Opinion
Civil Action 23-cv-01150-SKC-MDB
07-09-2024
LANCE P. SCHENDORF, Plaintiff, v. DANIEL GOMEZ, TOM THWAITS, JP MATZKE, BOAL, Sgt., BERNS, Officer, J. GRIFFIN, D. MORETTI, B. CLARKE, R. VINNOLA, HAMILTON, ATL VOGEL, TL ALEX DIDOMENICO, ANTHONY DANIEL, and NATHANIEL NEIDIG,[1] Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Maritza Dominguez Braswell, United States Magistrate Judge
Before the Court are five motions:
(1) Deputy Hamilton's Motion to Dismiss Amended Complaint, ([“Hamilton's Motion”], Doc. No. 28);
(2) Officers Berns, Griffin, and Vinnola's Motion to Dismiss the Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) & (5), ([“Berns, Griffin, and Vinnola's Motion”], Doc. No. 46);
(3) Officers Moretti, Clarke, and Vogel's Motion to Dismiss the Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(5) & (6) ([“Moretti, Clarke, and Vogel's Motion”], Doc. No. 48);
(4) Defendant Daniel Gomez and Tom Thwaits Motion to Dismiss ([“Gomez and Thwaits' Motion”], Doc. No. 63); and
(5) Officers Alex DiDomenico and Anthony Daniel's Motion to Dismiss the Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) ([“DiDomenico and Daniel's Motion”], Doc. No. 112.)Pro se Plaintiff Lance P. Schendorf has responded. ([“Response to Hamilton's Motion”], Doc. No. 55; [“Response to Berns, Griffin, and Vinnola's Motion”], Doc. No. 77; [“Response to Moretti, Clarke, and Vogel's Motion”], Doc. No. 75; and [“Response to Gomez and Thwaits' Motion”], Doc. No. 104; [“Response to DiDomenico and Daniel's Motion, Doc. No. 129.) All Defendants have replied. ([“Hamilton's Reply”], Doc. No. 82; [“Berns, Griffin, and Vinnola's Reply”], Doc. No. 94; [“Moretti, Clarke, and Vogel's Reply”], Doc. No. 96; [“Gomez and Thwaits' Reply”], Doc. No. 109; and Doc. No. 128 [“DiDomenico and Daniel's Reply”].) Having carefully considered the issues, the Court RECOMMENDS the Motions be GRANTED.
On June 26, 2024, Plaintiff filed an Amended Response to DiDomenico and Daniel's Motion. (Doc. No. 129.) The Amended Response is arguably a surreply. Surreplies are typically not allowed without leave the court, which, in this case, Plaintiff did not seek. However, given Plaintiff's Pro se status and because the changes were minor (correcting typographical errors and formatting)-the Court accepts the Amended Response/Surreply and STRIKES the prior response, (Doc. No. 124.) as MOOT. See Bradshaw v. Nafziger, 2011 WL 863548, at *1 n. 1 (D. Colo. Mar. 10, 2011) (new filing “effectively renders moot” the prior filing).
Defendant Hamilton also filed a previous reply, (Doc. No. 80), but since its content appears identical to and has been superseded by the second Reply, it is STRICKEN as MOOT. See Bradshaw, 2011 WL 863548 at *1 n. 1.
PRO SE SUMMARY
The Court recommends dismissing your Second Amended Complaint. This is because even accepting all of your allegations as true, they are not enough to show Defendants violated your Fourth Amendment rights and Defendants are entitled to qualified immunity. Additionally, your knock-and-announce claim does not include enough facts to survive dismissal. This is only a high-level summary of this Court's decision and does not contain all the relevant information. The full decision is set forth below, along with details about your right to object to this decision.
BACKGROUND
On May 6, 2021, Defendants, acting as members of the North Metro Drug Task Force [“NMDTF”] and the Jefferson County Regional Special Weapons and Tactics Team [“JCRS”], executed a high-risk search warrant of Plaintiff's home. (Doc. No. 89 at 8-10.) This search led to the discovery of ten pounds of methamphetamine and, subsequently, Plaintiff's arrest. (Id.; Doc. No. 46 at 1.) Plaintiff was later convicted in Jefferson County court and sentenced to twenty years. (Doc. No. 46 at 1.)
