Ditirro v. Sando

• Decision Date: 18 August 2022
• Docket Number: Court of Appeals No. 21CA0739
• Citation: 520 P.3d 1203,2022 COA 94
• Parties: Vincent Damon DITIRRO, Plaintiff-Appellant, v. Matthew J. SANDO, Caleb Simon, Colorado State Patrol, Commerce City Police Department, and Adams County Sheriff's Department, Defendants-Appellees.
• Court: Colorado Court of Appeals

520 P.3d 1203

2022 COA 94

Vincent Damon DITIRRO, Plaintiff-Appellant,

v.Matthew J. SANDO, Caleb Simon, Colorado State Patrol, Commerce City Police Department, and Adams County Sheriff's Department, Defendants-Appellees.

Court of Appeals No. 21CA0739

Colorado Court of Appeals, Division A.

Announced August 18, 2022

Colorado Christian Defense Counsel, LLC, Jean Pirzadeh, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Allison R. Ailer, Senior Assistant Attorney General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Matthew J. Sando, Caleb Simon, and Colorado State Patrol

Kissinger & Fellman, P.C., Jonathan M. Abramson, Yulia Nikolaevskaya, Denver, Colorado, for Defendant-Appellee Commerce City Police Department

Heidi M. Miller, County Attorney, Michael A. Sink, Assistant County Attorney, Brighton, Colorado, for Defendant-Appellee Adams County Sheriff's Office

Opinion by JUDGE LIPINSKY

¶ 1 In 2020, the Colorado General Assembly created a new cause of action against "peace officers" for violation of a plaintiff's civil rights. Section 13-21-131(1), C.R.S. 2021, allows a plaintiff to sue a peace officer who, "under color of law, subject[ed] or caus[ed] [the plaintiff] to be subjected, including failing to intervene," to the deprivation of an individual right that "create[s] binding obligations on government actors secured by the bill of rights" embodied in the Colorado Constitution.

¶ 2 The statute further provides that, under certain circumstances, a peace officer found liable under section 13-21-131(1) is entitled to obtain indemnification from the peace officer's employer. Section 13-21-131(4)(a) states that "a peace officer's employer shall indemnify its peace officers for any liability incurred by the peace officer and for any judgment or settlement entered against the peace officer for claims arising pursuant to this section," except where "the peace officer's employer determines on a case-by-case basis that the officer did not act upon a good faith and reasonable belief that the action was lawful."

¶ 3 The statute is silent, however, on whether a plaintiff has the right to assert a direct claim against the employer of a peace officer who violated one of the plaintiff's rights protected under the state bill of rights.

¶ 4 We hold that, under the facts of this case, section 13-21-131 does not allow a plaintiff to file a direct action against the employer of a peace officer. For this reason, we affirm the district court's judgment dismissing the claims of plaintiff, Vincent Damon Ditirro, against defendants Adams County Sheriff's Office (Adams County) and Commerce City Police Department (Commerce City) under C.R.C.P. 12(b)(5) for failure to state claims upon which relief can be granted. (Ditirro's court filings, including his filings in this court, refer to "Adams County Sheriff's Department." The correct name of that entity is "Adams County Sheriff's Office." We use the entity's correct name in this opinion.)

¶ 5 In addition, we reject Ditirro's other arguments and award appellate attorney fees to the four original defendants that requested such a fee award: Commerce City, Colorado State Patrol (CSP) troopers Matthew J. Sando and Caleb Simon, and CSP. We also grant Commerce City's request for an award of its costs incurred in this appeal.

I. Background Facts and Procedural History

¶ 6 Because the district court dismissed Ditirro's action under C.R.C.P. 12(b)(5), we accept as true the following facts pleaded in his first amended complaint. See Norton v. Rocky Mountain Planned Parenthood, Inc. , 2018 CO 3, ¶ 7, 409 P.3d 331, 334.

¶ 7 On August 7, 2018, Sando and Simon, troopers with the CSP, stopped a car that Ditirro was driving on suspicion that he was under the influence of alcohol. Following a roadside sobriety test, Sando and Simon arrested Ditirro. During the arrest, Sando and Simon assaulted Ditirro, causing him physical and mental injuries.

¶ 8 On August 6, 2020, Ditirro filed a complaint in the Adams County District Court against, as relevant to this appeal, Adams County, Commerce City, Sando, Simon, CSP, and "Doe Defendants." Ditirro pleaded nine claims — four under the federal statute that authorizes civil actions for civil rights violations, 42 U.S.C. § 1983, and five under section 13-21-131.

