Sloan v. Ambrose et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00992-CNS-KAS
JOHN H. SLOAN,
Plaintiff,
v.
SAMUEL P. AMBROSE,
KIARRA C. JENKINS,
ALFONSO K. CARRERA, and
THE CITY AND COUNTY OF DENVER,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Third Amended Complaint [#22]1 (the “Motion”). Plaintiff, who proceeds as a pro se
litigant,2 filed a Response [#27] in opposition to the Motion [#22], and Defendants filed a
Reply 	[#30]. 	The 	Motion 	[#22] 	has 	been 	referred 	to 	the 	undersigned 	for 	a
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and
D.C.COLO.LCivR 72.1(c)(3). See [#23]. The Court has reviewed the briefs, the entire
1 “[#22]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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case file, and the applicable law. For the reasons stated below, the Court RECOMMENDS
that the Motion [#22] be GRANTED.
I. Background3
According to the Third Amended Complaint [#13, #13-1] (which is formally titled as
“Second Amended Complaint”), Plaintiff was arrested on February 7, 2022, at the
northeast corner of Fitzsimmons Parkway and East 17th Place in Aurora, Colorado. See
[#13] at 4. Just before his arrest, the vehicle in which he was a passenger was stopped
by the Denver Police Department (“DPD”) because it had been reported as stolen. Id.
After the driver was ordered to vacate the vehicle and taken into custody, Plaintiff was
ordered out and handcuffed behind his back. Id. He was then taken by Defendant Alfonso
Carrera (“Carrera”), one of the police officers, to a spot near the DPD vehicle, where
Defendant Carrera asked Plaintiff a question and then searched him “in the guise of a
pat-down for weapons.” Id.
Plaintiff was then placed under arrest by Defendant Carrera and put in the back
seat of the DPD vehicle. See [#13-1] at 1. During the trip to the police station, Plaintiff told
the driver that he wanted to speak with the officer who had been in charge at the scene
of his arrest. Id. Shortly after arriving at the station, Defendant Kiarra Jenkins (“Jenkins”),
3 For the purposes of resolving the Motion [#22], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in Plaintiff’s Third Amended Complaint [#13, #13-1]. 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)). To the extent that Plaintiff may provide additional allegations
or possible new claims in his briefs, the Court notes that a party may not amend his complaint in
motion briefing. See, e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F. Supp. 3d 1112,
1127 (D. Kan. 2021) (stating that “a party may not amend its complaint by way of arguments in a
brief”); Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL 5815915, at *5 (D. Colo. Sept.
30, 2020) (stating that it is “well established that Plaintiff may not amend his Complaint by adding
factual allegations in response to Defendants’ Motion to Dismiss”).
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a DPD corporal, approached the vehicle and asked Plaintiff what he wanted. Id. Plaintiff
made a complaint to her about Defendant Carrera’s conduct during the arrest. Id.
Defendant Jenkins asked no questions, acted disinterested, and walked away from the
vehicle, purportedly taking no action on Plaintiff’s complaint. Id.
Defendant Samuel Ambrose (“Ambrose”), another police officer who did not
witness the arrest, used Defendant Carrera’s account of the arrest to complete a probable
cause statement for Plaintiff’s warrantless arrest. Id. A judge later found probable cause
for the arrest, based on that statement. Id. at 1-2.
On August 9, 2022, Plaintiff, through his attorney, filed a motion to suppress
evidence based on Defendant Carrera’s search of Plaintiff. Id. at 3. On September 6,
2022, prior to a hearing on the suppression motion, the government moved to dismiss all
charges against Plaintiff, which the court granted. Id.
As a result of these allegations, Plaintiff asserts various constitutional claims
against Defendants for unreasonable search, unreasonable seizure, supervisory liability,
and Monell liability. See id. at 1-2; [#13] at 4. Plaintiff seeks monetary and injunctive relief.
Id. at 5. In the present Motion [#22], Defendants seek dismissal of all claims pursuant to
Fed. R. Civ. P. 12(b)(6).
II. Legal Standard
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “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). “A
complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’”
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Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir.
2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the
complaint includes ‘well-pleaded allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.’” Carraway v.
