Villanueva v. El Paso Cnty.

463 F.Supp.3d 1202

Thomas VILLANUEVA, Plaintiff,

v.EL PASO COUNTY, Bill Elder, Sheriff, El Paso County Sheriff's Office, in his official capacity; The Estate of Micah Flick, Deputy, El Paso County Sheriff's Office, in his individual capacity; Scott Stone, Deputy, El Paso County Sheriff's Office, in his individual capacity; Jacob Abendschan, Sergeant, El Paso County Sheriff's Office, in his official and individual capacities; John Watts, Detective, El Paso County Sheriff's Office, in his individual capacity; Tremaine White, Detective, El Paso County Sheriff's Office, in his individual capacity; Stephanie Criss, Detective, El Paso County Sheriff's Office, in her individual capacity; Michael Boggs, Detective, El Paso County Sheriff's Office, in his individual capacity; The City of Colorado Springs, Colorado; Peter Carey, Chief of Police, Colorado Springs Police Department, in his official capacity; Kevin Miyakusu, Sergeant, Colorado Springs Police Department, in his official and individual capacities; Marcus Yanez, Officer, Colorado Springs Police Department, in his individual capacity; John Reindollar, Investigator, Colorado State Patrol, in his individual capacity; and Chad Hunt, Sergeant, Colorado State Patrol, in his individual capacity, Defendants.

Civil Action No. 19-cv-00295-PAB-KMT

United States District Court, D. Colorado.

Signed May 28, 2020

Filed May 29, 2020

Colleen Therese Calandra, Joseph Philip Ramos, Jr., Rebekah Frances Stern, Brian Andrew Calandra, Ramos Law, LLC, Northglenn, CO, Scott Alan Hooper, Scott Hooper Law Firm, Wheat Ridge, CO, for Plaintiff.

Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, Raymond Myles Deeny, Sherman & Howard, L.L.C., Denver, CO, for Defendants El Paso County, Bill Elder, Jacob Abendschan, Jacob (I) Abendschan.

Gordon Lamar Vaughan, Vaughan & DeMuro-Colorado Springs, Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, for Defendant Estate of Micah Flick.

Ann Baumgartner Smith, Gordon Lamar Vaughan, Vaughan & DeMuro-Colorado Springs, Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, for Defendants Scott Stone, John Watts, Stephanie Criss, Michael Boggs.

Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, William Thomas O'Connell, III, Wells Anderson & Race, LLC, Denver, CO, for Defendant Tremaine White.

Anne Hall Turner, Colorado Springs City Attorney's Office-South Nevada, Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, for Defendants City of Colorado Springs, Colorado, Peter Carey, Kevin Miyakusu, Kevin (I) Miyakusu, Marcus Yanez.

Nathan James Whitney, El Paso County Attorney's Office, Colorado Springs, CO, William V. Allen, Colorado Attorney General's Office, Denver, CO, for Defendants John Reindollar, Chad Hunt.

ORDER

PHILIP A. BRIMMER, Chief United States District Judge This matter is before the Court on Defendants’ Joint Motion to Dismiss [Docket No. 40]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND¹

Defendants sued in their individual capacity are law enforcement officers who were involved in an attempt to arrest a suspected car thief. Docket No. 1 at 2-4. When the officers attempted to subdue the suspect, the suspect shot three of the officers, killing one. Id. at 3. A stray bullet fired by the suspect struck plaintiff, an innocent pedestrian, paralyzing him from the chest down. Id. at 18-19, ¶¶ 116-118.

The above-referenced officers were part of "Beat Auto Theft Through Law Enforcement" ("BATTLE") team, composed of agents from the Colorado Springs Police Department, El Paso County Sheriff's Office, and the Colorado State Patrol (CSP). Id. at 7, ¶ 19. The BATTLE team's goal is to "look for and attempt to recover stolen vehicles." Id. Team members dress in plain clothes and drive undercover vehicles. Id. , ¶¶ 19-20. Although a multi-jurisdictional operation, CSP is the lead agency. Id. , ¶ 22. CSP thus has "field supervisory responsibility ... and must ensure that BATTLE Operational Guidelines are followed." Id. , ¶ 25.

During the February 5, 2018 operation in question, the BATTLE team had eleven members, id. at 9-10, ¶ 44, dressed in plain clothes, with a police badge underneath their clothing. Id. at 10, ¶ 46. The team rode in four unmarked police vehicles. Id. , ¶ 47. The members of one vehicle located a stolen green 1999 Saturn and placed a tracking device on it. Id. , ¶ 49. Eventually, the tracking device showed that the Saturn had begun to move, and the BATTLE team tracked it to a car wash where they observed the suspect, Manuel Zetina, spray painting the Saturn blue. Id. at 11, ¶¶ 52-53. One team member saw that Mr. Zetina was wearing a hooded sweatshirt with the number "13" on it, a number associated with the Mexican Mafia. Id. , ¶ 55.

