Keough v. City of Denver

• Decision Date: 25 August 2014
• Docket Number: Civil Action No. 13-cv-02485-REB-KLM
• Court: U.S. District Court — District of Colorado
• Parties: CHRISTOPHER KEOUGH, Plaintiff, v. SGT. BENITA PACKARD, THE CITY AND COUNTY OF DENVER, COLORADO, Defendants.

CHRISTOPHER KEOUGH, Plaintiff, v. SGT. BENITA PACKARD, THE CITY AND COUNTY OF DENVER, COLORADO, Defendants.

Civil Action No. 13-cv-02485-REB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 25, 2014

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant Sergeant Benita Packard ("Packard") and Defendant The City and County of Denver, Colorado's ("Denver" and collectively, with Packard, "Defendants") Motion to Dismiss [#29]¹ (the "Motion"). The Motion is referred to the undersigned for recommendation regarding disposition [#30]. Plaintiff filed a Response to the Motion [#36]. Defendants filed a Reply [#39]. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#29] be GRANTED.

I. Summary of the Case

On November 6, 2013, Plaintiff filed the Amended Complaint (the "Complaint"),asserting six² claims against Defendants. Am. Compl. [#27] ¶¶ 29-57. Plaintiff brings First Amendment retaliatory prosecution and arrest claims against Defendant Packard. Id. ¶¶ 29-38. In addition, Plaintiff brings Fourth Amendment claims of wrongful detention, false imprisonment, and malicious prosecution against Defendant Packard. Id. ¶¶ 39-48. Plaintiff brings a municipal liability claim ("Monell claim") against Defendant Denver. Id. ¶¶ 49-57. Plaintiff seeks compensatory damages, punitive damages, equitable relief, interest, costs, expert witness fees, reasonable attorney fees, "and any other and further relief that this Court shall deem just and proper." Id. ¶ 57. Plaintiff brings his claims under 42 U.S.C. § 1983 and asserts that this Court has jurisdiction pursuant to 42 U.S.C. § 1983. Id. ¶ 4.

Plaintiff alleges that, "[o]n August 1, 2011, [he] identified a one-of-a-kind [b]ackpack, that had been earlier stolen from his storage facility, being carried by a person on the street whom he did not know." Id. ¶ 13. According to Plaintiff, he "called the police and confronted the person wearing the backpack, whom he later learned was named Jeffrey Sinton [("Sinton")]." Id. Plaintiff asserts that he "demanded" that Mr. Sinton return his backpack to him. Id. ¶ 14. Plaintiff maintains that, in response to his demand, Mr. Sinton shoved Plaintiff. Id. Plaintiff avers that "[t]he confrontation was then immediately concluded by a third party who jumped into the fray and punched [Plaintiff] in the face." Id.

Plaintiff asserts that "[p]olice arrived and investigated the incident [(the "Incident")]." Id. ¶ 15. Plaintiff alleges that "Officer Bart Stark [("Stark")] suspected that although[Plaintiff] was the only person with physical injuries, [he] might have been the aggressor of the [I]ncident because he first confronted [Mr. Sinton]." Id. According to Plaintiff, "Officer Stark could not adduce enough evidence to establish probable cause . . . [and thus] refused to take a police report." Id. Plaintiff asserts that "Officer Stark concluded that there was insufficient probable cause to make any arrests based upon the reports of the [I]ncident from witnesses." Id. ¶ 18. Plaintiff maintains that Mr. Sinton "'refused' to be a witness against [him]." Id. According to Plaintiff, "Mr. Sinton was eventually arrested on an unrelated petty offense warrant that was outstanding." Id.

Plaintiff alleges that he "was upset, because he knew that at least one witness had lied about the [I]ncident, he did not cause the circumstances under which he was punched in the face, and that police would not complete a police report or otherwise investigate." Id. ¶ 16. According to Plaintiff, he "wanted a police report to be taken to address the matter in civil court, or to otherwise demonstrate that the [I]ncident [had] occurred and was investigated by police." Id. ¶ 17.

Plaintiff asserts that "[a]fter the [I]ncident, [he] went to Denver Police Department District Six [("District Six")], where he believed [O]fficer Stark was stationed." Id. ¶ 19. Plaintiff alleges that he "asked for the supervising sergeant on duty, so that he could make a complaint about Officer Stark." Id. ¶ 20. According to Plaintiff, "the Denver Police Department, including [District Six][,] has a citizen complaint procedure that requires citizen complaints to go through formal channels, beginning with a supervisor or sergeant." Id. ¶ 21.

