Opinion
Civil Action 20-cv-02545-WJM-KMT
10-04-2021
CRYSTAL CASIAS, and DANIEL AGUILERA, Plaintiffs, v. THE CITY OF PUEBLO, a municipal corporation, MARIO DIAZ, in his personal and professional capacity, PUEBLO POLICE OFFICER JOHN DOE, in his personal and professional capacity, and KAREN WILLSON, in her personal and professional capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya, United States Magistrate Judge.
This case comes before the court on Defendants' “Motion to Dismiss Amended Complaint” (Doc. No. 19 [Mot.], filed December 23, 2020). Plaintiffs filed their response in opposition (Doc. No. 24 [Resp.], filed January 13, 2021), and Defendants filed a reply (Doc. No. 32 [Reply], filed January 27, 2021).
STATEMENT OF THE CASE
Plaintiffs, who proceed pro se, filed their Amended Complaint on December 9, 2020. (Doc. No. 16. (Doc. No. 54 [Am. Compl.].) Plaintiffs assert jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at 1.)
Plaintiffs allege on August 12, 2020, at 14:51:14, all defendants came to their front door. (Id., ¶ 4.) Defendant Willson asked Plaintiff Casias (“Ms. Casias”), “Will you show us your [marijuana] grow?” (Id.) Plaintiff Crystal Casias (“Ms. Casias”) asked if she could get shoes on before showing the defendants, and Defendant Diaz told Ms. Casias they would wait for her. (Id.) However, Plaintiffs allege Defendant Willson searched the driveway and curtilage of their home and took pictures “without a warrant, consent or exigent circumstances, ” apparently before Ms. Casias had put her shoes on. (Id. at 5.) Plaintiffs allege consent to search their property was given only when Ms. Casias led the officers to the backyard. (Id.)
Ms. Casias states she asked if she could file an appeal of the city ordinance, and Defendant Diaz began to get angry. (Id. at 6-7.) Ms. Casias states “[her] minister” was “school[ing] [Defendant] Diaz on Federal law and Federal due process, ” and Defendant Diaz then seized and hung up her phone. (Id. at 7.)
Plaintiff Daniel Aguilera (“Mr. Aguilera”) sates he is a member of a protected class, as he is Native American. (Id. at 7.) Mr. Aguilera claims he is a member of Sinsemillas House of Worship, of which marijuana is the only sacrament. (Id.) Mr. Aguilera states he uses marijuana to pray, and because his “House of Worship” is in Colorado Springs, he uses his backyard as his second “House of Worship.” (Id. at 8.)
Mr. Aguilera states that when he heard about the visit from defendants, he “immediately moved to seek an administrative remedy so that [his] religion would not be further burdened.” (Id.) On August 13, 2020, he “wrote a Notice to law enforcement, Demands to rectify, ” and emailed various Pueblo government officials and Defendant Diaz. (Id.) In the Notice, Plaintiff demanded a hearing from Pueblo code enforcement. (Id.; Ex. 1.) Mr. Aguilera also “let Pueblo Government know that [he is] involved in a civil trial with [his landlord] and [he] felt that the code enforcement complaint was retaliation by [his landlord].” (Id.; Ex. 1.)
Mr. Aguilera states after he sent the Notice, “retaliation and threats were almost immediate.” (Id. at 9.) On August 15, 2020, Mr. Aguilera received a letter from the City of Pueblo Code Enforcement Unit, in which it cited multiple violations at the plaintiffs' address and ordered the plaintiffs to correct the violations. (Id. at 10; Ex. 2 [“Notice of Violation”].) Mr. Aguilera contends that the Notice of Violation violated the plaintiffs' due process right to have a hearing and threatened the free exercise of Mr. Aguilera's religion. (Id. at 11.)
Mr. Aguilera states he began to dig up his marijuana plants, but apparently stopped when his son-in-law convinced him that the policy, the City of Pueblo, and the code enforcement officer were acting in violation of the Constitution. (Id. at 11-12.) Mr. Aguilera contends the City of Pueblo did not go through with their threats because he filed a Section 1983 claim. (Id.) However, Mr. Aguilera says the threats and intimidation from police and code enforcement has stopped the plaintiffs' prayer. (Id. at 12.)
Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for First Amendment Free Exercise of Religion (id. at 22-24); Retaliation for Free Exercise (id. at 24-25); Fourth Amendment Unlawful Search (id. at 26-27); Fourteenth Amendment Denial of Equal Protection (id. at 27- 28); Fifth and Fourteenth Amendment Due Process Violations (id. at 28-29); First Amendment Free Speech Violations (id. at 29-30); First Amendment Retaliation (id. at 31-32); Fourth Amendment Unlawful Seizure (id. at 32-33); and a claim under 42 U.S.C. § 2000cc, Religious Land Use and Institutionalized Persons Act (“RLUIPA”) regarding Protection of Land Use as Religious Exercise (id. at 33-35).
Plaintiffs sue the individual defendants in their official and individual capacities (id. at 1) seeking money damages and injunctive relief (id. at 35). Defendants move to dismiss the claims against them in their entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot.)
STANDARDS OF REVIEW
A. Pro Se Plaintiffs
Plaintiffs are proceeding pro se. The court, therefore, “review[s] [their] 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) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim on 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”). The plaintiffs' pro se status does not entitle them to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 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) (quotation marks omitted).
“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 v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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 conclusion, 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.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas 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 defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” Id. (citation omitted).
C. Body Camera Footage
Plaintiffs incorporated the defendants' body camera footage in their Amended Complaint by reference. Plaintiff also refers to the body camera footage and relies on its contents in the Amended Complaint. (See Am. Compl. at 3-7.) Neither side appears to challenge the body camera footage's authenticity. See Scott v. Harris, 550 U.S. 372, 379 (2007) (in a case involving allegations of excessive force, the Supreme Court considered the contents of a videotape “capturing the events in question” for which there were no allegations or indications of doctoring or tampering in any way). Thus, the court will review the body camera footage and consider it in analyzing the motion to dismiss. In so doing, the court views the video in the light most favorable to Plaintiff, except where the video “blatantly contradicts” Plaintiff's version of the events. See Thomas v. Durastanti, 607 F.3d 655, 672 (10th Cir. 2010) (on a motion for summary judgment, a court may reject a plaintiff's version of the events when video evidence “blatantly contradicts” that version); Choate v. City of Gardner, Kansas, No. 16-2118-JWL, 2016 WL 2958464, at *3 (D. Kan. May 23, 2016) (applying this standard to a motion to dismiss).
D. Qualified Immunity
“Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)). “The doctrine of 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.'” Ullery v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Once a defendant has asserted a qualified immunity defense, the burden shifts to the plaintiff to establish that: (1) the defendant violated a constitutional right; and (2) the right was “clearly established” at the time of the defendant's alleged misconduct. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016)). “[I]f the plaintiff fails to establish either prong of the two-pronged qualified-immunity standard, the defendant prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016); Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (“[T]he record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.”) (internal quotation marks omitted).
“Although qualified immunity defenses are typically resolved at the summary judgment stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion, however, subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Id. (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)); see Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (“At [the motion to dismiss] stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.”) (internal quotation marks omitted) (emphasis in original). “In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)) (internal quotation marks omitted). The court has “discretion to decide which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Brown, 662 F.3d at 1164 (quoting Pearson, 555 U.S. at 236) (alterations omitted).
ANALYSIS
A. Section 1983 Claims
1. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. It has been interpreted to bar a suit by a citizen against the citizen's own state in federal court. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). Suits against state officials in their official capacity should be treated as suits against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). This is because a suit against a state official in his or her official capacity is a suit against the official's office and therefore is no different from a suit against the state itself. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment thus shields state officials, acting in their official capacities, from claims for monetary relief. See Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007). Moreover, a § 1983 action may only be brought against a person. See 42 U.S.C. § 1983. Neither states nor state officers sued in their official capacity for monetary damages are persons within the meaning of § 1983. Will, 491 U.S. at 70-71.
Therefore, Plaintiff's official-capacity claims for money damages are barred by the Eleventh Amendment and should dismissed for lack of subject matter jurisdiction. Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994).
Defendants did not move for the dismissal of the official-capacity claims for money damages. However, the court has a duty to consider its subject matter jurisdiction sua sponte, Fed.R.Civ.P. 12(h)(3). See also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (The issue of subject matter jurisdiction may be raised sua sponte by the court at any time during the course of the proceedings.).
