Eberhardt v. City of Greeley, CO et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-03032-WJM-SBP
RANDY J. EBERHARDT,
Plaintiff,
v.
CITY OF GREELEY, CO., a Municipality,
CHIEF MARK JONES, individually and in his capacity as a Greeley, CO police officer,
OPERATIONS DIVISION DEPUTY CHIEF ADAM TURK, individually and in his capacity as
a Greeley, CO police officer, and
JOHN DOES 1-18, individually and in their capacities as Greeley, CO police officers,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter is before this court on the motion to dismiss filed by Defendants City of
Greeley, Colorado, and Adam Turk. ECF No. 19 (the “Motion to Dismiss” or “Motion”). The
Motion has been referred to the undersigned Magistrate Judge. ECF No. 20. The court has
carefully considered the Motion and related briefing, the entire case file, and the applicable case
law. For the following reasons, the court respectfully RECOMMENDS that the Motion be
GRANTED and the complaint, ECF No. 1 (the “Complaint”), be DISMISSED WITHOUT
PREJUDICE as to Defendants City of Greeley, Colorado, and Adam Turk.
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BACKGROUND
The substance of plaintiff Randy J. Eberhardt’s Complaint consists of three sentences:
Plaintiff was severely injured [] when elements/members of the Greeley Police
Department opened fire on Plaintiff’s residence causing near fatal wounds when
bullets permeated his home while Plaintiff was standing in his living room holding
his cats.
Plaintiff was unassisted for over ten minutes, bleeding out on the floor and required
multiple resuscitations on route to hospital.
Plaintiff was thereafter ruthlessly transferred to Weld County Jail and now faces
retaliatory charges.
Compl. at 4.
Based on these allegations, Mr. Eberhardt sued the City of Greeley, Colorado (the
“City”); Mark Jones, the former Greeley Police Chief; Adam Turk, the Operations Division
Deputy Chief at the Greeley Police Department; and 18 “John Does.”1 Mr. Eberhardt contends
that Defendants violated his Eighth and Fourteenth Amendment rights, which this court
construes as an attempt to raise claims for excessive force and deliberate indifference to his
medical needs pursuant to 42 U.S.C. § 1983. Id. at 3. However, in this context, where Mr.
Eberhardt claims that the excessive force occurred at his residence, apparently in the course of
1 It appears that Mr. Jones has not been properly served. On February 13, 2023, Mr. Eberhardt
filed a return of service on the City. ECF No. 17. He also filed a return of service on a person
named “Dallas Blanco,” as the “Agent for Service, Greeley Police Department” at 2875 W. 10th
St., Greeley, Colorado, 80634.” ECF No. 18. Counsel for the City and Chief Turk states that Mr.
Jones is no longer employed with the City and that the Greeley City Clerk was therefore not
authorized to accept service on his behalf. ECF No. 19 at 2 n.1. Mr. Eberhardt has not requested
an extension of time to serve Mr. Jones or the John Does. See Fed. R. Civ. P. 4(m) (“If a
defendant is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”).
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effectuating an arrest, the Fourth Amendment serves as the basis for that claim. See Graham v.
Connor, 490 U.S. 386, 394 (1989) (“Where, as here, the excessive force claim arises in the
context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment[.]”); see also Dodson v. Bd. of Cty. Comm’rs,
878 F. Supp. 2d 1227, 1242 (D. Colo. 2012) (“The court appropriately disregards the legal labels
applied by a pro se plaintiff when those labels serve to obfuscate the nature of the legal claims
asserted.”) (citing Castro v. United States, 540 U.S. 375, 381 (2003)).
