Opinion
Civil Action No. 21-cv-00774-GPG
2023-06-05
ESTATE OF Steve ALIRE, BY personal representative Arlinda ALIRE, and Arlinda Alire, individually, Plaintiffs, v. Officer Thomas WIHERA, in his individual capacity; Officer Thomas Nelson, in his individual capacity; City of Grand Junction, Deputy Jason Bailey, in his individual capacity; Deputy Shaver Hansen, in his individual capacity; County of Mesa (Mesa County Sheriff's Office); and John/Jane Does, 1-10, unidentified members of the various law enforcement agency defendants, in their individual and personal capacities, Defendants.
John M. Scorsine, Stephen Keith Woodall, Kanthaka Group, Colroado Springs, CO, for Plaintiffs. Eric Michael Ziporin, SGR, LLC, Denver, CO, for Defendants Thomas Wihera, Thomas Nelson, City of Grand Junction. Andrew Bradford Clauss, Dinsmore & Shohl LLP, Denver, CO, for Defendants Jason Bailey, Shaver Hanson, County of Mesa.
John M. Scorsine, Stephen Keith Woodall, Kanthaka Group, Colroado Springs, CO, for Plaintiffs. Eric Michael Ziporin, SGR, LLC, Denver, CO, for Defendants Thomas Wihera, Thomas Nelson, City of Grand Junction. Andrew Bradford Clauss, Dinsmore & Shohl LLP, Denver, CO, for Defendants Jason Bailey, Shaver Hanson, County of Mesa.
ORDER
Gordon P. Gallagher, United States District Judge
Before the Court are (1) Defendants Wihera, Nelson, and the City of Grand Junction's (collectively, the Grand Junction Defendants) Motion to Dismiss (D. 22), and (2) Defendants Bailey, Hansen, and County of Mesa's (collectively, the Mesa County Defendants) Motion to Dismiss (D. 26). The Court GRANTS the motions for the following reasons.
I. FACTS
The Court draws the operative facts as set forth in Plaintiffs' Amended Complaint (D. 17). On March 17, 2020, at approximately 7:13 p.m., several individuals were playing basketball on a basketball court at the Orchard Mesa Middle School. Steve Alire, who lived adjacent to the basketball court, confronted the men verbally through a fence and reportedly brandished a knife, then went back to his home and returned with a device that the individuals described as a "black rifle" or an "AR rifle." Mr. Alire allegedly laid down on the ground at the end of his driveway and pointed the rifle at the individuals. The individuals fled the scene and called 911 (D. 17 at 5-6).
Plaintiffs note that sunset was at approximately 7:23 p.m. with nautical twilight at about 8:21 p.m. (D. 17 at 5).
Plaintiffs seem to suggest that Mr. Alire was the victim of "swatting" (i.e., a form of harassment wherein a party falsely reports a serious event or crime to emergency services and requests assistance or law enforcement be sent to the victim's address) and state that the officers failed to investigate this issue when responding. Plaintiffs do not continue this line of argument in any of the briefings and the Court does not find that such argument would alter the analysis.
The Grand Junction Police Department responded to the call and later requested additional assistance from the Mesa County Sheriff's Office. Officers set up a perimeter around the front of Mr. Alire's house and made contact via a megaphone with Mr. Alire, who had since retreated into the house. Mr. Alire later exited the house carrying what Plaintiffs describe as an "Airsoft replica" rifle, a device styled as a form of a military weapon system that shoots a BB projectile of 6mm to 8mm in diameter (id. at 6-7). Plaintiffs insert an image of the rifle within the Amended Complaint, which they allege is an airsoft replica of a French FAMAS F1 rifle (see id. at 8):
Image materials not available for display. Plaintiffs assert that all four of the individual Defendants (Wihera, Nelson, Bailey, and Hansen), due to their firearms training, would have had sufficient familiarity with Airsoft-style rifles as well as the methods to distinguish them from an actual firearm and should have recognized that Mr. Alire was carrying a replica device (id. at 7-8).
