1:23-cv-00151•Burnam et al v. Weld County Sheriffs, The et al
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 23-cv-00151-NYW-NRN ERIC BURNAM, ERIN CIENFUEGOS, and MICHELLE ERICKSON, Plaintiffs, v. THE WELD COUNTY SHERIFFS, THE DEPARTMENT OF HUMAN SERVICES OF WELD COUNTY, THE COUNTY ATTORNEYS OFFICE OF WELD COUNTY, ASHLEY HUGHES, ANGELA TIMOTHY-FLEECE, DONOVAN PECORELLA, TRAVIS DENNING, PETE JONES, JARED PATTERSON, DANIEL CHAPMAN, DANIEL TRUJILLO, and LARRY NUEGEBAUER, Defendants. REPORT AND RECOMMENDATION ON PLAINTIFFS’ MOTION FOR LEAVE TO PROCEED WITH AMENDED COMPLAINT PURSUANT TO FED. R. CIV. 15 AND 24 (ECF No. 68) N. Reid Neureiter United States Magistrate Judge This case is before the Court pursuant to an Order, ECF No. 70, issued by Judge Nina Y. Wang referring Plaintiffs Eric Burnam, Erin Cienfuegos, and Michelle Erickson’s (collectively “Plaintiffs”)1 Motion for Leave to Proceed with Amended Complaint 1 Because Plaintiffs proceed pro se, the Court “review[s their] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 1 of 12
2 Pursuant to Fed. R. Civ. P. 15 and 242 (“Motion to Amend”), ECF No. 68. Defendants Weld County Sheriffs, Department of Human Services of Weld County, and County Attorneys Office of Weld County (collectively “County Defendants”), along with Defendants Jared Patterson, Daniel Chapman, Larry Nuegebauer, Travis Denning, Angela Timothy-Fleece, and Ashley Hughes (collectively “Individual Defendants”), filed a response. ECF No. 72. No reply was filed. The Court has taken judicial notice of the docket and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court RECOMMENDS that the Motion to Amend, ECF No. 68, be DENIED. BACKGROUND3 For a detailed recitation of the background of this case, the Court refers the reader to the undersigned’s Report and Recommendation on Motion to Dismiss Plaintiffs’ Complaint and Motion to Quash Alleged Service of Process of, or in attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). 2 Rule 24 of the Federal Rules of Civil Procedure governs intervention and is inapplicable to the matter before the Court. 3 All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document’s internal pagination. Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 2 of 12
3 Alternative to Dismiss, Plaintiffs’ Complaint (“R&R”), ECF No. 46, and Judge Wang’s Order Adopting Magistrate Judge’s Recommendation, ECF No. 56. Briefly, this lawsuit arises from events that occurred in late-2020 and early-2021 that resulted in several searches of Plaintiffs’ property by Weld County law enforcement officers, the confiscation of millions of dollars’ worth of Plaintiffs’ property, and Mr. Burnham’s arrest. See generally ECF No. 1. Judge Wang dismissed Plaintiffs’ Complaint on several grounds. First, she found that “Plaintiffs’ claims, to the extent they are based on the events of December 9, 15, 29, or 30, 2020, or January 15, 2021, except to the extent Plaintiffs assert a malicious prosecution claim,” are untimely and barred by the statute of limitations. ECF No. 56 at 12–14. Next, she determined that even if most of Plaintiffs’ claims were not time-barred, their First, Fifth, Sixth, and Eighth Amendment Claims were still subject to dismissal under Rule 12(b)(6). Id. at 14–18. Judge Wang also dismissed Plaintiffs’ Fourth Amendment Claims for unlawful search and malicious prosecution; the former because the only non-time-barred search (on January 29, 2021) was conducted pursuant to a search warrant, the latter because Mr. Burnam cannot show that the criminal prosecution ended without a conviction as he entered guilty pleas and was convicted of two charges in his criminal case. Id. at 18–25. Finally, Judge Wang ruled that that the Complaint did not plausibly allege Fourteenth Amendment Claims for conspiracy or procedural due process violations. Id. at 25–27. Judge Wang gave Plaintiffs the opportunity to file a motion to amend by April 10, 2024, but reminded them that any pleading must comply with the Local and Federal Rules of Civil Procedure, including Rule 8’s requirement that a complaint “articulate Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 3 of 12
4 clear causes of action which clearly set forth the legal basis for each claim” and “set forth factual allegations supporting each claim.” Id at 29–30 (citations omitted). Plaintiffs filed their first motion to amend on April 12, 2024. ECF No. 58. Judge Wang ordered that the motion be stricken for failing to comply with her prior order and Rule 8. ECF No. 59; see id. at 2 (“The Proposed Amended Complaint is 50 pages long (80 including exhibits) and simply fails to contain a short and plain statement of Plaintiffs’ claims for relief. Any relevant factual allegations are interspersed between large swaths of unintelligible or irrelevant text, which renders it impossible for Defendants to meaningfully respond to Plaintiffs’ factual allegations.”). Plaintiffs’ second attempt to amend, ECF No. 64, was likewise stricken because the proposed pleading was not accompanied by a motion, ECF No. 66. Finally, Plaintiffs filed the