On February 28, 2023, the City and Chief Turk timely moved to dismiss the claims raised
against them. ECF No. 19. In their Motion to Dismiss, they argue that the Complaint fails to
allege facts sufficient to support liability against the City under Monell v. Department of Social
Services, 436 U.S. 658 (1978). Motion at 4-5. They also assert that any claim against Chief Turk
should be dismissed because the Complaint does not allege which officers were actually
involved in the incident, and that “[t]here is no allegation that Chief Turk was engaged in any
active management or oversight of the incident.” Id. at 5. In his response, Mr. Eberhardt
acknowledges that the Complaint is “‘bare bones’ and prepared sparsely as time and
investigation was not available,” and that he was preparing a first amended complaint and
anticipated filing it within the time allowed to respond to the motion. ECF No. 21, Resp. ¶ 1. He
also states that he will provide a further “detailed statement of the case, based on extensive, but
yet incomplete information.” Id. ¶ 3; see also id. ¶¶ 5-6 (referencing “ongoing investigations” by
his counsel in a related criminal case to identify the officers involved in the incident). The City
and Chief Turk filed a reply, ECF No. 22, pointing again to the insufficiency of the allegations to
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state any plausible claim for relief against either of them.2
The case was assigned to District Judge William J. Martínez and Magistrate Judge S.
Kato Crews on January 3, 2023, ECF No. 6, and subsequently reassigned to the undersigned
Magistrate Judge in the referral role on May 2, 2023, ECF No. 26. This court now considers the
Motion pursuant to the Order Referring Case (ECF No. 26) and the Memorandum referring the
Motion to Dismiss (ECF No. 20).
STANDARDS OF REVIEW
I. 	Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a
motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual
allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova
v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
2 After briefing on the Motion to Dismiss was completed, Mr. Eberhardt filed a “Supplemental
Answer” to the Motion, ECF No. 27, which this court struck from the record. ECF No. 29. The
court’s Local Rules allow a motion, response, and reply. D.C.COLO.LCivR 7.1(d). Sur-replies
are an “unusual privilege,” and Mr. Eberhardt did not seek leave to file a sur-reply and gave no
reason why the arguments he wanted to make in his sur-reply “had not been available to [him]
when [he] filed [his] response[.]” S.E.C. v. Harman Wright Grp., LLC, 777 F. App’x 276, 278
(10th Cir. 2019).
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. (internal quotation marks omitted). That is, the complaint must include well-pleaded
facts that, taken as true, “allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
The Twombly/Iqbal pleading standard first requires the court to identify which allegations
“are not entitled to the assumption of truth” because, for example, they state legal conclusions or
merely recite the elements of a claim. Id. at 679. It next requires the court to assume the truth of
the well-pleaded factual allegations “and then determine whether they plausibly give rise to an
entitlement to relief.” Id. In this analysis, courts “disregard conclusory statements and look only
to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). Additionally, “factual allegations that
contradict . . . a properly considered document are not well-pleaded facts that the court must
accept as true.” Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013) (internal citation
omitted). The ultimate duty of the court is to “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).
II. 	Legal Standard for Pleadings of Pro Se Litigants
Mr. Eberhardt is proceeding pro se. The Court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). This rule applies to all proceedings involving pro se litigants.
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Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (citations omitted).
However, Mr. Eberhardt’s pro se status does not vitiate his obligation to adhere to, and
comply with, “the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d
1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992));
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (stating that a pro se litigant must
“comply with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure”). Thus, while the court makes “some allowances” for a pro se plaintiff’s “failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with the pleading requirements,” the court “cannot take on the
responsibility of serving as [his] attorney in constructing arguments and searching the record.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935
F.2d at 1110); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991)
(cautioning that the court may not “construct arguments or theories for the [pro se] plaintiff in
the absence of any discussion of those issues”) (citation omitted).
ANALYSIS
The court finds that Mr. Eberhardt’s allegations are insufficient to state a plausible claim
for relief against either Chief Turk or the City.
I. 	Individual Capacity Claim Against Chief Turk
The court first analyzes Mr. Eberhardt’s attempt to raise a § 1983 claim against Chief
Turk as the “Operations Division Deputy Chief” of the Greeley Police Department. Compl. at 1.
Because Mr. Eberhardt does not allege that Chief Turk was among those “elements/members of
the Greeley Policy Department” physically on scene at the time of the shooting, id. at 4, the court
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construes his § 1983 claim against Chief Turk in his individual capacity as brought under a
theory of supervisory liability. Assuming that Chief Turk supervised the officers who allegedly
shot Mr. Eberhardt, the well-pleaded facts do not plausibly establish that Chief Turk is
personally liable to Mr. Eberhardt.
