Evans v. Shellabarger

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01010-PAB-CYC
WANDA Y. EVANS,
Plaintiff,
v.
CONNOR SHELLABARGER, City of Aurora Officer, in his individual capacity,
Defendant.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
On March 20, 2025, plaintiff Wanda Y. Evans’ claims against defendant Connor
Shellabarger, an Aurora police officer, were dismissed without prejudice. Evans v. Shellabarger,
No. 24-cv-01010-PAB-MEH, 2025 WL 872532, at *4 (D. Colo. Mar. 20, 2025). The plaintiff
now seeks to amend those claims. ECF No. 29. Because the proposed amended complaint would
not survive a motion to dismiss, the Court recommends that the motion be denied.
BACKGROUND
The plaintiff brings a Fourteenth Amendment claim against the defendant under 42
U.S.C. § 1983. ECF No. 1 at 1, ¶¶ 3, 12–18. She alleges that the defendant drove his police
vehicle through a red light and collided with the plaintiff’s vehicle on April 4, 2022, causing her
injuries. Id. ¶¶ 5–11. When considering the defendant’s motion to dismiss, Chief Judge Brimmer
explained that in this context, to allege a Fourteenth Amendment violation sufficiently, the
plaintiff must allege that she was harmed “as a result of government conduct that ‘shocks the
conscience.’” Evans, 2025 WL 872532, at *3 (quoting Perez v. Unified Gov’t of Wyandotte
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 1 of 7

2
Cnty., 432 F.3d 1163, 1166 (10th Cir. 2005)). When a government official is driving an official
vehicle, two standards can apply. Id. Chief Judge Brimmer concluded that the plaintiff “ha[d] not
pled sufficient facts to determine which of the two standards applies” because “[t]he complaint
lack[ed] any allegations as to whether Officer Shellabarger was or was not responding to an
emergency and whether or not he had any time to deliberate.” Id. at 3–4. Chief Judge Brimmer
also explained that even assuming 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.” Id. at 4 (citing ECF No. 1 at 3). As a
result, the plaintiff “failed to plead sufficient facts to allege a violation of her Fourteenth
Amendment rights.” Id.
The proposed amended complaint would add two additional paragraphs of factual
allegations and replace the word “reckless” with “deliberate” in what was paragraph 15 of the
original complaint. ECF No. 29-1 at 3–4. The question before the Court is whether the proposed
additions result in a different outcome.
ANALYSIS
Under Rule 15(a), once twenty-one days have passed following service of a Rule 12
motion, a party may amend its complaint only with leave of the Court or written consent of the
adverse party. Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962). Such
leave is to be “freely given when justice so requires,” Fed. R. Civ. P. 15(a)(2), because ultimately
“the ‘purpose of the Rule is to provide litigants the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.’” Watkins v. Action Care Ambulance,
Inc., No. 07-cv-02598-PAB-BNB, 2010 WL 3834348, at *1 (D. Colo. Sept. 24, 2010) (quoting
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 2 of 7

3
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)). However, a court may refuse
leave “on a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315
(10th Cir. 2005) (quotation marks omitted); see Foman v. Davis, 371 U.S. 178, 182 (1962). The
defendant bears the burden of proving that the amendment should be refused on one of these
bases. Openwater Safety IV, LLC v. Great Lakes Ins. SE, 435 F. Supp. 3d 1142, 1151 (D. Colo.
2020).
The defendant argues that amendment is futile. ECF No. 31 at 2–6. “A proposed
amendment is futile if the complaint, as amended, would be subject to dismissal.” Sanders v.
Anoatubby, 631 F. App’x 618, 621 (10th Cir. 2015) (quotation marks omitted). The standard for
evaluating dismissal for failure to state a claim is oft-repeated and well-known. To survive, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. Plausibility refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). Legal
conclusions are not entitled to the assumption of truth, Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011), and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Ultimately, the
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 3 of 7

4
Court must “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Here, Chief Judge Brimmer already provided the plaintiff with an analysis of the original
complaint and found it lacking. Evans, 2025 WL 872532, at *3–4. As he explained, to state a
Fourteenth Amendment claim, the plaintiff “must allege that this impairment [to her fundamental
right to life] occurred as a result of government conduct that ‘shocks the conscience.’” Id. at *3
(quoting Perez, 432 F.3d at 1166).
As he further explained, depending on the factual scenario, two standards could apply to
the analysis. Evans, 2025 WL 872532, at *4. “When governmental officials face a situation
‘calling for fast action,’ only official conduct done with an intent to harm violates the Fourteenth
Amendment.” Perez, 432 F.3d at 1166 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853
(1998)). This is the intent-to-harm standard. However, “when a government official has enough
time to engage in ‘actual deliberation,’ conduct that shows ‘deliberate indifference’ to a person’s
life or security will shock the conscience and thereby violate the Fourteenth Amendment.” Id.
(quoting Lewis, 523 U.S. at 851). This is the deliberate indifference standard Chief Judge
Brimmer discussed in his analysis of the defendant’s motion to dismiss.
The plaintiff’s proposed amendments make clear that the intent-to-harm standard applies.
They allege that the “[d]efendant was responding to an emergency call,” ECF No. 29-1 ¶ 10, and
the higher standard “applies whenever decisions must be made ‘in haste, under pressure, and
frequently without the luxury of a second chance.’” Perez, 432 F.3d at 1167 (quoting Lewis, 523
U.S. at 853). In short, “a bystander hit by an emergency response vehicle in the process of
responding to an emergency call cannot sustain a claim under the substantive due process clause
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 4 of 7

