Opinion
Civil Action 21-cv-02160-RMR-SKC
09-19-2022
ESTATE OF SERAFIN FINN, by and through its personal representative Melissa R. Schwartz, Plaintiff, v. CITY AND COUNTY OF DENVER, a municipality; DEPUTY JASON GENTEMPO, in his individual capacity; Defendants.
RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS [DKT. #32]
S. Kato Crews United States Magistrate Judge
This matter is before the court on Defendant's, City and County of Denver(“City”), Motion to Dismiss under Fed.R.Civ.P. 12(b)(6). [DKT. #32] The City argues (1) Plaintiff's 42 U.S.C. § 1983 (“Section 1983”) claims fail to plausibly allege it had a policy or custom that violated the deceased Plaintiff's constitutional rights, and (2) Colorado's survival statute, Colo. Rev. Stat. § 13-20-101, precludes Plaintiff (in her capacity as personal representative of the Plaintiff estate) from recovering noneconomic damages under Section 1983.
The City holds legal jurisdiction over the Denver Sheriff's Department as an agency thereof.
The presiding judge referred the Motion to the magistrate judge for a Recommendation. The Court, after having reviewed the Plaintiff's Amended Complaint, the City's Motion (including related briefings), and the applicable law, RECOMMENDS the City's Motion to Dismiss be GRANTED IN PART and DENIED IN PART for the reasons further discussed below.
A. BACKGROUND
On March 20, 2019, Deputy Jason Gentempo with the Denver Sheriff's Department (Sheriff's Department) and his partner on duty were ordered to return Serafin Finn, an incarcerated person, back to the Sheriff's Department after he received treatment at a Denver hospital. [DKT. #28 p. 4] At the hospital, the deputies found Finn ankle-shackled and waiting on a gurney in an examination room. [Id.] The deputies both helped Finn into a hospital wheelchair and headed out with Finn to the deputies' car. [Id. at p. 5] While en route, hospital surveillance footage appeared to show Finn facing Deputy Gentempo and then spitting at him. [Id.] Deputy Gentempo then hit Finn in the face several times, grabbed him by the face and neck, and then pushed him back on his wheelchair and flipped him over. [Id.] As a result, Finn's face hit the pavement. [Id.] Next, Deputy Gentempo got on top of Finn and started choking him. [Id. at 6] Then at some point, both deputies picked Finn up from the ground on his wheelchair, put a spit sock over his head, and got him in the car. [Id.]
At the Sheriff's Department, the deputies did not report the incident nor get Finn a health screen. [Id.] Shortly thereafter, Finn started having seizures and fell to the floor. [Id. at p. 7] As a result, Finn stayed in a medical unit for two days. [Id.] The nurse that evaluated Finn reported he had sustained a hematoma and visible abrasions. [Id.]
Two days later, Finn reported Deputy Gentempo assaulting him to the Denver's Office of the Independent Monitor and an administrative investigative unit began looking into Finn's allegations. After the investigation ended, the investigative unit submitted its report and findings to the Sheriff's Department. [Id. at p. 8] In April 2020, the Sheriff's Department issued its final review and Findings Report concerning Finn's assault allegations against Deputy Gentempo as having been “Not Sustained.” [Id. at p. 11]
On August 20, 2021, the personal representative of Finn's Estate filed a lawsuit against both Deputy Gentempo, in his individual capacity, and the City by asserting a Fourth Amendment Excessive Force claim under Section 1983.[DKT. #28 pp. 14, 16] On December 25, 2021, Plaintiff moved to amend the complaint and the Court granted it. [DKT. #s 25, 27, 28]
Finn passed away from unrelated causes before this lawsuit.