In his Second Amended Complaint, Plaintiff contends Defendants violated his Fourth Amendment rights during the search and subsequent arrest. (Doc. No. 89 at 7-11.) Specifically, he asserts Defendants: (1) used unreasonable and excessive force during the search; (2) failed to comply with the Fourth Amendment's knock-and-announce requirement; and (3) unreasonably seized him. (Id.)
Initially, Plaintiff also alleged Defendants executed an invalid search warrant. However, he has moved to “voluntarily dismiss” this claim without prejudice, stating it is “Heck-barred.” (Doc. No. 89 at 8.) In Heck v. Humphrey, the Supreme Court established that individuals cannot bring a civil lawsuit for damages under § 1983 if success in the lawsuit would necessarily imply the invalidity of their conviction or sentence, unless the conviction or sentence has been overturned on direct appeal or declared invalid through habeas corpus proceedings. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Here, Plaintiff appealed his conviction, and the case is pending in the Colorado Court of Appeals. (Doc. No. 89 at 8.) In other words-because the search led to Plaintiff's conviction and that conviction has not been overturned-Plaintiff cannot challenge the validity of the search warrant itself but can argue that the manner in which the search was executed was unlawful.
Defendants move to dismiss all claims, arguing as follows:
• Defendant Hamilton (JCRS member): Under Rule 12(b)(6), Plaintiff has failed to allege a colorable constitutional violation or official capacity claim, and in any case, his claims are barred by qualified immunity. (Doc. No. 28 at 4-12.)
• Defendants Berns, Griffin, and Vinnola (JCRS members): Under Rules 12(b)(2) and (5), the Court lacks personal jurisdiction because Defendants have not been properly served. (Doc. No. 46 at 2.)
• Defendants Moretti, Clarke, Vogel (JCRS members): Under Rule 12(b)(5), the Court lacks personal jurisdiction because Defendants were not timely served. (Doc. No. 48 at 2.) Additionally, under Rule 12(b)(6), Plaintiff's unsubstantiated allegations fail to state a claim for relief, and in any case, Defendants are entitled to qualified immunity. (Id. at 7, 12.)
• Defendants Gomez and Thwaits (NMDTF members): Under Rule 12(b)(6), Plaintiff's individual capacity and official capacity claims fail because the Second Amended
Complaint does not provide enough detail about their participation and failure to intervene, and the official capacity claims are overgeneralized. (Doc. No. 63 at 3-9.) Additionally, they allege they are entitled to qualified immunity. (Id. at 7.)
• Defendants DiDomenico and Daniel (JCRS members): Under Rule 15(c), Plaintiff's Second Amended Complaint fails to relate back to his original complaint. (Doc. No. 112 at 3.) Alternatively, under Rule 12(b)(6), Plaintiff fails to state a claim for which relief can be granted, and they are entitled to qualified immunity. (Id. at 6.)
In support of their Motions, Defendants provided the May 2021 search warrant and application for the search warrant (Doc. No. 28-1), an affidavit in support of the warrantless arrest (Doc. No. 28-2), and the May 2021 Arvada Police Department Incident Report, (Doc. No. 46-2). These documents appear central to Plaintiff's Fourth Amendment allegations and have not been challenged as inauthentic. (See, e.g., Doc. No. 89 at 9 (“The Arvada PD Incident Report is sketchy on specifics and describes many actions in the third person[.]”) Therefore, the Court will consider the search warrant, accompanying affidavit, and incident report in its ruling. See Cuervo v. Salazar, 2021 WL 1534607, at *3 (D. Colo. Apr. 19, 2021) (considering similar documents as part of its dismissal order because they were referenced in the complaint, central to the plaintiff's claims, and not challenged as inauthentic).
The Court addresses each argument below.
Defendants Berns, Griffin, Vinnola, Moretti, Clarke, Vogel, DiDomenico, and Daniel also move for dismissal under Rules 12(b)(2), 12(b)(5), and 15(c). (See Doc. No. 46 at 2; Doc. No. 48 at 2; Doc. No. 112 at 3.) However, because the Court recommends dismissal under Rule 12(b)(6), it does not address the legal standards for Rules 12(b)(2), 12(b)(5), or 15(c) at this time.
I. Motion to Dismiss
A. Rule 12(b)(6)-Failure to State a Claim
Rule 12(b)(6) provides that 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 ruling on a Rule 12(b)(6) motion, a court must accept all well-pleaded facts as true and view these allegations in the light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). However, the “burden [remains] on the plaintiff to frame a ‘complaint with enough factual matter to suggest' that [they are] entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). Ultimately, the 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).
