786
F. App’x 795, 804 (10th Cir. 2019), an unpublished case in which the Tenth Circuit
explained that it was an “open question” whether officers have a duty to provide medical
care during “a chaotic situation [during which they] could reasonably be concerned
about the presence of additional armed individuals.” Id. at 803.
The distinctions between Estate of Booker and the instant case are not as stark
or material as Defendants suggest. First, their suggestion that there is no allegation of
positional asphyxiation is simply false. The Estate alleges that “Daigle and Fleming’s
use of their body weight to press on Mr. Burnett while he was restrained in a position
compromising his breathing” was “objectively unreasonable.” (ECF No. 29 ¶ 153
(emphasis added).) While the parties agree the Officers checked Burnett’s pulse, this
shifts the conversation from checking “vital signs” to a “pulse,” and the Amended
Complaint alleges the Officers failed to check whether Burnett was breathing, despite
visible signs that he was not. (ECF No. 29 ¶¶ 83, 93.) And, regardless of Defendants’
characterization of the Taser use in this case, the Amended Complaint alleges that two
of the three Taser cycles were while Burnett was “immobilized and effectively subdued.”
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(ECF No. 29 ¶ 56.) The Amended Complaint also alleges that Burnett was “limp” while
the Officers stood directly over him—a fact that the Defendants contest. (Id. at 91; ECF
No. 33 at 5.)
The Court notes that the remaining distinctions the Defendants point to—
particularly, that there was no carotid neck hold—are indeed present. Nonetheless, if
the allegations as set forth in the Amended Complaint are determined by the jury to be
true, these differences would not preclude a finding that the Officers were on notice that
their conduct violated Burnett’s rights. Estate of Booker clearly established failing to
check Burnett’s breathing, perform CPR, or seek medical care while he was limp,
unconscious, and not breathing for three and a half minutes because of their use of
force was a violation of Burnett’s rights. 745 F.3d at 434.
Therefore, the Court finds the Estate has alleged facts that, if true, are sufficiently
factually analogous to prior cases to show that the alleged constitutional violation was
clearly established at the time Burnett was arrested.
B. Municipal Liability
A local government unit can be liable for damages under 42 U.S.C. § 1983 only
when its “policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S.
658, 694 (1978). The Supreme Court has thus “required a plaintiff seeking to impose
liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that
caused the plaintiff’s injury,” thereby “ensur[ing] that a municipality is held liable only for
those deprivations resulting from the decisions of its duly constituted legislative body or
of those officials whose acts may fairly be said to be those of the municipality,” rather
than holding the municipality liable simply because it employed a constitutional
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wrongdoer. Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403–04
(1997).
The relevant policy or custom can take several forms, including:
(1) a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice that, although
not authorized by written law or express municipal policy, is
so permanent and well settled as to constitute a custom or
usage with the force of law; (3) the decisions of employees
with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for
them—of subordinates to whom authority was delegated
subject to these policymakers’ review and approval; or
(5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the
injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation
marks omitted; alterations incorporated). But, whatever species of policy or custom is
alleged,
[t]he plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the “moving force”
behind the injury alleged. That is, a plaintiff must show that
the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal
rights.
Bryan Cnty., 520 U.S. at 404 (emphasis in original).
The Estate asserts municipal liability on three theories: informal custom,
ratification, and failure to train. (ECF No. 41 at 13.) The Defendants argue none of
these theories are plausible because “[t]he Amended Complaint does little more than
allege municipal liability in conclusory terms.” For the reasons discussed below, the
Court finds the Estate has alleged a plausible claim against Colorado Springs.
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1. Informal Custom
“[A]n act performed pursuant to a custom that has not been formally approved by
an appropriate decisionmaker may fairly subject a municipality to liability on the theory
that the relevant practice is so widespread as to have the force of law.” Bryan Cnty.,
520 U.S. at 404 (internal quotation marks omitted); see also City of St. Louis v.
Prapotnik, 485 U.S. 112, 127 (1988) (establishing an informal policy or custom requires
the plaintiff to show that the misconduct was widespread—i.e., that it involved a series
of decisions). “With formal, unwritten policies, customs, or practices, the plaintiff can
plead 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.’”