2. First Amendment Free Exercise of Religion Claim
The court notes that Defendants did not specifically move for dismissal of Plaintiffs' Retaliation for Free Exercise claim, “which require[s] slightly different elements than other First Amendment claims.” Hale v. Fed. Bureau of Prisons, No. 14-CV-00245-MSK-MJW, 2015 WL 5719649, at *10 (D. Colo. Sept. 30, 2015). The court will not address this claim sua sponte, as Plaintiffs do not proceed pursuant to 28 U.S.C. § 1915, and it not is “patently obvious” that the plaintiffs could not prevail on the facts alleged or that allowing them an opportunity to amend their complaint would be futile. McKinney v. State of Okla., Dep't of Hum. Servs., Shawnee OK, 925 F.2d 363, 364-65 (10th Cir. 1991).
The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.; Emp. Div., Dept of Human Res. v. Smith, 494 U.S. 872, 879 (1990). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Smith, 494 U.S. at 877. Thus, the First Amendment precludes all “governmental regulation of religious beliefs as such.” Sherbert v. Verner, 374 U.S. 398, 402 (1963). The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488, 492-493 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86-88 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618, 633 (1978), or lend its power to one side in controversies over religious authority or dogma, see Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445, 452 (1969).
A law banning “the performance of (or abstention from)” physical acts only when they are engaged in for religious reasons, or only because of the religious belief that they display, violates the First Amendment. Smith, 494 U.S. at 877. For example, a law banning the casting of “statues that are to be used for worship purposes, ” or prohibiting bowing down before a golden calf would be unconstitutional. Id. at 877-878.
However, where a law is not specifically directed at religious practice and is constitutional as applied to those who use a drug for other reasons, an individual's religious beliefs do not excuse him from compliance. United States v. Meyers, 95 F.3d 1475, 1480-1481 (10th Cir.1996) (citing Smith, 494 U.S. at 882-883, 878-879). The right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” United States v. Lee, 455 U.S. 252, 263, n.3 (1982).
Here, because the Amended Complaint contains no allegation that the City of Pueblo's zoning laws represent an attempt to regulate religious beliefs or the communication of religious beliefs, Plaintiffs fail to allege a First Amendment violation. Furthermore, the zoning laws do not prevent Plaintiffs from using marijuana during their religious practices. And the zoning laws do not prevent Plaintiffs from growing marijuana. Rather, the laws provide that Plaintiffs may grow marijuana on rented property with the owners' permission and only indoors. (See Am. Compl., Ex. A-2.) Plaintiffs' Amended Complaint is devoid of any allegations or explanation how the zoning laws burden them in their Amended Complaint.
Accordingly, Plaintiffs' First Amendment Free Exercise claims should be dismissed with prejudice, and the defendants should be granted qualified immunity on the claims.
3. Fourth Amendment Search and Seizure Claims
Plaintiffs allege Defendant Willson “ran up the driveway and took pictures” before Ms. Casias consented. (Am. Compl. at 26.) Plaintiffs further allege this was an unconstitutional search of their house's curtilage and that the body camera footage shows the illegal search. (Id. at 3.)
“The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.” United States v. Dunn, 480 U.S. 294, 300 (1987). The Supreme Court has recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question will remain private. Oliver v. United States, 466 U.S. 170, 180 (1984). This inquiry focuses on whether the area harbors the “intimate activity associated with the sanctity of a man's home and the privacies of life.” Id. (quotation omitted).
In Dunn, the Court articulated four factors used to determine whether a particular area is within the curtilage of a house: (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation. 480 U.S. at 301. These factors “are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella' of Fourth Amendment protection.” Id. at 301.
The first factor weights in favor of the plaintiffs, as Defendant Willson's BWC footage shows that the driveway is immediately adjacent to the house. (See Mot., Ex. A-1 at 1:15-2:56.) However, the other three factors weigh in favor of the defendants. The driveway is not enclosed in any way or included within a fenced area. (Id.) The driveway appears to be used for parking cars and for entry into the house through a side door. (Id.) Finally, the BWC video does not show any apparent steps by Plaintiffs to protect the driveway from observation. (Id.) The court cannot find, after review of Defendant Willson's BWC footage, that the driveway harbors the “intimate activity associated with the sanctity of a man's home and the privacies of life.” Id. Oliver, 466 U.S. at 180.