III. Pro Se Litigants
In applying the above principles, this Court is mindful Plaintiff proceeds Pro se and thus affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the Court cannot and does not act as his advocate, United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
Defendants move to dismiss on various grounds pursuant to Rules 12(b)(2), (5) and (6) and 15(c). The Court will address the individual capacity claims then the official capacity claims.
I. Individual Capacity Claims
Plaintiff asserts Defendants used unreasonable and excessive force during the search of his home, failed to comply with the Fourth Amendment's knock-and-announce requirement, and unreasonably seized him during the arrest. (Doc. No. 89 at 10.) In response, Defendants assert Plaintiff has failed to state a claim for relief, and that they are entitled to qualified immunity. (Doc. No. 28 at 8; Doc. No. 48 at 12, Doc. No. 63 at 3; Doc. No. 112 at 6.) For the reasons set forth below, the Court finds Defendants are entitled to qualified immunity. Thus, the Court recommends granting Defendants' Motions pursuant to Rule 12(b)(6), and for efficiency, it will not address Defendants' alternative arguments. See Swallow v. Baker, 2008 WL 4905490, at *1 (D. Colo. Nov. 10, 2008) (declining to address Rule 12(b)(2) arguments when dismissing under Rule 12(b)(6)).
Although Defendants Berns, Griffin, and Vinnola do not raise a qualified immunity defense, Plaintiff's claims against them still fail as a matter of law because, as discussed below, Plaintiff has failed to sufficiently allege that Defendants violated a constitutional right. See Forest Guardians, 478 F.3d at 1160; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (a court may dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.) (quotation omitted).
Defendants Berns, Griffin, and Vinnola seek dismissal solely under Rule 12(b)(5). However, in the interest of judicial economy and as permitted by 28 U.S.C. § 1915, the Court recommends granting dismissal under Rule 12(b)(6). See Carter v. El Paso County Sheriff Dept., 2015 WL 3494228, at *1 (D. Colo. June 2, 2015) (“Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that . . . fails to state a claim on which relief may be granted”). (Doc. No. 7 (order granting Plaintiff's Motion to Proceed Pursuant to 28 U.S.C. § 1915).).
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. The “basic purpose of this Amendment” is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 528 (1967).
If a person believes their Fourteenth Amendment rights have been violated, they can file a claim under 42 U.S.C. § 1983. See generally Davis v. City of Aurora, 705 F.Supp.2d 1243, 1262 (D. Colo. 2010). Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of their federal rights. Stanley v. Gallegos, 852 F.3d 1210, 1211 (10th Cir. 2017). However, in certain circumstances qualified immunity protects government officials from liability for civil damages when they are sued in their individual capacities. Wilkins v. City of Tulsa, 33 F.4th 1265, 1272 (10th Cir. 2022).
Under section 1983, officials are entitled to qualified immunity “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 538 U.S. 48, 62-63 (2018) (internal quotation marks omitted); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (if either inquiry fails, no further analysis is needed and qualified immunity is appropriate). Courts have made clear that qualified immunity “represents the norm” in suits against public officials. Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 814 (10th Cir. 2022) (quotation omitted). This means government officials are entitled to qualified immunity in “all but the most exceptional cases.” Sayed v. Broman, 2014 WL 6883253, at *4 (D. Colo. Dec. 5, 2014) (quotation omitted).
When a defendant claims qualified immunity through a Rule 12(b)(6) motion, they face “a more challenging standard of review than would apply on summary judgment.” Hemry v. Ross, 62 F.4th 1248, 1253 (10th Cir. 2023) (quotation omitted). “This is because at [the motion to dismiss] stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.” Id. (quotation and emphasis omitted).
Here, Plaintiff claims his Fourth Amendment rights were violated when Defendants: (1) used unreasonable and excessive force during the search of Plaintiff's home, (2) failed to comply with the Fourth Amendment's knock-and-announce requirement, and (3) unreasonably seized Plaintiff during his arrest. (Doc. No. 89 at 10.) For each alleged act, the Court considers whether Plaintiff has sufficiently alleged a constitutional violation.
A. Search: Unreasonable and Excessive Force
The Fourth Amendment makes clear that the key factor in determining the constitutionality of a government search is “reasonableness.” United States v. Palms, 21 F.4th 689, 700 (10th Cir. 2021). Indeed, government officials' actions must not always be correct, but they must always be reasonable. United States v. Fernandez, 24 F.4th 1321, 1330 (10th Cir. 2022). Therefore, even after obtaining a warrant, officers must conduct a search and seizure in a reasonable manner. Palms, 21 F.4th at 700.