Mainly, Plaintiff's complaint makes the following allegations against the City:
• Deputy Gentempo violated the City's internal policies because he did not report the assault and failed to get Finn medical attention. [Id. at p. 6 ¶ 41]
• While being investigated, Deputy Gentempo “consistently” denied having struck Finn or having mistreated Finn after Finn had spit on him. [Id. at p. 8]
• A named whistleblower said the City significantly altered the
investigative report to omit that Deputy Gentempo had struck Finn in the face and instead blamed the incident on Finn to exonerate Deputy Gentempo. [Id. at ¶ 11,12]
• The City also altered the investigator's report to avoid having to discipline Deputy Gentempo after he assaulted Finn. [Id. at p. 13 ¶¶ 8283] And in doing so, the City ratified Deputy Gentempo's misconduct. [Id. at p. 11 ¶ 75]
• It is the City's custom to cover up a deputy's wrongdoing by altering its investigative reports to avoid having to discipline them and prevent the public from learning about their misconduct. [Id. at p. 15 ¶ 100]
• The City knew Deputy Gentempo had previously used excessive force against other inmates and failed to discipline him. [Id. at p. 17 ¶ 110.]
• Even though the City knew it had a widespread practice of using excessive force against its constituents, it failed to properly train, supervise, and discipline its deputies' misconduct. [Id. at p. 19]
Subsequently, the City filed its Motion to Dismiss Plaintiff's complaint under Rule 12(b)(6) arguing Plaintiff failed to state a claim for which relief could be granted. [DKT. #32]
B. LEGAL PRINCIPLES
Fed. R. Civ. P. 12(b)(6) governs a defendant's motion to dismiss for failure to state a claim upon which relief can be granted. To survive a motion to dismiss, the complaint must allege sufficient facts to support a plausible claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (outlining the two standing principles that courts use to assess the legal sufficiency of a plaintiff's complaint in the context of a motion to dismiss and Fed.R.Civ.P. 8(a)(2)); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (discussing the same).
A court deciding a motion to dismiss considers whether the plaintiff's allegations meet the plausibility standard requiring that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009) (disregarding a plaintiff's conclusory allegations for failing to sufficiently state a claim for relief because they were unsupported by detailed factual averments); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (A court's task is to “assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002) (well pleaded complaints that did not infer more than the mere possibility of misconduct did not support entitlement to relief); RE/Max, LLC v. Quicken Loans Inc., 295 F.Supp.3d 1163, 1168 (D. Colo. 2018). Consequently, a plaintiff's conclusory or general allegations that are overinclusive of “a wide swath of conduct” cannot support plausible claims. Khalik, 671 F.3d at 1191; see Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (although modern rules of pleading are lenient, a complaint must include direct or inferential allegations necessary to show a valid legal theory to survive a motion to dismiss) (emphasis added). Put differently, a plaintiff's allegations are plausible if the well-pleaded facts allow a court to make reasonable inferences that the defendant is liable for the alleged misconduct. Twombly, 550 U.S. at 570.
At the outset, in its Motion, the City does not argue the Amended Complaint fails to plausibly allege a constitutional violation by the City's employee, i.e., Deputy Gentempo. To resolve the City's Motion, therefore, the Court assumes the Amended Complaint sufficiently pleads a constitutional violation under Monell. The Court focuses on the City's main arguments in deciding whether the Amended Complaint plausibly alleges a policy or custom which caused the violation of Plaintiff's constitutional rights.
C. ANALYSIS
I. Municipal Policy or Custom
Section 1983 precludes a plaintiff from suing a municipality for liability under a theory of vicarious liability. Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691-92 (1978). Rather, by raising a Section 1983 claim, a plaintiff must show (1) a municipal employee violated the plaintiff's constitutional rights and (2) the municipality's policy or custom caused the constitutional violation. Id. at 694; Bryson City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010).
Relevant here, a municipal policy or custom can be characterized as follows:
(1) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (2) the failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference' to the injuries that may be caused.Bryson, 627 F.3d at 788.
To properly allege a municipality's adoption of an unconstitutional long- standing practice or custom, typically involves specific evidence suggesting the municipality mistreated similarly situated individuals in the same alleged manner. Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008). The Court then determines whether the Plaintiff's other alleged incidents are sufficiently like his circumstances to constitute a policy or custom showing the municipality's use of excessive force. Id.
As to deliberate indifference in the context of a failure-to-train allegation, a plaintiff must show facts that “a municipality [had] actual or constructive notice that its action or failure to act [was] substantially certain to result in a constitutional violation, and it consciously or deliberately [chose] to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998); see Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003) (a city had notice by showing the existence of a pattern of tortious conduct); see also Bd. Cnty. Comm'rs v. Brown, 520 U.S. 397, 409 (1997) (explaining that although rare, deliberate indifference exists when a violation of federal rights is a “highly predictable” or “plainly obvious” result of a municipality's inaction).
