Ullerich v. Jefferson County et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02954-RMR-KLM
DUSTIN J. ULLERICH,
Plaintiff,
v.
JEFF SHRADER, Sheriff, in his official capacity,
CITY OF GOLDEN,
CITY OF ARVADA,
MARK DONAHUE, Golden Police Department Sergeant,
ANTHONY BROWN, Jefferson County Sheriff Deputy,
NICHOLAS TURCO, Jefferson County Sheriff Deputy,
JORDON BYBEE, Jefferson County Sheriff Deputy,
BRETTON CLARKE, Arvada Police Department Officer, and
DOES 3-10,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss Plaintiff’s First
Amended Complaint [#49], filed by Defendants Jeff Shrader (“Shrader”), Anthony Brown
(“Brown”), Nicholas Turco (“Turco”), and Jordan Bybee (“Bybee”) (collectively, the
“County Defendants”)1 ; on the Motion to Dismiss Plaintiff’s First Amended Complaint
[#50], filed by Defendants City of Arvada and Bretton Clarke (“Clarke”) (collectively, the
“Arvada Defendants”); and on the Motion to Dismiss [#51], filed by Defendants City of
Golden and Mark Donahue (“Donahue”) (collectively, the “Golden Defendants”). Plaintiff
1 On March 3, 2022, Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice of
Defendants Jefferson County and Board of County Commissioners (Fed. R. Civ. P. 41(a)(1)(A)(i))
[#53]. 	Thus, the County Defendants’ Motion [#49] is moot to the extent asserted by former
Defendants Jefferson County and Board of County Commissioners. See Order [#54].
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filed Responses [#55, #56, #57] in opposition to the Motions [#49, #50, #51], and
Defendants filed Replies [#60, #61, #62]. The Motions [#49, #50, #51] have been referred
to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. 	See
[#52]. The Court has reviewed the Motions, the Responses, the Replies, the entire case
file, and the applicable law, and is sufficiently advised in the premises. For the reasons
set forth below, the Court respectfully RECOMMENDS that the Motions [#49, #50, #51]
be GRANTED in part and DENIED in part.
I. Background2
In short, this lawsuit arises from the execution of an “immediate entry” (“no knock”)
search warrant at Plaintiff’s home which took place at 4:00 a.m. on November 7, 2019.
Am. Compl. [#43] ¶ 14. 	At the time of the underlying events, Plaintiff was around fifty
years old, had no criminal history, and was in a committed relationship with Valarie
Malcovich (“Malcovich”), with whom he lived in a single-story home located in Golden,
Colorado. Id. ¶¶ 15, 17. He ran a tattoo parlor, was a member of a motorcycle club, and
was registered with the Jefferson County Sheriff’s Office (“JCSO”) as permitted to carry
a concealed firearm, which required him to pass a background investigation, make certain
disclosures, and abide by the law. Id. ¶¶ 15-16.
The investigation leading to the “immediate entry” search warrant dates at least to
July 19, 2019, almost four months before its execution, when a purportedly unreliable
informant facing multiple criminal charges, including jumping bail, made unproven
2 For the purpose of resolving the Motions [#49, #50, #51], the Court accepts as true all
well-pled, as opposed to conclusory, allegations made in Plaintiff’s Amended Complaint [#43].
See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
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allegations about several people, including Plaintiff. According to the warrant application,
Plaintiff covered up tattoos at his parlor. Id. ¶ 18. The warrant included Plaintiff’s home
and tattoo parlor among nineteen locations to be searched, as well as fourteen other listed
individuals. Id. The simultaneous service of the multi-location search warrant had been
in planning for at least a month before the warrant on Plaintiff’s home was executed, long
before the warrant itself was issued. Id. ¶ 22.
The search warrant application listed the following fifteen categories of personal
property to be seized during the search of Plaintiff’s home: (1) Hells Angels Motorcycle
Club (“HAMC”) membership indicia; (2) Destroyers Motorcycle Club (“Destroyers”)
membership indicia; (3) any “article” showing association with the HAMC or Destroyers;
(4) HAMC “Rules” and communications related to HAMC business or membership; (5)
Destroyers 	“Rules” 	and 	membership 	records; 	(6) 	documents 	reflecting 	HAMC 	or
Destroyers membership; (7) HAMC membership “Out Forms” and group photos; (8) West
Coast Officer notes and East Coast Officer notes, phone rosters, and membership
background investigation forms; (9) communication devices such as cell phones and
iPads; (10) articles of personal property tending to establish the identity of people in
control or possession of the place, such as utility company receipts; (11) any electronic
devices capable of storing location information and/or communicating with other devices;
(12) safes where the other items might be stored; (13) clothing and jewelry items likely to
contain DNA trace evidence; (14) 1934 Ford pick-up owned by Plaintiff; and (15) video
surveillance system. Id. ¶ 19.
For the most part, these items are documents and records, or storage devices
such as personal computers, iPads and phones, or things like clothes and jewelry. Id. ¶
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21. 	According to Plaintiff, virtually none of the items to be seized could be destroyed
while a Special Weapons and Tactics (“SWAT”) team was making entry. Id. No narcotics,
weapons, ammunition, or contraband were listed, and the warrant did not seek records
of illegal activity such as human, narcotics, or weapons trafficking. 	Id. 	According to
Plaintiff, none of the items listed on the warrant was illegal to possess, membership in
motorcycle clubs was not illegal, and the possession of “indicia” of membership or records
of club membership and activities was also not illegal. Id. ¶ 20.
Plaintiff’s home was assigned to Jefferson County Regional SWAT, a joint
operation of the JCSO and the Golden and Arvada police departments. 	Id. ¶ 23.
Defendant Donahue, a Golden Police Sergeant, directed the Jefferson County Regional
SWAT operation at Plaintiff’s home. 	Id. ¶ 24. 	He knew that Plaintiff had no criminal
history and possessed a concealed-carry permit for a firearm. Id. He also allegedly knew
that despite the “no knock” authorization for multiple locations, including Plaintiff’s tattoo
parlor, the search warrant for Plaintiff’s home could have been safely and successfully
executed by simply walking up to the front door during daylight hours, knocking or ringing
the doorbell, showing the warrant to Plaintiff or whoever else came to the door, and then
searching for and seizing the items listed, because none of the items was susceptible to
flushing or destruction or could be used as a weapon against the officials serving the
warrant. Id.
Regardless, Defendant Donahue instructed the SWAT deputies and officers under
his command to “breach, bang and hold” Plaintiff’s front door, which, in short, means to
execute a plan to sneak up on the home, destroy the front door with explosives while
breaking windows, and ordering the occupants outside without SWAT entering the home.