Plaintiffs allege that Mr. Alire threw the device towards the individual Defendants and shouted, "it's just a pellet gun" (id. at 9). Plaintiffs further allege that Mr. Alire then returned and exited his residence approximately two more times and voiced suicidal ideations. Mr. Alire returned to the driveway on at least two occasions to kick or throw the rifle closer to the officers and make further comments reflecting suicidal ideations (id. at 9). At some point, the barrel of the rifle broke off—Plaintiffs allege that this demonstrated that the device was a plastic replica and not an actual firearm (id. at 8). Plaintiffs further allege that the officers did not attempt to retrieve the rifle while Mr. Alire was inside the house (id. at 8). Finally, Mr. Alire exited his home one last time, returned to the driveway again, and approached the device. Upon taking these actions, the individual Defendants shot and killed Mr. Alire (id. at 9).
Plaintiffs allege that Mr. Alire also set up his mobile phone to record the ongoing events. It is unclear from the Amended Complaint whether Plaintiffs are in possession of a recording (see D. 17 at 9).
Mr. Alire's estate and his widow commenced this civil action, asserting six claims for relief: (1) violation of the Fourth Amendment, via 42 U.S.C. § 1983, against all Defendants for excessive use of force; (2) violation of the Eighth Amendment, via 42 U.S.C. § 1983, against all Defendants; (3) failure to train, implement policies, and supervise, via 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against the City of Grand Junction and Mesa County; (4) violation of the Fourteenth Amendment, via 42 U.S.C. § 1983, by Arlinda Alire against all Defendants for deprivation of her substantive due process rights; (5) battery causing wrongful death, in violation of Colorado Revised Statute § 13-21-201 et seq., against the individual Defendants; and (6) deprivation of state rights, in violation of Colorado Revised Statute § 13-21-131, against the individual Defendants (id. at 13-25).
Both sets of Defendants move to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6). The Grand Junction Defendants argue: (1) Plaintiffs do not describe an excessive use of force in light of the severity of the circumstances presented, and Defendants are entitled to qualified immunity because Plaintiffs cannot demonstrate that the scope of Mr. Alire's rights were clearly established in this context; (2) no Eighth Amendment rights are implicated by claims of excessive force arising out of an arrest; (3) Ms. Alire has not alleged that Defendants intended to deprive her of the right of familial association sufficient to support a substantive due process claim; (4) Plaintiffs' Monell claim fails to identify a specific municipal custom or practice, fails to allege facts showing that that practice caused the deprivation of Mr. Alire's rights, and fails to allege facts showing that the City of Grand Junction was deliberately indifferent to the risk that its practices would violate Mr. Alire's rights; (5) Plaintiffs' battery claim fails to allege sufficiently "willful and wanton" conduct to overcome the immunity conferred on public officials by the Colorado Governmental Immunity Act (CGIA); and (6) the provisions of C.R.S. § 13-21-131 do not apply in this case because the statute was not in effect at the time of the events (see D. 22). The Mesa County Defendants' motion to dismiss raises similar arguments (see D. 26).
II. LEGAL STANDARD
Under Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true and interpreted in the light most favorable to the non-moving party, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Additionally, the complaint must sufficiently allege facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed; however, a complaint may be dismissed because it asserts a legal theory not cognizable as a matter of law. Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007); Golan v. Ashcroft, 310 F. Supp. 2d 1215, 1217 (D. Colo. 2004). A claim is not plausible on its face "if [the allegations] are so general that they encompass a wide swath of conduct, much of it innocent," and the plaintiff has failed to "nudge [the] claims across the line from conceivable to plausible." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). In assessing a claim's plausibility, legal conclusions contained in the complaint are not entitled to the assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). The standard, however, remains a liberal pleading standard, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotations and citation omitted).