5
without alleging an intent to harm.” Id. at 1168. This requires allegations that the defendant
intended to harm the plaintiff. Mahdi v. Salt Lake Police Dep’t, 54 F.4th 1232, 1239 (10th Cir.
2022). The proposed amended complaint includes no such factual allegations. As a result, it does
not sufficiently allege a Fourteenth Amendment claim and amendment is futile.
The plaintiff protests. She argues that the deliberate-indifference standard applies. ECF
No. 29 at 2; ECF No. 32 at 2. After all, that standard applies when a government official “has the
opportunity ‘to engage in actual deliberation,’” which “means ‘more than having a few seconds
to think,’” Mahdi, 54 F.4th at 1236–37 (quoting Perez, 432 F.3d at 1166, 1167), and she now
alleges that the defendant “had more than several seconds to contemplate his actions,” “fail[ed]
to account for the traffic in the intersection,” and “failed to ensure eastbound traffic could see
him approaching.” ECF No. 29-1 ¶¶ 10–11.
That attempt to parallel Mahdi’s language does not make the lower standard apply. To
begin, word order matters: to mean “more than having a few seconds to think,” Mahdi, 54 F.4th
at 1237, does not mean “ha[ving] more than several seconds to contemplate his actions.” ECF
No. 29-1 ¶ 10. For the deliberate-indifference standard to apply, the defendant must have had the
“time to make unhurried judgments” and to reflect without “the pulls of competing obligations.”
Lewis, 523 U.S. at 853. Here, by contrast, a police officer is allegedly responding to an
emergency call and is therefore making “decisions ‘in rapidly evolving, fluid, and dangerous
situations which preclude the luxury of calm and reflective deliberation.’” Mahdi, 54 F.4th at
1237 (quoting Perez, 432 F.3d at 1167). As the Tenth Circuit has noted, “[t]here may be police-
chase cases in which the deliberate-indifference standard applies—and we do not rule out the
possibility—but we are aware of none.” Id. Other cases agree. See, e.g., Graves v. Thomas, 450
F.3d 1215, 1221 (10th Cir. 2006) (applying the intent-to-harm standard to pursuit of fleeing
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 5 of 7

6
suspect and teaching that “[a]lthough the conscience-shocking standard is difficult to define and
to pinpoint, the standard is not met by official negligence.” (quotation marks omitted)); Terrell v.
Larson, 396 F.3d 975, 980 (8th Cir. 2005) (“But whether [the government officials] could
reasonably have decided that they were not needed as additional back-up is irrelevant. Under
Lewis, the intent-to-harm culpability standard applies if they believed they were responding to an
emergency call.”). In short, the defendant “was responding to an emergency call,” ECF No. 29-1
¶ 10, not, for example, “speeding after work in his police cruiser for his own personal pleasure.”
Browder v. Casaus, 675 F. App’x 845, 846 (10th Cir. 2017). As a result, this argument fails.
If more were needed, even application of the lower standard would not yield an inference
of conscience-shocking behavior by the defendant. Contrary to the plaintiff’s bare assertion that
factual issues preclude resolution of her claim under that standard, the Tenth Circuit has found
similar conduct not to shock the conscience under the deliberate-indifference standard “as a
matter of law.” Green v. Post, 574 F.3d 1294, 1302–04 (10th Cir. 2009) (considering whether
deliberate indifference standard applied and teaching that police officer “was surely negligent . . .
to speed through a yellow light in response to an official call which, while not an emergency,
nonetheless required a rapid response, we cannot say it was more than that. It does not
demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly
conscience shocking” (quotation marks omitted)).
To sum up, the plaintiff’s amendment invokes the higher of the two standards referenced
in Chief Judge Brimmer’s previous opinion, and there are no factual allegations satisfying that
standard. Nor would the lower standard save her claim. The proposed amendment, then, is futile.
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 6 of 7

7
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Plaintiff Wanda Evans’
Motion for Leave to Amend Complaint, ECF No. 29, be DENIED.1
Respectfully submitted this 3rd day of December, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen days after being served with a copy may bar the aggrieved
party from appealing the factual findings and legal conclusions of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties
must consult and comply with the District Judge’s practice standards for any specific
requirements concerning the filing and briefing of objections.
Case No. 1:24-cv-01010-PAB-CYC Document 33 filed 12/03/25 USDC Colorado
pg 7 of 7