Estate of Jimma Pal Reat v. Rodriguez
| Decision Date | 17 June 2013 |
| Docket Number | Civil Action No. 12-cv-02531-REB-MEH |
| Parties | ESTATE OF JIMMA PAL REAT, JAMES PAL REAT, REBECCA AWOK DIAG, RAN PAL, CHANGKUOTH PAL, JOSEPH KOLONG, Plaintiff, v. JUAN JESUS RODRIGUEZ, individually, and CITY AND COUNTY OF DENVER, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This matters before me are (1) the Recommendation of United States Magistrate Judge [#92],1 filed April 09, 2013; (2) Plaintiffs' Partial Objection to Recommendation of United States Magistrate Judge Dated April 9, 2013 [Document 92] [#94], filed April 22, 2013; (3) defendant the City and County of Denver's Objection in Part to Recommendation of United States Magistrate Judge [Docket No. 92] [#96], filed April 23, 2013; (4) Defendant Rodriguez's Objection in Part to United States Magistrate Judge's Recommendation [#97], filed April 23, 2013; and (5) Plaintiffs' Request for Hearing and Oral Argument on the Parties'Objections to Magistrate Recommendations [#108], filed May 23, 2013. I find that oral argument would not materially assist the court in resolving the issues inherent to the substantive motions, and therefore deny plaintiffs' request for same. Having reviewed de novo all portions of the recommendation to which objections have been filed, as required by 28 U.S.C. § 636(b), and having considered carefully the recommendation, objections, and applicable caselaw, I adopt the magistrate judge's recommendation in part and respectfully reject it in part as set forth more fully herein.
The magistrate judge recommends that plaintiffs' federal due process and equal protection claims be dismissed for failure to adequately allege plausible constitutional violations. With respect to the latter, I agree, although not for the reasons stated by the magistrate judge. However, contrary to the magistrate judge's interpretation, I find and conclude that the First Amended Complaint contains allegations sufficient to plausibly suggest that Mr. Rodriguez knew that plaintiffs were African-American. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir. 1989) ().2 Nevertheless, it fails to assert any plausible facts (as opposed to conclusory legal allegations) to suggest that plaintiffs were treated differently from other 911 callers because of their race. Watson v. City of Kansas City, Kansas, 857 F.2d 690, 696 (10th Cir. 1988). I therefore find and conclude that both Mr. Rodriguez and the City are entitled to dismissal of this claim.
I disagree, however, with the magistrate judge's recommendation that plaintiffs' substantive due process claim be dismissed for failure to allege facts sufficient toplausibly suggest that defendant Rodriguez's actions are sufficiently shocking to the conscience to state a claim under the test.3 See Gray v. University of Colorado Hospital Authority, 672 F.3d 909, 921 (10th Cir. 2012). Admittedly, this standard sets a lofty bar, "requir[ing] a high level of outrageousness." Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995), cert. denied, 116 S.Ct. 924 (1996). Nevertheless, reviewing the allegations of the First Amended Complaint, and cognizant of the appropriate standard of review applicable to motions under Fed. R. Civ. P. 12(b)(6),4 I must agree with plaintiffs that they have plausibly asserted a claim for violation of their rights to substantive due process under this theory of liability.
As the magistrate judge noted, courts generally apply a standard akin to deliberate indifference in determining whether a particular course of conduct was conscience shocking. See County of Sacramento v. Lewis, 523 U.S. 833, 850, 118 S.Ct. 1708, 1718, 140 L.Ed.2d 1043 (1998). Yet the Supreme Court has cautioned that this standard is fluid and fact-specific and that "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." Id. In particular, "[a]s the very term 'deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practical." Id. Therefore, when officials act in emergent and rapidly developing circumstances, the level of indifference necessary to shock the conscience is concomitantly higher:
In hyperpressurized environments, an intent to cause harm is usually required. In cases, however, where deliberation is possible and officials have the time to make unhurried judgments, deliberate indifference is sufficient to show conscience shocking behavior. In between these two extremes, there are cases in which a state actor is confronted with making something less urgent than a split-second decision but more urgent than an unhurried judgment. In such circumstances where a state actor must act with hurried deliberation to reach a decision in a matter of hours or minutes, a plaintiff must show that a defendant consciously disregarded a great risk of harm.