Qualified immunity is immunity from suit and not a mere defense to liability. Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (citation omitted). Thus, at this stage of the litigation, the plaintiff must (1) allege a violation of a constitutional right and (2) the right must be clearly established at the time of the defendant's alleged misconduct. Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013). "The factual allegations must be specific and non-conclusory, and sufficient for a district court to determine that those facts, if proved, demonstrate the defendant is not entitled to qualified immunity." Currier v. Doran, 242 F.3d 905, 912 (10th Cir. 2001) (citation and internal quotations omitted). Asserting qualified immunity via a motion to dismiss "subjects a defendant to a more challenging standard of review than would apply on summary judgment." Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004). When reviewing a motion to dismiss under the lens of qualified immunity, the court should not dismiss a complaint under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citation omitted).
III. ANALYSIS
A. Excessive Force and the Fourth Amendment
Plaintiffs seek relief via 42 U.S.C. § 1983 for the alleged use of excessive force by Defendants in violation of Mr. Alire's Fourth Amendment right. The Fourth Amendment protects persons from the use of excessive force by law enforcement officers in the course of effectuating an arrest. "[C]laims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In Graham, the Supreme Court explained that "determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." 490 U.S. at 396, 109 S.Ct. 1865. That balancing is fact-dependent and should consider the severity of the crime at issue, whether Mr. Alire posed an immediate threat to the safety of officers, and whether he was actively resisting arrest. Id. The Court should assess the reasonableness of the use of the force used from the perspective of a reasonable officer on the scene, "rather than with the 20/20 vision of hindsight," mindful that "police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving." Id. at 396-97, 109 S.Ct. 1865.
Courts examine a motion for dismissal on qualified immunity grounds using a two-step analysis: (1) "whether the plaintiff has met its burden of coming forward with sufficient facts to show that the defendant's actions violated a federal constitutional or statutory right[,]" and (2) "whether the right was clearly established at the time of the alleged conduct at issue." Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000) (citation and internal quotations omitted). When examining the second step, the court must examine whether there was "a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of authority from other circuits must have found the law to be as the plaintiff maintains." Id. at 1338; see also Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011). The prior case law does not need to have identical facts, rather, the pertinent question for the courts to resolve is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation." Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen, 661 F.3d at 511) (internal quotations omitted).
The Supreme Court has clarified that courts must not "define clearly established law at a high level of generality" as the "dispositive question is 'whether the violative nature of particular conduct is clearly established' " and "since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." D.C. v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 590, 199 L.Ed.2d 453 (2018); Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015). Nevertheless, this Court's analysis "is not a scavenger hunt for prior cases with precisely the same facts and a prior case need not be exactly parallel to the conduct here for the officials to have been on notice of clearly established law." Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quotations and citations omitted). For purposes of this Order, the Court will assume without deciding that the facts are sufficient to establish a constitutional violation and analyze whether there was a clearly established right at the time of the shooting.
Plaintiffs have the burden of identifying a clearly established right and "existing precedent must have placed the statutory or constitutional question beyond debate," such that "every reasonable official would have understood that what he is doing violates that right." Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142 S.Ct. 4, 7-8, 211 L.Ed.2d 164 (2021). The examination of authoritative precedent "must be undertaken in light of the specific context of the case, not as a broad general proposition" thus, the plaintiff does not need to cite a case directly on point, but "existing precedent must have placed the statutory or constitutional question beyond debate." Id. at 8 (citation omitted). This translates to "controlling authority at the time of the incident, i.e., a Supreme Court or Tenth Circuit published decision, or a robust consensus of cases of persuasive authority, made clear the unconstitutionality" of the defendant's use of deadly force against another. Lewis v. City of Edmond, 48 F.4th 1193, 1198 (10th Cir. 2022), cert. denied, — U.S. —, 143 S. Ct. 1055, 215 L.Ed.2d 280 (2023). The Tenth Circuit has clarified that "the rule's contours must be so well defined that it is clear to a reasonable officer that [the defendant's] conduct was unlawful in the situation he confronted." Id. (emphasis added).