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Plaintiff states that this plan was “total overkill” given the totality of the circumstances. Id.
¶ 25. Allegedly, Defendant Donahue formulated and implemented this “extremely violent,
unnecessarily destructive, and dangerous tactical plan” in concert with the individual
defendants and others serving the warrant on other locations, because the “no knock”
provision created an opportunity to gratuitously damage Plaintiff’s home and to harass
him in retaliation for alleged associations which were, according to Plaintiff, not in
themselves illegal and were actually constitutionally protected. Id.
SWAT staged near Plaintiff’s home during the early morning of November 7, 2019,
because the plan was to attack multiple locations listed in the warrant simultaneously at
4:00 a.m. Id. ¶ 26. Inside the home, three people were sleeping: Plaintiff, Ms. Malcovich,
and a houseguest who was recovering from injuries sustained in a vehicle accident. Id.
¶¶ 17, 26. 	None had any warrants for his or her arrest, and Plaintiff alleges that each
would have complied with police commands and process once awakened. Id. ¶ 26.
When Defendant Donahue saw what appeared to be common home security
equipment located near the front door, consisting of surveillance cameras and exterior
lights activated by a motion detector, he decided against the explosives because,
according to the District Attorney’s report, “if someone in the residence was awake and
came to the door to find out why their motion detector lights were on, there was a potential
that the charge detonating at the front door could severely injure or kill that person on the
other side of the door.” Id. ¶ 27. Defendant Donahue switched the plan to a “mechanical
breach,” which means assigning an officer to use a handheld ram to break down the door.
Id. 	All of the SWAT members, including the other individual defendants in this lawsuit,
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were briefed on the change in plans and thus allegedly had notice that using ordnance to
open the front door posed an unreasonable risk to occupants of the home. Id. ¶ 28.
SWAT 	members 	approached 	the 	house 	in 	a 	“Bearcat” 	armored 	car 	and
disembarked wearing helmets, body armor, and balaclava face coverings, allegedly solely
for the purpose of looking scary to people whom they would encounter in the home. Id.
¶ 29. As they quickly moved onto the front porch, they “needlessly” detonated “flashbang”
grenades in the yard, which woke the occupants and alerted them that their home was
under “attack” by law enforcement. Id.
Defendant Donahue directed Defendant Turco, a JCSO Deputy, to shatter the
glass in a window at the front of the home, and Defendant Clarke, an Arvada Police
Officer, to fire 40-millimeter rounds through another window, shattering more glass. Id. ¶
30. The sounds of the windows shattering before SWAT attempted to open the front door
attracted attention to the front of the house much more dramatically than a “motion
detector light” would have done. 	Id. 	Moreover, Plaintiff alleges that there was no law
enforcement purpose for shattering the windows, especially because, even after the
windows were shattered, curtains continued to block the SWAT members’ views into the
house. Id. The sounds of the breaking windows attracted Plaintiff’s attention to the front
of his house and “instilled fear that his home would be further damaged or destroyed
unless he took immediate action” to let the SWAT members enter. Id.
Despite knowing that it was unsafe for people inside the house to be near the front
door while SWAT was forcing entry, Defendant Donahue stood at one of the broken
windows and shouted at least twice: “Sheriff’s Office, search warrant, come to the door.”
Id. ¶ 31. Defendant Brown, a second JCSO Deputy, held the unlocked outer storm door
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open while Defendant Bybee, a third JCSO Deputy, banged on the front door four times
with a hand-held ram, although he failed to use enough force to open the door. Id. ¶ 32.
Despite knowing about the reason for the change in tactics from an “explosive” to a
“mechanical” breach, the concern that there were likely people inside coming to the front
door who could be seriously injured or killed if the door was opened in a violent manner,
and despite all the noise SWAT members had made to attract the attention of the people
in the home and bring them toward the front door, including the flash bangs, the broken
windows, and the commands from Defendant Donahue, Defendants Bybee and Brown
decided to abandon the battering ram and to blow the lock off with a “breaching shotgun,”
a short-barreled 12-gauge firearm with a pistol grip and special ammunition designed to
destroy locks. Id.
As the supervisor, Defendant Donahue was told by the deputies that they were
switching to the shotgun and could see their actions in doing so. 	Id. ¶ 33. 	Defendants
Turco, Clarke, and Bybee also knew that Defendant Brown was preparing to fire a
shotgun through the door while occupants of the house were likely approaching to open
it, as commanded. Id. They all allegedly knew that the breaching shotgun could not be
used at that stage of the entry process without creating a risk of death or great bodily
injury to people inside the home, even more so than the use of explosives initially planned
but deemed too risky because of the motion detector. Id. ¶ 34.
Defendant Brown “knew [the shotgun] could be lethal if the operator was not
cautious in using it” and had been trained “to direct the weapon at an angle towards the
ground when firing it into the door so that if there was penetration past the door, the round
would be directed towards the ground and not into a room where people could be located,”
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according to the District Attorney’s Report. 	Id. ¶ 35. 	Everyone present, including all of
the individual defendants, could see that Defendant Brown was pointing the shotgun level,
not at a downward angle, and that he could not safely fire it in that manner at that time.
Id. 	Each of the individual defendants, including Defendant Donahue as the incident
commander, Defendant Bybee who was working closely with Defendant Brown to force
open the front door, and Defendants Turco and Clarke allegedly had the practical
opportunity to intervene and stop Defendant Brown from firing the shotgun into the house,
but all failed to do so. Id. ¶ 36.
Plaintiff was awakened by grenades, shattering glass, pounding on the front door,
and commands for him to come to the door. 	Id. ¶ 37. 	He immediately understood that
law enforcement was responsible for the commotion. Id. Wearing the T-shirt and boxer
shorts in which he had been sleeping, Plaintiff leapt from bed and rushed the short
distance to the front door to open it before more of his house was destroyed. 	Id. 	He
opened his front door all the way, so that the SWAT members could see he was obviously
unarmed. 	Id. 	Defendant Brown saw Plaintiff standing there with nothing in his hands
except possibly the doorknob, having obeyed Defendant Donahue’s commands to come
to the door. 	Id. 	Instead of pointing the shotgun to the ground and de-escalating,
Defendant Brown either raised the shotgun or continued to keep the shotgun raised, level
with the floor. 	Id. 	Although he faced no threat, Defendant Brown decided to pull the
trigger and shoot Plaintiff. Id.