The court begins by recognizing that the Supreme Court has described the term
“supervisory liability” as “a misnomer,” inasmuch as it may imply respondeat superior (or purely
vicarious) liability. Iqbal, 556 U.S. at 677. Rather, “[b]ecause vicarious liability is inapplicable
to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Id. at 676 (emphasis added). Put
another way, to plausibly state a § 1983 claim against a supervisor, a plaintiff must allege facts
plausibly demonstrating that “the official’s subordinates violated the Constitution [and] the
official by virtue of his own conduct and state of mind did so as well.” A.A. ex rel. Archuletta v.
Martinez, No. 12-cv-00732-WYD-KMT, 2012 WL 5869158, at *11 (D. Colo. 2012) (quoting
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010)) (emphasis in original).
Because mere supervisory status “is insufficient to hold a defendant liable,” Wise v.
Caffey, 72 F.4th 1199, 1210 (10th Cir. 2023), a plaintiff’s pleading “must show an ‘affirmative
link’ between the supervisor and the constitutional violation.” See Schneider v. City of Grand
Junction Police Dep’t., 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195).
This “affirmative link” requires “more than ‘a supervisor’s mere knowledge of his subordinate’s’
conduct,” id. (quoting Iqbal, 556 U.S. at 677), but may be shown by “the [officer’s] ‘personal
participation, his exercise of control or direction, or his failure to supervise.’” Green v. Branson,
108 F.3d 1296, 1302 (10th Cir. 1997).
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The Tenth Circuit has established a three-part test defining a plaintiff’s burden for
demonstrating supervisory liability under § 1983:
A plaintiff may therefore succeed in a § 1983 suit against a defendant-supervisor
by 	demonstrating: 	(1) 	the 	defendant 	promulgated, 	created, 	implemented 	or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.
Dodds, 614 F.3d at 1199-2000 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.
2002)); accord Schneider, 717 F.3d at 767. When measured against these pleading standards,
Mr. Eberhardt’s allegations fall short.
Mr. Eberhardt’s current pleading addresses none of these elements. Indeed, Chief Turk is
not even mentioned—by name or by title—in the substantive allegations of Mr. Eberhardt’s
Complaint. Mr. Eberhardt’s silence confirms his failure to plausibly allege an “affirmative link”
between the alleged constitutional violation and any action by Chief Turk. Therefore, this court
respectfully recommends that the claim against Chief Turk in his individual capacity be
dismissed without prejudice.
II. 	Municipal Liability/Official Capacity Claim
The court next evaluates whether the factual allegations in the Complaint are sufficient to
state a plausible claim of municipal liability against the City and respectfully concludes they are
not.
“Municipal liability is also known as Monell liability, after Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658, 98 [] (1978).” Arnold v. City of Olathe., 35 F.4th 778, 795 n.4
(10th Cir. 2022). “A municipality, however, cannot be held liable under § 1983 based solely on
an employer-employee relationship.” Id. “[M]unicipalities are responsible only for their own
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illegal acts and ‘are not vicariously liable under § 1983 for their employees’ actions.’” Id.
(quoting George v. Beaver Cty., 32 F.4th 1246 (10th Cir. 2022)) (alteration in original).
“In contrast to individual supervisor liability, [the Tenth Circuit has] explained that
nothing in Iqbal changed the ‘longstanding interpretation’ of § 1983’s standards for imposing
municipal liability.” Schneider, 717 F.3d at 769 (quoting Dodds, 614 F.3d at 1202). “To prove
municipal liability under § 1983, the plaintiff must show: (1) a municipality enacted or
maintained a policy, (2) the municipality was deliberately indifferent to the resulting
constitutional violations, and (3) the policy caused the underlying constitutional violation.”
Arnold, 35 F.4th at 795 (citing Schneider, 717 F.3d at 769).3 The court must also find that the
plaintiff has alleged an underlying constitutional violation. See, e.g., Crowson v. Wash. Cty., 983
F.3d 1166, 1191 (10th Cir. 2020) (“[T]here is no question that where the actions of a
municipality’s officers do not rise to the level of a constitutional violation and the claim against
the municipality is based on it serving as the driving force behind those actions, liability cannot
lie.”).