Furthermore, greater scrutiny is applied to the causation element when a municipality's policy or custom refers to a failure to train, supervise, or deficient hiring. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013); Brown, 520 U.S. at 405 (determining causation by using a rigorous standard to help ensure that a municipality does not become liable solely for the improper actions of its employee).
The Amended Complaint alleges the City had an informal policy or custom that amounted to a widespread practice of allowing its officers to use excessive force. [DKT. 28-1 pp. 19-20] Specifically, Plaintiff alleges the City (1) had an informal policy or custom of altering and covering up its post-investigatory reports to avoid having to properly discipline its officers for using excessive force; and (2) failed to train, supervise, or discipline its officers despite knowing its officers used excessive force that amounted to ratification.
The City argues Plaintiff's allegations are conclusory and cannot be deemed plausible for lack of sufficient factual support. The Court agrees.
Plaintiff alleges the City allowed or condoned its officers' use of excessive force based on an informal and widespread policy or custom of altering its post-investigatory reports to avoid having to discipline its officers. But the allegation is insufficient for two reasons.
First, the allegation is based solely on the City's actions after Deputy Gentempo's post investigation - for having allegedly used excessive force against Finn - and so it cannot be said to have caused the violation of Finn's constitutional rights. See Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1286-87 (10th Cir. 2019) (incidents occurring “subsequent to the incident at issue” cannot provide a municipality with notice that its training is deficient beforehand). Moreover, Plaintiff's allegations of the City's policy to alter and cover up its post-investigative reports, to justify failing to discipline officer misconduct, are conclusory because the statements lack additional factual support of similar and prior conduct before this incident. [DKT 28 p. 15 ¶ 97] See Martinez v. City & Cnty. of Denver, No. 11-cv-00102-MSK-KLM, 2013 WL 5366980, *15 (D. Colo. Sept. 25, 2013) (plaintiff did not put forth sufficient evidence to correlate a general widespread practice to the constitutional violation, for example, that another officer was the subject of a prior inadequate investigation).
Most of Plaintiff's factual allegations stem from statements made by (at least) three administrative investigators saying the City altered its post-investigatory report to avoid having to discipline Deputy Gentempo, all of which occurred around April 2020 to June 2020. However, as previously noted, Finn's alleged assault occurred on March 20, 2019.
Second, Plaintiff attempts to support the City's alleged widespread pattern of cover ups with allegations of other similarly situated individuals who were mistreated in the same manner. But Plaintiff merely asserts alleged instances of Deputy Gentempo's prior uses of excessive force by stating the following:
• “In September 2017, a jail inmate accused Deputy Gentempo of using inappropriate force to restrain him during an incident in jail.”
• “In October 2017, another inmate accused Deputy Gentempo of physically assaulting him following an altercation with another inmate.”
• “In June 2018, another inmate accused Deputy Gentempo of kicking him to the ground while he was being transferred from Denver Health to the DDC.” [DKT 28 p. 17 ¶¶ 111-13]
These are generalized statements based on accusations, not facts, from which it is not possible to reasonably infer the municipality's claimed pattern or custom. See Khalik, 671 F.3d at 1191 (a plaintiff's general allegations are not plausible claims because they are overinclusive of “a wide swath of conduct.”); see also Waller, 932 F.3d at 1287 (plaintiff's complaint alleging a prior use of excessive force against other individuals were “too different” to constitute a city's widespread practice of excessive force); but see Sekarek v. City & Cnty. of Denver, 1 F.Supp.2d 1191, 1199 (D. Colo. 1998) (plaintiff sufficiently alleged the defendant's custom of retaliating against its employees because the evidence presented were specific instances similar to the same alleged pattern of behavior like being reassigned, demoted, or transferred to unwanted positions).
Plaintiff also refers to a May 2020 incident to show Deputy Gentempo's prior and known use of excessive force similar to his force against Plaintiff in March 2019. But as the Court previously determined, this later conduct cannot form a basis for the City's liability for conduct that occurred in March 2019. See Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1286-87 (10th Cir. 2019).
