Opinion
Civil Action 22-cv-01789-PAB-NRN
12-07-2023
PRO-POLICE RALLY COLORADO, a nonprofit Colorado corporation, on behalf of itself, its members, and the attendees at the rally it hosted; RON MACLACHLAN, JR., CASPER STOCKHAM, LO BECKER, et al., Plaintiffs, v. MAYOR MICHAEL HANCOCK, et al., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DKT. #34)
N. Reid Neureiter, United States Magistrate Judge
This case is before the Court pursuant to an Order (Dkt. #37) issued by Chief Judge Philip A. Brimmer referring Defendants City and County of Denver, Michael Hancock, Murphy Robinson, Paul Pazen, Robert Wyckoff, Ron Thomas, Julie Wheaton, Rose Watts, and Allegra Haynes' (“Defendants”) Motion to Dismiss (Dkt. #34). Plaintiffs Pro-Police Rally Colorado (“PPRCO”), Ron MacLachlan Jr., Charles (Casper) Stockham, and Lo Becker (collectively “Plaintiffs”), who proceed pro se, filed a response (Dkt. #23) and Defendants filed a reply (Dkt. #33). The Court has heard argument from the parties, taken judicial notice of the docket, and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court RECOMMENDS that subject motion (Dkt. #34) be GRANTED.
Because Plaintiffs proceed pro se, the Court “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). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon 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”). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
The following allegations are taken from Plaintiffs' signed Amended Complaint (Dkt. #32), and those that are well-pled are presumed to be true for the purposes of this motion.
I. Procedural History
This civil rights lawsuit was filed on July 20, 2022 by attorney Randy Corporon on behalf of numerous plaintiffs, including PPRCO, MacLachlan, and Stockham. (Dkt. #1.) Not long after, Mr. Corporon moved to withdraw as counsel and several plaintiffs asked to be removed from the case. (See Dkt. ##10, 11, and 14.) A Status Conference was held on November 22, 2022, at which counsel was permitted to withdraw and more plaintiffs, including Stockham, indicated that they no longer wished to proceed and were excused by the Court. (See Dkt. #17.)
On March 22, 2023, an Amended Complaint was filed which identifies as plaintiffs PPRCO, MacLachlan, Stockham (who had previously been dismissed), and Becker, a new plaintiff. A signed copy of the Amended Complaint was filed on May 4, 2023.
PPRCO, as a corporate entity, cannot proceed without counsel. Plaintiffs have withdrawn it as a party (see Dkt. #49 at 4; Dkt. #62) and all claims brought by it have been dismissed (Dkt. #66).
II. The Parties
Plaintiff MacLachlan is the founder and president of PPRCO, a Colorado nonprofit corporation that organizes an annual Law Enforcement Appreciation Day event in Denver, Colorado. Plaintiff Stockham was scheduled to speak at the PPRCO's event in 2020 in support of his candidacy for the United States House of Representatives. Plaintiff Becker was in a band scheduled to play the event.
Defendant Michael Hancock is the former Denver mayor and is sued in his individual and official capacities. Defendant Murphy Robinson was the acting manager of the Denver Department of Public Safety and is sued in his individual capacity. Defendant Paul Pazen is the former Denver Chief of Police and is sued individually and in his official capacity. Defendant Aaron Sanchez is a Division Chief with the Denver Police Department who was the on-the-ground commander for the 2020 and 2021 PPRCO events and is sued in his individual and official capacities. Defendants Robert Wykoff and Julie Wheaton are Lieutenants in the Denver Police Department and are sued individually and in their official capacities. Defendant Rose Watts is the Deputy Director of Denver's Office of Special Events (“OSE”) and is sued in her individual and official capacities. Defendant Allegra Haynes is the Manager of Denver's Department of Parks and Recreation and is sued in her individual and official capacity.