Plaintiffs cite two cases in order to establish that Defendants' use of force in this context violated the Fourth Amendment. In Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997), a caller alerted police that the plaintiff was armed, had threatened family members, was parked in a car outside his sister's house, and was possibly suicidal. At the time the police arrived, the plaintiff was seated in the car with the door open and one foot on the ground. He had a gun in his right hand, which was resting on the console between the front seats. Officers approached both the driver and passenger side doors of the car and "reached into the vehicle and attempted to seize Mr. Allen's gun." The plaintiff reacted by "pointing the gun toward" the officer opening the passenger side door, "then swung the gun toward" the officers on the driver's side. At that point, the offices on the driver's side opened fire on the plaintiff, killing him. Id. The trial court granted summary judgment to the officers, finding that there was no genuine dispute as to the reasonableness of their use of force in those circumstances, but on appeal, the Tenth Circuit reversed. It explained that "[t]he reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." Id. at 840. It noted that the entire event took place over ninety seconds and that there were discrepancies in the record as to how the officers approached the plaintiff's car, with some witnesses testifying that one of the officers "ran screaming up to Mr. Allen's car and immediately began shouting at Mr. Allen to get out of his car," whereas other witnesses testified that the officer "approached cautiously and tried talking Mr. Allen into giving up the gun." Id. at 839-40. The Tenth Circuit found that the factual discrepancy about the character of the officers' approach was relevant to the reasonableness of their decision to use deadly force and that the matter should proceed to trial. Id. at 841.
Here, this Court finds that Allen is not sufficiently similar to this case to clearly establish the unconstitutional character of Defendants' conduct. The critical issue in Allen was the existence of a factual dispute as to how officers approached the armed suspect and whether that approach unreasonably increased the need for the officers to subsequently resort to the use of force. There was evidence that at least one officer "ran screaming" up to the suspect's vehicle, presumably alarming the suspect and increasing the likelihood that he would seek to "defend" himself by pointing his weapon at offices and, in turn, escalating the likelihood that officers would need to resort to force in response. See City of Tahlequah v. Bond, 595 U.S. 9, 142 S.Ct. 9, 12, 211 L.Ed.2d 170 (2021) (distinguishing Allen from facts where officers "engaged in a conversation with [the decedent], followed him into a garage at a distance of 6 to 10 feet, and did not yell until after he picked up a hammer").
Here, nothing described in the Amended Complaint contends that Defendants' actions escalated the situation with Mr. Alire or acted in such a way as to provoke him into threatening the officers with the rifle. The key facts that Plaintiffs rely upon here for suggesting that the use of force was unconstitutional are that officers should have recognized that Mr. Alire's device was not actually a firearm and that Defendants allegedly had opportunities to retrieve the rifle from the driveway while Mr. Allen was inside the house and failed to do so. Neither of those facts are present in Allen, rendering it inapposite to the "clearly established" inquiry.
In Garza v. Briones, 943 F.3d 740, 746 (5th Cir. 2019), the district court granted the officers' motion for summary judgment for the decedent's excessive force claim, finding the amount of force used was not excessive as a matter of law. In addressing the fact that a bystander previously reported to one of the police officers that the weapon the decedent was displaying was actually a BB gun, the court explained that that fact "doesn't change that calculus" because: (1) the officer receiving that information did not convey it to other officers who also fired upon the decedent; (2) the officer receiving the information did not have enough opportunity to verify the bystander's assertion; and (3) the risk of harm to police if the bystander's statement turned out to be erroneous was high. Many of these facts are present in this case as well. Plaintiffs allege that each of the four individual Defendants should have known that Mr. Alire's weapon was a replica, but even if some of the Defendants did reach that realization, there is no allegation that those officers conveyed their belief to the other officers. And as in Garza, "the stakes were high should [the identification of the weapon as a replica] prove incorrect." Id.; see also Tellez v. City of Belen, 560 F. App'x 812, 815 (10th Cir. 2014) (wherein the Tenth Circuit affirmed the district court's grant of summary judgment based on qualified immunity because the deceased had allegedly threatened another with a pellet gun that was made to look like a firearm).