Mr. Zetina then left the car wash. Id. at 12, ¶ 59. Mr. Zetina conducted several driving maneuvers, called "burn" moves, to determine whether law enforcement was following him. Id. , ¶ 60. The BATTLE team tracked Mr. Zetina to an apartment complex where they observed Mr. Zetina finish painting the Saturn. Id. , ¶¶ 61-62. Mr. Zetina drove away, again conducting burn moves, before ending up at a different apartment complex. Id. at 12-13, ¶¶ 64, 66. The BATTLE team chose not to arrest Mr. Zetina because he was near his vehicle. Id. at 13, ¶ 67. Mr. Zetina ended up at the Murray Hill Apartments in Colorado Springs. Id. , ¶ 68; see also id. at 3 n.2.

The BATTLE team set up an "operational perimeter" around the Murray Hill Apartments, with each team vehicle parked "in a different spot at the apartment complex." Id. , ¶ 69. A team member saw Mr. Zetina smoking what was believed, and later confirmed, to be methamphetamine. Id. at 14, ¶¶ 74-75. When Mr. Zetina walked into the apartment building, the BATTLE team determined that it was a "good time to takedown Mr. Zetina because he was alone and away from the Saturn." Id. , ¶¶ 75, 78.

Mr. Zetina walked out of the apartment with his right hand in his jacket pocket and elbow flexed. Id. at 15, ¶ 84. Team member Tremaine White thought Mr. Zetina was concealing a weapon. Id. , ¶ 85. He told other team members that Mr. Zetina had a weapon in his hand. Id. , ¶ 88. Although BATTLE team members were dressed in plain clothes, Mr. Zetina seemed to be aware that several members were law enforcement. Id. , ¶¶ 87, 89. Mr. Zetina moved his arms as he approached two BATTLE team members, appearing to be drawing his weapon. Id. at 16, ¶ 90. Deputies Scott Stone and Micah Flick grabbed Mr. Zetina in a "bear hug" to prevent him from using his arms. Id. at 17, ¶¶ 102, 104.

The bear hug was unsuccessful, and Mr. Zetina pulled out a gun, shot Deputy Stone in the hip, shot and killed Deputy Flick, and shot Officer Marcus Yanez. Id. at 17-18, ¶¶ 105-107, 109. Mr. Zetina continued to shoot his gun. Id. at 18, ¶ 110. Team members then shot Mr. Zetina, who died from his injuries. Id.

Plaintiff lived in the Murray Hill Apartments. Id. , ¶ 111. Moments before the gunfight began, plaintiff walked through the Murray Hill Apartments’ parking lot carrying sandwiches he had purchased across the street. Id. at 16, 18, ¶¶ 92, 118. Several BATTLE team members saw plaintiff within the operational perimeter of the attempted arrest. Id. at 16-17, ¶¶ 95-99. A stray bullet fired by Mr. Zetina hit plaintiff in the spine, causing spinal cord damage and paralysis. Id. at 18-19, ¶¶ 116, 118-122.

On February 1, 2019, plaintiff filed this law suit against the BATTLE team members, the City of Colorado Springs, and El Paso County. See Docket No. 1. Plaintiff alleges that defendants violated his rights to life, liberty, and personal security under the Fourteenth Amendment under the theory of state-created danger. Id. at 23. Plaintiff also alleges the same constitutional violations under the theory of failure to train against the El Paso County Sheriff's Office, El Paso County Sheriff Bill Elder, Sergeant Jacob Abendschan of the El Paso County Sheriff's Office, the Colorado Springs Police Department, Colorado Springs Chief of Police Peter Carey, and Sergeant Kevin Miyakusu of the Colorado Springs Police Department. Id. at 26-27, ¶ 173.²

Defendants filed a joint motion to dismiss under Rule 12(b)(6). See Docket No. 40. As to plaintiff's first claim, defendants principally argue (1) that there was no affirmative act as required under a theory of state-created danger and (2), even if there were an affirmative act, defendants’ actions do not shock the conscience. Id. at 9-10. Alternatively, defendants assert that they are entitled to qualified immunity on the first claim. Id. at 14. The second claim, defendants contend, must be dismissed because either (1) Mr. Zetina was the moving force behind plaintiff's injuries or (2) plaintiff has not alleged that defendants were deliberately indifferent to plaintiff's well-being. Id. at 23-29.

II. LEGAL STANDARD

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (alterations omitted). However, a plaintiff still must provide ...