The Amended Complaint names several other individuals and entities that have not been served and any asserted claims against them should be dismissed under Rule 4(m) of the Federal Rules of Civil Procedure. The Amended Complaint also purports to bring claims against “John and Jane Does 1-100” who have not been identified and likewise should be dismissed as parties. See Chrisco v. Goodrick, No. 17-cv-00073-CMA-MEH, 2018 WL 4242921, at *5 (D. Colo. Sept. 6, 2018) (“To allow the claims against Doe Defendants to continue is to ask individuals of whom we have no knowledge to defend a claim of which they have no knowledge. This does not comport with the requirements of due process.” (citations and alterations omitted)).
III. Factual Allegations
a. The 2020 PPRCO Event
As they had since 2015, on July 19, 2020, MacLachlan and PPRCO held a Law Enforcement Appreciation Day event in Denver's Civic Center Park. In the days leading up to the event, MacLachlan, at Defendant Pazen's request, met with Defendants Wheaton and Wyckoff, who asked MacLachlan to relocate his event due to the nightly protests happening in the wake of Minneapolis police officer Derek Chauvin 's murder of George Floyd in May 2020. MacLachlan informed Wheaton and Wyckoff that he would not be able to relocate the event. After the meeting, Defendant Pazen called MacLachlan and asked him not to go forward with the event. Again, MacLachlan declined, and did so again when Defendant Wyckoff called him the day before the event.
MacLachlan arrived at Civic Center Park at about 1:15 p.m. on July 19, 2020. Defendant Sanchez introduced himself and let MacLachlan know that protestors had been gathering nearby at the capitol and were getting ready to disrupt the event. Defendant Sanchez asked MacLachlan if he would “stand down.” MacLachlan said no.
The event began at about 3:15 p.m. “[w]ith rioters drowning the stage with bullhorns, pots and pans, chants and whistles.” Becker and his band began to play and almost immediately “violent rioters stormed the stage wrecking equipment as fights broke out.” Plaintiffs allege that Denver police officers watched as the protestors circled the park's amphitheater and then Defendant Wyckoff ordered officers to retreat.
MacLachlan says he suffered injuries after being struck on the head with a longboard and a megaphone. Becker's band equipment was damaged and he had to flee on his motorcycle while protestors “scream[ed] obscenities in his face.” Stockham was not able to give his scheduled speech and was also harassed by protestors.
b. The 2021 Event
Although MacLachlan and PPRCO held the event in 2021, Denver provided fencing that was “so tight” that no food trucks or motorcycles could make it in, and attendees had trouble finding the entrance. However, no claims for relief arise stemming from this rally.
c. The 2022 Event
As he always did, MacLachlan began the permitted process for the 2022 PPRCO event in September 2021. In June 2022, he was informed by the OSE that he had not adequately addressed safety risks in the emergency action plan. He met with Defendant Watts on July 6, 2022, who explained that the Denver Police Department wanted MacLachlan to provide fencing around the park for the event. Mr. MacLachlan was unable to afford to do so on short notice, so the event was cancelled.
IV. Claims for Relief
The Amended Complaint contains four claims for relief: (1) a 42 U.S.C. § 1983 claim for deprivation of First Amendment rights by MacLachlan, Stockham, and Becker; (2) a 42 U.S.C. § 1985(3) claim for conspiracy to interfere with civil rights by MacLachlan, Stockham, and Becker; (3) a 42 U.S.C. § 1983 claim brought pursuant to the First Amendment for “onerous conditions” by MacLachlan; and (4) a 42 U.S.C. § 1983 First Amendment retaliation claim brought by MacLachlan.
V. The Motion to Dismiss
Defendants seek dismissal of all of Plaintiffs' claims. They argue that the statute of limitations bars any claim relating to the July 19, 2020 PPRCO event. They further contend that the Amended Complaint fails to state any claims for relief. Finally, they claim that they are entitled to qualified immunity.
LEGAL STANDARDS
I. Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Off. of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “[T]he party invoking federal jurisdiction,” generally the plaintiff, “bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998). Rule 12(b)(1) allows Defendants to raise the defense of the Court's “lack of subject-matter jurisdiction” by motion. Fed.R.Civ.P. 12(b)(1).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). A facial attack “questions the sufficiency of the complaint,” and when “reviewing a facial attack . . . a district court must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001). When reviewing a factual attack, courts cannot “presume the truthfulness of the complaint's factual allegations,” and may consider documents outside the complaint without converting the motion to dismiss into a motion for summary judgment. Ratheal v. United States, No. 20-4099, 2021 WL 3619902, at *3 (10th Cir. Aug. 16, 2021) (unpublished).