Because the driveway was not within the curtilage of Plaintiffs' home, Defendants could walk on it without committing an unlawful search under the Fourth Amendment. Accordingly, Plaintiffs' Fourth Amendment Unlawful Search claim should be dismissed, and the defendants should be granted qualified immunity on the claims.
4. Fourteenth Amendment Equal Protection Claim
Plaintiffs asserts that Mr. Aguilera is a member of a protected class and that Defendants' actions against him were motivated by his religious beliefs. (Am. Compl. at 27.) Plaintiffs assert that the Catholic Church is “allowed to use its sacrament with no oversite from the Pueblo Government. However when I practice my Free Exercise, I am hit with countless unconstitutional code violations.” (Id.)
The Equal Protection Clause prohibits the government from treating similarly situated individuals differently. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state a claim for denial of their Fourteenth Amendment equal protection rights, Plaintiffs must allege that Defendant Geiman either denied them a fundamental right or treated them differently based on a suspect classification. Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995). A protected group of plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them. Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998).
The “similarly situated” requirement is an “exacting burden, ” which requires the comparative individuals to be “prima facie identical in all relevant respects or directly comparable in all material respects.” A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 831 F.Supp.2d 1226, 1253 (D. Colo. 2011) (analyzing class of one claim and quoting Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006), and United States v. Moore, 543 F.3d 891 (7th Cir. 2008) (“Although this is not a precise formula, it is nonetheless clear that similarly situated individuals must be very similar indeed.”)).
Plaintiffs' comparison to the Catholic Church fails because Plaintiffs do not allege the Catholic Church is treated differently for growing marijuana plants in its backyard. The court finds Plaintiffs' allegations fail to meet the “exacting burden, ” which requires the comparative individuals to be “prima facie identical in all relevant respects or directly comparable in all material respects.” A.B. ex rel. B.S., 831 F.Supp.2d at 1253. Accordingly, Plaintiffs have failed to make the threshold showing that they were treated differently from others who were similarly situated to them for purposes of an equal protection claim. Barney, 143 F.3d at 1312. Plaintiffs' equal protection claim should be dismissed with prejudice, and the defendants should be granted qualified immunity on the claim.
5. Fourteenth Amendment Due Process Claim
Plaintiffs assert their due process claim under both the Fifth and Fourteenth Amendments. The Due Process Clause of the Fifth Amendment protects against due process violations by the federal government. See Public Utilities Comm'n v. Pollak, 343 U.S. 451, 461 (1952) (Fifth Amendment applies to and restricts only the Federal Government and not private persons). See also United States v. Balsys, 524 U.S. 666, 700 (1998) (Stevens, J., concurring) (“Th[e] [Fifth Amendment] constrains the power of the Federal Government to deprive any person ‘of life, liberty, or property, without due process of law,' just as the Fourteenth Amendment imposes comparable constraints on the power of the States.”). Plaintiffs' due process clause, which is not asserted against federal defendants, is properly analyzed under the Fourteenth Amendment.
Plaintiffs allege the defendants' failure to hold a hearing on the zoning violations violates their rights to due process. (Am. Compl. at 11.)
The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. There are two types of claims that arise under the Due Process Clause, procedural due process and substantive due process. The Tenth Circuit has explained the difference between the two types of claims as follows: “[p]rocedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). Plaintiffs allege a procedural due process claim, because their claim focuses on the alleged failure of Defendants to provide a hearing regarding the zoning violations. (Am. Compl. at 11.)
To assess a procedural due process claim, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.” Montgomery v. City of Ardmore, 365 F.3d 926, 935 (10th Cir. 2004).
Because marijuana is contraband per se under federal law, Plaintiffs lack a cognizable property interest in its cultivation under Section 1983. See 21 U.S.C. § 881(a)(8) (“The following shall be subject to forfeiture to the United States and no property right shall exist in them: . . . All controlled substances which have been possessed in violation of this subchapter”); accord Young v. Larimer Cnty. Sheriff's Office, 2014 COA 119, ¶ 14 (holding that, notwithstanding the medical marijuana provisions of the Colorado constitution, a plaintiff could not seek relief under section 1983 for state's destruction of marijuana plants “because that destruction did not impair a federal right”); Barrios v. Cnty. of Tulare, No. 1:13-CV-1665, 2014 WL 2174746, at *5 (E.D. Cal. May 23, 2014) (“Because marijuana is contraband under federal law, [plaintiff] had no property interest in the marijuana that was protected by the Fourteenth Amendment due process clause”); Staffin v. County of Shasta, No. 2:13-cv-00315, 2013 WL 1896812, at *3 (E.D. Cal. May 6, 2013) (same); Schmidt v. Cnty. of Nev., No. 2:10-CV-3022, 2011 WL 2967786, at *6 (E.D. Cal. July 19, 2011) (same).
