SCOTT T. VARHOLAK, Magistrate Judge.
This matter comes before the Court on Defendants' Motion to Dismiss [#30] ("Defendants' Motion"), Plaintiff's Motion to Strike [#56], and Plaintiff's Motion to Censure [#58]. All three Motions have been referred to this Court. [#37, 57, 59] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, this Court
On July 31, 2016, at approximately 9:00 p.m., a female escort arrived at Plaintiff's residence in Lakewood, after being contacted by Plaintiff through a website known for advertising prostitutes and sex workers. [#14-2 at 1-2] Based upon the advertised price of $220 for one hour of service, Plaintiff had placed $220 in cash on the kitchen counter, which the escort took upon her arrival. [Id. at 2] After thirty minutes of the one-hour service, the escort announced her intent to leave. [Id. at 3] Plaintiff demanded a return of his money, and the escort refused, pushing Plaintiff and exiting the residence. [Id.] Fearing that he was being robbed and that the escort may have a pimp waiting in the parking lot, Plaintiff armed himself with a small handgun. [Id.] When the escort was within a few feet of her vehicle, she turned and confronted Plaintiff with a can of mace. [Id.] Plaintiff raised his arm overhead and fired a round into the air. [Id.] Plaintiff then lowered his arm and took aim at the escort, who fled. [Id. at 3-4] Plaintiff left and went to a restaurant for dinner and drinks. [Id. at 4]
Shortly after the incident occurred, the escort contacted the Lakewood Police Department ("LPD") through a 911 call. [Id.] The escort told LPD that Plaintiff had fired two shots, one in the air and one at the escort. [Id.] According to Plaintiff, the escort lied about the second shot as Plaintiff only fired his weapon once into the air. [Id.] Plaintiff was not aware at the time that the escort had made this call to the police, but he "did anticipate that a neighbor might contact police to report the sound of a gunshot, or might report excessive noise to neighborhood management." [Id.]
LPD officers responded to Plaintiff's residence at 10:13 p.m. [Id. at 5] LPD deliberately parked marked vehicles in a location that could not be observed from Plaintiff's residence. [Id.] Plaintiff returned home from dinner at approximately 11:15 p.m. [Id.] He did not see the police vehicles and was not contacted by the police. [Id.]
At 12:17 a.m. on August 1, 2016, LPD Agent Eric Brennan called Plaintiff's cell phone. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] At 12:20 a.m., Agent Brennan called again. [Id.] Though the caller ID was blocked, Plaintiff nonetheless answered the phone. [Id.] Agent Brennan identified himself as an agent with the LPD and instructed Plaintiff to come outside and talk to the police. [Id.] Plaintiff opened the front door, looked outside, and did not see any LPD officers. [Id.] LPD officers did not call out or announce their presence. [Id. at 6]
At 12:23 a.m., LPD officers made a third phone call to Plaintiff. [Id.] Once again, the caller ID was blocked, and Plaintiff did not answer. [Id.] One minute later, Sergeant Nathan Muller called Plaintiff. [Id.] The Caller ID was blocked, but Plaintiff nonetheless answered the call. [Id.] Sergeant Muller identified himself as a sergeant with the LPD, said that his "friends" were in the backyard of Plaintiff's residence and could see Plaintiff through the window. [Id.] Sergeant Muller told Plaintiff to come outside to talk to the police. [Id.] Sergeant Muller has reported that Plaintiff was upset, unsettled, and paranoid, and that Plaintiff did not believe that the call was from an LPD officer. [Id.]
At 12:30 a.m., LPD officers placed a fifth call to Plaintiff. [Id.] The caller ID was blocked, and Plaintiff did not answer. [Id.] Plaintiff, unarmed, exited his residence into his backyard. [Id. at 6-7] LPD Sergeant Jason Maines radioed that Plaintiff had exited his residence and looked tentative. [Id.] Sergeant Maines has reported that he was waiting for Plaintiff to take additional steps away from the house so that Sergeant Maines could grab him. [Id. at 7] Instead, Plaintiff retreated inside his home. [Id.]
After Plaintiff returned inside his home, Sergeant Muller again called Plaintiff's cell phone. [Id.] Sergeant Muller told Plaintiff that he was with the police and that there were police outside. [Id.] Plaintiff, having not seen the police on his previous trips outside, told Sergeant Muller "you aren't (out) there." [Id.] Sergeant Muller told Plaintiff to come out with nothing in his hands, to which Plaintiff responded, "I have something in my hands." [Id.] In response to Plaintiff's comment, Agent Brennan aired on the radio that Plaintiff was being threatening on the phone. [Id.]