II. Rule 12(b)(6)
Rule 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) (citations and 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, 935 F.2d at 1109. “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 conclusions, 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.
However, the Court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. 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).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).
III. Sections 1983 and 1985 and Qualified Immunity
In suits brought against officials in their individual capacities, officials may raise the defense of qualified immunity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). The doctrine of qualified immunity protects government officials from individual liability in the course of performing their duties so long as their conduct does not violate clearly established constitutional or statutory rights. Washington v. Unified Gov't of Wyandotte Cnty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has asserted a defense of qualified immunity, the burden shifts to the plaintiff who must establish that (1) the defendant violated a right, and (2) the right was clearly established. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “In their discretion, courts are free to decide which prong to address first in light of the circumstances of the particular case at hand.” Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (quotation omitted).
ANALYSIS
I. Individual Liability
a. Claims 1 and 2
Defendants argue that Plaintiffs' Claims One and Two, which arise out of the events of July 19, 2020, are barred by the statute of limitations, and even if they were not barred, they fail to state a claim for relief. The Court finds that the original complaint was timely filed but agrees that Plaintiffs' first two claims should be dismissed for failure to state a claim upon which relief may be granted.
1. Statute of Limitations
Plaintiffs' first two claims are brought under § 1983 and § 1985, respectively. Both are governed by a two-year statute of limitations. See Vaughn v. Krehbiel, 367 F.Supp.2d 1305, 1310 (D. Colo. 2005).
“A statute of limitations defense may be appropriately resolved on a Rule 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (internal quotation marks omitted). If, from the complaint, “the dates on which the pertinent acts occurred are not in dispute, [then] the date a statute of limitations accrues is . . . a question of law” suitable for resolution at the motion to dismiss stage. Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (quoting Edwards v. Int'l Union, United Plant Guard Workers of Am., 46 F.3d 1047, 1050 (10th Cir. 1995)). Determining an accrual date must “begin[] with identifying ‘the specific constitutional right' alleged to have been infringed.” Id. at 990 n.5 (quoting McDonough v. Smith, 139 S.Ct. 2149, 2151 (2019)). In general, accrual occurs “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id. at 990; see also Smith v. City of Enid By & Through Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998) (“Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.” (internal citations and quotation marks omitted)).
Here, CM/ECF records reflect that Mr. Corporon' attempted to open the case on July 19, 2022, but the initial complaint is not logged on the docket until July 20, 2022. Mr. Corporon, states that he attempted to file suit on July 19, 2022, “but the electronic filing system would not complete the transaction.” (See Dkt. ##48 & 57.) The next day, he was informed by Clerk's office staff that CM/ECF “requires certain internet browsers or the system ‘freezes.'”
The Supreme Court has made it clear that procedural filing requirements are not mere formalities. See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.”). Furthermore, “strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). Nevertheless, under the doctrine of equitable tolling, a court can “pause a statutory time limit ‘when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.'” California Pub. Employees' Ret. Sys. v. ANZ Sec., Inc., 582 U.S. 497, 507 (2017) (citing Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). Equitable tolling, an extraordinary remedy which should be invoked sparingly, only applies “when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.” Stransky v. HealthONE of Denver, Inc., 868 F.Supp.2d 1178, 1181 (D. Colo. 2012) (citations omitted). Thus, “[t]ypically, a plaintiff who files late due to his own negligence may not invoke equity to avoid the statute of limitations.” Farris v. United States, 877 F.Supp. 1549, 1553 (M.D. Fla. 1994).
In this case, the Court's filing records show that Plaintiffs' counsel, Mr. Corporon, initiated the proceeding within the statutory period. (See Dkt. #49-4 at 6 (CM/ECF “System Transactions” showing that Mr. Corporon opened the case at 9:54 p.m. on July 19, 2020).) An Administrative Notice was generated instructing Mr. Corporon to file the complaint within 24 hours, which he promptly did. (Id.) Thus, Plaintiffs have presented facts which indicate that Mr. Corporon's inability to file the original complaint before the statute of limitations elapsed was due to technical problems related to the Court's filing system. The Court is convinced that Plaintiffs exercised diligence in preserving their constitutional claims.