Likewise, Plaintiffs' reliance on Est. of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019), is insufficient to carry their burden to overcome qualified immunity. In that case, the decedent's wife called the police to report that her husband was "in the driveway of their home with two baseball bats and acting crazy," and was possibly drunk or on drugs. Id. at 1209. The defendant officer communicated from the middle of the street, ordering the decedent to drop the bats, but instead, the decedent turned and walked into his garage. He returned from the garage and began walking towards the officers. The officers continued to give him instructions to drop the bats, and when he did not, one of the officers opened fire with his weapon, killing him. Id. at 1210-11. In reversing the grant of summary judgment to the officers on qualified immunity grounds, the Tenth Circuit found that the Allen case clearly established that the officer's use of force in the situation could be excessive. The Tenth Circuit concluded that Ceballos presented the same fundamental factual issue as Allen: that the officer's own actions may have escalated and exacerbated the situation, creating the officers' own subsequent need to use deadly force. Critical to the ruling in Ceballos was the officer's concession of the fact that, much as in Allen, he "approached Ceballos quickly, screaming at Ceballos to drop the bats and refusing to give ground as Ceballos approached the officers." Id. at 1216.
The Amended Complaint describes no aggressive steps that officers took toward Mr. Alire that can be said to have contributed to the use of deadly force against him. See id. at 1218 (distinguishing Ceballos from cases where the plaintiff "did not claim that the officers' conduct caused the need for them to use deadly force"). Nothing in the Amended Complaint gives any suggestion that the officers ever approached Mr. Alire, much less did so abruptly or aggressively. Thus, Ceballos could not have advised the officers here that their conduct was excessive and unconstitutional. Ultimately, Plaintiffs have not carried their burden of demonstrating that the contours of their Fourth Amendment claim were "clearly established," thus, the individual Defendants are entitled to dismissal of that claim against them due to qualified immunity.
The Amended Complaint criticizes the officers for not acting to retrieve the rifle from Mr. Alire's driveway during one of the periods that he was indoors when, presumably, it would have been safe for officers to do so (see e.g., D. 17 at 9 (defendants "at no time attempted to defuse the situation by removing the replica device")). Ceballos appears to address this situation and noted that "police officers can incur liability for 'reckless' conduct that begets a deadly confrontation." 919 F.3d 1204, 1214 n.2. Furthermore, it is "only reckless or deliberate conduct" by police that heightens the need to use force that may be considered in weighing the amount of force ultimately used, not "mere negligence." Id. at 1214. Plaintiffs' implied argument that Defendants' failure to retrieve the device constitutes excessive force is unavailing.
Although the Amended Complaint purports to assert the excessive force claim against "all Defendants," it is obvious that the City of Grand Junction and Mesa County are not proper Defendants for that claim. Accordingly, the Court dismisses Plaintiffs' excessive force claim in its entirety.
B. Failure to Provide Care and the Eighth Amendment
Plaintiffs contend that, once officers arrived on the scene, Mr. Alire was "essentially in custody," insofar as he "was surrounded, had disarmed himself, [and] was most certainly not free to leave" (D. 17 at 15). He contends that, as a person in custody, the individual Defendants "fail[ure] to provide for [his] medical and behavioral health needs" was done with deliberate indifference to those needs and constituted a violation of the Eighth Amendment (D. 17 at ¶ 97, 101).
Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and Fourteenth Amendments, "all depending on where the defendant finds himself in the criminal justice system, and each carries with it a very different legal test." Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). The Fourth Amendment applies "to the events leading up to and including an arrest of a citizen previously at liberty." Id. Once a person is lawfully arrested, arraigned, and committed to pretrial detention, the Due Process Clause of the Fifth or Fourteenth Amendment would apply and the person would have to show that the mistreatment they received was a result of "arbitrary governmental action." Id. at 1326. The Eighth Amendment's protections against cruel and unusual punishment apply to "those who have been convicted of a crime." Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019).
Plaintiffs argue that courts look to the "totality of circumstances" when determining whether a person might be deemed to be in custody and rely on United States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008). Jones involved the question of whether an individual was in custody for purposes of determining whether his Miranda rights under the Sixth Amendment were implicated during questioning. Jones does not purport to address the question of which constitutional amendment and legal test apply to an excessive force claim in these circumstances and provides no meaningful guidance. Indeed, contrary to Plaintiffs' suggestion that the Court should just shrug off the question of which amendment's analysis applies, Porro expressly states that "[t]he choice of amendment matters." 624 F.3d at 1325. It appears to this Court that there is no colorable argument that can be made that Mr. Alire was anything other than, until the events at issue, a "citizen previously at liberty" under Porro, and thus, his excessive force claims arise solely under the Fourth Amendment, claims which are already subject to dismissal for the reasons set forth above. Accordingly, the Court dismisses the Eighth Amendment claim.
C. Substantive Due Process and the Fourteenth Amendment
Ms. Alire asserts a claim under the Substantive Due Process Clause of the Fourteenth Amendment, alleging that Defendants engaged in arbitrary and capricious actions that shocked the conscience, amounting to interference in her familial relationship with Mr. Alire (D. 17 at 20). The Substantive Due Process Clause protects persons from "deliberate government action that is arbitrary and unrestrained by the established principles of private right and distributive justice," such that the government actor engaged in "egregious and outrageous" conduct. Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir. 2019) (citing cases). Acts that are simply negligent and not egregious or deliberate will not amount to substantive due process violations; the behavior must shock the conscience of federal judges. Moore v. Guthrie, 438 F.3d 1036, 1040-41 (10th Cir. 2006). To plead a substantive due process claim premised on the deprivation of the right to familial association, Plaintiffs must allege that: (1) Defendants intended to deprive Ms. Alire of her protected relationship with the family member, and (2) Defendants either unduly burdened Ms. Alire's protected relationship or effected an unwarranted intrusion into that relationship. Doe, 912 F.3d at 1301 (listing cases).
Plaintiffs have failed to allege facts showing that Defendants' actions were taken with the intention of depriving Ms. Alire of her relationship with Mr. Alire. Indeed, nothing in the Amended Complaint alleges that Defendants had any awareness of Ms. Alire, much less the nature of her relationship with Mr. Alire, at the time of the incident. Plaintiffs point to a single allegation in the Amended Complaint asserting that Mr. Alire "was known to the local law enforcement agencies and was known to have significant mental and behavioral health issues" (D. 17, ¶ 63). This mere fact that Mr. Alire was known to law enforcement officials neither alleges that Ms. Alire was known to law enforcement officials nor alleges that Defendants were cognizant of and specifically intending to interfere with Ms. Alire's relationship when they encountered Mr. Alire. Accordingly, Plaintiffs fail to state a cognizable substantive due process claim. While the Court sympathizes with Ms. Alire over the loss of Mr. Alire, Plaintiffs fail to state a substantive due process claim and the Court must grant Defendants' motions to dismiss.
D. Municipal Liability Claim
Plaintiffs allege that the City of Grand Junction and Mesa County are liable under a Monell theory for failing to adequately train or supervise their officers to prevent constitutional deprivations of the type alleged here. To state a claim for municipal liability under § 1983, a party must allege: (1) a municipality enacted or maintained a policy, (2) the municipality was deliberately indifferent to the resulting constitutional violations, and (3) the policy caused the underlying constitutional violation. Arnold v. City of Olathe, 35 F.4th 778, 795 (10th Cir. 2022); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013). The city and county move to dismiss this claim, arguing that Plaintiffs do not identify any custom or policy (and, by extension, have not alleged how such custom or policy was the "moving force" behind Mr. Alire's injury and how the city or county was deliberately indifferent in adopting that custom or policy).
