Halik v. Darbyshire, Civil Action 20-cv-01643-PAB-KMT

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtKathleen M. Tafoya, United States Magistrate Judge
Docket NumberCivil Action 20-cv-01643-PAB-KMT
PartiesBRIAN HALIK, Plaintiff, v. JASON DARBYSHIRE, Former Detective, El Paso County Sheriff's Office, individually and in his official capacity, and CHRIS DONATELL, Deputy, El Paso County Sheriff's Office, individually and in his official capacity, Defendants.
Decision Date23 August 2021

BRIAN HALIK, Plaintiff,

JASON DARBYSHIRE, Former Detective, El Paso County Sheriff's Office, individually and in his official capacity, and CHRIS DONATELL, Deputy, El Paso County Sheriff's Office, individually and in his official capacity, Defendants.

Civil Action No. 20-cv-01643-PAB-KMT

United States District Court, D. Colorado

August 23, 2021


Kathleen M. Tafoya, United States Magistrate Judge

Before the court is “Defendants' Motion to Dismiss Complaint (ECF No. 1) Pursuant to Fed.R.Civ.P. 8(a) and 12(b)(5) and (6).” ([“Motion”], Doc. No. 5.) Plaintiff has responded in opposition to the Motion, and Defendants have replied. ([“Response”], Doc. No. 10; [“Reply”], Doc. No. 16.) For the following reasons, it is RECOMMENDED that the Motion be GRANTED, in part, and DENIED, in part.


Pro se Plaintiff Brian Halik [“Mr. Halik”] brings this lawsuit, pursuant to 42 U.S.C. § 1983, asserting violations of his constitutional rights by two El Paso County Sheriff's Office [“EPSO”] employees-Detective Jason Darbyshire [“Detective Darbyshire”] and Deputy Chris Donatell [“Deputy Donatell”]. ([“Complaint”], Doc. No. 1 at ¶¶ 3-4, 7-8.)

According to the Complaint, on April 29, 2018, an unnamed individual, who is not a party to this lawsuit, attempted to “elude[] police officers” while driving a motorcycle in Colorado Springs, Colorado. (Id. at ¶ 2.) As a law enforcement pursuit of that individual ensued, “a second motorcyclist, ” later identified as Mr. Halik, reportedly “passed by” the scene without incident. (Id.) Mr. Halik alleges that, following these events, Detective Darbyshire “falsely claim[ed]” that the second motorcyclist “was actually being pursued” by officers for “reckless[]” conduct, so as to “frame” Mr. Halik for a crime that he did not commit. (Id. at ¶¶ 9-10.) Mr. Halik further alleges that Detective Darbyshire, together with other “known and unknown” EPSO deputies, including Deputy Donatell, “engaged in extensive corruption and misconduct” to “violate [his] constitutional rights.” (Id. at ¶¶ 9, 12-15.) Plaintiff complains that, as a direct result of Defendants' actions, he was needlessly subjected to “more than 20 months of continuous prosecution, unlawful arrest, spending time in jail, having to post excessive bond, approximately 30 in-person court appearances, countless meetings with attorneys, and the threat of significant prison time looming over [his] head.” (Id. at ¶ 11.)

On June 7, 2018, Plaintiff was taken into custody and charged with two felonies and four misdemeanors, in connection with the April 29, 2018 vehicular pursuit. (Id. at ¶ 10.) Plaintiff now alleges that Defendants “blatantly l[ied]” on affidavits and police reports, so as to secure those criminal charges against him, as well as to “lessen Plaintiff's credibility in court proceedings and to cover up misconduct by other EPSO Deputies.” (Id. at ¶¶ 9-10, 13.) In addition, Plaintiff alleges that Defendant Darbyshire “used Plaintiff's protected speech against him, ” in an arrest warrant affidavit, which Plaintiff claims “openly and blatantly violated [his] established First Amendment rights.” (Id. at ¶ 23.) Plaintiff further alleges that Defendant Darbyshire, through “corruption and misconduct, ” “arranged” the setting of “an unconstitutionally-excessive bond of $25, 000, ” and “tried valiantly to get Plaintiff's probation officer to place a probation hold on Plaintiff so that Plaintiff would not be able to bond out of jail.” (Id. at ¶¶ 22, 24.) Mr. Halik likewise claims that Detective Darbyshire deliberately “concealed exculpatory evidence” in the underlying criminal action, and withheld other evidence from Mr. Halik's attorney. (Id. at ¶¶ 9, 17.)