2. Relation Back
Even though the Court finds that equitable tolling is justified, Plaintiffs' claims in the Amended Complaint, filed on May 5, 2023, must relate back to the original complaint in order to proceed. Under Rule 15(c), an amendment to a pleading relates back to the date of the original pleading when
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.Fed. R. Civ. P. 15(c)(1)(A)-(C).
Defendants point out that Plaintiff Becker was not named in the initial complaint and that Plaintiff Stockham asked and received permission to drop out of the case before the Amended Complaint was filed. Accordingly, Defendants argue that their claims are further barred by the statute of limitations.
Defendants' argument is well taken as to Becker; his claims plainly do not relate back to the date of the original complaint. When an amendment “changes the party . . . against whom a claim is asserted,” it will only relate back when
(1) the basic claim arose out of the conduct set forth in the original pleading, (2) the added party received notice such that the addition will not prejudice its ability to maintain its defense, (3) the added party knows or should have known that, but for the mistake concerning identity, it should have been a party to the original action and (4) the second and third requirements occurred within the prescribed limitation.Pipeline Prods., Inc. v. Madison Co., LLC, 428 F.Supp.3d 591, 603 (D. Kan. 2019) (citing Brown v. Uniroyal, Inc., 108 F.3d 1306, 1307 (10th Cir. 1997)). This analysis applies to the addition of new plaintiffs as well. See id.; Ambraziunas v. Bank of Boulder, 846 F.Supp. 1459, 1467 (D. Colo. 1994) (“Although the language of Rule 15(c) does not expressly govern the relation back of amendments adding plaintiffs, . . . the amendment of the complaint to add new plaintiffs relates back provided there was notice to the defendants of the existence of the additional claim and a mistake in the original pleading as to the proper party.”). Plaintiff Becker has not demonstrated that “but for a mistake concerning the proper party's identity,” he would have been included as a plaintiff in the original complaint. Accordingly, he is time barred from asserting Claims 1 and 2, which are the only ones he brings in this lawsuit.
As to Stockham, however, Defendants offer no support for their implicit contention that a plaintiff who is voluntarily dismissed breaks the relation back chain and is barred from reviving his or her claims in a later pleading. Unlike Becker, Stockham was named in the original complaint and Defendants received adequate notice of his claims. Thus, Stockham cannot be said to have sat on his rights and Defendants would not be prejudiced by his claims going forward.
Insofar as the original complaint is construed as being filed within the statute of limitations period, only the claims of MacLachlan and Stockham can proceed. But as the Court will next discuss, these claims nevertheless fail under Rule 12(b)(6).
3. Claims 1 and 2 Fail to State a Claim
In Claim 1, MacLachlan and Stockham assert that their First Amendment rights were violated when Denver officials and police officers failed to stop rioters from disrupting the PPRCO event on July 19, 2020, which resulted in MacLachlan being assaulted and Stockham's speech being cancelled. In Claim 2, they allege that Defendants conspired with rioters to storm the event. Plaintiffs do not plausibly state claims for relief.
The First Amendment prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I; see also Packingham v. North Carolina, 582 U.S. 98, 101 (2017) (noting the First Amendment's Free Speech Clause is “applicable to the States under the Due Process Clause of the Fourteenth Amendment”). “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (alteration in original) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573, (2002)).
Free speech claims require a three-step inquiry. First, the Court determines whether the speech at issue is afforded constitutional protection; second, the Court examines the nature of the forum where the speech was made; and third, the Court assesses whether the government's action in shutting off the speech was legitimate, in light of the applicable standard of review. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); Mesa v. White, 197 F.3d 1041, 1044 (10th Cir. 1999).