In assessing reasonableness, courts examine the totality of the circumstances. United States v. Muhtorov, 20 F.4th 558, 602 (10th Cir. 2021). This means a Fourth Amendment search “must be reasonable in its scope and manner of execution.” Maryland v. King, 569 U.S. 435, 448 (2013). Courts determine reasonableness by balancing “the promotion of legitimate governmental interests against the degree to which the search intrudes upon an individual's privacy.” Id. (brackets and quotation marks omitted). The reasonableness test ensures that a search and seizure are “both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests.” Muhtorov, 20 F.4th at 602 (quotation omitted).
As to use of excessive force, courts consider factors such as: “the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest.” Santistevan, 983 F.Supp.2d at 1319. (quotation omitted). The “reasonableness” of a particular use of force must be judged “from the perspective of a reasonable officer in the context in which the decision was made,” recognizing that officers “may be forced to make split-second judgments under stressful and dangerous conditions.” Id. (quotation omitted). “[A] plaintiff can maintain a claim for failure to intervene only when some other officer used excessive force.” Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty., Okla., 989 F.3d 1165, 1175 (10th Cir. 2020).
In this case, Plaintiff alleges Defendants Gomez, Thwaits, Berns, Griffin, Moretti, Clarke, Vinnola, Hamilton, Vogel, DiDomenico, and Daniel each “planned, directed, ordered, authorized, or assisted in a raid which constituted unreasonable and excessive force[.]” (Doc. No. 89 at 9.) In support of his claim, Plaintiff alleges the following facts:
• “[A]t several briefings, an operation plan” for the entry of Plaintiff's home “was reviewed in conjunction with Det. Daniel Gomez and other [NMDTF] members as well as [JCRS] defendants.” (Id.)
• “The warrant was defined as ‘high risk[,]'” but there were “no specific or articulable reasons” to explain the high-risk label. (Id.)
• Plaintiff “is a 63 year-old man with no history of violence or resistance or of firearms or other weapons use or possession.” (Id.)
• There “were no allegations of threats, animosity or violence towards law enforcement[,]” “no known associates or roommates with a history of violence[,]” and “the apartment had no security cameras, barricades or fortifications or guard dogs.” (Id.)
• “The operational plan was for a commando-style raid, basically an armed military invasion” and included the “use of substantial and violent force[,]” including “flash grenade explosives to be launched to shatter windows, simultaneous to battering down the front entry door and exploding munitions on the balcony.” (Id.)
• During the search, “SWAT officers wore military-style battle dress uniforms (BDUs) and helmets, were armed with handguns and brandished automatic rifles.” (Id.)
• “A sniper” and a “Bearcat armored vehicle” were deployed. (Id.)
• “There were no firearms/weapons found in the apartment” and “[f]ortunately, no one was shot by the police.” (Id.)
• “All defendants failed to exercise their affirmative duty to intervene to protect Plaintiff's constitutional right[.]” (Id.)
But even accepting all of Plaintiff's allegations as true and drawing all reasonable inferences in his favor, the Court cannot conclude that Defendants' actions were unreasonable- it is evident they served a legitimate governmental interest. See King, 569 U.S. at 448 (courts examine whether the defendants' actions served to promote “legitimate governmental interests”). Although Plaintiff argues there were “no specific or articulable reasons” for labeling the warrant high-risk, (Doc. No. 89 at 9)-Defendants' prior assessments show otherwise and demonstrate there had been a “control purchase of methamphetamines” and a “large quantity of methamphetamines” observed at Plaintiff's property. (Doc. No. 28-2 at 4-5, Ex. 2 (affidavit supporting warrantless arrest.) In accordance with this high-risk label, Defendants employed tactics such as deployment of specialized units and use of flash grenades. (Doc. No. 89 at 9.) While certainly intense, Defendants' approach is tied to a legitimate interest in minimizing the risk of harm to themselves and the public as “execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence[.]” Bailey v. United States, 568 U.S. 186, 194 (2013) (quotation omitted); Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.”).