In this lawsuit, Plaintiff also alleges that, around the time of his arrest, Defendants, as well as “other EPSO Deputies, known and unknown, ” engaged in unlawful searches of his home and property, and then “took cash and other property from [him] without a valid warrant [or] probable cause, ” in an attempt to “keep Plaintiff from being able to post bond, ” as well as to “restrict[] [his] movements.” (Id. at ¶¶ 12, 14, 16, 19, 21.) Plaintiff alleges that, during the course of the contested searches and seizures, Defendants “violated” his “privacy, ” and “caused property damage, ” which he “personally paid for directly and indirectly.” (Id. at ¶¶ 16, 19, 21.) Mr. Halik complains that, even though the criminal case against him has since been “completed, ” the EPSO, to date, “has still refused to return most of the property that was seized, ” including his motorcycle, which has been “subjected to extensive weathering” for “at least two years.” (Id. at ¶¶ 20-21.) Mr. Halik likewise complains that the EPSO has failed to provide him with “any compensation for the missing money, property damage, or property that [it] is still refusing to return.” (Id.)

Finally, Plaintiff alleges that, in the month preceding his arrest, “[n]umerous ESPO Deputies, known and unknown, ” waged “an extensive, relentless campaign of oppression, civil rights violations, and harassment” against him. (Id. at ¶ 15.) Mr. Halik alleges that, on May 3, 2018, while he was “on house arrest with an ankle monitor” for an unrelated offense, an EPSO deputy “went to [his] house in order to accuse him of a separate incident of vehicular eluding on a motorcycle.” (Id.) Plaintiff likewise alleges that, on May 7, 2018, at approximately 12:15 AM, three other EPSO deputies “arrived at [his] house in two marked EPSO patrol vehicles to accuse him of yet another incident of vehicular eluding.” (Id.) Mr. Halik claims that he was forced to seek emergency medical treatment for “severe emotional distress due to the EPSO Deputies continuing to harass him.” (Id.)

Based on these allegations, on June 8, 2020, Plaintiff commenced this lawsuit, pursuant to 42 U.S.C. § 1983, asserting the following causes of action against Defendants, in their individual and official capacities:

Defendants Darbyshire and Donatell violated Plaintiff's right against unreasonable search and seizure, as guaranteed by the Fourth Amendment to the U.S. Constitution
Defendants Darbyshire and Donatell violated Plaintiff's right to due process as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution
Defendant Darbyshire showed deliberate indifference to Plaintiff's constitutional rights, among other violations, thereby violating Plaintiff's right against cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution
Defendants Darbyshire and Donatell were grossly negligent and demonstrated reckless or callous disregard for Plaintiff's rights, as well as intentional violations of state and federal law

(Id. at ¶¶ 30-33.) The Complaint also alleges a violation of Plaintiff's First Amendment free speech rights, committed by Defendant Darbyshire, specifically. (Id. at ¶ 23.) In his operative pleading, Plaintiff requests an award of monetary damages, attorneys' fees, and costs, as well as unspecified declaratory, injunctive, and mandamus relief. (Id. at 10-11.)

Defendants now move to dismiss the Complaint, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(5), for inadequate service of process, and pursuant to Federal Rule of Civil Procedure 12(b)(6), for inadequate pleading.[1] (Mot. 1.)


I. Legal Standard for 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. Motion to Dismiss for Inadequate Service of Process

Defendants argue, first, that this case should be dismissed, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(5), for inadequate service of process. (Mot. 5-6.)

Federal Rule of Civil Procedure 12(b)(5) allows a defendant to defend against a claim on the grounds of insufficiency of service of process. Whitsell v. United States, 198 F.3d 260, 260 (10th Cir. 1999) (citation omitted); see Fed. R. Civ. P. 12(b)(5). A Rule 12(b)(5) motion “challenges the mode or lack of delivery of a summons and complaint.” Gallan v. Bloom Business Jets, LLC, 480 F.Supp.3d 1173, 1178 (D. Colo. 2020) (citation omitted); accord 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 3d § 1353 (2008 Supp.) (“A Rule 12(b)(5) motion is the proper vehicle for challenging the sufficiency of the service of process, i.e., “the mode of delivery or lack of delivery of the summons and complaint.”). Proper service is a jurisdictional prerequisite to litigation. Jenkins v. City...

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