The Court has no trouble finding that Plaintiffs' speech was protected and that it took place in a public forum. Therefore, the Court looks at whether the government was justified in restricting or prohibiting their speech, which is where the claim falls apart. The government took no action to restrict Plaintiffs' speech on July 19, 2020. Plaintiffs were stopped from speaking by counter protesters and “rioters”-i.e., private individuals-not by any state actors. Without state action, Plaintiffs cannot maintain a § 1983 claim. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000) (“Plaintiffs alleging a violation of § 1983 must demonstrate they have been deprived of a right ‘secured by the Constitution and the laws of the United States,' and that the defendants deprived them of this right acting under color of law.”). “[P]rivate conduct, no matter how discriminatory or wrongful” is excluded from the reach of § 1983's state-action requirement. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, (1999) (quotations omitted).
A private party can be deemed to have acted under color of law in certain circumstances, however. The Tenth Circuit has identified four tests used to determine whether a private entity is acting under color of law and is thus subject to liability under § 1983: the nexus test, the public function test, the joint action test, and the symbiotic relationship test. Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013). Plaintiffs allege that Defendants conspired with the protestors to violate their civil rights, which implicates that joint action test. See Sigmon, 234 F.3d at 1125.
“When a plaintiff seeks to prove state action based on a conspiracy theory, ‘a requirement of the joint action charge is that both public and private actors share a common, unconstitutional goal.'” Id. at 1126 (alterations omitted) (quoting Anaya v. Crossroads Managed Care Sys., 195 F.3d 584, 596 (10th Cir. 1999)). “Moreover, ‘the pleadings must specifically present facts tending to show agreement and concerted action.'” Id. (quoting Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994)). “[T]he mere acquiescence of a state official in the actions of a private party is not sufficient.” Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442, 1447 (10th Cir. 1995) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164 (1978)).
Here, Plaintiffs allege that various Denver police officers were concerned about the possibility that the PPRCO event would provoke a violent response and did not take sufficient action to protect Plaintiffs from the rioters. But Plaintiffs do not allege that certain of the named Defendants (including Defendants Hancock, Robinson, Thomas, Wheaton, and Pazen) were even at the 2020 event, much less that they personally participated in any constitutional violations, which is a requirement of any § 1983 claim. See Foote v. Speigel, 118 F.3d 1416, 1423 (10th Cir. 1997). As to the Defendants who were there that day (Wykoff and Sanchez), Plaintiffs offer only the most bare and conclusory allegations that they cooperated with, shared the same goals with, or acted in concert with the rioters.
With regards to the § 1985(3) claim specifically, a plaintiff is required to allege that the conspiracy is motivated by racial or other class-based animus. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Plaintiffs do not allege any such animus.
Accordingly, Claims 1 and 2 should be dismissed under Rule 12(b)(6).
b. Claims 3 and 4
Claims 3 and 4 stem from the fencing requirements that MacLachlan claims caused him to cancel the 2022 PPRCO event. According to MacLachlan, requiring him to fence the entirety of Civic Center Park was an “onerous” burden on his free speech rights and retaliation for holding the 2020 rally. Specifically, MacLachlan alleges that “Denver Parks and OSE collaborating with the Denver Police Department unilaterally imposed an onerous financial burden the on Mr. MacLachlan and PPRCO when it conditioned the PPCO Event permit on an expensive onerous condition”; and “Denver Police Department, in collaboration with Denver parks and OSE are retaliating now for the 2020 PPRCO event by depriving Plaintiffs of their 2022 First Amendment rights by placing onerous conditions on the content of the speech.” (Dkt. #32 at ¶¶ 168, 185.)
The Constitution does not prohibit the government from imposing some restrictions on free speech, even in public fora. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius, 473 U.S. at 799-800. The Supreme Court has therefore held that restrictions on the time, place, and manner of speech are permissible, even in public fora. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). But such restrictions must satisfy four criteria: (1) they must be justified without reference to the content of the regulated speech; (2) they must be narrowly tailored to serve a significant governmental interest; (3) they must leave open ample alternative channels for communication of the information; and (4) they must not delegate overly broad licensing discretion to a government official. See id. (citing first three requirements); Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (recognizing fourth requirement).
To state a First Amendment retaliation claim, MacLachlan must allege facts showing (1) that he was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. Irizarry v. Yehia, 38 F.4th 1282, 1288 (10th Cir. 2022) (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)).
