Halik v. Brewer

• Decision Date: 17 February 2022
• Docket Number: Civil Action 21-cv-00508-PAB-NYW
• Court: U.S. District Court — District of Colorado
• Parties: BRIAN HALIK, Plaintiff, v. A. BREWER, Officer, Colorado Springs Police Department, individually and in his official capacity, and UNKNOWN OFFICERS OF THE TACTICAL ENFORCEMENT UNIT, Colorado Springs Police Department, individually and in their official capacity, Defendants.

BRIAN HALIK, Plaintiff,
v.
A. BREWER, Officer, Colorado Springs Police Department, individually and in his official capacity, and UNKNOWN OFFICERS OF THE TACTICAL ENFORCEMENT UNIT, Colorado Springs Police Department, individually and in their official capacity, Defendants.

Civil Action No. 21-cv-00508-PAB-NYW

United States District Court, D. Colorado

February 17, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

NINA Y. WANG MAGISTRATE JUDGE

Before the court is “Defendant Brewer's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).” ([“Motion”], Doc. No. 6.) Plaintiff has responded in opposition to the Motion, and Defendant has replied. ([“Response”], Doc. No. 19; [“Reply”], Doc. No. 23.) For the following reasons, it is RECOMMENDED that the Motion be GRANTED in part, and DENIED in part.

BACKGROUND

The following is drawn from the operative Complaint, and is taken as true for the purposes of this Motion. Pro se Plaintiff Brian Halik [“Mr. Halik, ” or “Plaintiff”] brings this lawsuit, pursuant to 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting violations of his constitutional rights by a Colorado

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Springs Police Department [“CSPD”] officer assigned to a federal task force, Defendant A. Brewer [“Officer Brewer, ” or “Defendant”], as well as unknown members of the CSPD's SWAT team. ([“Complaint”], Doc. No. 1 at ¶¶ 1, 3, 5-7.)

According to the Complaint, on the morning of February 20, 2019, Officer Brewer “knowingly lied on a sworn affidavit in order to unlawfully obtain a state search warrant” for the search of Mr. Halik's home, located in Colorado Springs, Colorado. (Id. at ¶¶ 12-13.) Within a matter of hours of securing that warrant, dozens of “heavily armed officers and agents dressed in tactical gear” apparently “descended on Plaintiff's home in an otherwise quiet, residential neighborhood with military-style armored vehicles and with fully automatic weapons.” (Id. at ¶¶ 2, 13.) This “raid” of Mr. Halik's home, which Mr. Halik describes as an “excessive force” incident, was reportedly “executed” by officers from the CSPD's SWAT team, known as the Tactical Enforcement Unit [“TEU”].^[1] (Id. at ¶¶ 2, 7, 13, 30.) Mr. Halik reports that the TEU officers were “accompanied” by Officer Brewer, as well as unspecified “ATF agents.” (Id. at ¶ 15.)

According to the Complaint, after “illegally entering” Mr. Halik's home with the “unlawfully obtained state search warrant, ” the officers and agents proceeded to “meticulously search[] through every inch” of the residence, including a section of the property that “belonged” to Mr. Halik's roommate, who “was on a separate lease.” (Id. at ¶¶ 15, 17.) Officer Brewer also apparently searched Mr. Halik's rental vehicle, which was locked and parked in the driveway, without Mr. Halik's consent. (Id. at ¶ 19.) Plaintiff alleges that, during the course of these

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contested searches, law enforcement also “made defamatory statements” about him to his neighbors. (Id. at ¶ 13.) Mr. Halik complains that the officers and agents executing the warrant ultimately “ripped [his] home apart, ” and caused “extensive damage” to his property. (Id. at ¶ 15.) Plaintiff recounts one instance in which Officer Brewer, while searching through a bedroom, “dumped a miniature urn containing Plaintiff's father's ashes onto Plaintiff's desk.” (Id. at ¶ 16.) Mr. Halik alleges that, during the search of his home, law enforcement illegally seized “tens of thousands of dollars” worth of his “belongings, ” including “numerous high-dollar computers and other digital media, ” which held “indisputable evidence of corruption” by unspecified El Paso County Sheriff's Office [“EPSO”] deputies. (Id. at ¶ 15.) Plaintiff firmly believes that these items were seized by “Defendant Brewer and his co-conspirators, ” in an attempt to “silence and oppress” him, as well as to “hid[e] or destroy[] the evidence that was to be used against the EPSO deputies.” (Id.) Mr. Halik further alleges that, even though he was “being fully compliant with the law enforcement officers at the scene, ” and despite the fact that he did not have “any weapons or contraband on his person, ” the local SWAT team, at the “direction” of Officer Brewer, “strip searched [him] at gun point, ” and “exposed [his] genitals.” (Id. at ¶ 14.) Plaintiff claims that the strip search was done “against [his] will, ” and he alleges that it not only violated his “privacy” rights, but also “amounted to sexual assault and unlawful search and seizure.” (Id.) Mr. Halik also alleges that his dog-“a highly trained service animal” for his unspecified “disabilities”- suffered “trauma” from witnessing these events, resulting in the dog's premature “retirement from disability service work, ” thereby depriving Mr. Halik of “the use of his medically necessary service animal.” (Id. at ¶ 20.) Plaintiff complains that, even though “nothing illegal was discovered” from the search of his home, the CSPD, to date, has not “released any police reports” regarding the

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incident. (Id. at ¶ 21.) Mr. Halik further alleges that “Defendant Brewer and the CSPD” have refused to return any of his seized property, or to provide him with “compensation” for items that were “essentially stolen” from him. (Id.)

Finally, Mr. Halik alleges that, since these events transpired, Officer Brewer has continued to engage in “extensive corruption and misconduct” to “frame” him and otherwise “violate” his “constitutional rights.” (Id. at ¶ 10.) Mr. Halik alleges that Officer Brewer, together with “other officers” at his “direction, ” has “stalked and harassed” him “on an ongoing basis, ” as well as “threatened” his friends “with arrest, ” causing Mr. Halik “to slip into a deeper depression.” (Id. at ¶ 22.) Plaintiff alleges that, in or around August of 2019, Officer Brewer “ignored” certain “clear and convincing evidence . . . of an individual conspiring to murder a law enforcement officer, ” and instead, “looked for a way to frame Plaintiff with those same crimes.” (Id. at ¶ 23.) Mr. Halik likewise alleges that, after he recently commenced an unrelated federal lawsuit against EPSO deputies, Officer Brewer “confiscated” his “digital media” and “deleted” certain evidence relevant to the case, in an attempt to “retaliate” against him. (Id. at ¶ 24.)

Based on these allegations, on February 19, 2021, Mr. Halik commenced this federal civil rights action against Officer Brewer and the unknown officers from CSPD's SWAT team, in their individual and official capacities, asserting claims for violations of his Fourth, Fifth, and Fourteenth Amendment rights, as well as claims for “stalking, harassment, defamation, discrimination, and intentional infliction of emotional distress.” (Id. at ¶¶ 36-37.) In the Complaint, Plaintiff requests an award of monetary damages, as well as unspecified declaratory, injunctive, and mandamus relief. (Id. at 16.)

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Officer Brewer now moves to dismiss the Complaint, in its entirety, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 6 at 3, 14-15.)

STANDARDS OF REVIEW

I. Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

II. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for a lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is

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not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Id. at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

A Rule 12(b)(1) Motion to Dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule...