Montgomery v. Lore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 21-cv-02553-PAB-CYC
WILLIAM MONTGOMERY,
Plaintiff,
v.
TRAVIS LORE,
Defendant.
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 77]. The Recommendation addresses the defendant’s
Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) on Qualified
Immunity Grounds [Docket No. 64]. The Court has jurisdiction pursuant to 28 U.S.C.
§ 1331.
I. 	BACKGROUND 1
On September 17, 2019, plaintiff William Montgomery entered a Walmart
Superstore at approximately 8:36 p.m. to go shopping. Docket No. 61 at 5, ¶ 5. Plaintiff
purchased some hand wipes and disinfecting wipes (“wipe packages”) at the register
and declined a plastic bag for “environmental reasons.” Id. at 5–6, ¶¶ 6, 8. At
approximately 9:02 p.m., plaintiff left the store while carrying the items “in hand.” Id. at
1 The Court assumes that the allegations in plaintiff’s amended complaint are true in
considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.
2011).
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5–6, ¶¶ 6-7. Defendant Travis Lore, an Aurora Police Officer, was “posted up” at the
store’s exit and followed plaintiff to plaintiff’s vehicle in the nearby parking lot. Id. at 6,
¶ 7. Once the defendant caught up to plaintiff, the defendant asked to see plaintiff’s
receipt. Id., ¶ 8. Plaintiff declined to provide a receipt and placed the wipe packages in
the inside pockets of his jacket. Id. Defendant requested plaintiff’s receipt several more
times and then asked for plaintiff’s identification. Id., ¶ 9. Plaintiff asked if he was being
detained, and defendant responded affirmatively. Id. Defendant then told plaintiff to sit
on the ground, which plaintiff did. Id. Moments later, defendant asked plaintiff to stand,
and he escorted plaintiff back to the store for further investigation. Id. At the store,
plaintiff provided his identification to defendant. Id.
Defendant then patted down plaintiff. Id., ¶ 10. Plaintiff asked if defendant
thought he was armed, and defendant replied, “I don’t know you, I don’t know you.” Id.
One of plaintiff’s outer jacket pockets contained two “RV body lights,” which plaintiff had
purchased on another occasion and had thought about returning. Id. at 7, ¶ 11. Plaintiff
never removed the RV lights from his pocket during the shopping trip. Id. Defendant
patted down the outer jacket pocket with the RV lights, but did not reach into the pocket
to retrieve the lights. Id. Plaintiff believes that defendant acknowledged the RV lights
were not weapons because defendant asked plaintiff whether these items were stolen in
addition to the wipes. Id. Plaintiff did not respond, and defendant then reached into
plaintiff’s inner jacket pocket that “contained the two packages of wipes, that [defendant]
had observed [plaintiff] place in [the inner jacket pocket] initially” and removed the wipe
packages. Id., ¶ 12. Shortly afterwards, two more Aurora police officers, Drew
Limbaugh and Luke Ingersoll, arrived at the store to assist the defendant. Id., ¶ 13.
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Defendant asked plaintiff to sit down, and Officers Limbaugh and Ingersoll stood with
plaintiff while the defendant left the area to investigate the wipe packages. Id. at 7–8,
¶¶ 13–15.
At this point, Officer Limbaugh patted down plaintiff, but did not pat down
plaintiff’s outer jacket pocket that contained the RV lights. Id. at 8, ¶ 14. Officer
Limbaugh reached into plaintiff’s outer jacket pocket and, before proceeding to remove
the RV light, asked plaintiff, “Is that another stolen item in your pocket, what’s that?”. Id.
Plaintiff responded, “[l]ook, I don’t consent to searches.” Id. Officer Limbaugh then
briefly “half-removed” one of the RV lights from plaintiff’s outer jacket pocket before
returning it to the pocket. Id.
Approximately fifteen minutes later, defendant returned and told plaintiff that he
would be issuing him a shoplifting citation. Id., ¶ 15. Officer Ingersoll then asked
plaintiff, “Is the stuff in your front left pockets more merchandise from the store, that
Officer Limbaugh looked at? Grab that out of your front pocket there.” Id. Plaintiff
replied, “I don’t consent to any searches.” Officer Ingersoll reached into plaintiff’s outer
jacket pocket, retrieved both RV lights, and handed them to defendant. Id. at 8–9, ¶ 15.
Defendant told plaintiff that defendant would “be holding onto them while he started an
entirely new investigation with the store.” Id.