The fact that the front door was undamaged shows it was open all the way when
Defendant Brown decided to pull the trigger. Id. ¶ 38. Defendant Brown could not have
fired to open the door because the door had already been opened before Defendant
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Brown pulled the trigger, even though Plaintiff was fully visible, wearing his underclothes,
cooperating with SWAT, and posing no threat, according to Plaintiff. Id. The location of
the gunshot wound on Plaintiff’s right abdomen demonstrates that Defendant Brown
pulled the trigger while holding the shotgun level, not pointed down, where he would have
pointed it were he using it to force open the door. Id. ¶ 39.
Plaintiff collapsed to the floor, and Ms. Malcovich screamed. 	Id. ¶ 40. 	SWAT
members describe that Plaintiff’s “intestines were protruding to the outside of the . . .
stomach through a small golf ball sized hole,” describing the wound as “an ‘evisceration’”
such that “a baseball size portion of the subject’s intestines were hanging out of the upper
right quadrant of his abdomen.” 	Id. 	Plaintiff was transported to St. Anthony Hospital in
Lakewood for lifesaving emergency treatment. 	Id. ¶ 41. 	On November 12 he was
transferred to Denver Health, where he was put into a medically induced coma for several
weeks. 	Id. 	Most of his large intestine had to be removed. 	Id. 	This loss of his large
intestine is permanent and affects him throughout the day, every day, and his right
abdomen has a large, grotesque deformity. 	Id. ¶ 42. 	No criminal charges were filed
based on Plaintiff’s conduct on November 7, 2019, although he is facing charges relating
to the grounds stated in the initial search warrant affidavit. Id. ¶ 43.
Under his First Claim for Relief, Plaintiff asserts various claims against the
individual Defendants for the deprivation of his civil rights, including (1) unreasonable
search under the Fourth Amendment, (2) excessive force under the Fourth Amendment,
and (3) due process violation under the Fourteenth Amendment. Id. ¶¶ 49-67. Under his
Second Claim for Relief, he asserts various claims against the entity Defendants for
deprivation of his civil rights based on alleged shortcomings in their policies, practices,
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and training. 	Id. ¶¶ 68-72. 	Plaintiff seeks compensatory damages from all Defendants
and punitive damages from the individual Defendants for these asserted violations. Id. ¶
73. 	In the present Motions [#49, #50, #51], Defendants seek dismissal of all claims
pursuant to Fed. R. Civ. P. 12(b)(6), except for the Fourth Amendment claims against
Defendant Brown. See Motion [#49] at 1.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” 	Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R.
Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted”). 	To withstand a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief
that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of
Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support the plaintiff’s allegations” (quoting Twombly, 550 U.S. at 570)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). 	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 	a 	complaint 	suffice 	if 	it 	tenders 	naked 	assertions 	devoid 	of 	further 	factual
enhancement.” Id. (internal quotation marks omitted).
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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility
that [the] plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that [the] plaintiff has a
reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, “[t]he court’s function
on a 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.” 	Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
III. Analysis
To state a 42 U.S.C. § 1983 claim, Plaintiff must allege facts establishing the
deprivation of a right secured by the Constitution or laws of the United States and that the
deprivation was committed under color of state law. 	West v. Atkins, 487 U.S. 42, 48
(1988); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th
Cir. 2014). At the outset, the Court emphasizes that Plaintiff has not challenged the no-
knock search warrant itself, but merely the way it was executed by Defendants. 	See,
e.g., Response [#57] at 6 n.1 (stating that Plaintiff has “elected not to challenge the
warrant’s validity” in the Amended Complaint [#43]). 	Therefore, the following analysis
regarding the execution of the warrant proceeds on the assumption that the warrant itself
was valid.
A. 	Individual Capacity Claims
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The individual Defendants assert that they are entitled to qualified immunity on
Plaintiff’s claims. 	Motion [#49] at 4-5; Motion [#50] at 5; Motion [#51] at 6-7. 	Qualified
immunity, in certain circumstances, protects government officials from liability for civil
damages when they are sued in their individual capacities. 	See, e.g., Harlow v.
Fitzgerald, 457 U.S. 800, 814-18 (1982). 	They “are entitled to qualified immunity under
§ 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at the time.” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted); see also Pearson
v. 	Callahan, 	555 	U.S. 	223, 	236 	(2009) 	(holding 	that 	although 	qualified 	immunity
determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any
order, no further analysis need be undertaken and qualified immunity is appropriate). The
Supreme Court has stated that “[f]or executive officials in general . . . our cases make
plain that qualified immunity represents the norm.” 	Harlow, 457 U.S. at 807. 	Thus, a
government official is entitled to qualified immunity in “[a]ll but the most exceptional
cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
1. 	Fourth Amendment: Search and Seizure
In short, “[t]he Fourth Amendment guarantees a person’s right to be free from
‘unreasonable searches and seizures.’” 	United States v. Frazier, 30 F.4th 1165, 1172
(10th Cir. 2022) (quoting U.S. Const. amend. IV). In full, this amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
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a. 	Whether a Constitutional Right Was Violated
“As the text of the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is ‘reasonableness.’” Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646 652 (1995). 	Thus, “[a]fter obtaining a warrant, the Fourth
Amendment also requires officers to conduct the search and seizure reasonably.” United
States v. Palm, 21 F.4th 689, 697 (10th Cir. 2021); see also United States v. Muhtorov,
20 F.4th 558, 592 (10th Cir. 2021) (“A search or seizure satisfies the Fourth Amendment
if it is reasonable.” (citing Riley v. California, 573 U.S. 373, 381-82 (2014)).
“In assessing reasonableness, we examine the totality of the circumstances.”
Muhtorov, 20 F.4th at 602 (citing Samson v. California, 547 U.S. 843, 848 (2006)). This
means that a Fourth Amendment search “must be reasonable in its scope and manner of
execution.” Maryland v. King, 569 U.S. 435, 448 (2013) (emphasis added). “[I]n order to
satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally
demanded of the many factual determinations that must regularly be made by agents of
the government . . . is not that they always be correct, but that they always be reasonable.”
Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). To meet this test, the Court balances “the
promotion of legitimate governmental interests against the degree to which the search
intrudes upon an individual’s privacy.” 	King, 569 U.S. at 448 (brackets and quotation
marks omitted); see also Illinois v. McArthur, 531 U.S. 326, 331 (2001) (“[W]e balance the
privacy-related 	and 	law 	enforcement-related 	concerns.”). 	“The 	reasonableness
balancing test is particularly concerned with ensuring that a search and seizure is ‘both
limited and tailored reasonably to secure law enforcement needs while protecting privacy
interests.’” Muhtorov, 20 F.4th at 602 (quoting McArthur, 531 U.S. at 337).
