Waller v. City and County of Denver
Opinion
Plaintiff Anthony Waller appeals the district court's Rule 12(b)(6) dismissal of his municipal liability claim against the City and County of Denver for a Denver deputy sheriff's use of excessive force against him.
I.
On September 11, 2012, while in pretrial detention, Mr. Waller was escorted in handcuffs and other restraints to a courtroom located within the Denver City Jail for a first advisement hearing. Mr. Waller remained "very respectful and calm throughout the advisement." (Appellant's App. at 28.) After the judge finished the advisement, Mr. Waller "politely address[ed] the Court in a normal and subdued voice," stating that he thought the investigation should have come before his arrest. ( Id. ) The judge began to respond, but while she was speaking, Deputy Sheriff Brady Lovingier, who had been standing directly behind Mr. Waller, suddenly and "without warning, justification[,] or provocation" grabbed Mr. Waller, spun him around, and threw him face first into a nearby glass wall and metal post, causing *1281 him to sustain "serious and permanent injuries." ( Id. at 25, 29.) Deputy Lovingier's assault on Mr. Waller was captured on video recorded by the courtroom cameras.
Approximately one year later, on September 24, 2013, Deputy Lovingier received a thirty-day suspension for his assault on Mr. Waller. The official who issued the suspension order concluded that Deputy Lovingier had violated "DSD RR-300.22-Inappropriate Force; DSD RR-300.19.1-Disobedience of Rule: Department Order 5011.1J-Use of Force; Career Service Rule 16-60 for Neglect of Duty, Carelessness in Performance of Duties and Responsibilities, and Conduct Prejudicial to the Good Order and Effectiveness of the Department or Conduct That Brings Disrepute on or Compromises the Integrity of the City." ( Id. at 32.) The official explained that Deputy Lovingier's attack on Mr. Waller was "unprovoked," "egregious and unprofessional," and "breached several of the [Sheriff Department's] Guiding principles," as well as compromising the efficiency and reputation of the Sheriff Department and the City and County of Denver. ( Id. at 32-33.) A hearing officer affirmed Deputy Lovingier's thirty-day suspension.
Mr. Waller filed this federal lawsuit under
A magistrate judge reviewed these motions and recommended that the district court grant Defendants' motions to dismiss but permit Mr. Waller to amend his complaint in part. Specifically, the magistrate judge recommended that Mr. Waller be permitted to amend his original complaint to clarify the legal basis of his excessive force claim against Deputy Lovingier. However, the magistrate judge concluded that neither the original nor the proposed first amended complaint contained sufficient factual allegations to set forth a plausible claim of municipal liability against Denver. The magistrate judge therefore recommended that the district court deny as futile Mr. Waller's motion for leave to amend his claim against Denver and grant Denver's motion to dismiss. Mr. Waller objected to this recommendation, but the district court ultimately adopted it.
Mr. Waller then filed a second amended complaint and proceeded with his excessive force claim against Deputy Lovingier. This claim was tried before a jury, which found that Deputy Lovingier had violated Mr. Waller's right to be free from excessive force. The jury awarded Mr. Waller $50,000 in actual damages but rejected his request for punitive damages. The district court entered final judgment consistent with this verdict and the earlier Rule 12(b)(6) dismissal, thus entering judgment in favor of Denver and against Deputy Lovingier. In addition to the $50,000 in damages awarded by the jury, the district
*1282
court also awarded Mr. Waller $176,226 in attorney's fees under
In this appeal, Mr. Waller challenges the Rule 12(b)(6) dismissal of his municipal liability claim against the City and County of Denver. Although he does not directly challenge the district court's denial of his motion for leave to amend his complaint, his arguments regarding the court's Rule 12(b)(6) dismissal are based primarily on the allegations in his proposed first amended complaint.
II.
"We review
de novo
a district court's decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim."
Alvarado v. KOB-TV, L.L.C.
,
"In reviewing a Rule 12(b)(6) motion to dismiss, our first step is to review the factual allegations that should have been considered by the district court."
Alvarado
,
Mr. Waller also contends that we may consider evidentiary materials outside his complaints. Specifically, his appellate briefs refer extensively to two reports regarding the Denver Sheriff Department that were released in May 2015, after he had filed both his original complaint and his proposed first amended complaint. Mr. Waller attached these reports to his objection to the magistrate judge's report and recommendation, and he argues both that the district court should have considered these reports below and that we should consider them on appeal because they "substantiate" his municipal liability claims against Denver. (Appellant's Br. at 19.)
