Aguilera-Valdez v. Davenport

1

ZAIN AGUILERA-VALDEZ, Plaintiff, v. TROY DAVENPORT, NICK GRADISAR, CITY OF PUEBLO, STEVEN JESIKS, NIKKI THOMAS, OFFICERS DOE 1-4, CHRIS FLORES, FOUR UNKNOWN DETECTIVES, KAREN WILSON, MARIO DIAZ, DETECTIVE RUIZ, SHELLEY TAYLOR, JEREMY BROWN, G. BUSTOS, JOHN CORDOVA, CORDOVA TOWING LLC, MOUNTAIN STATES LENDERS, LLC, and RICHARD WOJCIK, Defendants.

Civil Action No. 21-cv-01209-STV

United States District Court, D. Colorado

September 29, 2022

ORDER

SCOTT T. VARHOLAK, UNITED STATED MAGISTRATE JUDGE

This matter comes before the Court on the Motion to Dismiss Third Amended Complaint brought by Defendants the City of Pueblo Davenport, Gradisar; Thomas Jesik,^[1] Flores, Taylor, Brown Bustos,^[2] Timme,^[3] and Wojcik, (collectively referred to as the “City Defendants”) [#78] (the “City Defendants' Motion”) and on the Motion to Dismiss Plaintiff's Third Amended Complaint brought by Defendants Cordova, Cordova Towing LLC, and Mountain States Lenders, LLC (collectively referred to as the “Private Defendants”) [#79] (the “Private Defendants' Motion”) (collectively the “Motions”). The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [## 54, 55, 80] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons the Court GRANTS the Motions, DISMISSES WITHOUT PREJUDICE the Amended Complaint, and GRANTS LEAVE for Plaintiff to file a Second Amended Complaint as stated in Section (IV), below.

I. BACKGROUND^[4]

A. July 18, 2020 Incident

On July 18, 2020, Plaintiff drove into the parking lot of a Safeway grocery store in his 2008 Lexus. [#72 at 7] At approximately the same time, Plaintiff's uncle also pulled his car into the Safeway parking lot. [Id.] Plaintiff was in the parking lot for approximately two minutes, during which time he exited his car. [Id. (Plaintiff noting that he later “jumped in [his] car”)] Plaintiff heard his uncle speaking loudly with a group of people but did not know what they were speaking about. [Id.] Plaintiff did not speak with or have any contact with the people his uncle was interacting with. [Id.] Gunfire broke out, and Plaintiff was struck in the leg. [Id.] Plaintiff reentered his car, then lost consciousness. [Id.]

Plaintiff awoke in a hospital room in pain. [Id.] Plaintiff had suffered a broken leg, and was being treated with a narcotic painkiller, which left him “heavily intoxicated.” [Id.] Inside Plaintiff's hospital room, Defendant Thomas questioned Plaintiff. [Id.] Later, Plaintiff could barely remember Defendant Thomas's questioning, because of his pain and medication. [Id. at 8]

Defendant Thomas took possession of Plaintiff's shoes, jeans, and shorts, worth a total of approximately $350. [Id. at 7] Plaintiff's clothing has not been returned to him. [Id.] Defendant Thomas also removed Plaintiff's shirt to photograph his tattoos, which were never exposed to the public. [Id.] Defendant Thomas conducted this search and seizure without informing Plaintiff of his Miranda rights and without a warrant. [Id. at 25] Defendant Thomas did not activate her body-worn camera during this interaction. [Id. at 8] Plaintiff wanted to leave, but Defendant Thomas informed him that he was not free to leave. [Id. at 7]. Defendant Thomas was on the phone and receiving orders from Defendant Flores. [Id. at 8] Defendant Thomas informed Plaintiff's family that he was being detained on suspicion of robbery. [Id. at 8-9] From the facts alleged in the Amended Complaint, it is unclear what occurred between Defendant Thomas telling Plaintiff in the hospital that he was not free to leave and Plaintiff arriving at the Pueblo Police Department. [See id. at 7-8] Plaintiff alleges that his stepfather was trying to take him home, presumably from the hospital. [Id. at 7] He also alleges that “at 3:10 am both my stepfather, my mother and myself were protesting the illegal detainment. I had already pled the fifth. I also went back and sat in the car.” [Id.] This protesting occurred outside the Pueblo Police Department. [Id. at 9] It is not clear whether the car was Plaintiff's own or a family member's, but Plaintiff's allegations imply that he was going “back” into a car he had been in before, and it therefore seems likely that Plaintiff went to a private car of his own volition rather than being ordered into a police vehicle. It is also unclear whether Plaintiff went to the police station voluntarily or pursuant to police orders, and whether his family members drove him or whether he got to the police station by some other means.