Arakji v. Hess, 2015 WL 7755975, at *6 (D. Colo. Dec. 2, 2015) (quoting Griego v. City
of Albuquerque, 100 F. Supp. 3d 1192, 1213 (D.N.M. 2015)).
The Amended Complaint alleges multiple instances of CSPD officers engaging in
conduct similar to the alleged civil rights violations in this case. (ECF No. 29 ¶¶ 106–
10.) The Motion attempts to undercut these allegations by drawing factual distinctions
between them and the events that led to Burnett’s death. (ECF No. 33 at 14.) But,
despite the superficial distinctions Defendants point out, in the Court’s view the prior
incidents identified by the Estate have much more than a passing similarity to each
other and to the allegations in the Amended Complaint. These prior incidents include
unlawful seizures and arrests, excessive use of body weight restricting breathing, and
excessive use of Tasers resulting in death. (ECF No. 29 ¶¶ 106–110.) While these
facts alone may not be enough to show an informal custom by a preponderance of the
evidence, they are numerous enough and similar enough to the instant case to plead a
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plausible claim. Additionally, courts have held that the existence of a widespread policy
is sufficient to support the inference that a municipality was on notice of the rights
violations, thereby satisfying the deliberate indifference prong of the municipal liability
analysis. See Trujillo v. City & Cnty. of Denver, 2017 WL 1364691, at *7 (D. Colo. Apr.
14, 2017) (citing McComb v. Ross, 202 F. Supp. 3d 11, 18 (D.D.C. 2016)).
Therefore, the Court denies the Motion with respect to the Estate’s informal
custom theory.
2. Ratification
“Ratification can be found when the employees were given authority for the
action, subject to the review and approval of a final policymaker, and when the final
policymaker approves of the decision and the basis for the decision.” Cobruno v.
Diggins, 2018 WL 10215848, at *10 (D. Colo. 2018) (citing Brammer-Hoelter v. Twin
Peaks Charter Academy, 602 F.3d 1175, 1189 (10th Cir. 2010)). The final
decisionmakers’ approval must precede the violative action, and the Tenth Circuit has
rejected ratification based on conduct after the violation has occurred. Cordova v.
Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009) (“[B]asic princip[les] of linear time prevent
us from seeing how conduct that occurs after the alleged violation could have somehow
caused that violation.”) (emphasis in original).
The Estate’s ratification theory fails as presently pleaded because it is entirely
based on the findings of CSPD’s “Internal Affairs” division. Even assuming Internal
Affairs is a final decisionmaker—which Defendants contest (ECF No. 42 at 9 n.6)—the
post-incident investigation concluding “that Defendant Officers had followed appropriate
policy and procedures” cannot plausibly form the basis of municipal liability on a
ratification theory. (ECF No. 29 ¶¶ 128–29.) Therefore, the Court grants the Motion
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with respect to the Estate’s ratification theory.
3. Failure to Train
Defendants assert the Amended Complaint is inadequate because “it says
nothing about the training of the officers, individually or collectively. (ECF No. 33 at 15.)
According to Defendants, “[t]he municipal liability claim is no more than multiple naked
assertions lacking factual detail, and they are insufficient to state a claim against the
City.” In response, the Estate points out paragraphs in the Amended Complaint that
allege that CSPD officers were not trained on how to respond to citizens experiencing
mental health crises, to deescalate encounters, to avoid the use of excessive force, and
to avoid warrantless entry. (ECF No. 29 ¶¶ 112–115, 141–46.)
