Montgomery v. Cohn

1

WILLIAM MONTGOMERY, Plaintiff, v. BRETT COHN, and TREVOR CUAZ, Defendants.

CIVIL No. 22-cv-00011-PAB-MEH

United States District Court, D. Colorado

March 6, 2023

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

PHILIP A. BRIMMER Chief United States District Judge

This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 46]. The Recommendation addresses Defendants Sergeant Cohn and Deputy Cuaz's Motion to Dismiss Plaintiff's Complaint [Docket No. 32]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND^[1]

The facts are set forth in the magistrate judge's recommendation, Docket No. 46 at 1-2, and the Court adopts them for the purposes of ruling on the objections. On January 4, 2022, William Montgomery filed his complaint bringing three claims for Fourth Amendment violations under 42 U.S.C § 1983 against Sergeant Brett Cohn and Deputy Trevor Cuaz for 1) unreasonable search; 2) unreasonable seizure; and 3) unlawful arrest. Docket No. 1 at 10-14. Defendants filed a motion to dismiss all claims based on qualified immunity. See Docket No. 32. On December 7, 2022, the magistrate judge issued a recommendation to grant the motion to dismiss. Docket No. 46 at 1. Mr. Montgomery filed an objection on December 21, 2022. Docket No. 47. Defendants filed a response, Docket No. 50, and Mr. Montgomery filed a reply. Docket No. 51.

II. LEGAL STANDARD

A. Objections to Magistrate Judge Recommendations

The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection “enables the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” Id.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). The Court therefore reviews the non-objected to portions of the recommendation to confirm that there is “no clear error on the face of the record.” Fed.R.Civ.P. 72(b), Advisory Committee Notes. This standard of review is something less than a “clearly erroneous or contrary to law” standard of review, Fed.R.Civ.P. 72(a), which in turn is less than a de novo review. Fed.R.Civ.P. 72(b).

Because Mr. Montgomery is proceeding pro se, the Court will construe his objections and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

B. Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The ‘plausibility' standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F.Supp.3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide “supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584 F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” (citation omitted)). Otherwise, the Court need not accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations omitted).

C. Qualified Immunity

“Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve questions of qualified immunity at the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified immunity challenge still does not have a heightened pleading standard. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).

Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights.'” Hale v. Duvall, 268 F.Supp.3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v. Oklahoma ex rel. Dep't of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When a defendant raises the defense of qualified immunity, a “plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal quotation marks omitted). Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case.” Pearson, 555 U.S. at 236.

III. ANALYSIS

The magistrate judge recommends granting the motion to dismiss, finding that the defendants are entitled to qualified immunity on all three claims. Docket No. 46 at 9, 11. Mr. Montgomery filed a timely objection to the recommendation on December 21, 2022. See Docket No. 47.

A. Claim Three - Unlawful Arrest

The magistrate judge recommends that defendants are entitled to qualified immunity on the unlawful arrest claim because it was not clearly established that the defendants lacked arguable probable cause to arrest Mr. Montgomery for shoplifting. Docket No. 46 at 9. The magistrate judge resolved Mr. Montgomery's unlawful arrest claim only on the second prong of the qualified immunity analysis. Id. at 5, 9. The magistrate judge found that,

[u]nder nearly identical facts, . . . the Tenth Circuit has held that “where the officer personally witnessed some facts supportive of probable cause that the suspect had shoplifted; the officer asked the suspect about it, and the suspect did not deny shoplifting the items in question; and store employees told the officer the suspect had, in fact, stolen the items,” the officer had not violated a clearly established law.

Id. at 7-8 (quoting Montgomery v. Calvano, 2022 WL 1132212, at *2 (10th Cir. April 18, 2022)). The magistrate judge found that, although the defendants in this case did not witness Mr. Montgomery's attempts to exit the store, the defendants conducted an investigation before arresting him. Id. at 8. A Walmart employee told Sergeant Cohn that Mr. Montgomery did not have a receipt for the items. Id. Sergeant Cohn asked Mr. Montgomery for his receipt at least nine times, but Mr. Montgomery never produced a receipt or denied shoplifting. Id. The magistrate judge found that the case law cited by Mr. Montgomery was insufficient to establish that defendants lacked arguable probable cause to arrest him. Id.

Mr Montgomery asserts four objections to this portion of the recommendation. See Docket No. 47 at 1-6, 13-15. First, Mr. Montgomery claims that the defendants lacked arguable probable cause to arrest him because “the simple acts of refusing to answer questions and refusing to consent to searches are legally insufficient factors [alone] to fairly establish probable cause.” Id. at 4-5. Mr. Montgomery argues that the magistrate judge misconstrued why he cited several cases in his response to...