Fifteen minutes later, defendant returned and informed plaintiff that he would be
citing him for shoplifting the two RV lights in addition to the two packages of wipes. Id.
at 9, ¶ 16. A few minutes later, defendant explained the charges and released plaintiff,
but did not return the wipe packages or RV lights. Id., ¶ 17. The next day, defendant
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informed plaintiff over the phone that all theft charges would be dropped. Id., ¶ 18.
Defendant gave plaintiff instructions for retrieving the items from police custody. Id.
On September 17, 2021, plaintiff filed a complaint against defendant for the
following Fourth Amendment violations: (1) unreasonable “relocation of person”; (2)
unreasonable search; (3) unreasonable seizure of the two wipe packages; (4)
unreasonable seizure of the RV lights; and (5) unreasonable detention after seizing the
RV lights. Docket No. 1 at 9–14. Defendant filed a motion to dismiss the claims on May
11, 2022 based on qualified immunity. Docket No. 17. Magistrate Judge Hegarty
issued a recommendation on defendant’s motion on August 17, 2022. Docket No. 31.
Plaintiff filed an objection on September 15, 2022. Docket No. 34. Defendant
responded to the objection, Docket No. 35, and plaintiff filed a reply. Docket No. 36.
On March 9, 2023, the Court overruled and accepted in part the magistrate
judge’s recommendation. Docket No. 37. The Court accepted the magistrate judge’s
recommendation that plaintiff’s Fourth Amendment claims for the (1) unreasonable
“relocation of person”; (2) unreasonable search; and (3) unreasonable seizure of the
two wipe packages be dismissed without prejudice. Id. at 16–17. However, the Court
overruled the magistrate judge’s recommendation that plaintiff’s Fourth Amendment
claims for the (4) unreasonable seizure of the RV lights and (5) unreasonable detention
after seizing the RV lights be dismissed. Id. at 10–15. Plaintiff filed an amended
complaint on April 5, 2024 that alleged the following Fourth Amendment violations: (1)
unreasonable search; (2) unreasonable seizure of the RV lights; and (3) unreasonable
detention after seizing the RV lights. Docket No. 61 at 10–15.
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II. 	LEGAL STANDARD
A. Objections to Magistrate Judge Recommendations
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection “enables the
district judge to focus attention on those issues – factual and legal – that are at the heart
of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
the recommendation to confirm that there is “no clear error on the face of the record.”
Fed. R. Civ. P. 72(b), Advisory Committee Notes. This standard of review is something
less than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P.
72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). Because
plaintiff is proceeding pro se, the Court will construe his objections and pleadings
liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
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B. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
“supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584 F.3d
1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (citation
omitted)). Otherwise, the Court need not accept conclusory allegations. Moffet v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
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general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
C. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded 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). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
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Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). 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 quotation marks omitted). Courts are “permitted to 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.” Pearson, 555
U.S. at 236.
III. 	ANALYSIS
The magistrate judge recommended dismissing plaintiff’s claims of unreasonable
search and unreasonable seizure of the RV lights claims, finding that defendant is
entitled to qualified immunity because plaintiff failed to cite clearly established law
stating defendant had a duty to intervene in an unreasonable search and seizure by his
fellow officers. Docket No. 77 at 9–10. The magistrate judge additionally
recommended dismissing plaintiff’s unreasonable detention claim on qualified immunity
grounds because the defendant possessed reasonable suspicion that the RV lights
were stolen. Id. at 10–14. The magistrate judge additionally recommended denying
plaintiff leave to amend his complaint because the claims are being dismissed based on
the finding that the defendant is entitled qualified immunity. Id. 14 n.2.
Plaintiff makes three objections to the magistrate judge’s recommendation: 1) the
defendant is liable for the search and seizures conducted by Officers Limbaugh and
Ingersoll; 2) there is clearly established law that dictates plaintiff’s constitutional rights
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were violated by the defendant’s failure to intervene in Officer Limbaugh’s and
Ingersoll’s search and seizure; and 3) defendant lacked reasonable suspicion that the
RV lights were stolen necessary to conduct a lawful investigative detention. Docket
No. 79 at 1–15.
A. Objection One
The magistrate judge did not reach defendant’s argument that plaintiff failed to
state a claim under 42 U.S.C. § 1983 for a Fourth Amendment unreasonable search
and seizure. Docket No. 77 at 10. Rather, the magistrate judge dismissed plaintiff’s
unreasonable search and seizure claims because defendant was entitled to qualified
immunity, as there was not clearly established law stating that the defendant had the
duty to intervene to prevent an unreasonable search and seizure. Id. at 10. Thus,
plaintiff’s objection that the defendant was liable for Officer Limbaugh and Ingersoll’s
activities is moot.
B. Objection Two
The magistrate judge recommended that plaintiff’s unreasonable search and
seizure claims be dismissed because defendant is entitled to qualified immunity. Id.
Specifically, the magistrate judge found that “the Tenth Circuit held it was not clearly
established ‘that an officer must intervene to prevent an illegal search and seizure.’” Id.
(quoting Shaw v. Schulte, 36 F.4th 1006, 1020 (10th Cir. 2022)). Plaintiff argues that it
was clearly established in the Tenth Circuit at the time of the incident that defendant
had a duty to intervene in an unreasonable search and seizure. Docket No. 79 at 2–5.
Moreover, plaintiff argues that “most other circuits recognize that failure to intervene
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claims can involve failing to stop constitutional deprivations beyond just the use of
excessive force.” Id. at 4.
Plaintiff argues that defendant’s cited authorities for the proposition that the duty
to intervene was not clearly established law are inapposite. Id. at 2–4. Plaintiff asserts
that Bledsoe v. Carreno, 53 F.4th 589, 617 (10th Cir. 2022), is factually distinguishable
from the instant suit. Id. at 2–3. Plaintiff relies on dicta in Bledsoe, in which the Tenth
Circuit held, while defendants were entitled to qualified immunity on the plaintiff’s “failure
to intervene claim because such a claim was not clearly established,” the plaintiff
nonetheless “might have argued that the duty to intervene in the situation alleged here
would have been obvious to any objectively reasonable law enforcement officer.”
Bledsoe, 53 F.4th at 617. However, the plaintiff in Bledsoe failed to present such an
argument, id., while plaintiff in the instant suit asserts that he is “making such an
argument” and as such Bledsoe’s holding does not extend to plaintiff. Docket No. 79 at
3. Plaintiff also argues that defendant’s reliance on Harris v. Mahr, 838 F. App’x 339,
343–44 (10th Cir. 2020) (unpublished), for the proposition that “constitutional principles
surrounding a failure to intervene in an unlawful search [are] unclear,” Docket No. 64 at
13, is misplaced as it is “clearly factually distinguishable” from the instant suit. Docket
No. 79 at 2.
Regardless of how factually distinguishable the above cases may be, plaintiff
nonetheless fails to refute Shaw’s holding that was the basis for the magistrate judge’s
holding on qualified immunity. Docket No. 77 at 10. The Tenth Circuit in Shaw held
that its statement “all law enforcement officials have an affirmative duty to intervene to
protect the constitutional rights of citizens from infringement by other law enforcement
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officers in their presence” (quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210
(10th Cir. 2008)), was made “in the context of an excessive force claim.” Shaw, 36
F.4th at 1020. As a result, the Tenth Circuit held that “Vondrak does not clearly
establish that an officer must intervene to prevent an illegal search and seizure.” Id.;
see also Harris, 838 F. App’x at 343 (Vondrak “does not discuss unlawful entries or
searches, thus making it a highly generalized statement”). 2
The cases plaintiff cites as clearly established law are distinguishable. Docket
No. 79 at 4. The Tenth Circuit has held that, “in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be
as the plaintiff maintains.” Zia Tr. Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155
(10th Cir. 2010) (citation omitted). Plaintiff argues that Reid v. Wren, 57 F.3d 1081,
1995 WL 339401 (10th Cir. 1995), is “literally exactly, fact-for-fact, what Plaintiff is
2 To the extent that plaintiff relies on Bledsoe’s dicta, Docket No. 79 at 2–5, to
allege that defendant’s conduct was so “obviously egregious” that “less specificity is
required from prior case law to clearly establish the [constitutional violation],” Casey v.
City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (citation omitted), the Court
rejects that argument. Bledsoe states, if the plaintiff alleged that “the duty to intervene
in the situation alleged here would have been obvious to any objectively reasonable law
enforcement officer,” the plaintiff may have been able to overcome the qualified
immunity bar despite Shaw’s holding. Bledsoe, 53 F.4th at 617 (citing Hope v. Pelzer,
536 U.S. 730, 741 (2002)). In Hope, the constitutional violation at issue was an Eighth
Amendment cruel and unusual punishment claim, rather than a Fourth Amendment
unreasonable search and seizure claim. Hope, 536 U.S. at 733–35. Further, in Harris,
the court held that the defendant’s “failure to take additional steps” to prevent an
unreasonable search “is not the type of ‘egregious’ conduct that warrants foregoing our
traditional requirement of an on-point case.” Harris, 838 F. App’x at 344. Plaintiff
similarly fails to allege sufficiently egregious conduct, see Docket No. 79 at 5, that would
suggest “foregoing our traditional requirement of an on-point case.” Harris, 838 F.