State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do”; “[n]or does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint
alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton
v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
III. Analysis
A. 	Statute of Limitations
Defendants argue that Plaintiff’s claims are barred by the statute of limitations.
Motion [#22] at 5-6. In Colorado, a two-year limitations period applies to § 1983 claims.
See McDonald v. Citibank N.A., No. 21-1313, 2022 WL 16557957, at *1 n.2 (10th Cir.
Nov. 1, 2022) (“Because there is no federal statute of limitations for § 1983 and § 1985
actions, Colorado’s two-year residual statute of limitations for personal-injury claims
applies to those claims.”); Braxton v. Zavaras, 614 F.3d 1156, 1159-60 (10th Cir. 2010)
(stating that the statute of limitations for § 1983 actions brought in Colorado is two years
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from the time the cause of action accrued). “A civil rights action accrues when the plaintiff
knows or has reason to know of the injury which is the basis of the action.” Smith v. City
of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998).
Plaintiff’s initial Complaint [#1] was filed on April 12, 2024, and most of the relevant
events described in the Third Amended Complaint [#13, #13-1] occurred on or about
February 7, 2022, approximately two years and two months prior to the filing of this
lawsuit. See [#13] at 4. Plaintiff argues that his claims are not barred by the statute of
limitations because “[i]t was not until he was able to review the documents, contained in
an archive file, received from the District Attorney’s office, in response to his motion for
discovery, dated Apr. 12, 2022, which was received on or after Apr. 13, 2022, did the
Plaintiff learn, after reading [Defendant] Jenkins’ report, . . . the fact, that he was detained
at the time of [Defendant] Carrera’s search of his person.” Response [#27] at 5. At this
same time, Plaintiff was able to review Defendant Ambrose’s Statement of Probable
Cause. Id. at 5-6. Later, on or about August 16, 2022, Plaintiff was able to review bodycam
footage from Defendant Carrera, which was allegedly “very different” from those events
detailed in Defendant Ambrose’s Statement of Probable Cause. Id. at 6. Plaintiff states
that, sometime later, he downloaded a copy of DPD’s policies and procedures and
learned that they were not followed in connection with this arrest. Id. Based on these
assertions, Plaintiff states that he knew by August 16, 2022, at the earliest, of the facts
underlying his claims, and therefore all of his claims are timely. Id.
In determining whether the statute of limitations bars a litigant’s claims, the Court
is limited to examining the four corners of the complaint, except under circumstances not
relevant here. See Matthews v. Wiley, 744 F. Supp. 2d 1159, 1169 (D. Colo. 2010) (citing
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Doe v. U.S. Dep’t of Just., 753 F.2d 1092, 1116 (D.C. Cir. 1985), for the proposition that
“a defense based on the statute of limitations is an affirmative defense that cannot
succeed on a Rule 12(b)(6) motion unless it is unequivocally apparent from the face of
the complaint that the statute precludes the action”). However, even if the Court were to
consider Plaintiff’s assertions, the Court still finds that most of Plaintiff’s claims are time-
barred. Plaintiff’s assertions that he did not know whether he was formally seized,
searched, or arrested on February 7, 2022, are incredulous, at best. As noted, the statute
of limitations begins to run when a litigant “knows or has reason to know of the injury
which is the basis of the action.” Smith, 149 F.3d at 1154. In other words, even assuming
that Plaintiff did not understand on or around February 7, 2022, whether any of his
potential causes of action contained all the requisite elements to constitute viable legal
claims, he generally knew or had reason to know of most of his injuries underlying this
suit as of or around that date.
Plaintiff’s first claim is titled “Unreasonable Search” and concerns Defendant
Carrera’s search of Plaintiff’s person on February 7, 2022. Third Am. Compl. [#13] at 4,
[#13-1] at 1. The Court finds that Plaintiff knew or had reason to know of the injury which
is the basis of this claim as of that date. Thus, this first claim is barred by the statute of
limitations.
Plaintiff’s second claim is titled “Unreasonable Seizure of a Person” and concerns
Defendant Carrera’s arrest of Plaintiff on February 7, 2022. Third Am. Compl. [#13-1] at
1. The Court finds that Plaintiff knew or had reason to know of the injury which is the basis
of this claim as of that date. Thus, this second claim is barred by the statute of limitations.