Likewise, Plaintiff inadequately alleges the City failed to train, supervise, or discipline its officers despite knowing its officers used excessive force. First, most of Plaintiff's allegations involve instances of police misconduct that occurred after Plaintiff's alleged assault in March 2019. For example, Plaintiff claims that “In or around 2020, DSD Deputy used excessive force against an inmate who refused to remove his hair tie. No force was necessary during that non-violent interaction.” [DKT 28 p. 18 ¶ 118] See Waller, 932 F.3d at 1286-87; see also Hernandez v. City & Cnty. of Denver, No. 21-cv-01538-PAB-MEH, 2022 WL 3597452, at *7 (D. Colo. Aug. 23, 2022) (plaintiff's failure-to-train allegations lacked any factual support as to how police officers were trained, who trained them, and in what way the training became deficient).
As well, Plaintiff alleged that “[in] or around 2012, a deputy “slammed a pre-trial [sic] detainee's head into a courtroom wall.” [DKT #28 p. 18 ¶ 122] Although this alleged incident occurred before Finn's alleged assault, it also is “too different” to support the Plaintiff's allegation of the municipality's failure to train, supervise, or discipline claim. See Waller, 932 F.3d at 1287.
Second, Plaintiff also points to Deputy Gentempo's statement that the City never trained him on how to use “force against allegedly spitting arrestees.” However, an officer's concerns about his inadequate training disregards other factors that might have contributed to his misconduct at the time. See City of Canton, 489 U.S. 378, 390-91 (1989) (a police officer's expressed views that the municipality failed to properly train him is insufficient to plausibly allege a failure-to-train theory because other factors may have contributed to his shortcomings). And therefore, this allegation alone does not advance the ball of plausibility.
Third, the Court applies greater scrutiny to a Plaintiff's alleged instances of a failure to train to avoid imposing liability on government entities for the sole wrongdoing of its employees. See Brown, 520 U.S. at 405. Doing that here, and for the reasons stated above, the instances Plaintiff has alleged are insufficient to state a plausible failure-to-train claim.
Plaintiff's ratification theory also fails for the same reasons as discussed above. Plaintiff's allegations primarily stem from Deputy Gentempo's post investigation, i.e., after Finn's alleged assault, and cannot properly form a basis for deliberate indifference. See Waller, 932 F.3d at 1286-87; Schneider, 717 F.3d at 771 (explaining that deliberate indifference can be satisfied when the municipality had notice of a prior risk of harm). Plaintiff also alleges, in conclusory fashion, the hearing committee at Deputy Gentempo's post investigation asked him leading questions to “help bolster his untruthful statements” that he did not strike Finn and instead, the final report blamed Finn. But again, Plaintiff does not allege facts, such as what the leading questions were that improperly bolstered the deputy's false statement, or facts regarding how the committee improperly blamed Finn; thus, lacking factual support. see Bryson, 534 F.3d at 1282.
Although Plaintiff's Amended Complaint also provides specific policy makers in this context, Plaintiff nonetheless fails to sufficiently allege the City's policy or custom for the reasons previously discussed.
II. Colorado's Survival Statute
Last, the City argues that because Plaintiff's personal representative commenced this action, Colorado's survival statute, Colo. Rev. Stat. § 13-20-101, applies to preclude recovery for non-economic damages under Section 1983. But this has nothing to do with whether Plaintiff has stated a plausible claim under Section 1983. The City acknowledges this issue would not “fully dispose of this lawsuit,” and it requests a “judicial determination of available damages.” [DKT. 32 p. 15 n.8.] Notably, “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” D.C.Colo.LCivR 7.1(d). This argument appears more as a request for declaratory relief which is incongruent with the matters raised by the City's Motion under Fed.R.Civ.P. 12(b)(6). The Court RECOMMENDS DENYING the Motion insofar as it seeks declaratory relief regarding Plaintiff's available damages.
The Court directs the parties to Judge Rodriquez's Civil Practice Standards, IV.D. Early Motions for Summary Judgment.
* * *
For the foregoing reasons, the Court RECOMMENDS that Defendants' Motion to Dismiss [DKT. 32] be GRANTED IN PART and DENIED IN PART.
The parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).