The Court has found that dismissal is warranted for Plaintiffs' claims of constitutional violations under Rule 12, accordingly, it must also find that Plaintiffs' claim against the municipalities also fails because Plaintiff has failed to state an underlying constitutional violation. Dobson v. City & Cnty. of Denver, 81 F. Supp. 2d 1080, 1086 (D. Colo. 1999); see also Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir. 1994) ("[C]laim of inadequate training, supervision, and policies under § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised.").
Regardless, the Amended Complaint does not clearly and conspicuously identify any particular custom or policy of the city or county that Plaintiffs identify as being the moving force behind Mr. Alire's injury. Plaintiffs allege that "the foregoing statistics alone should have placed" both Mesa County and the City of Grand Junction "on notice that systematic and pervasive cultural issues exist within the community's law enforcement personnel," although Plaintiffs do not specifically identify what these "cultural issues" actually are (D. 17 at ¶ 106). Plaintiffs allege that "no effort was made to involve behavioral health professionals in the process of dealing with this mental health crisis," but do not indicate what policies (if any) the city or county have regarding summoning behavioral health professionals to incident scenes (D. 17 at ¶ 108(b)). They assert that the city and county have a custom or policy of "encouraging, condoning, tolerating, ratifying, and even rewarding the use of excessive force by [officers]," (D. 17 at ¶ 110), but beyond the statistical recitation mentioned above, they do not identify any facts regarding incidents when and how the city or county has encouraged, condoned, or rewarded police officers' use of force that was excessive under the circumstances. They also assert the city and county "have failed to appropriately discipline, retrain and/or otherwise supervise officers and deputies to use force only when objectively reasonable and/or within constitutional limits," (D. 17 at ¶ 119), but again, the Amended Complaint does not identify any particular previous instances of such conduct that would demonstrate the nature of the alleged custom or policy, show how it is closely connected to the incident involving Mr. Alire, and show how the city or county was deliberately indifferent to the possibility that such a custom or policy might result in constitutional deprivations.
The Court finds that Plaintiffs have alleged nothing more than conclusory assertions and "threadbare recitals of the elements of a cause of action" under Monell. See Carbajal v. McCann, 808 F. App'x 620, 638 (10th Cir. 2020). It is entirely unclear from the Amended Complaint what particular city or county custom(s) or policy(ies) Plaintiffs allege give rise to municipal liability. The Amended Complaint makes no mention of any policies, customs, or training the city and county have regarding situations similar to the instant case, so it is impossible to say whether Plaintiffs are asserting that the city or county's policies are defectively designed, whether officers are inadequately trained on how to apply a properly designed policy, or whether the municipalities fail in even having a policy. See e.g. Allen, 119 F.3d at 842-43 (reversing grant of summary judgment on Monell claim where plaintiff produced evidence that officers received inadequate training on how to deal with mentally ill or emotionally upset persons who are armed with firearms). Because Plaintiffs' Amended Complaint contains merely conclusory assertions and not well-pled facts as required by Iqbal, the Court grants the motions to dismiss the municipal liability claim.
E. Remaining State Law Claims
The Court has disposed of all of Plaintiffs' federal law claims, over which this Court has original subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. All the remaining claims are brought under state law, which implicates this Court's supplemental subject-matter jurisdiction under 28 U.S.C. § 1367. Under 28 U.S.C. § 1367(c)(3), when all the "federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998). Accordingly, the Court dismisses the remaining state-law claims without prejudice for lack of subject-matter jurisdiction.
IV. CONCLUSION
Accordingly, Defendants' motions to dismiss (D. 22, 26) are GRANTED. It is FURTHER ORDERED that the Clerk of the Court shall close this case.