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Defendant Clarke and Defendant Turco each allegedly broke a window in Plaintiff’s
home, allegedly at Defendant Donahue’s direction. Am. Compl. [#43] ¶ 30. Plaintiff states
that these actions were for no legitimate purpose in executing the warrant. Id.; Response
[#55] at 9; Response [#57] at 9. 	Defendant Clarke, in particular, takes issues with this
allegation as being conclusory and therefore asks the Court to disregard it. Motion [#50]
at 6-8. However, the Court must nevertheless balance the competing protections of the
Fourth Amendment with the interests of law enforcement in executing the warrant. See
King, 569 U.S. at 448. In other words, the mere fact that Defendants had a valid warrant
does not mean that any and all actions taken in connection with the execution of that
warrant are automatically reasonable and therefore pass muster under the Fourth
Amendment. See Palm, 21 F.4th at 697. Here, even disregarding the purely conclusory
statement 	that 	Defendants’ 	actions 	served 	no 	legitimate 	purpose, 	there 	must 	be
allegations in the Amended Complaint [#43] from which it can otherwise be inferred that
Defendant’s actions did not serve, or were not intended to serve, a legitimate purpose.
See King, 569 U.S. at 448 (stating that the Court examines whether the defendants’
actions served to promote “legitimate governmental interests”).
“The 	procedural 	posture 	of 	the 	qualified-immunity 	inquiry 	may 	be 	critical.”
Thompson, 23 F.4th at 1256. 	“Because they turn on a fact-bound inquiry, qualified
immunity defenses are typically resolved at the summary judgment stage rather than on
a motion to dismiss.” 	Id. (internal quotation marks omitted). 	“Asserting a qualified
immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more
challenging standard of review than would apply on summary judgment.” Id. (citation and
internal quotation marks omitted). “On a motion to dismiss, ‘it is the defendant’s conduct
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as alleged in the complaint that is scrutinized for [constitutionality].’” Id. (quoting Behrens
v. Pelletier, 516 U.S. 299, 309 (1996)). 	Here, the Court finds that the allegations in the
Amended Complaint adequately allege that Defendants’ actions did not serve, and were
not intended to serve, any legitimate purpose.
Before addressing the specifics of this case, the Court considers two cases where
the plaintiff was required to allege, and successfully did so, that the defendants’ actions
did not serve a legitimate purpose. First, Colbruno v. Kessler, 928 F.3d 1155 (10th Cir.
2019), concerned a Rule 12(b)(6) motion to dismiss a Fourteenth Amendment claim
where the defendant officers asserted a qualified immunity defense. 	The Tenth Circuit
Court of Appeals noted that the “court must decide . . . whether [the defendants’ alleged
action] is but an incident of some . . . legitimate governmental purpose.” Colbruno, 928
F.3d at 1162 (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). The Tenth Circuit further
noted: “[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is
arbitrary 	or 	purposeless—a 	court 	permissibly 	may 	infer 	that 	the 	purpose 	of 	the
governmental action . . . may not constitutionally be inflicted . . . .” Colbruno, 928 F.3d at
1163 (quoting Bell, 441 U.S. at 539). The Court of Appeals stated that the plaintiff could
adequately allege “that official actions constitute unconstitutional punishment . . . ‘by
showing that the restriction in question bears no reasonable relationship to any legitimate
governmental objective.’” Colbruno, 928 F.3d at 1163 (quoting Blackmon v. Sutton, 734
F.3d 1237, 1241 (10th Cir. 2013)). In other words, the plaintiff in Colbruno was required
to provide allegations that the defendants’ action “was not rationally related to a legitimate
governmental objective . . . .” 	Colbruno, 928 F.3d at 1164 (quoting Kingsley, 576 U.S.
389, 398 (2015)). In evaluating the allegations of the plaintiff’s complaint, the Court held:
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Defendants argue that Plaintiff needed medical treatment urgently, and that
finding another covering for him before transporting him through the hospital
would have taken too much additional time and effort. 	But Plaintiff has
alleged facts supporting the reasonable inference that no vital urgency
justified Defendants’ actions. 	His complaint states that Defendants took
more than two hours to transport him to the hospital. It also alleges that at
the end of his [naked] walk through the hospital he was chained to a hospital
bed, not immediately x-rayed or provided with treatment. The district court
ruled that these allegations were sufficient to support the inference that
Plaintiff’s condition was not so urgent that Defendants could not have
delayed walking him into the hospital for “[t]he additional moment that would
have been required to locate and place a smock” on him. 	We agree with
the district court. 	It is common sense that acquiring some replacement
clothing at a hospital would be at most a matter of minutes, and we can
reasonably infer from the long delay in transporting Plaintiff that Defendants’
actions were not based on a medical need so pressing that they could not
spare a little time to obtain a dignified covering.
Colbruno, 928 F.3d at 1164-65 (internal citation omitted).
Second, Denson v. Rios, No. 19-cv-00233-CMA-STV, 2019 WL 7161695 (D. Colo.
Dec. 23, 2019), concerned a Rule 12(b)(6) motion to dismiss a Fourth Amendment claim
where the defendant officers asserted a qualified immunity defense. The court noted that
“[a] strip search must be reasonably related to a legitimate penological interest,” i.e., that
“[a] prisoner’s limited constitutional right to bodily privacy and to be free of unreasonable
searches 	and 	seizures 	must 	be 	weighed 	against 	the 	requirements 	of 	prison
administration.” Denson, 2019 WL 7161695, at *8 (citing Farmer v. Perrill, 288 F.3d 1254,
1259-60 (10th Cir. 2002); Turner v. Safley, 482 U.S. 78, 84-85 (1987)). The defendants
argued in their motion that the plaintiff had “fail[ed] to sufficiently allege that the searches
violated his Fourth Amendment rights because he does not allege . . .that there was no
legitimate penological interest for the search.” 	Denson, 2019 WL 7161695, at *8. 	The
court disagreed, stating:
While “[s]imply invoking conclusory terms like ‘harassing’ or ‘retaliation’ is
not enough” to allege a plausible Fourth Amendment claim, the Court finds
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that Defendant has made several allegations that allow the Court to infer
the searches were conducted in an unreasonable manner and without
legitimate penological purpose:
• Plaintiff was strip searched three times a day.
• “The Plaintiff was ordered to take off all his clothing, bend over, spread his
anus and allow various C.O.s (names unknown from different days) to look
into his cavity.”