Accordingly, because Plaintiffs have failed to state a constitutionally protected interest under the due process clause, their due process claim should be dismissed, and the defendants should be granted qualified immunity on the claim.
6. First Amendment Free Speech Claims
“The Tenth Circuit recognizes two separate claims arising from First Amendment speech violations: (1) retaliation for engaging in protected speech; and (2) unlawful prior restraint prohibiting a citizen from making protected speech.” Berger v. City & Cnty. of Denver, No. 18- cv-01836-KLM, 2019 WL 2450955, at *4 (D. Colo. June 11, 2019).
Again, Defendants did not specifically move for dismissal of or analyze Plaintiffs' Retaliation for Exercise of Free Speech claim, and the court will not address this claim sua sponte. McKinney, 925 F.2d at 364-65.
The First Amendment relates to freedom of speech, religion, and association, providing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. For governmental action to trigger First Amendment scrutiny, it must carry consequences that infringe protected speech. U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir.1999) (“As a threshold requirement for the application of the First Amendment, the government action must abridge or restrict protected speech.”).
Ms. Aguilera alleges that “[her] minister” was “school[ing] [Defendant] Diaz on Federal law and Federal due process, ” and Defendant Diaz then seized and hung up her phone. (Id.) Plaintiff further alleges,
The broadcasting of my minister is free speech and press this is also constitutionally protected speech.
Defendant Mario Diaz['s] decision to unlawfully seize my phone Crystal Casias, [d]id stop my broadcast and also stopped my Free Speech. Physical and aggressive actions did chill my speech and stop my speech.(Id. at 29-30.) Construing the pleadings in the light most favorable to plaintiffs fails to show either a potential or actual deprivation of their free speech rights. No. allegations are made that the defendant attempted to control, compel, chill, deny, or otherwise restrict or inhibit in any manner whatsoever the content, form, time, place or manner of any speech by either plaintiff by allegedly hanging up Ms. Casias' phone while the minister was “schooling” Defendant Diaz about applicable laws. “Where a chilling effect is speculative, indirect, or too remote, finding an abridgment of First Amendment rights is unfounded.” United States v. Harriss, 347 U.S. 612, 626 (1954).
Plaintiffs' First Amendment prior restraint claim should be dismissed with prejudice, and the defendants should be granted qualified immunity on the claim.
7. Fourth Amendment Unlawful Seizure Claim
Plaintiffs allege an unlawful seizure claim, stating the defendants seized Ms. Casias' phone when she was on the phone with her minister. (Am. Compl. at 7, 33.)
“A ‘seizure' of property . . . occurs when ‘there is some meaningful interference with an individual's possessory interests in that property.' ” Santana v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004) (quoting Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992)); see also Williamson v. Bernalillo Cnty. Sheriffls Dep't, 125 F.3d 864, 1997 WL 575812, at *2 (10th Cir. Sep. 17, 1997) (“possessory interests are protected by . . . the Fourth Amendment”). “[N]o seizure occurs when an officer merely picks up an individual's property to look at it, because this interference with the individual's possessory interest is not meaningful.” United States v. Hall, 978 F.2d 616, 619 (10th Cir. 1992) (citing Arizona v. Hicks, 480 U.S. 321, 324 (1987); New York v. Class, 475 U.S. 106, 114 (1986)).
Here, the BWC video shows Defendant Diaz took Ms. Casias' phone from her hand to speak directly to her minister for a period of seven seconds. (Mot., Ex. A-1 at 15:01:29-15:01-36.) The court finds this was not a meaningful interference with Ms. Casias' possessory interest in her phone. Hall, 978 F.2d at 619.
Plaintiffs' unlawful search claim should be dismissed with prejudice, and the defendants should be granted qualified immunity on the claim.
