Evans v. Shellabarger

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-01010-PAB-MEH
WANDA Y. EVANS,
Plaintiff,
v.
CONNOR SHELLABARGER, City of Aurora Officer, in his individual capacity,
Defendant.
ORDER
This matter comes before the Court on the Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(6) on Qualified Immunity Ground [Docket No. 16]. Plaintiff filed a
response, Docket No. 22, and defendant filed a reply. Docket No. 23. This Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND 1
On April 4, 2022, at approximately 1:45 p.m., plaintiff Wanda Y. Evans was
driving her car eastbound on E. Alameda Avenue in Arapahoe County, Colorado.
Docket No. 1 at 2, ¶ 5. At the same time, defendant Connor Shellabarger, an officer
with the Aurora Police Department, was driving his police vehicle southbound on S.
Peoria Street in Arapahoe County, Colorado. Id., ¶ 6. As Officer Shellabarger
approached E. Alameda Avenue, there was substantial vehicle traffic with multiple cars
1 The facts below are taken from plaintiff’s complaint, Docket No. 1, and are
presumed to be true, unless otherwise noted, for purposes of ruling on defendant’s
motion to dismiss.
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traveling through the intersection. Id., ¶ 7. The traffic signal at the intersection was red.
Id., ¶ 8. Officer Shellabarger saw the traffic, saw the red light, and ignored both, instead
“reckless [sic] proceeding causing Plaintiff to crash into the rear passenger side of
Defendant’s police vehicle.” Id. at 3, ¶ 9. Officer Brooke Mourey of the Aurora Police
Department investigated the collision and cited Officer Shellabarger for causing it. Id.,
¶ 10. Ms. Evans suffered injuries including a neck strain, contusion of her abdominal
wall, traumatic brain injury, post-traumatic headaches, thoracic strain, lumbar strain with
radiculopathy, and first-degree burns to her arm. Id., ¶ 11.
On April 16, 2024, Ms. Evans filed her complaint with this Court alleging under 42
U.S.C. § 1983 that Officer Shellabarger’s conduct violated her Fourteenth Amendment
rights. Id. at 3-4, ¶¶ 12-18. In his motion to dismiss, Officer Shellabarger invokes
qualified immunity. Docket No. 16 at 1.
II. LEGAL STANDARD
A. 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
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Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
Cir. 1994) (“[W]e are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions.”).
“[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
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).
B. 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
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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.
Okla. 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.
A constitutional right is clearly established if “the contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Surat v. Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022). “Ordinarily,
in order for the law to be clearly established, there must be a Supreme Court or Tenth
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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.” Torres v. Madrid, 60 F.4th
596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th Cir.
2022). The relevant precedent is “considered on point if it involves materially similar
conduct or applies with obvious clarity to the conduct at issue.” Yehia, 38 F.4th at 1294
(emphasis in original); see also Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir.
2022). “To be clear, we do not require plaintiffs to engage in a scavenger hunt for a
prior case with identical facts. We ask whether the existing law provides fair warning to
a defendant.” Shepherd, 55 F.4th at 815 (citations omitted). “When the public official’s
conduct is egregious, even a general precedent would apply with obvious clarity.”
Yehia, 38 F.4th at 1294 (quoting Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th Cir.
2017)); see also Surat, 52 F.4th at 1276 (noting that “there can be the rare obvious
case, where the unlawfulness of the officer’s conduct is sufficiently clear even though
existing precedent does not address similar circumstances”).
III. ANALYSIS
Officer Shellabarger argues that he is entitled to qualified immunity because the
facts in Ms. Evans’ complaint fail to allege a violation of a clearly established
constitutional right. Docket No. 16 at 5-11. Ms. Evans responds that Officer
Shellabarger violated her constitutional rights by acting with conscience-shocking
deliberate indifference when he drove into the intersection, Docket No. 22 at 3-4, and
that the unlawfulness of Officer Shellabarger’s conduct had been clearly established
well before the time of the accident. Id. at 4-8.
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A. Violation of a Constitutional Right
Ms. Evans must allege that Officer Shellabarger’s actions violated a federal
constitutional or statutory right. T.D., 868 F.3d at 1220. Here, Ms. Evans alleges a
violation of her Fourteenth Amendment rights to life, liberty, and personal security.
Docket No. 1 at 3, ¶ 13.
The Due Process Clause of the Fourteenth Amendment has a substantive
component which bars “certain government actions regardless of the fairness of the
procedures used to implement them.” Perez v. Unified Gov't of Wyandotte Cnty., 432
F.3d 1163, 1166 (10th Cir. 2005) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
840 (1998)). “Substantive due process protects individuals against ‘arbitrary action of
government’ that deprives a citizen of life, liberty or property ‘whether the fault lies in a
denial of fundamental procedural fairness. . . or in the exercise of power without any
reasonable justification in the service of a legitimate governmental objective.’” Id. at
1166 (quoting Lewis, 523 U.S. at 845-46).
Suffering serious injuries in a car accident can constitute a substantial
impairment of the fundamental right to life. Browder v. City of Albuquerque, 787 F.3d
1076, 1080 (10th Cir. 2015). Still, the Fourteenth Amendment is not a “font of tort law to
be superimposed upon whatever systems may already be administered by the States.”
Perez, 432 F.3d at 1166 (quoting Lewis, 523 U.S. at 848). Although Ms. Evans may
have alleged a substantial impairment of her fundamental right to life, Docket No. 1 at 3,
¶ 11, she must also allege that this impairment occurred as a result of government
conduct that “shocks the conscience.” Perez, 432 F.3d at 1166 (quoting Lewis, 523
U.S. at 848).
