Opinion
Civil Action No. 20-cv-00028-RM-SKC
12-22-2020
ESTATE OF TIMMY HENLEY, by and through its personal representative Sabrina Courtroul, Plaintiff, v. CITY OF WESTMINSTER, COLORADO; LOUIS ENGLEBERG; and CHRIS HEMPELMANN. Defendants.
RECOMMENDATION RE: RENEWED MOTION TO DISMISS [#33]
On September 4, 2018, at 10:20 AM, Defendant Louis Engleberg and several other Westminster police officers responded to a 911 call reporting that Timmy Henley had climbed onto another man's car and was refusing to come down. [#1.] Henley was hallucinating at the time and thought he was being chased by dogs. Engleberg ordered Henley to come down immediately, but he refused. Another officer ultimately established a rapport with Henley and convinced him there was nothing to be afraid of and to come down from the car.
The Court uses "[#___.]" to refer to specific docket entries in CM/ECF.
Two hours later, Engleberg, Defendant Chris Hempelmann (collectively "Individual Defendants"), and other officers returned to that same apartment complex on a report Henley had entered two separate residences. At the time, Henley was dressed in the same clothes he'd been in earlier, appeared dazed and afraid, was sweating profusely, and told a witness someone was trying to kill him. Despite recognizing Henley as the same man who earlier hallucinated dogs, Engleberg did not attempt any de-escalation techniques, conversations, or non-threatening movements; instead he pointed his gun at Henley and yelled at him to stop. Henley stopped momentarily, but then attempted to flee down a flight of stairs running perpendicular to the officers. The Individual Defendants shot Henley eleven times, killing him.
During the investigation into the shooting, Hempelmann said Henley had a knife, and Engleberg said Henley charged at them with a knife in his hand, fell after being shot, then got back up and ran toward them again. Henley, however, was unarmed at the time of his death and the witnesses at the scene did not say anything about Henley attacking the officers. Defendant City of Westminster ultimately relied on the Individual Defendants' false accounts and did not conduct any meaningful review. The City never disciplined, retrained, or supervised the Individual Defendants in using reasonable force and de-escalation techniques when approaching "emotionally disturbed" individuals.
The foregoing facts are based on the allegations in the Complaint, which the Court takes as true, as it must.
Plaintiff Estate of Timmy Henley filed this suit alleging the Individual Defendants used excessive force in violation of Henley's Fourth Amendment rights. The Estate also alleges the City violated the constitution via its policies and customs, and its failure to supervise and train its officers. Engleberg and Hempelmann filed an Answer to the Complaint. The City moves to dismiss the claim against it arguing the Estate has failed to articulate a claim under Monell v. Department of Social Services.
Having considered the Complaint, the Motion to Dismiss and related briefing, and the relevant law, the Court concludes a hearing is not necessary. For the following reasons, the Court recommends Westminster's Motion to Dismiss be DENIED.
A. STANDARD OF REVIEW
In deciding a motion under Fed. R. Civ. P. 12(b)(6), the Court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the mere possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Court's ultimate duty is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). "Nevertheless, the standard remains a liberal one, and 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'" Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).
B. DISCUSSION
It is long-standing Supreme Court precedent that "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Iqbal, 556 U.S. at 676 (citing Monell v. Department of Social Services, 436 U.S. 658, 694-95 (1978)). See also City of Canton v. Harris, 489 U.S. 378, 385 (1989) (a governmental entity "can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue.") (citing Monell, 436 U.S. at 694-95, 698). "[M]unicipal liability under § 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175, 1188-89 (10th Cir. 2010) (internal quotation marks and citations omitted); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) ("[T]he Supreme Court require[s] a plaintiff to show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.").
In order to establish municipal liability under Monell, a plaintiff must show (1) a municipal employee committed a constitutional violation; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 405 (1997). The Court considers each element in turn.
1. Constitutional Violation by a Municipal Employee
Based on this Court's review of the allegations, Plaintiff has sufficiently pleaded that Engleberg and Hempelmann violated the decedent's Fourth Amendment right to be free from unreasonable seizure. The Court's conclusions in this regard are supported by the fact the Individual Defendants have filed an Answer to the Complaint [#10], and Westminster has not argued otherwise in its Motion. Accordingly, the Court finds this first element of a Monell claim to be satisfied.
2. Municipal Policy or Custom
A municipal policy or custom can take the form of: (1) a formal regulation or policy statement; (2) 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; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).
