Cuervo v. Sorenson

112 F.4th 1307

Patricia CUERVO, Plaintiff-Appellant, v. Todd SORENSON, Captain, Mesa County Sheriff's Office; Travis Christensen, Sergeant, Mesa County Sheriff's Office; Marco Montez, Sergeant, Mesa County Sheriff's Office; Tim Orr, Sergeant, Mesa County Sheriff's Office; Jenna Reed, Investigator, Mesa County Sheriff's Office; Eric Olson, Investigator, Mesa County Sheriff's Office; Curtis Callow, Deputy, Mesa County Sheriff's Office; Donald Love, Deputy, Mesa County Sheriff's Office; Seth Parker, Deputy, Mesa County Sheriff's Office; Thomas Stuckenschneider, Deputy, Mesa County Sheriff's Office; Josh Sanchez, Deputy, Mesa County Sheriff's Office; Ryan Reasoner, Deputy, Mesa County Sheriff's Office; Garth Cowly, Deputy, Mesa County Sheriff's Office; Salmineo Espindola, Deputy, Mesa County Sheriff's Office; Devrin Sandell, Deputy, Mesa County Sheriff's Office; Mike Miller, Investigator, Mesa County Sheriff's Office; Jamie Pennay, Sergeant, Mesa County Sheriff's Office, Defendants-Appellees.

No. 22-1387

United States Court of Appeals, Tenth Circuit

FILED August 30, 2024

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00671-WJM-GPG)

Sean Michael McDermott, McDermott Stuart & Ward LLP, Denver, Colorado, for Plaintiff-Appellant.

Chris W. Brophy (Andrew B. Clauss with him on the briefs), Dinsmore & Shohl LLP, Denver, Colorado, for Defendants-Appellees.

Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges.

CARSON, Circuit Judge.

A district court generally may not rely on facts emanating from outside of a plaintiff's well-pleaded complaint when it grants a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). But in this 42 U.S.C. § 1983 lawsuit, the district court dismissed Plaintiff's case after it granted qualified immunity based on documents outside the complaint that Plaintiff neither attached, incorporated, nor relied upon. Our jurisdiction arises under 28 U.S.C. § 1291. Because the district court erred by relying on documents outside of the pleadings, and because we cannot affirm its dismissal based on the documents properly before us, we reverse.

I.

Officers in and around Mesa County, Colorado were on the hunt for a stolen Sno-Cat—a large, tracked machine, 8' wide, 7'5? tall, and 16'8? long. They suspected Plaintiff's son had parked the Sno-Cat in Plaintiff's garage, so they rang her doorbell. Nobody answered, but at least one officer believed he observed someone inside the residence. Plaintiff's property included both the garage and an attached residence—but only the garage could have housed the Sno-Cat.

Two hours later, officers obtained a search warrant authorizing the search of Plaintiff's property for the Sno-Cat. The Special Weapons and Tactics ("SWAT") units of the Mesa County, Colorado Sheriff's Office ("MCSO") and Grand Junction Police Department ("GJPD") descended upon Plaintiff's residence to execute the warrant. Officers made no further attempt to establish contact with anyone who might have been inside the residence when they returned with the warrant, but instead fired or helped fire chemical munitions into the residence.¹ Officers then entered the residence and searched for the Sno-Cat. The search of the home turned up no humans—only a dog.

The claims at issue in this case relate to damage caused by officers' unlawful forced entry into the residence, use of hazardous chemicals, and failure to close the windows and secure the doors when they left— which resulted in further property damage from looters. According to Plaintiff, officers caused over $50,000 in damage.

Plaintiff sued over two dozen officers from multiple departments, asserting Fourth and Fifth Amendment violations under 42 U.S.C. § 1983. The defendants claimed qualified immunity and moved to dismiss Plaintiff's complaint under Rule 12(b)(6). The district court granted the motions. In reaching its decision, the district court considered documents outside the pleadings—the search warrant, supporting affidavit, and GJPD's one-page, unsigned after action report ("AAR")—despite Plaintiff's objection that the district court could not consider outside documents without converting the Rule 12(b)(6) motion to a motion for summary judgment and allowing the parties to conduct discovery.