• “On date May 21, 2018 John Doe #2 (name unknown) told the Plaintiff he
received a[ ] phone call from Lt[.] Ross, who was the recreation C.O. John
Doe #2 supervisor, and Lt[.] Ross ordered him to strip search the Plaintiff
whenever he leaves from work at recreation, and to leave a note letting
other C.O.s know this is Lt. Ross[‘s] order” “for other C.O.s to follow.”
• “This order was given by Major Rios to Lt. Ross, and Lt. Ross ordered
C.O. John Doe #2 and other C.O.s to retaliate.”
• The strip searches were “excessive, cruel, embarrassing, demeaning” and
“caused psychological pain, stress, and depression. 	The Plaintiff now
suffer[s] migraine headaches[ ] and anxiety.”
• Plaintiff's case manager “advised the Plaintiff if he filed a[ ] grievance he
would be further retaliated [against] by Major Rios and Lt[.] Ross. This case
manager . . . advised the Plaintiff to file an [i]nformal [g]rievance, not a
grievance.”
• Plaintiff, by way of an informal grievance, “informed Major Frayre of the
strip searches ordered by Lt. Ross and Major Rios . . . to harass him.”
• “Major Frayre gave the informal grievance to Major Two Bear. Major Two
Bear came to recreation to discuss the strip searches with the Plaintiff, then
Major Two Bear told the Plaintiff he will talk to Lt. Ross. That day the strip
searches stopped . . . .”
Denson, 2019 WL 7161695, at *8-9 (internal citations and footnote omitted).
Here, Defendants rely heavily on United States v. Ramirez, 523 U.S. 65, 71-72
(1998), for the proposition that an officer breaking a single window during the execution
of a no-knock warrant is constitutional under the Fourth Amendment. Motion [#49] at 6;
Motion [#50] at 7-8. 	Ramirez is more nuanced than Defendants imply, however. 	The
case does not stand for the proposition that it is always reasonable under the Fourth
Amendment for an officer to break a window during the execution of a no-knock warrant.
There, the Supreme Court noted that the officers had specific reasons for breaking the
window: “They did so because they wished to discourage [the subject of the manhunt], or
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any other occupant of the house, from rushing to the weapons that the informant had told
them respondent might have kept there.” 	Ramirez, 523 U.S. at 71-72 (noting that the
subject of the manhunt was “a prison escapee with a violent past who reportedly had
access to a large supply of weapons” and “had vowed that he would ‘not do federal time’”).
Thus, the Supreme Court found that the defendants had pointed to a legitimate purpose
which weighed in favor of finding that the breaking of the window was reasonable to
execute the warrant and that the Fourth Amendment was therefore not violated.
Here, no such reasoning supporting such a similar finding appears in the Amended
Complaint [#43]. Plaintiff alleges that, “even after the windows were shattered, curtains
continued to block the SWAT members views into the house.” 	Am. Compl. [#43] ¶ 30.
There are no allegations that anything was thrown into the house by any Defendant, or,
as in Ramirez, that any officer “pointed a gun through the opening, hoping thereby to
dissuade any of the occupants from rushing to the weapons the officers believed might
be” inside. Ramirez, 523 U.S. at 69. Plaintiff does allege that Defendant Donahue “stood
at one of the broken windows and shouted at least twice: ‘Sheriff’s Office, search warrant,
come to the door.’” 	Am. Compl, [#43] ¶ 31. 	However, there is no indication in the
Amended Complaint [#43] that the purpose of breaking the windows was to allow
Defendant Donahue’s voice to carry into the house. 	Indeed, this possible reason for
breaking a window is undermined by the fact that multiple windows were shattered, and
by the fact that Defendants in their briefs do not assert this as a reason for why the
windows were broken. For the Court to find otherwise would be pure speculation.
As noted above, “[a]fter obtaining a warrant, the Fourth Amendment also requires
officers to conduct the search and seizure reasonably.” 	Palm, 21 F.4th at 697. 	The
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Supreme Court emphasized in Ramirez that “[t]he general touchstone of reasonableness
which governs Fourth Amendment analysis governs the method of execution of the
warrant. Excessive or unnecessary destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry itself is lawful . . . .” Ramirez, 523
U.S. at 71 (internal citation omitted). Here, although there may well be legitimate reasons
for breaking the windows in the furtherance of the execution of the warrant, that is an
issue which must explored in discovery. 	At this stage, based on the allegations in the
Amended Complaint [#43], there is no indication that breaking the windows in Plaintiff’s
house was limited and tailored reasonably to secure law enforcement needs. 	See
Muhtorov, 20 F.4th at 602. 	Thus, the Court finds that Plaintiff has stated a claim with
respect to Defendants Donahue, Clarke, and Turco.3
With respect to Defendant Bybee, the Court comes to a different conclusion.
Plaintiff alleges that Defendant Bybee “banged the front door four times with a hand-held
ram” and that he “failed to use enough force to open the door.” Am. Compl. [#43] ¶ 32.
Defendants Bybee and Brown then “decided to abandon the battering ram and to blow
the lock off with a ‘breaching shotgun,’ a short-barreled 12-gauge firearm with a pistol grip
and special ammunition designed to destroy locks.” Id. From these minimal allegations,
the Court deduces the following. 	First, with the no-knock warrant in hand, Defendant
3 Defendant Clarke’s citations to 18 U.S.C. § 3109 and Dahlia v. United States, 441 U.S.
238, 258 (1979), do not alter this analysis. Motion [#50] at 8. The statute applies only after an
officer “is refused admittance,” which is inapplicable based on the allegations of the Amended
Complaint [#43]. In Dahlia, the United States Supreme Court stated: “[O]fficers executing search
warrants on occasion must damage property in order to perform their duty.” The key phrase here
is “in order to perform their duty.” As discussed above, the allegations of the Amended Complaint
[#43] support a finding, for purposes of adjudicating the present Motions, that breaking the
windows of Plaintiff’s home was not necessary, or even thought to be necessary, for the officers
here to perform their duty and execute the warrant.
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Bybee was legally authorized to enter the house. 	Second, Defendant Bybee attempted
to do so by breaking down the door with a hand-held battering ram. 	Third, this attempt
was unsuccessful, and Plaintiff does not allege that it was unreasonable to fail to make
further attempts with the ram. 	Fourth, Defendant Bybee devised a secondary plan for
opening the door which involved use of the breaching shotgun. Fifth, Defendant Bybee
did not wield the shotgun and, in fact, the shotgun was not ultimately used to open the
door, given that Plaintiff opened the door first. 	Plaintiff does not argue that use of the
battering ram was unconstitutional. In short, other than generally being a member of the
raid on Plaintiff’s home, Plaintiff does not point to any specific actions taken by Defendant
Bybee 	which 	show 	that 	his 	actions 	in 	the 	search-and-seizure 	operation 	were
unconstitutional.