In its Complaint, Plaintiff alleges several theories of municipal liability. The Court, however, need address only one to determine whether the Monell claim should survive—Plaintiff's theory regarding deliberately indifferent training, supervision, and discipline. The failure to adequately train, supervise, or discipline an employee can be used to establish a municipality's liability where the failure "results from deliberate indifference to the injuries that may be caused." Bryson, 627 F.3d at 788. Deliberate indifference is established only when a city has actual or constructive notice that its actions or omissions are substantially likely to result in constitutional violations, and it deliberately chooses to disregard that risk of harm. Canton, 489 U.S. at 388; Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th Cir. 2002). "In most instances, notice can be established by proving the existence of a pattern of tortious conduct." Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003). Absent a pattern of conduct, notice may nevertheless be found if the violation of federal rights is a "highly predictable or plainly obvious consequence of a municipalities action or inaction such as when a municipality fails to train an employee in specific skills needed to handle recurring situations." Id.
For example, in Canton, the Supreme Court noted that "city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons[, and they have] armed [] officers with firearms, in part to allow them to accomplish this task." Canton, 489 U.S. at 390 n.10. In such a situation, "the need to train officers in the constitutional limitations on the use of deadly force can be said to be so obvious, that failure to do so could properly be characterized as deliberate indifference to constitutional rights." Id.
In its Motion, Westminster argues Plaintiff's examples of prior incidents are irrelevant because the facts are not substantially similar to those in this case. [#33 at p.12.] Westminster also contends—with respect to the alleged similar incidents—the Estate's allegations are too conclusory regarding the merits of those cases. [Id. at p.13.] The Court disagrees.
In Estate of Valverede by and through Padilla v. Dodge, District Judge Marcia S. Krieger found, for purposes of Rule 12(b)(6), a plaintiff's "conclusory statement" that the Denver Police Department had an informal policy of using deadly force, coupled with three specific examples of officers using such force, to be sufficient to allege a plausible theory of informal policy or failure to train. No. 16-cv-1703-MSK-MEH, 2017 WL 3530282, at *4 (D. Colo. Aug. 17, 2017). Judge Krieger also noted the outcome of the other lawsuits was not relevant to the motion to dismiss, and the plaintiff's examples of similar conduct constituted factual support for the plaintiff's assertions. Id. ("Remembering that the focus of the Motion to Dismiss is on the sufficiency of the allegations to state a claim, the Court reads the conclusory statement together with the examples, treating the specific examples as true.").
The Court is persuaded by this reasoning. To be sure, Westminster's argument regarding the merits of Plaintiff's examples is inherently factual in nature and not an appropriate consideration for the Court at this stage of the proceedings. Here, Plaintiff argues Westminster failed to "discipline, retrain, or otherwise supervise" its officers in using reasonable force or de-escalation techniques when approaching emotionally disturbed individuals. [#1 at ¶102.] To support this contention, the Complaint lists three prior incidents (two of which involved officers, including Engleberg, using force against children) where excessive force was allegedly used on individuals with diminished mental capacity or emotional disturbances. [Id. at ¶¶104, 106, 116.]
Applying the reasoning articulated in Valverde, the Court finds Plaintiff's conclusory allegation, taken with the three examples, is sufficient to plausibly allege Westminster had constructive notice that its failure to train its officers was likely to result in harm to the public and that it was deliberately indifferent when it ignored the risk and failed to implement appropriate training. Canton, 489 U.S. at 388; Olsen, 312 F.3d at 1318. Further, the alleged lack of training is, at this stage of the proceedings, sufficient to directly connect Engleberg and Hempelmann's failure to de-escalate or use reasonable force to their violation of the decedent's (who was allegedly hallucinating and emotionally disturbed) constitutional rights. Schneider, 717 F.3d at 779. ("[C]ausal connection is satisfied if [d]efendants set in motion a series of events that [d]efendants knew or reasonably should have known would cause others to deprive [p]laintiffs of their constitutional rights.").
Westminster arms its officers with guns and other implements for the officers' safety and to aid in the performance of their jobs. Given the alleged frequency these officers encounter individuals who are emotionally compromised or of diminished mental capacity, the facts of this case, even without a pattern, likely also satisfy the exception contemplated in Canton for purposes of the present Motion. Canton, 489 U.S. at 390 n.10; see also supra n.3.
In making this finding, the Court offers no opinions on whether such actions constitute an excessive use of force in violation of the Fourth Amendment. --------
* * *
For the foregoing reasons, the Court RECOMMENDS Defendant City of Westminster's Renewed Motion to Dismiss [#33] be DENIED.
Dated: December 22, 2020
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).