As Defendants note, according to the Amended Complaint, the only named Defendant who personally participated in the 2022 permitting process is Defendant Watts. Accordingly, Claims 3 and 4 cannot be maintained against Defendants Hancock, Robinson, Pazen, Wyckoff, Thomas, Wheaton, or Haynes in their individual capacities. And even as to Defendant Watts, MacLachlan only alleges that she told him that it was the Denver Police and Denver Parks Departments that were requiring the fencing. MacLachlan does not plausibly allege that Defendant Watts had any discriminatory motive in passing along this message. Indeed, Defendant Watts provided MacLachlan with names of fencing companies “that have worked with other events” (Dkt. #3-27) which indicates that PPRCO was not being singled out for disparate treatment at all.
Plaintiffs' Amended Complaint refers to exhibits that were attached to the original complaint.
Moreover, to sufficiently allege a § 1983 claim, MacLachlan must demonstrate that Defendant Watts's conduct caused the alleged deprivation of a constitutional right. See Denver Homeless Out Loud v. City & Cnty. of Denver, No. 20-cv-2985-WJM-SKC, 2022 WL 824413, at *2 (D. Colo. Mar. 18, 2022). “The requisite causal connection is satisfied if the defendants set in motion a series of events that the defendants knew or reasonably should have known would cause others to deprive the plaintiff of his constitutional rights.” Id. (alterations omitted) (quoting Bliss v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). The Court agrees with Defendants that MacLachlan does not adequately allege that Defendant Watts knew or should have known that she was violating MacLachlan's First Amendment rights by relaying to him that she “followed up with [Denver Parks & Recreation] and [Denver Police Department] yesterday after our meeting and the fencing requirement cannot be waived due to the need for risk mitigation.”
c. Qualified Immunity
As discussed above, Plaintiffs have failed to state any claim under §§ 1983 or 1985 against Defendants in their individual capacities. Therefore, Defendants are entitled to qualified immunity.
II. Municipal Liability
Plaintiffs do not formally name the City and County of Denver as a party, but they assert claims against Defendants in their official capacities, and “a section 1983 suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.” Stuart v. Jackson, 24 F. App'x. 943, 956 (10th Cir. 2001) (quoting Myers v. Oklahoma Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)). “Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978) (footnote omitted). To state a claim for municipal liability, a plaintiff must plausibly allege the existence of a municipal policy or custom and a causal link between the policy or custom and the injury alleged. See Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015). He must also “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013). A municipality can be liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Monell, 436 U.S. at 690-91. Thus, to prove a municipality is liable under Section 1983 for the acts of one of its employees, a plaintiff must show (1) that a municipal employee committed a constitutional violation and (2) that 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).
An official policy or custom may take one of the following forms:
(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) (quotation and alteration marks omitted). Whatever species of policy or custom is alleged,
[t]he plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
Plaintiffs' claims against the City and County of Denver should be dismissed because they neither plausibly allege a constitutional violation nor identify any municipal policy or custom that was the moving force behind a constitutional deprivation.
For example, in Claim 1, Plaintiffs allege in a conclusory fashion, “Government officials from the Mayor's office, the Office of Public Safety and or the Police Department coordinated with private individuals to organize a riot for the sole purpose to prevent the exercise of First Amendment rights to speech, assembly, and association.” (Dkt. #32 ¶ 138.) This is plainly inadequate to state a claim under Monell.
The Amended Complaint is similarly defective regarding the fencing requirement. MacLachlan does not identify and challenge (either as-applied or on its face) any Denver regulation or policy such that the Court can assess its constitutionality. Neither does MacLachlan identify any final policymaker who imposed the fencing requirement in retaliation for MacLachlan exercising his free speech rights. Indeed, it appears that other events also necessitated fencing, which suggests that the requirement, such as it existed, was content neutral and imposed for risk mitigation purposes.
Even liberally construing the allegation in the Amended Complaint, Plaintiffs do not state a claim for municipal liability.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that the Motion to Dismiss (Dkt. #34) be GRANTED.
NOTICE: 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, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).