¶ 9 Commerce City removed the case to the United States District Court for the District of Colorado (the federal court) on the grounds that the inclusion of the § 1983 claims in Ditirro's complaint allowed the federal court to exercise subject matter jurisdiction over the entire case. Commerce City then filed a motion to dismiss Ditirro's claims against it for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

¶ 10 While Commerce City's motion was pending in the federal court, Ditirro filed a first amended complaint that did not include the § 1983 claims. The absence of those claims from the amended complaint deprived the federal court of jurisdiction over the case. For this reason, after Ditirro amended his complaint, the federal court remanded the case to the Adams County District Court. Ditirro refiled his first amended complaint in the Adams County District Court on January 25, 2021.

¶ 11 In his first amended complaint, Ditirro asserted the five section 13-21-131 claims he had asserted in his original complaint. He premised four of those claims on section 13-21-131(1) and one on the indemnification provision in section 13-21-131(4).

¶ 12 Although Ditirro pleaded that Sando and Simon were "troopers with the [CSP]," he also alleged that "[e]ach Defendant and Doe Defendant, Individual Defendant, or Agency Defendant were and are at all times the agent and principal of each and every Defendant whether Individual, Doe or Agency Defendant." He specifically asserted that Sando and Simon "were at the time [of Ditirro's arrest] and at all material times the agents of all other Defendants, including the Doe Defendants and therefore all the Defendants named herein," and that all defendants "failed to supervise and monitor Sando and Simon." Presumably, "all defendants" included Adams County and Commerce City.

¶ 13 Adams County and Commerce City moved to dismiss Ditirro's claims against them for failure to state claims upon which relief can be granted under C.R.C.P. 12(b)(5). In his response to those motions, Ditirro asked the court to grant him leave to amend his complaint again.

¶ 14 The district court granted Adams County's and Commerce City's dismissal motions on February 26, 2021. In the orders granting those motions, the court concluded that section 13-21-131 does not authorize a direct cause of action against a peace officer's employer. (Alternatively, the court determined that Ditirro's allegation that Adams County and Commerce City employed Sando and Simon did not "pass the plausibility test," citing Warne v. Hall , 2016 CO 50, ¶ 27, 373 P.3d 588, 596.) The court also denied Ditirro's requests for leave to amend his first amended complaint because Ditirro had already amended his complaint once, and the court concluded that any further efforts to amend Ditirro's claims against Adams County and Commerce City would be futile.

¶ 15 Ditirro then filed a separate motion for leave to amend his first amended complaint. In the motion, he explained his intention to reassert the same § 1983 claims that he had voluntarily dismissed when the case was pending in the federal court. The district court denied Ditirro's motion on April 23, 2021, and he filed a motion for reconsideration on May 1, 2021.

¶ 16 Between the filing of Ditirro's motion for leave to amend and the court's ruling on his motion for reconsideration, Ditirro served Sando and CSP with his first amended complaint. Sando and CSP responded by filing motions to dismiss under C.R.C.P. 12(b)(5). The court granted Sando's motion to dismiss on May 17, 2021, reasoning that section 13-21-131 does not provide a cause of action against a peace officer employed by the state.

¶ 17 On May 22, 2021, Ditirro filed a notice of appeal referencing three orders: the district court's February 26, 2021, order dismissing Ditirro's claims against Adams County and Commerce City; the April 23, 2021, order denying his motion for leave to amend the first amended complaint; and the May 17, 2021, order denying his motion for reconsideration of the order denying his motion for leave to amend. Ditirro's notice of appeal did not refer to the district court's May 17, 2021, order dismissing his claims against Sando.

¶ 18 At the time Ditirro filed his notice of appeal, the district court had not ruled on CSP's dismissal motion and Ditirro had not served Simon. The court granted CSP's motion to dismiss on July 8, 2021. Ditirro served Simon after that date. Like the other defendants, Simon filed a motion to dismiss under C.R.C.P. 12(b)(5). The court granted Simon's motion on August 17, 2021.

¶ 19 Ditirro did not appeal the court's orders granting Sando's, CSP's, and Simon's respective dismissal motions, but, in his opening brief, Ditirro asserted that the district court abused its discretion by granting those motions. He further asserted that the court abused its discretion by denying him leave to amend the first amended complaint and by denying his motion for reconsideration.

¶ 20 In their answer briefs, Adams County, Commerce City, Sando, Simon, and CSP contended that this court lacked subject matter jurisdiction over the appeal for four reasons: (1) the three orders referenced in the notice of appeal were interlocutory; (2) Ditirro did not ask the district court to direct the entry of a final judgment as to the three orders under C.R.C.P. 54(b) ; (3) Ditirro's notice of appeal did not refer to the orders dismissing his claims against Sando, Simon, and CSP, and this court lacks jurisdiction to consider those orders; and (4) Ditirro did not file an amended notice of appeal.

¶ 21 On June 24, 2022, a...