Plaintiff, believing somebody was impersonating a police officer and was luring Plaintiff outside, grabbed a shotgun and once again exited the door leading to the backyard. [Id. at 8] Plaintiff loudly pumped the action of his shotgun, ejecting a shell to the ground. [Id.] Agent Devon Trimmer aired by radio, "Did you hear that gun rack?" [Id.]
At this point, Agent Trimmer and Sergeant Maines hid behind a truck. [Id.] Sergeant Maines eventually moved behind some foliage while Sergeant Muller and Agent Brennan positioned themselves on the west end of Plaintiff's residential building. [Id.] Plaintiff began to walk from the backyard to the front of the building. [Id. at 9] Sergeant Maines radioed, "Alright [Agent Trimmer], he's coming [e]ast, he is walkin' fast, straight towards you." [Id.] Agent Trimmer observed Plaintiff walking through a communal driveway between two apartment buildings, with his weapon pointed downward in the "low ready" condition. [Id. at 10] Agent Trimmer then shot Plaintiff in the leg. [Id.] In the approximately seven minutes between Plaintiff exiting his home and Agent Trimmer shooting Plaintiff, none of the LPD officers announced a warning. [Id. at 8-10]
After being shot, Plaintiff returned fire on Agent Trimmer. [Id. at 10] Plaintiff retreated north and Agent Trimmer fired a second round at Plaintiff, missing Plaintiff. [Id.] Plaintiff again returned fire. [Id.] Agent Trimmer then fired a third shot at Plaintiff, missing him. [Id. at 11] Sergeant Maines, who was hidden behind a bush near one of the apartment buildings, activated a flashlight under the barrel of his handgun and aimed it at Plaintiff. [Id.] Plaintiff, still not realizing any of the individuals were police officers, fired at Sergeant Maines. [Id.]
Plaintiff then retreated to his residence where he called 911. [Id. at 11-12] LPD officers entered the front door, and Plaintiff fired a shot into the ceiling. [Id. at 13] Plaintiff was then taken into custody at 1:00 a.m. [Id.] At the time of the incident, LPD officers did not have in their possession an arrest warrant for Plaintiff. [Id.]
On July 30, 2018, Plaintiff filed the instant action. [#1] Plaintiff's Third Amended Complaint alleges numerous federal and state causes of action. [See generally # 14, 14-1] On December 3, 2018, United States Senior District Judge Lewis T. Babcock issued an Order to Dismiss in Part and to Draw Case. [#17] As a result of Judge Babcock's Order, Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1]
On January 31, 2019, Defendants moved to dismiss all of Plaintiff's remaining claims. [#30] Plaintiff has responded to Defendants' Motion [#50, 54], and Defendants filed a reply [#55]. On April 15, 2019, Plaintiff moved to strike Defendants' reply. [#56] One week later, Plaintiff filed his Motion to Censure, which is nearly identical to the Motion to Strike but seeks sanctions for statements made in Defendants' reply brief. [#58] On May 6, 2019, Defendants filed their response to the Motion to Strike. [#60]
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate for any claim over which the Court lacks subject matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). When reviewing a facial attack on subject matter jurisdiction, the Court "presume[s] all of the allegations contained in the amended complaint to be true." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
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." In deciding a motion under Rule 12(b)(6), a 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 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, 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).
"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) (quoting Twombly, 550 U.S. at 570). 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). "The burden is on the plaintiff to frame a `complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Id. (quoting Twombly, 550 U.S. at 556). The Court's ultimate duty 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).
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant." Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Following Judge Babcock's Order to Dismiss in Part and to Draw Case [#17], Plaintiff's remaining claims include: (1) excessive use of force against Agent Trimmer, (2) failure to prevent excessive force against Sergeant Maines, (3) supervisory liability for excessive force against Chief of Police Dan McCasky, (4) municipal liability for excessive force against the City of Lakewood, (5) denial of due process against all Defendants, and (6) various state law tort claims against all Defendants. [See #54 at 1-2; see generally # 14, 14-1] Defendants have moved to dismiss each of these claims. [#30] The Court addresses each claim below.
Plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by Agent Trimmer, in violation of Plaintiff's Fourth Amendment rights. [#14-1, 54 at 1] "Section 1983 provides a cause of action for `the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law." Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV.