subject Motion to Amend. ECF No. 68. Although Plaintiffs were ordered to file both a clean and red-lined copy of the proposed pleading, see ECF No. 56 at 29–30, the “red-lined” form they submitted bears no relationship to the proposed Amended Complaint. Compare ECF Nos. 68-1, with 68-2. Moreover, even a cursory review of the 61-page proposed Amended Complaint indicates that Plaintiffs failed to take to heart Judge Wang’s admonition that “[a] lengthy complaint made ‘unintelligible by scattering and concealing in a morass of irrelevancies the few allegations that matter’ fails to comply with Rule 8.” ECF No. 59 at 2 (quoting Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007)). Thus, the Court would be within its right to strike the motion for a third time. However, given that the County and Individual Defendants have filed a response, the Court will address the merits of the motion. Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 4 of 12
5 LEGAL STANDARD Rule 15(a)(2) of the Federal Rules of Civil Procedure states, in relevant part, that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Leave to amend shall be freely granted when justice so requires. See, e.g., Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). However, the court may exercise its discretion to deny a motion to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. . . . The relevant standard in determining whether claims are futile is the same standard that is applied to a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Dorough v. Am. Fam. Mut. Ins. Co., No. 15-cv-02388-MSK-KMT, 2016 WL 1426968, at *2 (D. Colo. Apr. 11, 2016). Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The court’s function on a Rule 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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted). Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 5 of 12
6 “A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1109. “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679. However, the Court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc. v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 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 the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 6 of 12
7 defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted). In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 F. App’x 691, 693 (10th Cir. 2003). ANALYSIS I. The Statute of Limitations Still Bars Almost All of Plaintiffs’ Claims The Amended Complaint’s 30-page4 “Cause of Action” section explicitly organizes its claims against Defendants by date, and, with one exception, all the dates are in December 2020. As the Court has explained, “the relevant statute of limitations for a [42 U.S.C.] § 1983 claim ‘is that which the State [in which the cause of action arose] provides for personal-injury torts.’” Eden v. Webb, No. 22-3064, 2022 WL 17576354, at *1 (10th Cir. Dec. 12, 2022) (quoting Wallace v. Kato, 549 U.S. 384, 387 (2007)). In Colorado, a plaintiff has two years to bring suit under § 1983. See Colo. Rev. Stat. § 13-80-102; Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“We have made clear that the statute of limitations for § 1983 actions brought in Colorado is two 4 There appears to be a missing page that details the allegations against Defendant Neugebauer. Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 7 of 12
8 years from the time the cause of action accrued.”). Here, Plaintiffs filed suit on January 18, 2023. Thus, all claims that accrued prior to January 18, 2021 are time-barred. II. The Non-Barred Claim The only claim that falls within the applicable statute of limitations period is a First Amendment Claim asserted against Defendant Pecorella for actions that occurred on January 29, 2021.5 See ECF No. 68-1 at 32. This is when law enforcement officers searched Plaintiffs’ property and “located and dug up the deceased fetus” of Plaintiffs Burnam and Cienfuegos. Id. at 9. The Court addressed this claim in its R&R: The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend I. It protects against government regulation of religious belief or conduct and has been applied to the states through the Fourteenth Amendment’s Due Process Clause. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Even giving it the most liberal construction possible, a Free Exercise claim cannot be gleaned from the Complaint. In any event, neither the Complaint nor the response identifies Plaintiffs’ religious beliefs or suggests that the officers who searched the property on January 29, 2021—pursuant to a valid warrant—were aware of Plaintiffs’ religion or motivated by any religious animus. ECF No. 46 at 12. These deficiencies were not cured by the Amended Complaint. It would be futile to permit amendment as to this claim. III. Municipal Liability Claims The R&R recommended that Plaintiffs’ municipal liability claims be dismissed because Plaintiffs “neither plausibly allege a constitutional violation nor identify any municipal policy or custom that was the moving force behind a constitutional deprivation.” ECF No. 46 at 24. Plaintiffs did not object to this portion of the R&R and 5 The Amended Complaint mistakenly identifies the date as “January 29, 2023.” Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 8 of 12