Plaintiff then alleges that “[a]t 3:19am I limped my way into the police station.” [Id. at 10] Inside the police station, Plaintiff sat unrestrained in the lobby. [Id. at 21; see also id. at 11, 15, 21 (photographs of Plaintiff unrestrained in the lobby)] Defendant Jesik and an unknown officer, referred to as John Doe 1, escorted Plaintiff to an office where he was forced against his will to remove his shirt so that his tattoos could be photographed. [Id. at 12-13] Plaintiff was also required to give his fingerprints, and the officers checked his hands for gunpowder residue. [Id.] Plaintiff asked Defendants Thomas and Jesik what the basis of his detention was, but they did not provide a satisfactory answer. [Id. at 14] On the basis of the photographs Defendants Thomas and Jesik took of the tattoos usually concealed by Plaintiff's shirt, he was subsequently placed on the “Gang Data Base.” [Id. at 9]

At 4:20 a.m., Plaintiff's stepfather asked Defendant Flores questions about Plaintiff's detention. [Id. at 15-21] Defendant Flores informed Plaintiff's stepfather that Plaintiff was “detained just for the mere fact that he was there, and incidents that led up to the shooting” and that “we know that there was some type of possibly a robbery, that that was occurring in that incident, so I don't know where, what his involvement, he is. I guess what we're trying to clarify it.” [Id. at 16-17] Defendant Flores explained that Plaintiff would be brought to an interrogation room so that his invocation of the Fifth Amendment could be documented on the record. [Id. at 17, 19] Defendant Flores also stated that Plaintiff “may be involved in this [robbery] and that's what we're trying to determine.” [Id. at 18] After being pressed by Plaintiff's stepfather to articulate the basis for Plaintiff's detention, Defendant Flores articulated that:

[N]ow there's, other things that are coming about, that they think, that there was other things, that were led up to the actual shooting, so word that's what we're trying to figure out, and we know that he was involved. [H]e was part, number one his family member was one you said it is deceased, number two he was shot, so we know there was something that led up, to it so that's why we're trying to figure that out, and trying to get that information, so that's why we know he's part of it. So that's why we're trying to get that understanding, and I understand he doesn't want to talk so that's why we're going to get it on camera to show. So that way it clearly shows.

[Id. at 20-21]

Around 5:30 a.m., three detectives informed Plaintiff's family that he was being charged with double homicide.^[5] [Id. at 21] Plaintiff was taken to an interrogation room with Defendant Flores and four unknown detectives. [Id. at 22] Plaintiff was read his Miranda rights. [Id.] Plaintiff asserted his Fifth Amendment right to remain silent. [Id.] The officers left the room, leaving Plaintiff there for approximately two hours. [Id.] Then, Detective Flores informed Plaintiff that he was free to go. [Id.] On Plaintiff's way out of the police station, the following exchange allegedly occurred:

Next thing you know the old white detective comes up to [Plaintiff]. He tells [Plaintiff] [“]you know you're going to do 30 years for that double homicide. The only way you can get out of it is to come back and give us a statement.

If you don't give us a statement we're gonna put that double homicide on you. So you're gonna wanna talk to us.[”] [Plaintiff] replied to the detective “I'm good.”

[Id.] Plaintiff was detained for a total of approximately seven hours. [Id. at 23-24]

After the night of July 18, 2020, Plaintiff experienced several other incidents which he understood to be retaliation against him for his refusal to make a statement that night. [Id. at 29-34]

B. November 1, 2020 Incident

The Pueblo Police Department maintains “information on individuals who are suspected of participating in a criminal street gang and groups that are suspected of being criminal street gangs” (the “Gang List”). [Id. at 48] Following the July 18, 2020 incident Plaintiff was designated as a participant in a criminal street gang on the Gang List. [Id. at 7, 9, 25-26] This designation was, at least in part, because of police documentation of his tattoos [id.; see also id. at 49] and, at least in part, because Plaintiff was “associating with someone, because of the type of clothing [he] wish[es] to wear, or because of hearsay statements from untested individuals.” [Id. at 50] On November 1, 2020, an officer from the El Paso County Sherriff's Office pulled over Plaintiff for a traffic stop. [Id. at 50]. Plaintiff was asked questions that he alleges had nothing to do with the traffic stop, like what he was doing in Colorado Springs, and whether he was consuming marijuana. [Id. at 50-51] The officer removed Plaintiff's passenger from the car and questioned her. [Id. at 51] Plaintiff alleges that the traffic stop was prolonged because his name appeared on the...