App’x at 344.
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likewise pleading.” Docket No. 79 at 4. However, the Tenth Circuit in Harris found that
Reid, an unpublished case, among other cases cited by the plaintiff, “fail[s] to show that
the law was clearly established at the time of the incident.” Harris, 838 F. App’x at 343.
“An unpublished opinion . . . provides little support for the notion that the law is clearly
established on this point.” Id. (quoting Mecham v. Frazier, 500 F.3d 1200, 1206 (10th
Cir. 2007)). Plaintiff also cites Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012),
Docket No. 79 at 4, to apparently argue that the “clearly established weight of authority
from other courts must have found the law to be as the plaintiff maintains.” Montoya,
597 F.3d at 1155 (citation omitted). In Livers, the Eighth Circuit found that “other
circuits have recognized a duty to intervene outside of the excessive force context,” and
cited Reid as an example. Livers, 700 F.3d at 360. However, as described above,
more recent precedent, including Harris and Shaw, undermine the assertion that Reid is
clearly established law. Thus, plaintiff’s reliance on Livers does not show that the
“clearly established weight of authority from other courts . . . found the law to be as the
plaintiff maintains.” Montoya, 597 F.3d at 1155. Accordingly, the Court overrules
plaintiff’s second objection.
C. Objection Three
The magistrate judge recommended that plaintiff’s third claim for unreasonable
detention to investigate the RV lights also be dismissed. Docket No. 77 at 10–14.
Given the new allegations in plaintiff’s complaint, the magistrate judge found that
defendant is entitled to qualified immunity because he had reasonable suspicion to
briefly detain plaintiff and investigate whether the RV lights were stolen. Id. Plaintiff
objects, arguing that the factual differences between his original and his amended
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complaints should not change the Court’s holding, Docket No. 37 14–15, that
defendant’s detention to investigate the RV lights as stolen was not based upon
reasonable suspicion. Docket No. 79 at 6–15. Specifically, plaintiff disputes the
significance of the RV lights being located in the same jacket as the wipe packages and
the significance of Officer Ingersoll announcing in defendant’s presence, “[i]s the stuff in
your front left pockets more merchandise from the store, that Officer Limbaugh looked
at? Grab that out of your front pocket there,” before retrieving the RV lights and
handing them to defendant. Id. at 8, ¶ 15. Further, plaintiff argues that the magistrate
judge erred by considering plaintiff’s refusal to answer defendant’s questions and that
the RV lights were still in their original package in its reasonable suspicion
determination. Id. at 7–15. 3
Fourth Amendment detentions require reasonable suspicion of criminal activity.
Romero v. Story, 672 F.3d 880, 886 (10th Cir. 2012). “An officer who stops and briefly
detains a person for questioning must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Id. (internal quotations and citation omitted). “Reasonable suspicion does
not rise to the level of probable cause, but it does demand something more than an
inchoate and unparticularized suspicion or hunch.” Id. (internal quotations and citation
omitted).
3 Plaintiff appears to challenge the magistrate judge’s finding that defendant had
reasonably determined that the wipes were stolen. Docket No. 79 at 8–9. The Court
will not consider this objection. The magistrate judge previously recommended that
defendant’s claims related to the search and seizure of the wipe packages be
dismissed, Docket No. 31 at 17, and the Court accepted that recommendation. Docket
No. 37 at 16–17.
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The potential bases for defendant’s reasonable suspicion to investigate the RV
lights are the following: defendant witnessed Officer Ingersoll (1) ask plaintiff, “[i]s the
stuff in your front left pockets more merchandise from the store, that Officer Limbaugh
looked at? Grab that out of your front pocket there;” and (2) retrieve the unopened RV
light packages from plaintiff’s outer jacket pocket, the same jacket in which defendant
saw plaintiff place the wipe packages. Docket No. 61 at 8 –9, ¶¶ 14–15.
When determining the existence of facts that support reasonable suspicion,
courts consider information supplied by a third-party and not only that based on the
officer’s personal observations. United States v. McHugh, 639 F.3d 1250, 1257–58
(10th Cir. 2011); Adams v. Williams, 407 U.S. 143, 147–49 (1972). If the third-party
information was supplied by another law enforcement officer, “knowledge and
reasonable suspicions of one officer can be imputed to another.” United States v.