"[C]laims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989). "The reasonableness of the use of force is evaluated under an `objective' inquiry that pays `careful attention to the facts and circumstances of each particular case.'" Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: "[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. "The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure." Mendez, 137 S. Ct. at 1546 (quotation omitted). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396.
In Defendants' Motion, the individual Defendants contend that they are entitled to qualified immunity. [#30 at 7-12] "Qualified immunity `protects government officials 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.'" Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) that the right at issue was "clearly established" at the time of the defendant's alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).
The requirement that the right be clearly established presents a "demanding standard" intended to ensure the protection of "all but the plainly incompetent or those who knowingly violate the law." District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has "not yet decided what precedents—other than [its] own—qualify as controlling authority for purposes of qualified immunity." Wesby, 138 S. Ct. at 591 n.8. The Tenth Circuit, however, has stated that "[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the `clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'" Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has "repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Wesby, 138 S. Ct. at 590 (quotation omitted). "[T]he `specificity' of the rule is especially important in the Fourth Amendment context." Id. (quotation omitted).
Plaintiff claims that Agent Trimmer used excessive force when she shot Plaintiff. [#14-1 at 6] In analyzing Agent Trimmer's use of force, the Court must look to the reasonableness of her actions. As the Tenth Circuit recently explained:
Pauly v. White, 874 F.3d 1197, 1214-15 (10th Cir. 2017), cert. denied, 138 S.Ct. 2650 (2018). Here, weighing the three Graham factors, the Court concludes that Agent Trimmer did not use excessive force and that there was therefore no constitutional violation.
The first Graham factor looks to the severity of the crime at issue. 490 U.S. at 396. Here, the underlying crime being investigated was undoubtedly serious. The escort reported to police that Plaintiff had made illicit sexual contact with her and that he had fired two gunshots, the second one aimed at her.
The second Graham factor asks whether the suspect posed an immediate threat to the safety of the officers or others. 490 U.S. at 396. This factor "is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer's use of force." Pauly, 874 F.3d at 1216 (quotation omitted). Because Agent Trimmer used deadly force,
Id. The Court assesses each factor in turn.
The first Larsen factor asks the Court to consider whether the officers ordered the suspect to drop his weapon and the suspect's compliance with police commands. 511 F.3d at 1260. Plaintiff argues that nearly six minutes elapsed between the time he exited the residence and pumped the action of his shotgun and when Agent Trimmer fired shots at him—plenty of time for the officers to identify themselves and tell Plaintiff to drop his weapon. [#14-2 at 8; #54 at 7] Plaintiff ignores the fact, however, that officers had placed six telephone calls to Plaintiff and several times had identified themselves as police officers. [#14-2 at 5-7] Immediately prior to Plaintiff exiting his residence with the shotgun, Sergeant Muller told Plaintiff to exit the residence without anything in his hands. [Id. at 7] Plaintiff ignored this instruction, told the officers he would have something in his hands, and exited with the shotgun. [Id. at 7-8]
Plaintiff argues that he disobeyed the command, because he had not seen any police cars or officers outside when he had previously exited his residence and thus allegedly did not believe the phone calls were actually coming from LPD officers. [#14-2 at 8] Plaintiff, however, does not allege that he asked the officers on the phone to prove their identity or attempted to call 911 to confirm their identity. Nor does Plaintiff explain why he suddenly would have believed the officers had they announced their identity outside in the dark after he exited the residence. Regardless, the Court must analyze the situation "from the perspective of a reasonable officer on the scene." Estate of Larsen, 511 F.3d at 1260.
Reasonable officers on the scene would have no reason to believe that Plaintiff would yield to their commands on this occasion when he blatantly ignored their earlier command. To the contrary, given that Plaintiff had just directly ignored the command to exit the building without anything in his hands and instead exited with a shotgun, officers may have feared calling out to Plaintiff and thereby identifying their location to the potential shooter. Although the officers did not tell Plaintiff to drop his weapon, Plaintiff's defiance of the officers' earlier order to exit without anything in his hands renders the first Larsen component, at best, neutral to Plaintiff's position.