Accordingly, the Court recommends that the County Defendants’ Motion [#49] be
granted in part to the extent that Plaintiff’s Fourth Amendment search-and-seizure claim
against Defendant Bybee be dismissed with prejudice for failure to state a claim. See
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding that prejudice
should attach to a dismissal when the plaintiff has not made allegations “which, upon
further investigation and development, could raise substantial issues”).
b. 	Whether the Constitutional Right Was Clearly Established
Thus, the Court turns to the second prong of the qualified immunity analysis on
this claim with respect to Defendants Donahue, Clarke, and Turco only. 	“The salient
question is whether the state of the law at the time of an incident provided fair warning to
the defendants that their alleged conduct was unconstitutional.” 	Estate of Beauford v.
Mesa County, Colorado, 35 F.4th 1248, 1268 (10th Cir. 2022) (internal brackets, ellipsis,
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and quotation marks omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)). 	“To
establish that the law was clearly established in this context, the plaintiff must point to
Supreme Court or Tenth Circuit precedents in point, or to the clear weight of authority
from other circuit courts deciding that the law was as the plaintiff maintains.” Thompson
v. Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022). 	“[E]xisting law must have placed the
constitutionality of the [public official’s] conduct beyond debate.” Id. (quoting Wesby, 138
S. Ct. at 589 (internal quotation marks omitted). However, “a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the specific
conduct in question, even though the very action in question has not previously been held
unlawful.” 	Thompson, 23 F.4th at 1255-56 (quoting Hope v. Pelzer, 536 U.S. 730, 741
666 (2002) (brackets and internal quotation marks omitted)). “We have therefore adopted
a sliding scale to determine when law is clearly established.” A.M. v. Holmes, 830 F.3d
1123, 1135 (10th Cir. 2016). 	“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.” Id. at 1135-36. It is not necessary to show that “the very
action in question has previously been held unlawful, [but] in the light of pre-existing law
the unlawfulness must be apparent.” Id. at 1136 (internal alterations and quotation marks
omitted).
The Court finds that the constitutional right at issue was clearly established at the
time of the November 7, 2019 raid on Plaintiff’s home. 	This is not a situation where a
case is needed to determine whether a defendant’s actions based on a particular reason
were reasonable in the context of warrant execution because, here, the Court is
presented with allegations which sufficiently allege that there was no legitimate underlying
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reason as to why Plaintiff’s home was damaged through the destruction of its windows.
The law has been clear for many years that “[e]xcessive or unnecessary destruction of
property in the course of a search” violates the Fourth Amendment, i.e., that there must
be an articulable reason behind the destruction of private property when executing a
warrant. 	Ramirez, 523 U.S. at 71. 	Here, in the absence of any legitimate reason
underlying the governmental action, the Court finds that the law was clearly established
that such alleged wanton destruction was unconstitutional. 	See King, 569 U.S. at 448
(stating that the Court examines whether the defendants’ actions served to promote
“legitimate governmental interests”). 	Of course, on a motion for summary judgment,
Defendants may provide evidence of such reasons and, at that time, renew their request
for qualified immunity. 	However, at this stage, the Court finds that the law was clearly
established that the destruction of private property for no reason in the execution of a
warrant is unconstitutional under the Fourth Amendment. Defendants Donahue, Clarke,
and Turco are not entitled to qualified immunity at this time.
Accordingly, the Court recommends that the Motions [#49, #50, #51] be denied
in part to the extent that Defendants Donahue, Clarke, and Turco seek dismissal of
Plaintiff’s Fourth Amendment search-and-seizure claim against them.
2. 	Fourth Amendment: Excessive Force: Failure to Intervene
“When a plaintiff alleges excessive force during an investigation or arrest, the
federal right at issue is the Fourth Amendment right against unreasonable seizures.”
Tolan v. Cotton, 572 U.S. 650, 656 (2014). 	“In evaluating a claim of excessive force,
courts consider whether the officers’ actions are objectively reasonable in light of the facts
and circumstances confronting them.” Wilkins v. City of Tulsa, Okla., 33 F.4th 1265, 1273
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(10th Cir. 2022) (internal quotation marks omitted) (citing Lombardo v. City of St. Louis,
141 S. Ct. 2239, 2241 (2021) (per curiam)). 	“To assess objective reasonableness, we
evaluate whether the totality of the circumstances justified the use of force, as ‘judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.’” 	Wilkins, 2022 WL 1310201, at *4 (quoting Graham v. Connor, 490 U.S.
386, 396 (1989)).
“[A] plaintiff can maintain a claim for failure to intervene only when some other
officer used excessive force.” Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., Okla.,
989 F.3d 1165, 1175 (10th Cir. 2020). 	Here, for purposes of the present Motions [#49,
#50, #51], the individual Defendants do not contest that excessive force was used on
Plaintiff by Defendant Brown. Thus, the only question is whether Plaintiff has adequately
alleged that Defendants Donahue, Clarke, Turco, and Bybee violated Plaintiff’s Fourth
Amendment rights by failing to intervene to stop Defendant Brown’s alleged use of
excessive force.
“It is not necessary that a police officer actually participate in the use of excessive
force in order to be held liable under section 1983.” Mascorro v. Billings, 656 F.3d 1198,
1204 n.5 (10th Cir. 2011). “Rather, an officer who is present at the scene and who fails
to take reasonable steps to protect the victim of another officer’s use of excessive force,
can be held liable for his nonfeasance.” Id. “In order to be liable for failing to intervene,
the officers must have observed or had reason to know of a constitutional violation and
have had a realistic opportunity to intervene.” Jones v. Norton, 809 F.3d 564, 576 (10th
Cir. 2015) (internal quotation marks and brackets omitted).
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Here, the Court finds that Plaintiff has not provided adequate, non-conclusory
allegations 	that 	Defendants 	Donahue, 	Clarke, 	Turco, 	and 	Bybee 	“had 	a 	realistic
opportunity to intervene.” See id. For example, there are no allegations that any of these
Defendants saw, heard, or otherwise knew Plaintiff was actually coming to the door; that,
once Plaintiff opened the door, anyone believed that Defendant Brown would pull the
trigger; or that there was sufficient time to act to stop Defendant Brown from pulling the
trigger between the time when Plaintiff opened the door and when Defendant Brown
pulled the trigger. In Fogarty v. Gallegos, 523 F.3d 1147, 1164 (10th Cir. 2008), the Tenth
Circuit Court of Appeals held that officers could be held liable for failing to intervene where
the excessive force occurred over the course of three-to-five minutes. 	Here, the single
pull of a gun’s trigger, without adequate allegations to show that these Defendants knew
that Defendant Brown was likely to pull the trigger, is insufficient to sufficiently allege a
constitutional violation.