Second, Defendants conducted the search of Plaintiff's home in accordance with the parameters outlined in the search warrant. The warrant specifically identified Plaintiff's residence and authorized a search of both the residence and personal property “tending to establish the identity of the persons in control of contraband related paraphernalia[,]” including “DNA evidence, rent receipts, mail envelopes, photographs, keys, and U.S. currency[.]” (Doc. No. 28-1 at 1, Ex. 1 (search warrant).) See United States v. Magers, 123 Fed.Appx. 344, 347 (10th Cir. 2005) (“search warrant and its supporting affidavit are presumed valid”). The record indicates, and Plaintiff does not dispute, that Defendants adequately limited their search to his home and personal property. (Doc. No. 89 at 9.) Additionally, Plaintiff's own allegations note that the operation plan for entering the home was reviewed at several briefings. (Id.) This indicates Defendants prepared and planned for the search, rather than conducting a last-minute, haphazard entry, which further supports that the search was conducted in accordance with the warrant.
Third, as it relates to use of force, Plaintiff does not allege he was physically injured during the search, but rather that Defendants damaged his property, namely, windows and a door. (Doc. No. 89 at 9.) Moreover, the seriousness of the suspected crime and potential threat to Defendants also weigh in favor of dismissal. See Santistevan, 983 F.Supp.2d at 1319. Plaintiff was suspected of committing a felony, selling a large quantity of methamphetamine and related paraphernalia. (Doc. No. 28-1 at 4-5, Ex. 1 (search warrant application and affidavit).) See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii) (distribution or possession with intent to distribute more than five grams of methamphetamine is a federal felony offense). Moreover, the search involved inherent risks associated with a narcotics search, including uncertainty as to the occupants in Plaintiff's home and the possible presence of firearms. See Bailey, 568 U.S. at 194. In a narcotics search “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. (quotation omitted). Indeed, courts have found that similar actions-including officers breaking down a door, see Barker v. Moss, 2023 WL 2503510, at *8 (D. Colo. Mar. 14, 2023), and officers breaking a window-constitute reasonable force. See United States v. Ramirez, 523 U.S. 65, 71-72 (1998). Thus, any incidental damage to Plaintiff's real property does not meet the threshold for a Fourth Amendment excessive force claim.
To the extent Plaintiff argues the use and presence of a SWAT team constituted excessive force, there are “no cases in which the Tenth Circuit has found that the deployment of a SWAT team to execute a search warrant amounted to excessive force[.]” Santistevan, 983 F.Supp. at 1319.
Additionally, personal participation is an essential element in a section 1983 claim. Stout v. Seitz, 2017 WL 10237465, at *2 (D. Colo. Dec. 6, 2017); see also Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996) (“[P]laintiff must show the defendant personally participated in the alleged violation, and conclusory allegations are not sufficient to state a constitutional violation.”) (internal citation omitted). But other than generally alleging Defendants were members of entities involved in the search, Plaintiff does not pinpoint any specific action taken by any individual Defendant that was unconstitutional. To be fair, Plaintiff does generally allege Defendants are “culpable” and did not exercise their “affirmative duty to intervene[.]” (Doc. No. 89 at 9, 12.) He also briefly outlines how some of the Defendants participated in the search. (See, e.g., id. at 12 (alleging “Detective Gomez attended at least the second briefing (at the Arvada PD)” and “was aware of the raid plan”.) But merely naming the individual Defendants and describing their roles falls short of demonstrating the unlawfulness of their actions. See Robbins, 519 F.3d at 1247. Instead, Plaintiff must offer sufficiently detailed, non-conclusory allegations demonstrating what specific individual actions constituted excessive force or unreasonableness. Accordingly, Plaintiff has not alleged Defendants' personal participation with specificity.
Given that Plaintiffs' allegations are insufficient to demonstrate unreasonable or excessive force during the search, the Court need not analyze whether Plaintiff's constitutional right was clearly established or whether certain Defendants failed to intervene. See Hall v. Burke, 12 Fed.Appx. 856, 861 (10th Cir. 2001) (establishing a constitutional violation for excessive force is a necessary predicate to any claim that an officer failed to intervene).
B. Arrest: Unreasonable Seizure
For similar reasons, Plaintiff's unreasonable seizure claim warrants dismissal.
In assessing an unreasonable seizure claim, the court must determine whether the alleged incident constitutes a seizure and, if so, whether the seizure was unreasonable. Fuchs v. Sanders, 659 F.Supp.2d 1136, 1143 (D. Colo. 2009). Additionally, if it is undisputed that the plaintiff was seized, the focus shifts to whether the plaintiff has alleged facts sufficient to show that the seizure was unreasonable. See Gonzalez v. Brunnemer, 2023 WL 3005749, at *2 (D. Colo. Apr. 19, 2023).
