Thomas v. City of Denver

CATRICE THOMAS, as the surviving biological daughter and surviving heir of the decedent,Martel C. Thomas, and ESTATE OF MARTEL THOMAS, Plaintiffs, v. YOLANDA WHITE-GORDON, individually and as a current or former employeeor authorized agent of the City & County of Denver Pretrial Services, Defendant.

Civil Action No. 15-cv-00906-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 11, 2016

ORDER

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is the Defendant's Motion to Dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [filed November 6, 2015; docket #36]. The motion is fully briefed, and the Court finds that oral argument will not assist in the adjudication of the motion. Based on the record herein and for the reasons that follow, the Defendant's motion is granted in part and the remaining claims remanded to state court.¹

BACKGROUND

Plaintiffs initiated this lawsuit in the District Court for the County of Denver, Colorado following the death of Catrice Thomas' father, Martel Thomas ("Decedent"), who was allegedly killed by Kenneth Mackey ("Mackey") on November 26, 2013.

I. Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiffs in the Second Amended Complaint,² which are taken as true for analysis under Fed. R. Civ. P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) and under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).³

Denver Pretrial Services is a governmental agency through the City and County of Denver that provides alternatives to incarceration for those accused of crimes and who are awaiting trial. Denver Pretrial Services, its employees, and its authorized agents use a variety of services including but not limited to: 1) global position monitoring, 2) direct, constant contact and supervision, 3) drug testing, 4) curfews, 4) home inspections for felons, gangs, drugs, and firearm possession, 5) employment and residential verification, 6) background checks, and other services. Denver Pretrial Services contracts with private third-party agents to provide some of these services, including but not limited to 'real time' global positioning monitoring, such as BI, Inc. and its parent company The Geo Group, Inc. Both Denver Pretrial Services and BI, Inc. advertise '24/7' services and capabilities.

Defendant Yolanda White-Gordon, an employee with Denver Pretrial Services, was the primary and designated person responsible for supervising and implementing the terms andconditions of the court-ordered intensive pretrial supervision of Mackey at all relevant times, including but not limited to curfew, drug use, firearm possession, and GPS monitoring. Intensive supervision is the highest form of supervision by Denver Pretrial Services and incorporates all of the aforementioned services. It is used to monitor and supervise only those individuals who are accused of serious or violent offenses, have significant criminal histories, are considered threats to public or victim safety, or have a high propensity for recidivism.

On November 26, 2013, Mackey killed the Decedent by multiple gunshot wounds. Mackey was subsequently convicted of homicide by a jury on April 8, 2015 in Arapahoe County District Court, case #2013CR2631. At the time of the homicide, Mackey was out on a $100,000 bond and court-ordered pretrial supervision in Denver District Court, case #2013CR2626, for a separate attempted homicide against another alleged victim. Specifically, on May 29, 2013, Denver County Court Judge Claudia Jordan ordered Denver Pretrial Services to monitor and supervise Mackey while on out on bond. Judge Jordan ordered Mackey to be on placed on intensive supervision and required a global positioning satellite (GPS) device be attached to Mackey's person and monitored by Denver Pretrial Services.

Mackey had several prior criminal convictions, which was a fact known to or readily discernable by Denver Pretrial Services, its employees, and agents.

Evidence in Mackey's criminal homicide trial revealed that on November 26, 2013, Mackey 1) was in possession of a handgun, 2) was breaking into the Decedent's home at approximately 1:30 AM; and 3) had the intent to commit a drug, property, assault, and/or financial crime therein. The evidence also showed that in the late evening or early morning hours of November 25-26, 2013, Mackey committed an armed robbery. The times of the November 25th and/or 26th criminaloffenses were during a period when Mackey's departure from his residence was prohibited and, therefore, violated the policies, customs, protocols, procedures, terms, and conditions of curfew in intensive supervision with Denver Pretrial Services. Mackey's physical movements were both monitored in "real time" and trackable. In fact, police were able to find and arrest Mackey solely based on his GPS bracelet.