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Plaintiff’s third claim is titled “Supervisor – Unreasonable Seizure of a Person” and
concerns Defendant Jenkins’ failure to act on Plaintiff’s complaint on February 7, 2022,
about Defendant Carrera’s conduct, “making [Defendant] Jenkins’ inaction the impetus
leading to [Plaintiff’s] injuries,” i.e., Plaintiff’s continued arrest. Id. The Court finds that
Plaintiff knew or had reason to know of the injury, which is the basis of this claim as of
February 7, 2022, or, at the very most, within a few days of that date. In either event, the
statute of limitations began to run long before April 12, 2022, i.e., two years before this
action was filed. Thus, this third claim is barred by the statute of limitations.
Plaintiff’s fourth claim is titled “Unreasonable Seizure of a Person – Judicial
Deception” and concerns Defendant Carrera’s alleged false account of Plaintiff’s search
and seizure given to Defendant Ambrose, who allegedly did not verify Defendant
Carrera’s account before using it to complete a statement of probable cause for the
search and seizure before submitting it to a judicial officer, who found that probable cause
existed. Id. at 1-2. Although these events occurred well before April 12, 2022, it is not
clear from the face of the Third Amended Complaint [#13, #13-1] when Plaintiff would
have known or had reason to know of this injury. In other words, there are no allegations
in the Third Amended Complaint regarding when Plaintiff first had the opportunity to learn
about the contents of the allegedly falsified probable cause statement. Thus, this fourth
claim is not, based on the information before the Court at this time, barred by the statute
of limitations.
Plaintiff’s fifth claim is titled “Local Governing Body’s Unlawful Custom” and
concerns Defendant City and County of Denver’s customs allegedly allowing Defendants
Ambrose and Carrera to submit materially false statements of probable cause. Id. at 2.
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Because this claim is based on the fourth claim, the Court finds that it is not, based on
the information before the Court at this time, barred by the statute of limitations.
Plaintiff’s sixth and final claim is titled “Local Governing Body’s Policy That Fails to
Prevent Violations of Law” and concerns Defendant City and County of Denver’s policies
which allegedly allowed Defendants Carrera, Jenkins, and Ambrose to violate the law. To
the extent this claim is based on the first, second, and third claims, all of which are barred
by the statute of limitations, this claim is also barred. See Buchanan v. Turn Key Health
Clinics, LLC, No. 22-7029, 2023 WL 6997404, at *7 (10th Cir. Oct. 24, 2023) (“Municipal
liability requires an underlying constitutional violation.”). To the extent this claim is based
on the fourth claim, which the Court found is not barred by the statute of limitations at this
time, the Court finds that this claim is not, based on the current information before the
Court, barred by the statute of limitations.
Accordingly, the Court recommends that Plaintiff’s first claim (“Unreasonable
Search”), second claim (“Unreasonable Seizure of a Person”), third claim (“Supervisor –
Unreasonable Seizure of a Person”), and sixth claim (“Local Governing Body’s Policy
That Fails to Prevent Violations of Law”), to the extent premised on the first three claims,
be dismissed with prejudice as barred by the statute of limitations. See, e.g., McGowan
v. Wal-Mart Stores, 757 F. App'x 786, 788 n.3 (10th Cir. 2019) (“A dismissal based on
timeliness would ordinarily be with prejudice.”); Gee v. Pacheco, 627 F.3d 1178, 1181
(10th Cir. 2010) (affirming dismissal with prejudice of claims barred by the statute of
limitations).
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B. 	Claim Four: “Unreasonable Seizure of a Person – Judicial Deception”
As stated, Plaintiff’s fourth claim concerns Defendant Carrera’s alleged false
account of Plaintiff’s search and seizure to Defendant Ambrose, who allegedly did not
verify Defendant Carrera’s account before using it to complete a statement of probable
cause. Third Am. Compl. [#13-1] at 1-2. More specifically, Plaintiff alleges that Defendant
Carrera, when he arrived at the police headquarters, “intentionally gave [Defendant]
Ambrose a materially false account, of his search and seizure of [Plaintiff’s] person,
containing misrepresentations and omissions.” Id. at 1. Plaintiff alleges that Defendant
Ambrose “did not witness, nor have any first-hand knowledge of [Defendant] Carrera’s
search and seizure of [Plaintiff’s] person,” and yet he “did not verify [Defendant] Carrera’s
account” before using the account “to complete a statement of probable cause, for the
warrantless arrest of [Plaintiff], which [Defendant Ambrose] then swore was true and
correct” before submitting the statement to a judicial officer. Id. at 1-2.