The second Larsen factor asks whether any hostile motions were made with the weapon towards the officers. 511 F.3d at 1260. Here, the incident occurred in the middle of the night. [#14-2 at 9-10; see also Estate of Larsen, 511 F.3d at 1260 (relying on the events occurring late at night as one factor supporting a conclusion that the officer acted reasonably)] The LPD officers were acting on a report that Plaintiff had earlier shot at an escort. [#14-2 at 4; see also Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009) (relying, in part, on fact that suicidal individual had earlier in the evening threatened his wife as one factor supporting reasonableness of officers' actions)] After the officers arrived on the scene, Plaintiff was observed to be "upset," "unsettled," and "paranoid," and Sergeant Muller reported to the other officers that Plaintiff was "threatening on the phone." [Id. at 6, 7] Plaintiff ignored officers' instructions to come outside with his hands empty, and instead exited armed with a shotgun and then loudly pumped the action of the shotgun, ejecting a live shell onto the ground. [#14-2 at 8] Plaintiff then quickly walked from the backyard to the front side of the building—toward where Agent Trimmer was positioned—with the shotgun in the low-ready position. [Id. at 9-10] A reasonable officer could interpret these actions as hostile. Indeed, it is just this type of "tense, uncertain, and rapidly evolving situation" in which courts "do not like to second-guess [the officers] using the 20/20 hindsight found in the comfort of a judge's chambers." Phillips v. James, 422 F.3d 1075, 1084 (10th Cir. 2005). Accordingly, the Court concludes this second Larsen component favors a finding of reasonableness.
The third Larsen factor looks to the distance separating the officers and the suspect. 511 F.3d at 1260. Here, neither the Third Amended Complaint nor the Affidavit submitted therewith describe the exact distance between Plaintiff and Agent Trimmer when Agent Trimmer fired her weapon. The Affidavit acknowledges, however, that Plaintiff was walking quickly from the backyard to the front side of the building—toward where Agent Trimmer was positioned—with his shotgun in the low-ready position. [#42-2 at 9-10] Given the lack of specific information about distance, this third component is, at best, neutral for Plaintiff's position.
The fourth Larsen factor looks to the manifest intention of the suspect. Here, Plaintiff ignored commands to come out with his hands empty, allegedly because he did not believe that LPD officers were actually the ones outside. [#14-2 at 7-8] Rather than act to confirm the identity of the officers or seek police assistance for the purported threat he believed to await him outside, Plaintiff instead armed himself and exited the residence. [Id.] He then loudly pumped the action of the shotgun, ejecting a live shell onto the ground. [Id. at 8] He was walking quickly around the building with the shotgun in the low-ready position. [Id. at 9-10] A reasonable officer faced with this situation could conclude that Plaintiff was manifesting his intent to harm the officers. Thus, this fourth component supports Agent Trimmer.
After weighing the Larsen factors, and considering the entirety of the situation facing Agent Trimmer based on the information available to Agent Trimmer at the time, the Court concludes that the second Graham factor favors a finding of reasonableness.
The third Graham factor asks whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396. Here, while not entirely clear from the Third Amended Complaint, it may be that the LPD officers did not initially intend to arrest Plaintiff but, instead, only wanted to talk to Plaintiff about the events from earlier that evening. [#14-2 at 7 (stating that police told Plaintiff they wanted him to come outside to talk); id. at 13 (stating that LPD officers did not have in their possession an arrest warrant for Plaintiff)]. Thus, his refusal to come outside may not have been an active resistance to arrest or an attempt to evade arrest by flight. See Pauly, 874 F.3d at 1221-22 (finding that factor favored plaintiffs where officers went to residence after threat to others was over and without probable cause to make an arrest).
Nonetheless, by exiting the residence with a shotgun, and pumping that shotgun, Plaintiff did disobey the command to exit without anything in his hands. Courts in similar circumstances have found such refusals to favor the officer when evaluating the third Graham factor. Dixon v. Ga. Dep't of Pub. Safety, No. 2:14-CV-47, 2018 WL 1863060, at *5 (S.D. Ga. April 18, 2018) (finding third Graham factor supported officer where suspect refused directive to drop gun); Jacobs v. Alam, No. 15-10516, 2017 WL 3616487, at *7 (E.D. Mich. Aug. 23, 2017) (same); Lookabill v. City of Vancouver, No. 13-5461-RJB, 2015 WL 3796352, at *10 (W.D. Wash. June 18, 2015) (finding third Graham factor favored officer where suspect was told to stop and drop the gun, and suspect put gun in pocket and ignored other instructions); Osei v. Brooks, No. 11-CV-01135-PAB-KMT, 2013 WL 1151619, at *9 (D. Colo. Mar. 19, 2013) (finding third Graham factor favored officers where plaintiff "did not attempt to flee . . . [but] disobeyed the orders and commands given by the police officers"). Drawing all reasonable inferences in favor of Plaintiff, given the uncertainty in the Third Amended Complaint regarding the LPD officers' intent with respect to arresting Plaintiff, the third Graham factor slightly favors Plaintiff.