The “ultimate touchstone” for analyzing the constitutionality of a seizure under the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The reasonableness of a seizure depends on whether, objectively, the challenged action was justified under the circumstances. Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011). This reasonableness inquiry “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotations omitted).
A warrantless arrest is permissible under the Fourth Amendment “where there is probable cause to believe that a criminal offense has been or is being committed.” Buck v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008) (internal quotation marks omitted). Probable cause exists when the facts, circumstances, and any trustworthy information the arresting officer knows “are sufficient in themselves to warrant a person of reasonable caution to have the belief that an offense has been or is being committed by the person to be arrested.” Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011) (quotation omitted); see also Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has probable cause to believe a person committed even a minor crime in his presence, the . . . arrest is constitutionally reasonable.”).
Plaintiff alleges Defendants Hamilton, Berns, Griffin, Vinnola, Moretti, Clarke, Vogel, Gomez, Thwaits, DiDomenico, and Daniel “caused, authorized or assisted in an unreasonable seizure” because:
• “After SWAT entry, plaintiff was detained, handcuffed and removed from the residence.” (Doc. No. 89 at 11.)
• “Plaintiff was not permitted to put on pants, underwear or shoes; he was wearing only a tee shirt (while sleeping).” (Id.)
• “There was no arrest warrant for [him]” and he was “not personally shown the warrant before or after the search.” (Id.) (emphasis in original)
• “Plaintiff submitted to authority at once (though he was initially dazed from concussion grenades). He offered no resistance.” (Id.)
• When “led through apartment complex to a law enforcement vehicle[,]” “[h]e was still barefoot and without pants or underwear.” (Id.)
• “The public exposure of plaintiff's naked body was a severe invasion of his personal privacy and individual dignity and was unjustified by any legitimate law enforcement interest.” (Id.)
• Plaintiff was not allowed to “witness (or aid in) the search, which ultimately resulted in gratuitous and wanton property destruction[,]” and he was not allowed to “witness the inventory of items taken[.]” (Id.)
• Plaintiff was “shivering in the cold until” he was “finally brought a blanket by unknown officer some time later. Shortly before being transported at 0800 hours, plaintiff was provided with pants.” (Id. at 12.)
Because it is undisputed that Plaintiff's warrantless arrest constituted a seizure, the Court moves on to determine whether the seizure, as alleged, was reasonable.
Before arresting Plaintiff, Defendants searched his home and discovered “large amounts” of methamphetamine and paraphernalia, providing ample grounds for suspicion of criminal activity. (See Doc. No. 46-2.) See United States v. Jimenez, 336 Fed.Appx. 798, 803 (10th Cir. July 7, 2009) (“officers acted reasonably in detaining Defendant when they caught him red handed with large quantities of marijuana, cuttings tools, and scales in plain sight.”) Moreover, before the search, Defendants received reliable information from a confidential informant that there had been several methamphetamine purchases at Plaintiff's home. (Doc. No. 28-1 at 2, Ex. 1 (affidavit supporting warrantless arrest).) A law enforcement official later corroborated this information when he met with the confidential informant after they had purchased a “crystal like substance” from Plaintiff, which based on “training and experience” the officer “identified as methamphetamine.” (Id.) Cf. Cortez v. McCauley, 478 F.3d 1108, 1117-18 (10th Cir. 2007) (warrantless arrest amounted to constitutional violation where defendants “conducted no investigation . . . [i]nstead, [they] relied on the flimsiest information”). All these facts, taken together, lead the Court to conclude Defendants had probable cause for Plaintiff's warrantless arrest.
As to the manner of Plaintiff's arrest, it is crucial to consider the circumstances Defendants faced during the seizure. As discussed, in situations like a narcotics-related search and seizure, officials must often make “split-second judgments” in a rapidly evolving situation. Graham, 490 U.S. at 396-97; Bailey, 568 U.S. at 194. While the Court acknowledges that initially not allowing Plaintiff to put on pants, underwear, or shoes may have been distressing for Plaintiff-the urgent need to secure the premises and ensure overall safety justified these actions. In other words, “the countervailing governmental interests at stake” outweighed considerations of individual privacy. Graham, 490 U.S. at 396. Moreover, it is worth noting that neither Plaintiff nor anyone else suffered injury, and Plaintiff was later provided with clothing and a blanket. (Doc. No. 89 at 12.)