Further, the Estate alleges facts tending to show that this failure caused the
events that led to Burnett’s death. (Id. ¶¶ 26–27, 187–88) (Officers were aware of
Burnett’s condition and, despite calling for backup, failed to call for CSPD’s Crisis
Intervention Team). Further, the Estate alleges that “CSPD’s internal affairs
investigation concluded that Defendant Officers had followed appropriate policy and
procedures” in “all areas of concern” raised directly by the Estate’s counsel. (Id. at ¶
127–29.) In other words, the Officers acted in accordance with their training. See
Ortega v. City & Cnty. of Denver, 944 F. Supp. 2d 1033, 1038–39 (D. Colo. 2013)
(finding that law enforcement officers’ use of excessive force in accordance with their
training established a Monell claim for failure to train).
In short, the Estate has pleaded facts sufficient to find that the Officers were
inadequately trained and that inadequate training, at least in part, caused Burnett’s
injuries. The Defendants raise no other issues with the Amended Complaint’s
allegations relating to the Estate’s failure-to-train theory, therefore the Court denies the
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Motion with respect to the Estate’s failure-to-train theory.
C. Americans with Disabilities Act
In addition to the constitutional violations discussed above, the Estate asserts the
Officers violated Burnett’s statutory rights under the ADA. (ECF No. 29 at 35–36.) The
Tenth Circuit has not decided the viability of an ADA claim for failing to accommodate a
disability in the course of making an arrest. J.H. ex rel. J.P. v. Bernalillo Cnty., 806 F.3d
1255, 1261 (10th Cir. 2015). But the Court will assume for the purposes of resolving the
Motion that such a claim is viable against Colorado Springs. See Reyes v. Jensen, 857
F. App’x 436,439 (10th Cir. 2021) (quoting Everson v. Leis, 556 F.3d 484, 501 (6th Cir.
2009)) (“[T]he proper defendant under [an ADA] Title II claim is the public entity or an
official acting in his official capacity”).
The Court limits its discussion to the issue of knowledge because it is dispositive
of this claim. The Estate emphasizes that CSPD in general, and Sergeant Inazu and
Officer Fleming in particular, knew about Burnett’s disability. (ECF No. 41 at 11–12.)
Even granting this as true, the Estate has not pleaded a plausible violation of Burnett’s
rights under the ADA because “[t]his argument . . . conflates a disability with a need for
accommodation.” J.H. ex rel. J.P., 806 F.3d at 1261. “If a police officer incurs a duty to
reasonably accommodate a person’s disability during an arrest, this duty [arises] only if
[the Officers knew] that [Burnett] needed an accommodation.” Id. (emphasis added).
There is no allegation in the Amended Complaint the Officers knew Burnett needed an
accommodation, only that they knew Burnett had mental illness (i.e., a disability). (ECF
No. 29 ¶¶ 16, 70.)
Therefore, the Court grants the Motion with respect to the Estate’s ADA claim.
The ADA claim against the Officers in their individual capacities is dismissed with
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prejudice; but because the Estate could possibly plead facts that would plausibly state a
claim against Colorado Springs, the ADA claim against it is dismissed without prejudice.
IV. CONCLUSION
For the reasons set forth above, the Court Orders as follows:
1. Defendants’ Motion to Dismiss (ECF No. 33) is GRANTED with respect to
the Estate’s ADA claim and its ratification theory of municipal liability as
set forth above, and is DENIED in all other respects;
2. The Stay of this action (ECF No. 35) is hereby LIFTED;
3. Should the Estate believe it can plausibly plead facts which would cure the
pleading deficiencies noted in this Order, it may file an amended complaint
reflecting same by no later than August 19, 2022. Any such amended
complaint may re-plead an ADA claim ONLY against Colorado Springs;
and
4. Counsel for all parties shall jointly contact the Chambers of Magistrate
Judge Dominguez Braswell by no later than July 27, 2022 to schedule a
Status Conference, or such other proceeding as Judge Dominguez
Braswell deems appropriate to move this action forward.
Dated this 22nd day of July, 2022.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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