In general, knowingly supplying false statements in support of a probable cause
statement submitted to a court is a violation of the Fourth Amendment. See generally
United States v. Moss, No. 22-3101, 2024 WL 4541738, at *1-2 (10th Cir. Oct. 22, 2024)
(discussing the Fourth Amendment and false statements made in support of probable
cause in warrant affidavits). However, the Court is aware of no legal authority, and Plaintiff
cites none, stating that an officer cannot rely on another officer’s word when drafting a
probable cause statement for the court, particularly where there are no allegations
showing that Defendant Ambrose should have had reason to doubt Defendant Carrera’s
version of events. Regardless, even assuming that the law broadly supports these types
of asserted constitutional violations, the Court cannot find that Plaintiff has adequately
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alleged such violations here. “A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do”; “[n]or does a complaint suffice
if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at
678 (internal quotation marks omitted). Plaintiff has provided no specifics regarding what
was untrue in the probable cause statement, i.e., what Defendant Carrera allegedly lied
about and what Defendant Ambrose allegedly relied on in support of the statement.
Merely stating “he lied” is insufficient to demonstrate that either Defendant committed a
constitutional violation here.
Accordingly, the Court recommends that Plaintiff’s fourth claim (“Unreasonable
Seizure of a Person – Judicial Deception”) be dismissed without prejudice. See
Reynoldson v. Schillinger, 907 F.2d 124, 126 (10th Cir. 1990) (explaining that, if “it is at
all possible that the party against whom the dismissal is directed can correct the defect in
the pleading or state a claim for relief,” particularly when the litigant is pro se, a court
dismisses without prejudice so that the plaintiff can seek leave to amend).
C. 	Claims Five and Six: Customs and Policies
Plaintiff’s fifth and sixth claims both concern the customs and policies of Defendant
City and County of Denver, and thus Plaintiff is asserting municipal liability claims here.
A municipality “is a ‘person’ subject to § 1983 liability.” McDonald v. Wise, 769 F.3d
1202, 1215 (10th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978)). As noted above, “[m]unicipal liability requires an underlying constitutional
violation.” Buchanan, 2023 WL 6997404, at *7. “A core principle of Monell liability is that
municipal entities are liable for only their own actions and not vicariously liable for the
actions of their employees.” Crowson v. Washington County, 983 F.3d 1166, 1191 (10th
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Cir. 2020). However, “[b]ecause municipalities act through officers, ordinarily there will be
a municipal violation only where an individual officer commits a constitutional violation.”
Id. In addition to the requirement that there be a constitutional violation, a plaintiff must
satisfy three other elements to succeed on a municipal liability claim: “(1) an official policy
or custom, (2) causation, and (3) deliberate indifference.” Lucas v. Turn Key Health
Clinics, LLC, 58 F.4th 1127, 1145 (10th Cir. 2023).
Here, Plaintiff’s claims against Defendant City and County of Denver are all directly
premised on the actions of its employees, Defendants Carrera, Jenkins, and Ambrose.
Because, for the reasons explained above, Plaintiff has failed to state a claim for a
constitutional violation against any of these officers, he fails to meet the first element of a
municipal liability claim, i.e., that there be an underlying constitutional violation.
Accordingly, the Court recommends that Plaintiff’s fifth claim (“Local Governing
Body’s Unlawful Custom”) and sixth claim (“Local Governing Body’s Policy That Fails to
Prevent Violations of Law”), to the extent premised on the fourth claim (“Unreasonable
Seizure of a Person – Judicial Deception”), be dismissed without prejudice. See
Reynoldson, 907 F.2d at 126.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#22] be GRANTED, and that
Plaintiff’s claims be DISMISSED with prejudice in part and without prejudice in part,
as outlined above.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
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“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
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. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: February 27, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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