Gohier v. Enright City of colorado Springs

• Decision Date: 03 August 1999
• Docket Number: No. 98-1149,98-1149
• Parties: (10th Cir. 1999) JEANNE GOHIER, individually and as personal representative for the Estate of Michael Lucero, Plaintiff-Appellant, v. GARY ENRIGHT; CITY OF COLORADO SPRINGS, a Colorado municipal corporation, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1216

186 F.3d 1216 (10th Cir. 1999)

JEANNE GOHIER, individually and as personal representative for the Estate of Michael Lucero Plaintiff-Appellant, v. GARY ENRIGHT; CITY OF COLORADO SPRINGS, a Colorado municipal corporation, Defendants-Appellees.

No. 98-1149

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 3, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 97-WY-925-WD

Patric J. LeHouillier, of LeHouillier & Associates (Alexanderia Mason with him on the brief), Colorado Springs, Colorado, for Plaintiff-Appellant.

Thomas J. Marrese, Senior Litigation Attorney for the City of Colorado Springs, Colorado, (Patricia K. Kelly, City Attorney, with him on the brief), for Defendants-Appellees.

Before BALDOCK, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Jeanne Gohier, representing the estate of Michael Lucero, appeals two orders of the district court. Those orders had the combined effect of completely dismissing the estate's suit against the city of Colorado Springs and one of its police officers, Gary Enright, who had fatally shot Lucero.

In its first order, the court granted summary judgment to Enright and the City on Gohier's § 1983 claims. It held that Enright was qualifiedly immune to an excessive-force claim, and that, because he had not violated Lucero's federal rights, the City could not be liable under § 1983 for having a policy, custom, or practice that caused a violation of federal rights. This court AFFIRMS that order in its entirety for substantially the reasons stated in the order.

In the second order, the court affirmed a magistrate judge's denial of Gohier's motion to amend her complaint. Gohier sought to add a claim that the City had violated Title II, Subchapter A of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 12134, by failing to treat and protect Mr. Lucero in light of his disability, paranoid schizophrenia, which contributed to the very unfortunate end of his encounter with Officer Enright. The magistrate concluded that amendment would be futile, as Gohier could not as a matter of law state an ADA claim. The district court affirmed on the same ground, after slightly qualifying the magistrate's explication. This court AFFIRMS the district court's ruling, but for different reasons, which require some discussion.

I. FACTS AND PROCEEDINGS

Shortly after midnight, Officer Enright responded to a dispatcher's request to investigate a disturbance on Nevada Avenue. The dispatcher reported that a man on foot had hit a caller's vehicle with a baseball bat, and that another caller complained the man was breaking car windows with a pipe. The dispatcher gave a description of the man.

Soon after the report, Enright was driving south down Nevada in the vicinity of the incidents when he saw Lucero, who did not match the description, walking south down the middle of the avenue. The area had no streetlights. Enright pulled over, turning on his highbeams and overhead flashing lights. Lucero kept walking, with his right hand clutched to his chest.

Enright got out of his car, leaving it idling. He had a nightstick, pepper spray, a pistol, and a lapel microphone with which he could talk to the dispatcher. According to Enright, the following events all transpired in the 20 to 30 seconds after he left the car.

Enright identified himself and asked Lucero to talk to him. Lucero, however, kept walking. Enright yelled, "Police, stop!" Lucero then stopped, 30 to 35 feet from Enright, put his right hand behind his back, and began walking toward Enright at a "fast pace." Enright described him as "crazed and wild-eyed," with his teeth gritted in a grimace and a "Charles Manson type look."

Enright did not call for backup. He drew his pistol, pointing it at a 45 degree angle at the ground between himself and Lucero. Although he ordered Lucero to show his hands, Lucero kept walking quickly toward him with his right hand hidden. Enright then leveled his pistol at Lucero and again shouted at him to show his hands.