Plaintiff then filed a more detailed First Amended Complaint ("FAC"), pleading only a Fourth Amendment § 1983 claim against seventeen MCSO officers ("Defendants"). Defendants moved to dismiss the FAC under Rule 12(b)(6) and asserted qualified immunity. The district court again granted qualified immunity and dismissed Plaintiff's claims. In its analysis, the district court considered the search warrant, supporting affidavit, and AAR, specifically relying on facts within the AAR. Plaintiff timely appealed the district court's order dismissing her FAC.

On appeal, Plaintiff contends the district court erred in dismissing her FAC on qualified immunity grounds. Defendants ask us to affirm the grant of qualified immunity. Defendants appear to alternatively seek affirmance on the alternate ground that Plaintiff failed to state a claim upon which relief may be granted because she failed to adequately plead that each defendant personally participated in the alleged constitutional violations.² We first address Defendants' alternative argument. We then address the qualified immunity issue.

II.

We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss, including a dismissal based on qualified immunity. Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (citing Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013)). Complaints must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff who fails to plead a plausible claim is subject to dismissal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We accept all well-pleaded factual allegations as true and view them "in the light most favorable to the plaintiff." Truman, 1 F.4th at 1235 (citing Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)).

III.

We first examine whether the district court erred in considering the search warrant, the affidavit supporting the warrant, and the AAR without converting the motion to dismiss into a motion for summary judgment. Generally, a court may consider only the contents of a complaint when ruling on a motion to dismiss. Goodwill Indus. of Cent. Okla., Inc. v. Philadelphia Indem. Ins. Co., 21 F.4th 704, 709 (10th Cir. 2021) (citing Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013)). But courts may also consider documents that a plaintiff (1) attaches to her complaint; (2) incorporates by reference in her complaint; or (3) refers to in her complaint and that are central to her complaint and indisputably authentic. See Berneike, 708 F.3d at 1146 (quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)).

When the district court considers documents outside the pleadings without a valid exception, it must convert the motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(d); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972). The district court must inform the parties of its conversion and give the parties a reasonable opportunity to accumulate and present all relevant evidence. Fed. R. Civ. P. 12(d); Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (citing Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir. 1978)). Failure to do so constitutes reversible error unless we can affirm the district court's dismissal under Rule 12(b)(6), considering only the pleadings and any documents properly before us. Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (citing Miller, 948 F.2d at 1565-66).

Plaintiff did not attach documents to her FAC or expressly incorporate any documents by reference. But the district court relied on facts within the AAR, finding that Plaintiff referenced the AAR in Paragraph 56 of the FAC—even though Defendants did not ask the district court to consider the AAR.³ Plaintiff contends the district court erred by relying on the AAR. We agree.

Defendants contend the district court appropriately considered the AAR because Plaintiff attached the document to her briefing on Defendants' motion to dismiss her original complaint. But this argument misses the mark. Although Plaintiff indeed attached the AAR to a document she filed earlier in the case, the document was part of a prior round of motions to dismiss based on a prior pleading, and in response to specific allegations from prior defendants. In that context, Plaintiff attached the AAR to show its deficiencies and to bolster her asserted request for discovery. But Plaintiff never relied on the AAR to establish her claims in any document she filed opposing Defendants' motion to dismiss her FAC.

Because the FAC does not reference the AAR, and because the AAR is not central to any claim in the FAC, the district court could not properly consider the AAR when ruling on a motion to dismiss the FAC.⁴ Instead, if the district court wished to consider the AAR, our precedents required it to convert the motion to dismiss the FAC into a motion for summary judgment and allow any appropriate discovery. Miller, 948 F.2d at 1565 (citing Peterson, 585 F.2d at 457). The district court failed to do so and thus committed error.

IV.

Having concluded that the district court erred by considering the AAR, we conduct a de novo review under Rule 12(b)(6). See Lowe, 143 F.3d at 1381 (citing Miller, 948 F.2d at 1566). We disregard the AAR and look only to well-pleaded facts and reasonable inferences from the FAC, the search warrant, and the affidavit to determine whether Plaintiff has alleged a plausible claim for relief. See id. (citing Miller, 948 F.2d at 1566).

We affirm the district...