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In the context of an automobile accident involving a government vehicle, the
applicable legal standard for whether the government official’s behavior “shocks the
conscience” turns on whether the official faced a situation “calling for fast action,” where
decisions must be made “in haste, under pressure, and frequently without the luxury of
a second chance.” Id. at 1167. In these situations, liability depends on whether the
official acted with an intent to harm the victim. Id. at 1166-67 (quoting Lewis, 523 U.S.
at 853).
When the official has time to deliberate, however, the question is whether the
official acted with deliberate indifference. Having a few seconds to think is insufficient
on its own to trigger the deliberate indifference standard. Mahdi v. Salt Lake Police
Dep’t, 54 F.4th 1232, 1237 (10th Cir. 2022). Instead, there must be time for unhurried
judgments and repeated reflection, as well as the opportunity for attention without the
substantial “pulls of competing obligations.” Id. In these situations, the deliberate
indifference standard is one of “conscious, deliberate indifference to an extreme risk of
very serious harm to the plaintiff.” Green v. Post, 574 F.3d 1294, 1303 (10th Cir. 2009).
The Tenth Circuit has alternatively described this standard as “conscious contempt of
the lives of others . . . a form of reckless indifference to a fundamental right.” Browder,
787 F.3d at 1081. In Browder, the Tenth Circuit held that, where a police officer speeds
and drives through red lights in a non-emergency situation, a reasonable jury can infer
deliberate indifference to the lives of other motorists. Id.
The Court finds that Ms. Evans has not pled sufficient facts to determine which of
the two standards applies. The complaint lacks any allegations as to whether Officer
Shellabarger was or was not responding to an emergency and whether or not he had
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any time to deliberate. Cf. Browder, 787 F.3d at 1082 (rejecting the defendant police
officer’s assertions he was pursuing a suspect at the time of the crash, since the
complaint had explicitly asserted that the officer was not engaged in any official
business). Even if the Court assumes that the lower of the two standards – deliberate
indifference – applies, Ms. Evans fails to offer any allegations of outrageous or
conscience-shocking behavior by Officer Shellabarger. Ms. Evans offers only the
conclusory allegation of Officer Shellabarger’s “reckless proceeding” causing the
accident. Docket No. 1 at 3. Unlike in Green and Browder, Ms. Evans does not allege
that Officer Shellabarger was speeding, nor does she assert that Officer Shellabarger
engaged in a series of consecutive traffic violations. Therefore, the Court finds that Ms.
Evans has failed to plead sufficient facts to allege a violation of her Fourteenth
Amendment rights. The Court will therefore grant Officer Shellabarger’s motion to
dismiss.
B. Whether the Right Violated was Clearly Established
Even if the Court were to assume there was a constitutional violation, the right
violated must have been clearly established at the time of the defendant’s unlawful
conduct. T.D., 868 F.3d at 1220. “In deciding the clearly established law question this
court employs a sliding scale under which 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.” Browder, 787 F.3d at 1082 (citations and internal
quotations omitted). The court in Browder noted that the Tenth Circuit had first warned
in 1996 that an officer could be liable under the Fourteenth Amendment for speeding at
60 miles per hour on surface streets in a non-emergency scenario. Id. at 1083 (citing
Williams v. City and Cnty. of Denver, 99 F.3d 1009 (10th Cir. 1996), vacated, 140 F.3d
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855 (10th Cir. 1997)). Additionally, the Tenth Circuit established as of 2006 that an
officer could be liable under the Fourteenth Amendment for driving in a manner
exhibiting “a conscience-shocking deliberate indifference” to the lives of others. Id.
(quoting Green, 574 F.3d at 1306.)
Here, the complaint contains no allegations about how fast Officer Shellabarger
was driving or whether he had driven through other red lights. In the absence of
allegations to that effect, the Court finds that Ms. Evans has not alleged that the present
case bears a similarity to any Supreme Court or Tenth Circuit cases where courts have
found a police officer’s driving to constitute deliberate indifference.
C. Leave to Amend Complaint
Ms. Evans requests that, if the Court grants Officer Shellabarger’s motion to
dismiss, she be granted leave to amend her complaint and cure any deficiencies.
Docket No. 22 at 7. “Merely suggesting [s]he should be allowed to amend if the judge
concludes [her] pleadings are deficient is insufficient” for a plaintiff to be entitled to
amend a complaint. Requena v. Roberts, 893 F.3d 1195, 1204 n.3 (10th Cir. 2018)
(internal quotations omitted) (quoting Garman v. Campbell Cnty. Sch. Dist. No. 1, 630
F.3d 977, 986 (10th Cir. 2010)); see also D.C.COLO.LCivR 7.1(d) (a “motion shall be
filed as a separate document”). Ms. Evans must, instead, “file[] a written motion for
leave to amend, giving adequate notice of the basis of the proposed amendment,”
Requena, 893 F.3d at 1204 n.3 (citation omitted), and must attach to her motion a copy
of her proposed amended pleading. D.C.COLO.LCivR 15.1(b). Despite Ms. Evans not
following the proper procedures, the Court will give her an opportunity to file a motion
for leave to amend.
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IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) on
Qualified Immunity Ground [Docket No. 16] is GRANTED. It is further
ORDERED that plaintiff’s Complaint and Jury Demand [Docket No. 1] is
DISMISSED without prejudice. It is further
ORDERED that, on or before April 10, 2025, plaintiff may file a motion to amend
the complaint.
DATED March 20, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
__________________________
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