Whitley, 680 F.3d 1227, 1234 (10th Cir. 2012). As is relevant here,
Under the horizontal collective knowledge doctrine, a number of individual
officers have pieces of the probable cause or reasonable suspicion puzzle,
but no single officer has sufficient information to satisfy the necessary
standard. The inquiry in such a circumstance is whether the individual
officers have communicated the information they possess individually,
thereby pooling their collective knowledge to satisfy the relevant standard.
Id. at 1234 n. 3 (internal quotation and citation omitted). Under the horizontal collective
knowledge doctrine, “courts may consider whether officers who are acting together
collectively possess sufficient information to support probable cause, provided that they
have actually communicated the information to each other.” Felders ex rel. Smedley v.
Malcom, 755 F.3d 870, 881 (10th Cir. 2014). In the presence of defendant, Officer
Ingersoll merely asked plaintiff whether the products in plaintiff’s jacket pocket were
stolen. Docket No. 61 at 8–9, ¶ 15. Officer Ingersoll did not communicate any
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information that supported reasonable suspicion that the RV lights were stolen. Id. Nor
does defendant argue that Officer Ingersoll had information to support reasonable
suspicion. See Docket No. 64 at 9–14. Therefore, there was no knowledge from a
fellow officer that defendant could have relied on to support his reasonable suspicion
that the RV lights were stolen. See United States v. Shareef, 100 F.3d 1491, 1504
(10th Cir. 1996) (holding that where one officer knew the suspect’s height and weight
and the other officer knew the height and weight listed of a person of interest in the
National Crime Information Center, but failed to communicate this information to one
another, “neither officer knew the significance of the information, and the information
could contribute to neither officer's suspicion of the suspect”).
The next issue is whether defendant witnessing Officer Ingersoll retrieve the
unopened RV lights from the same jacket as the wipe packages provided reasonable
suspicion that the RV lights were stolen. Unlike the wipe packages, defendant did not
witness plaintiff walk out of the store with the RV lights in his hands. Docket No. 61 at
9, ¶ 16. Furthermore, defendant saw plaintiff place the wipe packages in plaintiff’s inner
jacket pocket. Id. at 6, ¶ 8. The RV lights, however, were in plaintiff’s outer jacket
pocket. Id. at 7, ¶ 11. Regardless of the significance, if any, of the wipe packages and
the RV lights being in different locations in plaintiff’s jacket, the unopened RV lights
being retrieved from the same jacket that contained the wipe packages does not change
the fact that defendant did not have “specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant[ing]” plaintiff’s investigatory
detention regarding theft of the RV lights. Romero, 672 F.3d at 886 (citation omitted).
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Thus, defendant’s detention of plaintiff for fifteen additional minutes to investigate
the RV lights, without any objectively reasonable suspicion that the RV lights were
stolen merchandise, exceeded the scope of plaintiff’s detention for the wipe packages.
See United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994). Accordingly, plaintiff
has stated a plausible claim that defendant violated his Fourth Amendment rights by
detaining him to investigate the RV lights. The Court also finds that the law was clearly
established that an officer cannot continue to detain a suspect, absent reasonable
suspicion, once the purpose of the stop is satisfied. See id.; see also Vasquez v. Lewis,
834 F.3d 1132, 1136 (10th Cir. 2016). Accordingly, the Court sustains plaintiff’s
objection and overrules that portion of the recommendation that recommends
dismissing the claim regarding plaintiff’s detention for the RV lights.
D. Non-Objected Portions of the Recommendation
The Court has reviewed the remainder of the magistrate judge’s recommendation
to satisfy itself that there is “no clear error on the face of the record.” Fed. R. Civ. P.
72(b), Advisory Committee Notes. Plaintiff did not object to the magistrate judge’s
recommendation that plaintiffs’ claims be dismissed with prejudice. The Court finds no
error in this portion of the recommendation. Based on this review, the Court has
concluded that the remainder of the recommendation is a correct application of the facts
and the law.
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IV. 	CONCLUSION
It is therefore
ORDERED that Plaintiff’s Objection to the Magistrate Judge’s Report and
Recommendation to Grant Def’s MTD PTF’s Amended Complaint [Docket No. 79] is
OVERRULED in part and SUSTAINED in part. It is further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 77] is OVERRULED in part and ACCEPTED in part. It is further
ORDERED that defendant’s Motion to Dismiss Amended Complaint Pursuant to
Fed. R. Civ. P. 12(b)(6) on Qualified Immunity Grounds [Docket No. 64] is GRANTED in
part and DENIED in part. It is further
ORDERED that plaintiff’s first and second claim are DISMISSED with prejudice.
DATED February 4, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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Case No. 1:21-cv-02553-PAB-CYC Document 84 filed 02/04/25 USDC Colorado
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