As detailed above, the first and second Graham factors clearly favor Agent Trimmer. While the third factor may slightly favor Plaintiff, it is insufficient to overcome the other two factors. This is especially true given that the second factor, which soundly favors Agent Trimmer, "is undoubtedly the most important . . . factor in determining the reasonableness of an officer's use of force." Pauly, 874 F.3d at 1216 (quotation omitted)
Ultimately, the Court must review Plaintiff's excessive force claims under a standard of objective reasonableness, "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Here, it was the middle of night, and the officers were investigating an allegation that Plaintiff had fired two shots, one of them at an individual. Over the phone, on several occasions, the officers identified themselves. Sergeant Muller asked Plaintiff to come outside with his hands empty. Plaintiff, who appeared upset, unstable and paranoid, instead armed himself with a shotgun. Plaintiff then exited the residence, dispelled a shotgun shell, and began walking quickly with the shotgun in the ready position. Under these circumstances, the Court cannot conclude that Agent Trimmer's decision to discharge her firearm, striking Plaintiff's leg, was unreasonable. Accordingly, the Court respectfully
Plaintiff also brings three claims related to his excessive force claim against Agent Trimmer. These claims include a failure to intervene and prevent excessive force claim against Sergeant Maines, a supervisory liability claim against Chief McCasky, and a municipal liability claim against the City of Lakewood. [See generally #14-1; #54 at 1-2] Plaintiff's failure to intervene and prevent claim against Sergeant Maines fails because it presupposes the use of excessive force by Agent Trimmer,
Plaintiff also brings due process claims against each Defendant. The genesis of Plaintiff's due process claims is not entirely clear, but they appear to be premised on two theories: (1) Plaintiff was denied due process of law because Defendants did not follow LPD policies [#14-1 at 7-8, 11-12, 14-16, 18-19, 20-21], and/or (2) Plaintiff was denied due process during his criminal proceedings because Defendants perjured themselves or withheld evidence [id. at 7, 12, 14-15, 18]. The Court addresses each theory below.
To the extent Plaintiff's due process claims are premised on Defendants' failure to follow LPD policies, that claim fails. Even assuming Defendants' alleged violations of LPD policies could somehow give rise to a due process claim,
To the extent Plaintiff's due process claims are premised on Defendants' alleged perjury or withholding of evidence in Plaintiff's criminal trial, that claim is precluded by Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff attempts to avoid Heck by arguing that he was acquitted of second degree attempted murder against the escort, first degree attempted murder against Agent Trimmer, and first degree attempted murder against Sergeant Maines. [#56 at 3] According to Plaintiff, Heck does not bar his Section 1983 claim insofar as it relates to those acquitted charges. [Id. at 3-4] As part of the same trial, however, Plaintiff was found guilty of numerous other counts, including the lesser included offenses of second degree attempted murder and two counts of assaulting a police officer with a weapon. See Appendix A to this Recommendation (Judgment of Conviction and Disposition Record from Colorado v. St. George, No. 2016CR002509, Jefferson County, Colorado District Court).
Plaintiff also asserts various state tort claims against all Defendants. A district court may decline to exercise supplemental jurisdiction over a claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. 1367(c)(3); see also Gaston v. Ploeger, 297 F. App'x 738, 746 (10th Cir. 2008) (concluding that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over a plaintiff's remaining state-law negligence claims and stating that "we have repeatedly recognized that this is the preferred practice"). Because the Court recommends that all of Plaintiff's federal claims be dismissed, the Court further
Finally, Plaintiff has moved to strike Defendants' reply [#56] and seeks to censure Defendants based upon certain assertions made in Defendants' reply [#58]. Plaintiff contends that the statements in the reply are lacking in factual accuracy and were submitted in bad faith. [#56 at 1; #58 at 1] The Court has reviewed Defendants' reply and does not believe that any sanction is warranted. The facts are largely drawn from Plaintiff's Affidavit submitted with the Third Amended Complaint. Moreover, Plaintiff addressed the perceived inaccuracies and improper arguments in both his Motion to Strike and his Motion to Censure, and the Court has considered Plaintiff's counterarguments. Accordingly, the Motion to Strike and the Motion to Censure are
For the foregoing reasons, the Court