The "usual rule" is "that a court should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss."
Alvarado
,
Mr. Waller also contends that the district court was permitted-and even mandated-to consider the 2015 reports because Rule 72(b)(3) of the Federal Rules of Civil Procedure and
We accordingly turn to the primary question before us in this appeal-whether the factual allegations in either or both of Mr. Waller's complaints were sufficient to state a plausible claim of municipal liability against the City and County of Denver. The Supreme Court has made clear that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents."
Monell v. Dep't of Soc. Servs.
,
Thus, to establish municipal liability, a plaintiff must first demonstrate a "municipal policy or custom," which may take one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Bryson v. City of Okla. City
,
After establishing a municipal policy or custom, a plaintiff must demonstrate "a direct causal link between the policy or custom and the injury alleged."
Bryson
,
Finally, at least for claims of inadequate hiring, training, or other supervisory practices, a plaintiff "must demonstrate that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences."
Brown
,
With this legal background in mind, we will separately consider each of Mr. Waller's alleged theories of liability: (1) inadequacies in Denver's hiring practices; (2) failure to train; (3) failure to supervise; (4) failure to investigate; and (5) failure to discipline.
We begin with Mr. Waller's argument that Denver is responsible for the injuries inflicted by Deputy Lovingier because Denver's hiring practices were inadequate and improper. The original complaint contains no allegations relating to Denver's hiring practices, but the first amended complaint contains the following allegations regarding Denver's hiring practices: "The City of Denver fails to perform sufficient *1285 background checks for hiring of deputies and hires deputies with criminal records including persons with misdemeanor and felony convictions"; "The hiring of deputies by the City of Denver is not based on a merit system but is influenced by the office of the Mayor including executive staff, administration[,] and members of Denver City Council"; and, "The hiring of deputies by the City of Denver is achieved through nepotism. The Defendant Brady Lovingier is the son [of] Bill Lovingier who headed the Sheriff's Department from 2006 to 2010." (Appellant's App. at 114-15.)
These allegations fail to state a plausible claim for relief. As an initial matter, we note that the first amended complaint does not plausibly allege "a direct causal link,"
Brown
,
We next consider Mr. Waller's "failure to train" theory of liability. In considering this theory, we are mindful of the Supreme Court's warning that "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train."
Connick
,
Mr. Waller argues that he has shown the necessary pattern of similar constitutional violations to establish deliberate indifference here. However, we are *1286 not persuaded that the factual allegations in either complaint are sufficient to make this showing. First, we disregard the original complaint's allegations regarding Denver police officers, who are employed by the Denver Police Department rather than the separate Denver Sheriff Department. These allegations were removed from the original complaint at Mr. Waller's request, and, even if they remained in the complaint, they would not be relevant to the question before us in this appeal-whether Denver was deliberately indifferent in September 2012 to a known or obvious risk that deputy sheriffs employed by the Denver Sheriff Department would use excessive force against detainees such as Mr. Waller. Other allegations in the original and first amended complaint are similarly irrelevant to this question because they allege only that certain inmates died or were injured in custody, with no indication that these incidents were related in any way to a deputy sheriff's use of force. 1 Without a connection between these incidents and a deputy sheriff's improper use of force, these allegations fail to suggest any deficiency in Denver's excessive-force training for deputy sheriffs.
As for Mr. Waller's allegations of a handful of excessive-force incidents that allegedly occurred in the months and years after he was assaulted by Deputy Lovingier, even if these allegations could arguably constitute circumstantial evidence that Denver's training program is deficient in some way, they fail to show that Denver acted with deliberate indifference in September 2012 to a risk that was known or obvious to the city at that time. Incidents that occurred subsequent to the incident at issue in this case cannot have provided Denver with notice of a deficiency in its training program before that incident, and thus they cannot be used as evidence that, prior to Deputy Lovingier's use of force against Mr. Waller, Denver "decisionmakers ... deliberately chose[ ] a training program that w[ould] cause violations of constitutional rights."