While the court has found that Mr. Eberhardt has not alleged a constitutional violation by
Chief Turk, it assumes for the purposes of evaluating the Monell claim that Mr. Eberhardt has
plausibly alleged that some unidentified police department official may have violated his
constitutional rights. Even so, the Complaint does not set forth facts sufficient to allege the
3 “[A] municipal policy or custom may take the form of a formal regulation or policy; a
widespread, permanent, and well-settled custom; a decision by an employee with final
policymaking authority; a final policymaker’s ratification of both an employee’s unconstitutional
actions and the basis for them; or the deliberately indifferent failure to appropriately hire, train,
supervise, or discipline employees.” Waller v. City and Cty. of Denver, 932 F.3d 1277, 1290
(10th Cir. 2019) (citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).
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existence of a particular custom or policy of the City that Mr. Eberhardt has identified “as being
the moving force behind [his] injury.” See Estate of Alire v. Wihera, No. 21-cv-00774-GPG,
2023 WL 4339677, at * 7 (D. Colo. June 5, 2023); see also Sanchez v. City of Littleton, 491 F.
Supp. 3d 904, 920 (D. Colo. 2020) (in order to allege a municipal liability claim under § 1983, “a
party must allege sufficient facts to demonstrate that it is plausible . . . ‘that a municipal policy or
custom was the moving force behind the constitutional deprivation’”) (quoting Jiron v. City of
Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)). Nor do the well-pleaded facts permit the court to
infer that a policy, wholly unidentified in Mr. Eberhardt’s Complaint, “was enacted or
maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider,
717 F.3d at 769 (citing Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997), and City of
Canton v. Harris, 482 U.S. 378, 389 (1989)) (emphasis added).
Critically, as with the omission of Chief Turk by name, the Complaint does not once
mention the word “policy.” With the lack of “mention of any policies, customs, or training the
[City has] regarding situations similar to the instant case, . . . it is impossible to say whether
Plaintiff[ is] asserting that [the City’s] policies are defectively designed, whether officers are
inadequately trained on how to apply a properly designed policy, or whether the [City fails] in
even having a policy.” See Estate of Alire, 2023 WL 4339677, at *8. These are facts that must be
stated—in a clear, non-conclusory fashion—for Mr. Eberhardt to allege a claim against the City
that is plausible on its face. In the absence of such allegations, the court respectfully recommends
that the claim be dismissed without prejudice.4
4 To the extent Mr. Eberhardt purports to sue Chief Turk in his official capacity, any such claim
should be dismissed. “[A]n official-capacity suit is, in all respects other than name, to be treated
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C. 	Dismissal Without Prejudice
In recommending that Mr. Eberhardt’s claims be dismissed without prejudice, the court
recognizes that the dismissal of a pro se claim for inadequate pleading should ordinarily be
without prejudice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The court further
observes that Mr. Eberhardt has indicated a desire to file an amended complaint. After briefing
on the current Motion to Dismiss was completed, Mr. Eberhardt filed an amended complaint,
ECF No. 23, which this court struck as improperly filed. See ECF No. 28. Any subsequent
complaint, if authorized by Judge Martínez, may not survive a motion to dismiss if it does not
account for the pleading deficiencies identified in this recommendation.
CONCLUSION
For the reasons stated above, it is hereby respectfully RECOMMENDED that the
Motion to Dismiss, ECF No. 19, be granted and that all claims asserted against Defendants City
of Greeley, Colorado, and Adam Turk be DISMISSED WITHOUT PREJUDICE.5
as a suit against the entity. It is not a suit against the official personally, for the real party in
interest is the entity.” Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 819 F. Supp. 2d 1179,
1185 (D. Colo. 2011) (citing Kentucky v. Graham, 473 U.S. at 166) (emphasis in original), aff’d
sub nom. 695 F.3d 1051 (10th Cir. 2012). Here, Mr. Eberhardt has sued the City, which is the
proper party for any official capacity claim. Any official-capacity claim against Chief Turk is
superfluous and should be dismissed “as a matter of judicial economy and efficiency.” See id.
(citation omitted).
5 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
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DATED: August 28, 2023 	BY THE COURT:
Susan Prose
United States Magistrate Judge
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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