Kemp v. Lawyer

Decision Date08 February 2012
Docket NumberCivil Case No. 11-cv-01368-LTB-KIT
PartiesKEITH KEMP, individually and as personal representative of the Estate of Jason Kemp; and CONNIE KEMP, individually, Plaintiffs, v. IVAN LAWYER, a Trooper of the Colorado State Patrol, in his individual capacity; KIRK FIRKO, a Corporal of the Colorado State Patrol, in his individual capacity; CHAD DUNLAP, a Sergeant of the Colorado State Patrol, in his individual capacity; RALPH C. TURANO, Legal Training Attorney for the Colorado State Patrol, in his individual capacity; and JOHN DOE, employee of the Colorado State Patrol, in his/her individual capacity, Defendants.
CourtU.S. District Court — District of Colorado

LEWIS T. BABCOCK, JUDGE

MEMORANDUM OPINION AND ORDER

Babcock, J.

This matter is before me on Defendant Chad Dunlap's Motion to Dismiss the First Amended Complaint Based on Qualified Immunity, Lack of Subject Matter Jurisdiction, and Failure to State a Claim. [Doc #37] Defendant Dunlap, a Sergeant of the Colorado State Patrol, is being sued in his individual capacity by Plaintiffs Keith and Connie Kemp, both individually and as personal representative of the Estate of Jason Kemp. Oral arguments would not materially assist me in my determination of this motion. After consideration of the parties' arguments, and for the following reasons, I DENY the motion.

I. BACKGROUND

Plaintiffs are the parents of Jason Kemp, who was killed by a gunshot wound to his chest during a conflict at his apartment with Colorado State Patrol officers on July 20, 2010. Plaintiffs have filed this lawsuit against the officers involved seeking damages for violations of Jason's constitutional rights, pursuant to 42 U.S.C.§ 1983 ("§1983"), and wrongful death under state law.

II. FACTS

In their First Amended Complaint Plaintiffs allege that on July 20, 2010, Jason Kemp was jet skiing on the Colorado River. In the early evening, Jason and a few of his friends decided to head back to his apartment. They loaded up the jet ski on a trailer attached to Jason's truck. When they arrived at the apartment, they attempted to back the truck and trailer into the driveway, but the jet ski fell off the trailer and the truck became stuck in a neighbor's lawn. After conferring with the neighbor, Jason and his friends removed the truck, trailer, and jet ski, and parked them in the driveway. Plaintiffs allege that this accident resulted in no physical injury and, at most, very minor property damage to the neighbor's yard. At some point, a neighbor called the police to report the incident.

Jason and his friends then entered the apartment. Shortly thereafter, Defendant Ivan Lawyer, a Trooper with the Colorado State Patrol, and Defendant Kirk Firko, a Corporal with the Colorado State Patrol, arrived at the apartment with their guns drawn. They began knocking at the door, announced themselves as police, and demanded entry. Jason responded that he would not allow entry without a warrant.

Defendants Lawyer and Firko then escalated the situation by attempting to kick down the door to gain entry. Plaintiffs allege that Defendants Lawyer and Firko had no basis for believing that Jason was armed or posed a threat to himself or others. Defendants Lawyer and Firko have indicated that they both believed that a warrantless, forced entry was justified by their desire to secure blood alcohol evidence to support a possible DUI charge against Jason. Jason repeatedly asked Defendants to show a warrant and told them that they could not enter the apartment without one.

Plaintiffs' complaint further alleges that, upon information and belief, while Defendants Lawyer and Firko were trying to kick the door down, Defendant Chad Dunlap - their supervisor and a Sergeant with the Colorado State Patrol - arrived on the scene. Defendant Dunlap witnessed the attempts of Defendants Lawyer and Firko to kick down the door, without a warrant and with their guns drawn, apparently in order to preserve evidence related to a possible DUI that had resulted in only minimal property damage. However, he "did not counsel or direct Defendants Lawyer and Firko to cease their attempts at a forced, warrantless entry." Instead, he "provided aid and support for Lawyer and Firko's unconstitutional conduct" by guarding the back door, and holding individuals who exited there at gunpoint.

Defendants Lawyer and Firko ultimately kicked out the frame of the door and were able to force it open wide enough to wedge a piece of the frame in the doorway, which prevented Jason from fully closing the door. At some point during the struggle, Jason peered around the slightly-ajar door, and one of the Defendants pepper-sprayed him in the face. Defendant Firko then went around to the back of the building, leaving Defendant Lawyer at the front door. Atsome point the door opened and Defendant Lawyer shot Jason, who was unarmed, in the chest. Jason died at the scene.

Plaintiffs assert the following claims against Defendant Dunlap, acting in his individual capacity, related to the death of Jason Kemp: (1) a § 1983 claim for warrantless entry in violation of the Fourth Amendment; (2) a § 1983 claim for excessive/deadly force in violation of the Fourth Amendment; (3) a claim for conspiracy to violate § 1983; (4) a § 1983 claim for supervisor liability; and (5) a claim for wrongful death under Colorado law.

III. LAW

Defendant Dunlap has filed this motion seeking dismissal of the claims asserted against him based on the defense of qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Once a defendant asserts qualified immunity, the plaintiff bears the burden of satisfying a "strict two-part test. " McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010)(quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). That is "[t]he plaintiff must establish (1) that the defendant violated a constitutional or statutory right, and (2) that this right was clearly established at the time of the defendant's conduct . . . ". Id.

Defendant Dunlap's qualified immunity defense is raised in the context of a motion to dismiss, so I bear in mind the Fed. R. Civ. P. 12(b)(6) standard. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127S.Ct. 1955, 167 L.Ed.2d 929 (2007); Brown v. Montoya, 662 F.3d 1152, 1162-63 (10th Cir. 2011). To survive a motion to dismiss, a plaintiff's pleadings must "nudge[ ] their claims across the line from conceivable to plausible." Bell Atlantic v. Twombly, supra, 550 U.S. at 570. In Ashcroft v. Iqbal, supra, the Supreme Court applied this standard to a motion to dismiss based on qualified immunity, and formulated the test as follows:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

129 S.Ct. at 1949 (quotations and citations omitted). In reviewing a motion to dismiss, "all well-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Brown v. Montoya, supra, 662 F.3d at 1162 -1163 (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

Defendant Dunlap also seeks dismissal, on the basis of qualified immunity, pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) 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). A facial attack on subject matter jurisdiction, as here, "looks only to the factual allegations of the complaint in challenging the court's jurisdiction." Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227n. 1 (10th Cir. 2010). A court reviewing a facial attack pursuant to Rule 12(b)(1) "accept[s] the complaint's factual allegations as true and asks whether the complaint, standing alone, is legally sufficient to state a claim for relief." Wyoming v. United States, 279 F.3d 1214, 1222 (10th Cir. 2002). 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).

IV. § 1983 CLAIMS

Title 42 U.S.C. § 1983 provides that "[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." Plaintiffs' first and second § 1983 claim against Defendant Dunlap are for warrantless entry and excessive force in violation of the Fourth Amendment which protects the right to be free from unreasonable searches and seizures. Plaintiffs' third claim is that, in so doing, the Defendants together conspired to violate §1983. Finally, in their fifth claim, ...

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