Connick
,
The original and first amended complaint each contain only two allegations of a deputy sheriff's pre-September-2012 use of excessive force. The first of these allegations does not involve similar conduct to the conduct at issue in this case. Specifically, Mr. Waller alleges in both complaints that a civilian protesting the Iraq War in public was thrown to the ground by a Denver police officer, whose beating of the civilian was later joined by a Denver deputy sheriff. We are not persuaded that this civilian incident would have put Denver on notice of a need to train deputy sheriffs regarding their use of force against detainees held in the custody of the Denver Sheriff Department. The complaints allege only one prior incident involving a deputy sheriff's alleged use of excessive force against an individual in the Sheriff Department's custody. In that incident, as here, a deputy sheriff allegedly launched an unprovoked and unjustified attack on a restrained, compliant inmate who was simply standing where he had been directed to stand-there, next to an elevator.
Although Mr. Waller has thus alleged one similar prior incident, we have found no cases suggesting that a single prior incident can constitute a "pattern" of conduct giving rise to an inference of deliberate indifference. To the contrary, we have expressly held that "[o]ne prior incident, even if it was a constitutional violation sufficiently similar to put officials on notice of a problem, does not describe a pattern of violations."
Coffey v. McKinley Cty.
,
In the analogous case of
Schneider
, which involved an alleged sexual assault by a police officer, the plaintiff presented evidence both that the officer who raped her had been the subject of a prior sexual assault complaint and that the police department had received "one other report of non-consensual sexual misconduct" involving a different officer.
Our reasoning in Schneider weighs against any conclusion that the allegations in this case would fall within the " 'narrow range of circumstances' " in which deliberate indifference may be found "without proof of a pre-existing pattern of violations."
*1288
Connick
,
With this reasoning in mind, we note that the conduct at issue here, unlike in many excessive force cases, did not involve an officer making the wrong call regarding the level of force to employ against an individual who posed a threat to the officer or other individuals or was actively resisting arrest.
Cf.
Connick
,
Mr. Waller accordingly has not shown either that there was a pattern of prior similar misconduct or that " 'the need for more or different training [was otherwise] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.' "
Id.
at 773 (quoting
Canton
,
We next consider Mr. Waller's failure-to-supervise theory of liability. Although
*1289
both complaints allege in conclusory fashion that Denver knew or should have known that its employees were inadequately supervised, neither complaint alleges any facts regarding any supposed supervisory deficiencies in the Denver Sheriff Department, much less any facts describing how Deputy Lovingier's supervision was inadequate or how his purportedly inadequate supervision caused Mr. Waller's injury. Mr. Waller has accordingly failed to "state a claim to relief that is plausible on its face,"
Twombly
,
We turn then to Mr. Waller's failure-to-investigate theory of municipal liability. Mr. Waller asserts that Denver has created an atmosphere in which excessive force is likely to occur by consistently failing to investigate misconduct by deputies in the Denver Sheriff Department. The complaints contain the following specific allegations regarding Denver's allegedly inadequate investigation of deputy misconduct: (1) in a 2013 report, the Office of the Independent Monitor "found that inmate grievances that allege serious deputy misconduct are often not referred to or investigated by DSD internal affairs, as required by DSD policy"; (2) "[t]he OIM found that from January 1, 2011[,] to June 30, 2013, only 6% of inmate allegations of serious misconduct were investigated by [internal affairs]"; (3) "[t]he OIM found that DSD's failure to investigate allegations of serious misconduct 'deviates from both DSD policy and national standards on law enforcement accountability' "; (4) "[t]he OIM was concerned about the length of time that [internal affairs] investigations took. [Mr. Waller's] Complaint took over one year to investigate"; and (5) "[t]he OIM found that Denver's policy of failing to investigate serious allegations of inappropriate force 'deviates from both DSD policy and national standards on law enforcement accountability.' " (Appellant's App. at 112-13; see also id. at 33-34.)
These allegations are not sufficient to state a plausible failure-to-investigate claim. The first four allegations relate to deputy misconduct generally, rather than to uses of force specifically, and we are not convinced that they establish the requisite "direct causal link between the municipal action and the deprivation of federal rights,"
Brown
,
The last theory of municipal liability raised in the original and first amended complaints is that Denver caused Mr. Waller's injuries by failing to properly discipline prior acts of excessive force, thus giving rise to a custom or policy of excessive force within the Sheriff Department.