Thus, the Court concludes there was probable cause for the arrest, the manner in which the seizure was conducted was reasonable under the circumstances, and Defendants are entitled to qualified immunity for their actions. See District of Columbia, 538 U.S. at 62-63. In light of this finding, the Court will not address the second qualified immunity prong.
C. Knock-and-Announce
Knock-and-announce stems from the Fourth Amendment's reasonableness inquiry. Hoeck v. Timme, 2014 WL 1584217, at *9 (D. Colo. Apr. 21, 2014). Officers are required to knock and announce their presence before entering a residence to execute a search warrant. Id. However, a “no-knock” entry may be justified if there is “reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. (quotation omitted). “This showing is not high.” Id. (quotation omitted.)
According to Plaintiff, Defendants Hamilton, Griffin, Vinnola, Moretti, Clarke, Vogel, Gomez, DiDomenico, and Daniel failed to comply with the Fourth Amendment's knock and announce requirement. (Doc. No. 89 at 10.) In support of his claim, Plaintiff asserts:
• While he was asleep, “SWAT personnel simultaneously breached the front door with a battering ram, shattered bedroom windows with 40mm flash grenade incendiary munitions and deployed another flash grenade device on the balcony” (Id.)
• Plaintiff's bed was “directly below the shattered window in the path of flash grenade[.]” (Id.)
• The forced entry occurred “within a few seconds of verbal announcement.” (Id.)
• “There was no constructive refusal of admittance following an announcement of presence and authority” or “articulable purpose for the unreasonable entry[.]” (Id.)
• “Plaintiff was wakened by the explosions and shattering glass, disoriented by the sounds, lights and fury.” (Id.)
• “The bedroom was filled with smoke and the plaintiff was surrounded by armed, masked intruders pointing assault rifles at him.” (Id.)
• “Plaintiff had no opportunity to pull on clothes or get out of bed. He was dragged from the room wearing only a tee shirt, handcuffed and unresisting.” (Id.)
• Defendant Gomez's “classification of the warrant as ‘high risk' contributed to the likelihood of violent escalation and insufficient knock and announce.” (Id.)
Even viewing the allegations in the light most favorable to Plaintiff, they fall short of stating a viable knock-and-announce claim. This is because Plaintiff's own allegations indicate the no-knock warrant was justified. (See, e.g., Doc. No. 89 at 10 (warrant was classified as “high risk”.) And because Defendants were tasked with collecting contraband and paraphernalia evidence-knocking and announcing their presence first “would inhibit the effective investigation of the crime.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997); Hoeck, 2014 WL 1584217 at *10 (no-knock warrants may be executed where “the drug evidence involved could be easily destroyed or hidden”); see also Jones v. Lehmkuhl, 2013 WL 6728951, at *23 (D. Colo. Dec. 20, 2013) (dismissing knock & announce claim as duplicative of other Fourth Amendment claims). Without additional specific allegations demonstrating a clear departure from established Fourth Amendment standards, Plaintiff's complaint does not meet the pleading requirements under Rule 12(b)(6).
II. Official Capacity Claims
As explained in Part I, the allegations are insufficient to state a Fourth Amendment violation by any individual Defendant. And because a constitutional violation by an individual is a prerequisite to official capacity claims, the official capacity claims also fail as a matter of law. See Trigalet v. City of Tulsa, Okla., 239 F.3d 1150, 1155-56 (10th Cir. 2001) (“even if it could be said that Tulsa's policies, training, and supervision were unconstitutional, the City cannot be held liable where, as here, the officers did not commit a constitutional violation”).
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS:
(1) Defendants' dismissal Motions be GRANTED;
(2) Plaintiff's claims be DISMISSED with prejudice.
Although dismissal of a pro se claim under Rule 12(b)(6) is ordinarily denied without prejudice, Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010), the Court has discretion to dismiss a pro se plaintiff's complaint with prejudice where “amendment would be futile[.]” Avery v. Wade, 2022 WL 17544077, at *1 (10th Cir. Dec. 9, 2022). Here, Plaintiff has had the opportunity to amend two times, and the Court believes any further amendment would be futile. (Docs. No. 11, 89.)
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” U.S. v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. U.S., 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).