Hoover v. Beard, 248 Fed. Appx. 393, 395 (3rd Cir. Sept. 21, 2007) (citations and internal quotation marks omitted). See also Schnurr v. Board of County Commissioners of Jefferson County, 189 F.Supp.2d 1105, 1130 (D. Colo 2001).
Although noting that the 911 call lasted some 11 minutes before the shooting occurred, the magistrate judge focused on the last three minutes of that critical period - after Mr. Rodriguez learned that the assailants had brandished a gun during the initial attack. The magistrate judge concluded that this period of time was so brief and so chaotic that Mr. Rodriguez did not have adequate time to deliberate. He thus found thatMr. Rodriguez's conduct did not meet the high level of outrageousness needed to state a claim where emergent circumstances exist.
I find no principled reason to artificially cabin Mr. Rodriguez's conduct in this manner in determining whether plaintiffs have stated a viable claim for relief. As set forth more fully below, Mr. Rodriguez's actions during the first eight minutes of the call allegedly created the circumstances which culminated in the subsequent tragedy. It cannot be the law that a state actor is entitled to the benefit of the heightened state of mind standard when he himself allegedly set in motion the series of events giving rise to the emergency.
Moreover, the facts alleged in the First Amended Complaint - illuminated by the transcript of the 911 call appended thereto and the disciplinary report referenced therein - plausibly suggest that Mr. Rodriguez did not subjectively believe that he was dealing with an emergency situation at any point during the call. See Terrell v. Larson, 396 F.3d 975, 980 (8th Cir. 2005) (). See also Burgin v. Leach, 2012 WL 5906658 at *5 (N.D. Okla. Nov. 26, 2012). The very fact that Mr. Rodriguez did not dispatch a police officer to plaintiffs' location until after shots were fired supports a plausible inference that he perceived no emergency prior to that time.
Given the facts alleged in the First Amended Complaint, I find that the intermediate standard referenced above - whether Mr. Rodriguez "consciously disregarded a great risk of harm" - is the appropriate one by which to measure Mr. Rodriguez's conduct. Hoover, 248 Fed. Appx. at 395. These facts are sufficient to plausibly assert that this standard is met. Plaintiffs assert that Mr. Rodriguez knew thatplaintiffs had been assaulted at 10th Avenue and Sheridan Boulevard and that the attack was serious enough to have shattered the car's window. In his disciplinary report, Mr. Rodriguez acknowledged that he knew plaintiffs did not need to return to Denver in order to file a police report. Nevertheless, he sent them from their location of relative safety in Lakewood back south along Sheridan into Denver, despite having been informed that the assailants were headed northbound on Sheridan immediately after the attack. It is thus plausible to conclude from these allegations that Mr. Rodriguez's directions created a substantial risk that plaintiffs would re-encounter their attackers.5
The facts also plausibly suggest that Mr. Rodriguez consciously disregarded this risk. After directing plaintiffs to park in a conspicuous location on a major road on which he knew the attackers had been traveling just minutes before, Mr. Rodriguez then instructed plaintiffs to activate their hazard lights, making them even more visible and obvious than they already were at that early hour of the morning. He then learned that the attackers had brandished a gun during the initial altercation. Despite this knowledge, Mr. Rodriguez did not suggest that plaintiffs find a more discrete location, even within the city of Denver, or otherwise make their whereabouts less obvious. Most egregiously, Mr. Rodriguez did not dispatch a police officer to plaintiffs' location at any time until after Jimma Pal had been fatally shot.
I find and conclude that these factual allegations, accepted as true, are sufficiently shocking to the conscience to state a plausible claim for violation of plaintiffs' substantive due process rights under the state-created-danger theory. My inquiry therefore must proceed to consider whether the unconstitutionality of that conduct was clearly established at the time of the underlying events. See Novitsky v. City ofAurora, 491 F.3d 1244, 1255-56 (10th Cir. 2007). I find that it was.
Mr. Rodriguez argues that there is no Tenth Circuit case suggesting liability under the particular facts of this case. His argument is too facile, however. "The law is clearly established either if courts have previously ruled that materially similar conduct was unconstitutional, or if a general constitutional rule already identified in the decisional law [applies] with obvious clarity to the...
To continue reading
Request your trial