*1290
Mr. Waller alleges that Denver has not imposed "appropriate discipline for the egregious use of excessive force by any officer of the DSD." (
Id.
at 33, 112.) Besides conclusory allegations such as this one, however, the original and first amended complaints are virtually silent on the question of discipline. To the extent Mr. Waller's complaints describe the discipline of deputy sheriffs besides Deputy Lovingier, the incidents he discusses either occurred after the conduct at issue in this case, or he does not allege that these incidents involved a deputy's use of excessive force. As discussed above, the complaint alleges only one prior incident of similar misconduct within the Denver Sheriff Department, and the complaint does not say whether or not this deputy sheriff was disciplined for his conduct, thus permitting no conclusions as to the appropriateness of any discipline that may have been imposed. Moreover, to the extent Mr. Waller argues that Deputy Lovingier's discipline was itself too lenient, we note that a subsequent failure to discipline cannot be the cause of a prior injury.
See
Cordova
,
On appeal, Mr. Waller also argues broadly that he can prevail because the allegations in his complaint in general establish "that Denver has a custom, policy, or practice of tolerating and ratifying the use of excessive force." (Appellant's Br. at 48.) Assuming without deciding that this argument was properly preserved below and supported on appeal, we see no error. As noted above, a municipal policy or custom may take the form of a formal regulation or policy; a widespread, permanent, and well-settled custom; a decision by an employee with final policymaking authority; a final policymaker's ratification of both an employee's unconstitutional actions and the basis for them; or the deliberately indifferent failure to appropriately hire, train, supervise, or discipline employees.
See
Bryson
,
As for the other potential forms of municipal policy that Mr. Waller could be attempting to invoke here, he does not allege that Deputy Lovingier was a municipal policymaker or that any municipal policymaker made a final decision that caused Mr. Waller's injuries. Nor is there any indication that a final decisionmaker ratified Deputy Lovingier's use of force; to the contrary, Mr. Waller alleges that Deputy Lovingier was criticized and suspended for using force in violation of Sheriff Department policies. Finally, as discussed above, we are persuaded that Mr. Waller has not plausibly alleged a claim of deliberately indifferent hiring, training, or other supervisory inadequacy.
Lastly, Mr. Waller argues that because he alleged a plausible municipal liability claim, he should have been permitted to conduct discovery. However, for the reasons discussed above, we are not persuaded that he has stated a plausible claim for relief. "Aside from conclusory statements, no allegations in the complaint give rise to an inference that the municipality itself established a deliberate policy or custom that caused [Mr. Waller's] injuries. Consequently, the complaint 'stops short of the line between possibility and plausibility of entitlement to relief.' "
Mocek v. City of Albuquerque
,
III.
The district court's decision is accordingly AFFIRMED .
In some cases, it is in fact clear that the alleged death or injury was not caused by a deputy sheriff's use of force. For instance, Mr. Waller alleges that one inmate sustained injuries because he was "deprived of medical care while in the Denver City Jail," not because force was used against him. (Appellant's App. at 37, 116.) Other allegations are less clear. For instance, Mr. Waller alleges that Denver was sued for "the killing of ... a homeless street preacher who was killed while he was incarcerated at the Denver Detention Facility." (
Id.
) Neither complaint indicates whether this individual was killed by a deputy sheriff or by another inmate, much less connects his death to a deputy sheriff's use of excessive force. "Although we must accept as true all factual allegations asserted in the complaint, dismissal is appropriate where 'the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.' "
Al-Owhali v. Holder
,
We note that both complaints fail to indicate when certain alleged incidents occurred. For instance, each complaint alleges that in July 2014 the City of Denver announced that it had reached a large settlement in a case involving an excessive force claim against the Denver Sheriff Department. However, the complaints are silent as to when the incident(s) giving rise to this settlement occurred. Thus, Mr. Waller cannot rely on this allegation to show that Denver was on notice in September 2012 of the need for training on the use of force against detainees in the custody of the Denver Sheriff Department. Again, we will not consider evidence outside the pleadings in evaluating the district court's Rule 12(b)(6) dismissal of this claim.
See
Alvarado
,
Reference
- Full Case Name
- Anthony WALLER, Plaintiff - Appellant, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant - Appellee, and Brady Lovingier, Individually and in His Official Capacity; Gina McCall, Individually and in Her Official Capacity, Defendants.
- Cited By
- 439 cases
- Status
- Published