9 Judge Wang dismissed the claims without prejudice under Rule 12(b)(6). ECF No. 56 at 11. Plaintiffs reassert their municipal liability claims against the County Defendants in the Amended Complaint. However, the allegations remain conclusory. “Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978) (footnote omitted). To state a claim for municipal liability, a plaintiff must plausibly allege the existence of a municipal policy or custom and a causal link between the policy or custom and the injury alleged. See Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015). He must also “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013). A municipality can be liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Monell, 436 U.S. at 690– 91. Thus, to prove a municipality is liable under § 1983 for the acts of one of its employees, a plaintiff must show (1) that a municipal employee committed a constitutional violation and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). An official policy or custom may take one of the following forms: (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 9 of 12
10 law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and alteration marks omitted). Whatever species of policy or custom is alleged, [t]he plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997). Plaintiffs’ municipal liability claim is premised on failure to train and supervise. In these instances, the Tenth Circuit has explained, a plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences.” Brown, 520 U.S. at 407. “‘Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action,’” Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at 410) (internal quotation marks and brackets omitted), as “[a] less stringent standard of fault for a failure-to-train claim ‘would result in de facto respondeat superior liability on municipalities,’” id. at 62 (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)). “The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). “In most instances, notice can be established by proving the existence of a pattern of tortious conduct.” Id. Deliberate indifference “may be found absent a pattern of unconstitutional behavior” only in “a ‘narrow range of circumstances’” where “a violation of federal rights is a ‘highly predictable’ or ‘plainly obvious’ consequence of a municipality’s action or inaction.” Id. at 1307–08 (quoting Brown, 520 U.S. at 409). Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019). Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 10 of 12
11 Plaintiffs’ allegations are entirely conclusory and vague. A party asserting a Monell claim must, at a minimum, plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation. In other words, [t]he plaintiff cannot simply allege that there is a policy in place, but, rather, must plead facts that, if true, would give rise to a plausible inference that such a policy exists. With formal or written policies, satisfying this pleading standard is easy; the plaintiff can simply allege what the policy is and where it is codified. With informal, unwritten policies, customs, or practices, the plaintiff can plead either a pattern of multiple similar instances of misconduct—no set number is required, and the more unique the misconduct is, and the more similar the incidents are to one another, the smaller the required number will be to render the alleged policy plausible— or use other evidence, such as a police officers’ statements attesting to the policy’s existence. The Tenth Circuit has not explicitly held that to be pleading requirements, but they have implied that district courts should analyze policies, practices, or customs under Monell as “legal conclusions” at the pleading stage—must evidence factual support, rather than conclusorily alleged—and not “facts” in and of themselves, to be taken as true at face value. Abila v. Funk, No. CV 14-1002 JB/SMV, 2016 WL 9021834, at *17 (D.N.M. Dec. 14, 2016). Plaintiffs’ allegations are insufficient to meet this stringent standard. Accordingly, their municipal liability claims would not survive a Rule 12(b)(6) challenge and amendment should not be permitted. CONCLUSION WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that Plaintiffs’ Motion for Leave to Proceed with Amended Complaint Pursuant to Fed. R. Civ. P. 15 and 24, ECF No. 68, be DENIED. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 11 of 12
12 Judge assigned to the case. A party may respond to another party’s objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party’s failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). BY THE COURT Date: January 2, 2025 ______ Denver, Colorado N. Reid Neureiter United States Magistrate Judge Case No. 1:23-cv-00151-NYW-NRN Document 73 filed 01/02/25 USDC Colorado pg 12 of 12
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