Still advancing, Lucero raised his right hand from behind his back and began repeatedly swinging it down and forward in a stabbing motion. He held a long, slender object that Enright thought was a knife. Around this time, Enright decided that Lucero was mentally ill. He also decided to retreat five to seven feet behind his car, while repeatedly ordering Lucero to "drop the knife" or "drop it."

Lucero did not do so, but instead advanced to the driver's side door of the car. He was at this point no longer in the area illuminated by the car's headlights. He stopped and said, "Do you like your car? It's gone." When he began to open the car door, Enright moved forward to stop him. Lucero then let go of the door and either stepped or lunged toward Enright, making a stabbing motion with the object. Enright shot him twice, killing him.

Gohier, as representative of Lucero's estate and on her own behalf, filed a complaint stating § 1983 excessive-force and failure-to-train claims, with pendent negligence claims, against Enright and Colorado Springs. After defendants moved for summary judgment, she moved to amend her complaint to add a claim under Title II of the ADA. The district court designated a magistrate judge to hear and determine the motion to amend. See 28 U.S.C. § 636(b)(1)(A). The magistrate judge denied the motion by written order, and Gohier moved the district court to reconsider. See id. The court reviewed the order, determined that it was not clearly erroneous or contrary to law, and affirmed it.

II. DISCUSSION

A. Standard of Review

This court reviews the district court's refusal to grant Gohier leave to amend her complaint for an abuse of discretion. See, e.g., Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 858 59 (10th Cir. 1999). The district court rested that refusal, however, not on any discretionary ground, but solely on the legal ground that the amendment would have been futile.¹ A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. See id. at 859. The futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim, a question this court reviews de novo. See, e.g., Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997) (noting de novo review of dismissal for failure to state claim); see also, e.g., Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999) (noting that, to extent denial of leave to amend based on futility, court of appeals reviews de novo); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 49 (6th Cir. 1986) (same). "A district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100 (1996).

B. Analysis

1. Statutory Framework

Title II of the ADA commands that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The ADA broadly defines a "qualified individual with a disability" as anyone who "meets the essential eligibility requirements for the receipt of services or . . . participation in programs or activities provided by a public entity." Id. § 12131(2).

2. The Magistrate's and District Court's Reasoning

In evaluating Gohier's proposed claim under Title II of the ADA, the magistrate applied the general standard of Tyler v. City of Manhattan, 849 F. Supp. 1429 (D.Kan. 1994). That standard requires a plaintiff to prove:

(1) that he [or she] is a qualified individual with a disability;

(2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and

(3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.

Id. at 1439. This general standard, which closely tracks the statute's language, is plainly correct. See Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.), cert. denied, 118 S. Ct. 423 (1997) (stating essentially identical test). Colorado Springs does not contest that it is a public entity, or that Lucero had a disability. That leaves two potentially relevant questions: did the city, by reason of Lucero's disability, either (1) exclude him from participating in or deny him the benefits of services, programs, or activities whose essential eligibility requirements he met, or (2) otherwise subject him to discrimination?

The magistrate did not frame the inquiry in terms of those two questions. Instead, in addressing Tyler's second branch, the magistrate adopted the reasoning of an unpublished district court opinion holding that "the individual [police] protection of a particular person or . . . class of persons is not . . . a municipal service, benefit, or program." Amirault v. City of Roswell, No. 6:95 CV 422, 1996 WL 391986, at *6 (D.N.M. July 11, 1996).

Amirault involved a Title II claim by a man with whom City police officers had spoken, fearing that he was a suicide risk, but whose assurances that he had changed his mind convinced them to let him go. See id. at *1. He soon thereafter tried to kill himself. See id. He later sued the City under the ADA, arguing that the police had violated his right to protection (from himself) by not arresting and involuntarily committing him for mental-health evaluation. See id. at *2. The court held that his claim failed under Tyler's second branch. See id. at *5-6. It relied on three overlapping rationales: no one has a right to be involuntarily committed for protection from himself; the State has no affirmative duty to protect any person not...