Moreover, Mackey violated the terms and conditions of a standard bond by committing, or being allowed the opportunity to commit by Denver Pretrial Services', its employees', and agents' failure to enforce policies, customs, protocols, procedures, terms, and conditions the following violations of his conditions of release:

a. Possession of a handgun and ammunition: there was no pre-release home inspection of Mackey's known residence nor record check for possession.

b. The commission of two (2) crimes in two (2) days: the physical, trackable movements of Mackey committing the crime at Subway on November 25-26, 2013 in the late evening or early morning hours provided sufficient notice and opportunity for Denver Pretrial Services to respond, mitigate, and/or take corrective actions, including but not limited to arresting Mackey prior to the homicide on November 26, 2013.

c. The use, sale, possession, or distribution of illegal narcotics, which was allegedly a motive or relevant factor for Mackey in killing the Decedent: the implementation of regular or random drug testing could have detected any use by Mackey, which would have provided sufficient notice and opportunity for Denver Pretrial Services to respond, mitigate, and/or take corrective actions, including but not limited to arresting Mackey prior to November 26, 2013.

d. Failure to remain or become gainfully employed, which was allegedly a motive or relevant factor for Mackey in killing the Decedent.

e. Lack of direct and constant supervision by Denver Pretrial Services with Mackey, sometimes spanning weeks or months between check-ins.

Defendant was the primary and designated person responsible for supervising and implementing the terms and conditions of the court-ordered intensive pretrial supervision of Mackeyat all relevant times, including but not limited to curfew, drug use, firearm possession, and GPS monitoring. She had education and training on monitoring and supervising individuals on intensive supervision, like Mackey, and was charged with enforcing the court-ordered terms and conditions, as well as policies, customs, protocols, and procedures for monitoring and supervising individuals on intensive supervision. Defendant was responsible for protecting, or acting in a reasonable and prudent manner to mitigate the risk of danger and harm to, the general public, of which the Decedent was a member when he was killed.

Plaintiffs filed a notice of tortious claims with the government on or about April 13, 2014.

II. Procedural History

Based on these factual allegations, Plaintiffs claim Defendant failed to act or acted below the acceptable standard in supervising Mackey. Plaintiffs assert claims against Defendant for (1) wrongful death and survivorship, and (2) a Fourteenth Amendment violation of the Due Process Clause pursuant to 42 U.S.C. § 1983. First, Plaintiffs allege Defendant breached a duty to the public for protection from supervised individuals, thereby proximately causing or substantially contributing to the death of Decedent. See Amended Complaint at 9-10. Second, Plaintiffs allege Decedent possessed the right to his life under the Due Process Clause, which Defendants deprived because of their action(s) or inaction(s). Id. Plaintiffs request actual damages, economic and non-economic damages, and attorney's fees. Id. at 8.

Defendant filed the present motion arguing she is entitled to qualified immunity on the due process claim because Plaintiffs fail to allege a clearly established constitutional violation. In addition, Defendant contends the state law tort claims should be dismissed pursuant to Rule 12(b)(1) because Plaintiff's allegations of willful and wanton conduct do not satisfy the heightenedpleading standard for waiving immunity under the Colorado Governmental Immunity Act ("CGIA"), Colo. Rev. Stat. § 24-10-106 (2013). Alternatively, Defendant asserts the state law claims should be dismissed because she was not named as a Defendant within the applicable statute of limitations.

Plaintiffs counter that the motion should be denied because Defendant does not have sovereign immunity under Colorado law for willful and wanton acts or omissions causing injury pursuant to Colo. Rev. Stat. § 24-10-118(1); Plaintiffs' Second Amended Complaint sufficiently pleads willful and wanton conduct - especially where discovery has been stayed over objection; Colorado law imposes statutory duties upon pretrial supervision employees pursuant to Colo. Rev. Stat. §§ 16-4-105(8), 106; notwithstanding State statutory duties, a goal of pretrial supervision and its employees is to protect the public, therefore assuming an important, inherently dangerous duty; the Plaintiffs' § 1983 action arises out of common law and state tort claims; the Defendant was the only person responsible for upholding the statutory duties and had a special relationship with Mackey; and Plaintiffs timely complied with the applicable statutes of limitations through a properly pled complaint, and have...