Accordingly, the Court recommends that the Motions [#49, #50, #51] be granted
in part to the extent that Plaintiff’s Fourth Amendment failure-to-intervene claim against
Defendants Donahue, Clarke, Turco, and Bybee be dismissed without prejudice for
failure to state a claim. See Reynoldson, 907 F.2d at 127 (holding that prejudice should
not attach to a dismissal when the plaintiff has made allegations “which, upon further
investigation and development, could raise substantial issues”).
3. 	Fourteenth Amendment: Due Process
The Due Process Clause of the Fourteenth Amendment declares that “[n]o state
shall . . . deprive any person of life, liberty, or property, without due process of law[.]”
Here, Plaintiff asserts a substantive due process claim, relying heavily on Browder v. City
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of Albuquerque, 787 F.3d 1076 (10th Cir. 2015). 	There, the Tenth Circuit Court of
Appeals stated that the due process clause “prohibits the government from depriving
individuals of their lives, liberty, or property without due process of law. 	The Supreme
Court has interpreted this language as guaranteeing not only certain procedures when a
deprivation of an enumerated right takes place (procedural due process), but also as
guaranteeing certain deprivations won’t take place without a sufficient justification
(substantive due process).” 	Browder, 787 at 1078. 	The Tenth Circuit noted that
determining the viability of substantive due process claims in this “murky area” of action
by law enforcement personnel is “much unchartered” [sic]. Id. at 1079, 1080.
Under the circumstances of this case, however, the Court finds that it need not
delve deeply into the merits of such a claim. 	The United States Supreme Court has
stated: “Because we have always been reluctant to expand the concept of substantive
due process, we held in Graham v. Connor, 490 U.S. 386 (1989), that where a particular
Amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the more generalized notion
of substantive due process, must be the guide for analyzing these claims.” 	County of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (internal quotation marks, alterations,
and citations omitted). The Supreme Court further explained that Graham “does not hold
that all constitutional claims relating to physically abusive government conduct must arise
under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a
constitutional claim is covered by a specific constitutional provision, such as the Fourth
or Eighth Amendment, the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.” 	Id. at 843 (quoting
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United States v. Lanier, 520 U.S. 259, 272, n. 7 (1997)). 	Thus, a “[s]ubstantive due
process analysis is . . . inappropriate” if the “claim is ‘covered by’ the Fourth Amendment.”
Id. 	A substantive due process claim is appropriate only “for those instances in which a
free citizen is denied his or her constitutional right to life through means other than a law
enforcement official’s arrest, investigatory stop or other seizure.” Id. (quoting Pleasant v.
Zamieski, 895 F.2d 272, 276, n.2 (6th Cir. 1990).
Here, the actions at issue were a search and seizure directed at Plaintiff and his
home. This is not a situation where, for example, an innocent bystander was injured by
officer action, as allegedly occurred in Lewis and in Browder. 	Plaintiff has provided no
allegations to show that his claims do not directly fall under the Fourth Amendment’s
protections provided during the execution of a valid warrant. 	The Court has found no
legal authority holding that simply because a claim may not succeed under the Fourth
Amendment that it should instead alternatively be adjudicated under the Fourteenth
Amendment. Here, Plaintiff’s rights to reasonable search and seizure by the government
and to not have excessive force used against him in the execution of a search and seizure
by the government are both directly covered by the Fourth Amendment.
Accordingly, the Court recommends that the Motions [#49, #50, #51] be granted
in part to the extent that Plaintiff’s Fourteenth Amendment substantive due process claim
against Defendants Donahue, Clarke, Turco, Bybee, and Brown be dismissed with
prejudice for failure to state a claim. 	See Reynoldson, 907 F.2d at 127 (holding that
prejudice should attach to a dismissal when the plaintiff has not made allegations “which,
upon further investigation and development, could raise substantial issues”).
B. 	Claim Two: Official Capacity and Municipal Liability Claims
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“An action against a person in his official capacity is, in reality, an action against
the government entity for whom the person works.” 	Pietrowski v. Town of Dibble, 134
F.3d 1006, 1009 (10th Cir. 1998); Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 692 (1978). 	Thus, because Defendant Shrader is sued in his official capacity as
Sheriff, this claim is interpreted as a claim against the governmental entity for whom he
works, the JCSO. 	Plaintiff alleges that “[t]he JCSO, the Golden Police Department and
the Arvada Police Department jointly staff and operate Jefferson County Regional SWAT,
and in turn, are responsible for the policies, practices and training of Jefferson County
Regional SWAT members, including each of the individual defendants.” 	Am. Compl.
[#43] ¶ 69.
To assert a municipal liability claim against Defendants Schrader, City of Golden,
and City of Arvada, Plaintiff must allege that: (1) his constitutional rights were violated;
and (2) a municipal policy or custom was the moving force behind the constitutional
deprivation(s). Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). These three
Defendants argue that Plaintiff fails to adequately allege the second element of this claim
against them. 	As explained below, the Court finds that Plaintiff has failed to provide
specific allegations demonstrating the existence of a custom or policy to support the
second element of his claim. See, e.g., Carbajal v. St. Anthony Cent. Hosp., No. 12-cv-
02257-REB-KLM, 2013 WL 4799654, at *3 (D. Colo. Sept. 6, 2013).
Plaintiff lists the following purported “policies, practices, customs and training of
Jefferson County Regional SWAT”:
a. 	Abusively 	serving 	unnecessary 	no-knock 	warrants 	to 	retaliate
against people disliked by officers, including retaliation based on First-
Amendment protected activities such as a motorcycle club membership.