8. 42 U.S.C. § 2000cc Protection of Land Use as Religious Exercise
Plaintiffs allege that the defendants violated RLUIPA's “substantial burdens” provision, 42 U.S.C. § 2000cc(a)(1). (See Am. Compl. at 13.)
“ ‘[T]o prevail on a claim under the substantial burden provision, a plaintiff must first demonstrate that the regulation at issue actually imposes a substantial burden on religious exercise.' ” Grace Church of Roaring Fork Valley v. Bd. of Cnty. Comm'rs of Pitkin Cnty., Colo., 742 F.Supp.2d 1156, 1162 (D. Colo. 2010) (quoting Civil Liberties For Urban Believers v. City of Chicago, 342 F.3d 752, 769 (7th Cir.2003)). “The standards under RLUIPA are different from those under the Free Exercise Clause. Under RLUIPA, the definition of ‘religious exercise' is not limited to religious activities that are ‘fundamental' or central to a system of religious belief.” Id. (citing 42 U.S.C. § 2000cc-5(7)(A); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 663 (10th Cir. 2006)). RLUIPA provides that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” 42 U.S.C. § 2000cc-5(7)(B).
The Tenth Circuit has defined substantial burden within the context of RLUIPA as follows:
(1) requires participation in an activity prohibited by a sincerely held religious belief, or (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a
Hobson's choice-an illusory choice where the only realistically possible course of action trenches on an adherent's sincerely held religious belief.Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010).
Plaintiffs allege only that the defendants have “impose[d] or implement[ed] a land use regulation in a manner that imposes a substantial burden on the religious exercise of Crystal and Dan, including a religious assembly or institution.” (Am. Compl. at 34.) Plaintiffs do no allege that they are being required to participate in an activity prohibited by their religious beliefs. Plaintiffs fail to explain how the zoning requirements that require Plaintiffs to obtain consent from their landlord to grow marijuana plants and prohibit Plaintiffs from growing marijuana plants outside prevent “religious assembly” or places substantial pressure on Plaintiffs not to engage in conduct motivated by their religious beliefs.
Plaintiffs have failed to state a substantial burden claim under RLUIPA, and the claim should be dismissed with prejudice.
2. Municipal Liability
A City may be held liable under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the City's] officers.” Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). Plaintiffs seek to recover damages from the City based on the individual defendants' enforcement of allegedly unconstitutional municipal ordinances. It is well established, however, that “even if it could be said that [the City's] policies . . . were unconstitutional, the City cannot be held liable where the officers did not commit a constitutional violation.” Trigalet v. City of Tulsa, 239 F.3d 1150, 1155-56 (10th Cir. 2001); see City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Myers v. Okla. Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing “the Heller rule” as well established); see also Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1104 (10th Cir. 2009).
Defendants argue that Plaintiffs have failed to establish any underlying constitutional violation by the City officers, and, thus, there can be no municipal liability. The court agrees that Plaintiffs' First Amendment Free Exercise of Religion, Fourth Amendment Unlawful Search, Fourteenth Amendment Denial of Equal Protection, Fourteenth Amendment Due Process, First Amendment Free Speech, and Fourth Amendment Unlawful Seizure claims should be dismissed against the Defendant The City of Pueblo.
However, because Defendants have failed to address Plaintiffs' retaliation claims in their motion to dismiss, the First Amendment Retaliation for Free Exercise of Religion and First Amendment Retaliation for Free Speech claims remain against Defendant The City of Pueblo.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that the “Motion to Dismiss Amended Complaint” (Doc. No. 19) be GRANTED in part and DENIED in part as follows:
1. Plaintiffs' official-capacity claims for money damages should dismissed without prejudice for lack of subject matter jurisdiction
2. Plaintiffs' First Amendment Free Exercise of Religion, Fourth Amendment Unlawful Search, Fourteenth Amendment Denial of Equal Protection, Fourteenth Amendment Due Process, First Amendment Free Speech, and Fourth Amendment Unlawful Seizure claims should be dismissed with prejudice, and the individual defendants should be granted qualified immunity on those claims;
3. Plaintiffs' First Amendment Retaliation for Free Exercise of Religion and First Amendment Retaliation for Free Speech claims should proceed against Defendant City of Pueblo and against individual defendants in their individual capacities.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, 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); Griego v. Padilla (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.” United States v. 2121 East 30th Street, 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 of fact, legal conclusions, 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 of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).