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b. 	Treating “no knock” and “immediate entry” search warrants as
unrestrained by Fourth-Amendment standards of reasonableness, and
allowing for the wanton and unnecessary detonation of explosives and
destruction of property, along with other tactics, including the unnecessary
use of firearms, that have the high likelihood of terrifying and causing
serious injury to members of the public.
c. 	Equipping SWAT members with military equipment far exceeding
what would be necessary to serve search warrants and encouraging the
use of that equipment unnecessarily.
d. 	Failing to equip SWAT members with body-worn video cameras so
that their activities can be adequately supervised and monitored.
e. 	Allowing “breaching shotguns” to be used without adequate training
and without appropriate limitations on their use, with deliberate indifference
to the precautions necessary to prevent injuries to members of the public
such as Plaintiff.
f. 	Failing to adequately train, supervise, and control officers in uses of
force, constitutional limitations on the execution of search warrants, and the
unnecessary destruction of property.
g. 	Failing to set up systems to prevent abuse by officers including the
failure to properly investigate timely and, when appropriate, disciplin[ary]
uses of force.
h. 	Failing to terminate or otherwise discipline officers who abuse their
authority.
i. 	Failing to arrest officers who commit crimes during SWAT operations
and referring them for prosecution.
j. 	Condoning and encouraging officers in the belief that they can violate
the rights of persons such as Plaintiff with impunity, knowing that their
conduct will not adversely affect their opportunities for retention, promotion,
and other employment benefits.
Am. Compl. [#43] ¶ 71.
In the absence of an official policy, municipal liability claims may only survive if the
challenged practice is “so permanent and well settled as to constitute a ‘custom or usage’
with the force of law.” 	Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996)
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(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970)). 	To prove a custom,
therefore, 	a 	plaintiff 	must 	allege 	“[t]he 	existence 	of 	a 	continuing, 	persistent 	and
widespread practice of unconstitutional misconduct.” Gates v. Unified Sch. Dist. No. 449
of Leavenworth Cnty., Kan., 996 F.2d 1035, 1041 (10th Cir. 1993). 	A single incident of
unconstitutional conduct is insufficient to plausibly suggest the existence of a custom or
widespread practice. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985);
Starrett v. Wadley, 876 F.2d 808, 820 (10th Cir.1989); Murphy v. Bitsoih, 320 F. Supp. 2d
1174, 1196-97 (D.N.M. 2004); see Andersen v. City of Colorado Springs, No. 20-cv-
02032-RBJ, 2022 WL 910952, at *7 (D. Colo. Mar. 29, 2022) (“The complaint describes
a single case of excessive force by the Teller County Sheriff’s department. This does not
establish a . . . custom.” (internal citation omitted)).
Here, because the Amended Complaint [#43] does not provide non-conclusory
allegations suggesting that anyone other than Plaintiff himself was ever subjected to the
alleged unconstitutional actions by Defendants, Plaintiff has not sufficiently asserted a
viable claim based on the existence of a custom or practice. See, e.g., Johnson v. Pelle,
No. 19-cv-02830-RM-KLM, 2020 WL 6119529, at *11 (D. Colo. Aug. 24, 2020); Andersen,
2022 WL 910952, at *7 (“Plaintiff’s claim sufficiently alleged a Colorado Springs policy of
permitting or encouraging unlawful arrests by describing eight other instances of unlawful
arrests.”); see also Mullins v. Colorado Springs, __ F. Supp. 3d __,__, No. 21-cv-00589-
WJM-KMT, 2021 WL 5919201, at *11 (D. Colo. Dec. 15, 2021) (stating in connection with
a failure-to-train theory that the plaintiff “has failed to allege a pattern of other, similar
constitutional violations” and in connection with an informal custom theory that the plaintiff
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“does not allege any other instance of this kind of constitutional violation having occurred
at any other time”).
In the absence of an adequately alleged custom or practice, Plaintiff must allege
the existence of an official policy. 	See Tuttle, 471 U.S. at 823-24 (“Proof of a single
incident 	of 	unconstitutional 	activity 	is 	not 	sufficient 	to 	impose 	liability 	[against 	a
municipality], unless proof of the incident includes proof that it was caused by an existing,
unconstitutional 	municipal 	policy, 	which 	policy 	can 	be 	attributed 	to 	a 	municipal
policymaker.”). “In order to warrant liability, a municipal policy must be a policy statement,
ordinance, 	regulation, 	or 	decision 	officially 	adopted 	and 	promulgated 	by 	[the
municipality’s] officers.” 	Lankford, 73 F.3d at 286 (citation and internal quotation marks
omitted). 	Here, Plaintiff has not alleged any specific such policy statement, ordinance,
regulation, or decision adopted or promulgated by Defendant Schrader, the City of
Golden, and/or the City of Arvada regarding the circumstances presented here. In other
words, Plaintiff has not alleged any facts (as opposed to mere conclusions) to plausibly
suggest that an official with final policymaking authority over this particular area of
concern adopted or promulgated such a policy. See Moss v. Kopp, 559 F.3d 1155, 1169
(10th Cir. 2009); Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Even if Plaintiff had
so 	alleged, 	he 	still 	must 	provide 	further 	allegations 	“that 	the 	City 	intended 	the
unconstitutional conduct to happen or was deliberately indifferent to the possibility that
unconstitutional conduction would result from the policies.” 	Mullins, 2021 WL 5919201,
at *12 (citing Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996)). Therefore, the Court
finds that Plaintiff fails to sufficiently allege the second prong of the municipal liability test.
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Accordingly, the Court recommends that the Motions [#49, #50, #51] be granted
to the extent that Plaintiff’s Claim Two (the only claim asserted against Defendants
Shrader, the City of Golden, and the City of Arvada) be dismissed without prejudice.
See Hicks v. Anderson, No. 11-cv-00422-WJM-KMT, 2012 WL 1415338, at *7 (D. Colo.
Jan. 23, 2012); see also Brown, 520 U.S. at 404; Brereton v. Bountiful City Corp., 434
F.3d 1213, 1219 (10th Cir. 2006).
IV. Conclusion
Based upon the foregoing,
IT IS HEREBY RECOMMENDED that the Motions [#49, #50, #51] be GRANTED
in part and DENIED in part. 	The Court recommends that the County Defendants’
Motion [#49] be denied as to the Fourth Amendment search-and-seizure claim against
Defendant Turco and granted in all other respects. 4 	The Court recommends that the
Arvada Defendants’ Motion [#50] be denied as to the Fourth Amendment search-and-
seizure claim against Defendant Clarke and granted in all other respects. 	The Court
recommends that the Golden Defendants’ Motion [#51] be denied as to the Fourth
Amendment search-and-seizure claim against Defendant Donahue and granted in all
other respects.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. 	A party’s failure to serve and file specific, written objections waives de novo
4 	The Court reiterates that the County Defendants have not moved to dismiss Plaintiff’s
Fourth Amendment claims against Defendant Brown, see Motion [#49] at 1, thus those remain in
the case as well.
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review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and
legal questions. 	Makin v. Colo. Dep’t of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). 	A party’s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo
review by the District Court or for appellate review. United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: July 14, 2022
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