Plaintiff alleges that Defendant "Packard cut off [Plaintiff] while he was explaining [what happened during the Incident] and rudely told [him] that she was not going to listento [him] any more." Id. ¶ 22. According to Plaintiff, Defendant Packard "said she would not investigate or discipline her officer." Plaintiff avers that Defendant Packard "threatened that if [he] did not give up on his complaint, she would charge him with a crime and arrest him." Id. Plaintiff asserts that he "insisted that the complaint go through formal channels and be investigated." Id. ¶ 23. Plaintiff maintains that Defendant Packard "became further upset that [he] insisted on further investigation. . . . [and she] responded with intent to punish, assert arbitrary authority and dissuade [him] from making a citizen complaint." Id. ¶¶ 23-24. According to Plaintiff, Defendant Packard "seized [Plaintiff] by ordering him to remain in a confined room [(the "Room")] for approximately 30 minutes, under threat that if he left he would be charged with resisting arrest (or a like charge) and then she charged [him] with assault and disturbing the peace." Id. ¶ 24.

Plaintiff alleges that "[w]hile [he] was seized, [Defendant] Packard spoke to Mr. Sinton and claimed to elicit evidence from him that supported criminal charges against [him] for assault and disturbing the peace." Id. ¶ 41. Plaintiff asserts that Defendant "Packard improperly pressured and/or persuaded Mr. Sinton to become a witness against [him] in order to assist her in asserting false charges against [him] in retaliation for [his] complaint." Id. ¶ 36. Plaintiff maintains that "Mr. Sinton provided no more information [to Defendant Packard] than had already been disclosed to Officer Stark, previously." Id. ¶ 42.

According to Plaintiff, "Defendant Packard knowingly and intentionally charged [him] with the crimes of assault and disturbing the peace in retaliation for [his] speech and criticism through [District Six's] complaint procedures." Id. ¶ 37. Plaintiff asserts that Defendant Packard "submitted false information regarding the underlying crimes to the District Attorney responsible for charging [him] [with] assault and disturbing the peace." Id.¶ 44.

Plaintiff asserts that "[a] criminal case was brought against [him] as a result of the representations made by [Defendant] Packard." Id. ¶ 45. According to Plaintiff, "the District Attorney could not adduce sufficient evidence to prosecute [him]." Id. ¶ 46. Plaintiff avers that "the charges had to be dismissed and were dismissed in [his] favor." Id. ¶¶ 28, 46.

Plaintiff alleges that his "original complaint was never further investigated." Id. ¶ 26. Plaintiff asserts that he "had to go to a different police station in order to file a complaint that the complaint submitted to [Defendant] Packard had been ignored." Id. According to Plaintiff, "there have been other incidents where citizens were threatened, dissuaded or otherwise told not to continue with complaints and criticisms [once] they complained to supervisors about officer misconduct." Id. ¶ 53. Plaintiff avers that Defendants "have participated in other incidents where citizen complaints have been denied without investigation, deterred at the complaint stage and/or officers have retaliated against those who have submitted complaints." Id. ¶ 27. Plaintiff maintains that Defendant "Packard was a final decision-maker for [Defendant Denver] regarding the [District Six] complaint procedure . . . and the decisions related to the arrest and charging of [Plaintiff]." Id. ¶ 50. According to Plaintiff, Defendant Packard's "decisions represent the decisions of [Defendant Denver]." Id.

Plaintiff alleges that "[t]his is not the first time that Defendant . . . Packard has made decisions for [District Six] to conceal evidence, hide the truth, or arbitrarily suspend police department procedures to achieve results that she desired at the expense of justice." Id. ¶ 51. Plaintiff avers that "[i]n February, 2012, [Defendant Packard] concealed evidence and refused to charge a woman after a lower-ranking officer attempted to arrest the woman fora DUI." Id. Plaintiff asserts that "there have been other incidents, of which [Defendant Denver] has knowledge, where Defendant . . . Packard and other officers have acted with reckless disregard for the rights of suspects and citizens, including other incidents of evidence tampering and retaliation for expression of citizen's [sic] First Amendment rights and have not been sufficiently disciplined to refrain from such conduct." Id. ¶ 52.

Plaintiff alleges that Defendant Denver "has given insufficient training and discipline to effectively cause [its] officers to refrain from using police authority in response to First Amendment protected speech that may offend or frustrate an officer." Id. ¶ 54. Plaintiff maintains that Defendant Denver "has insufficiently disciplined [Defendant] Packard to refrain from concealing/misrepresenting evidence, hiding the truth, or arbitrarily suspending police department procedures to achieve results that she desired at the expense of justice." Id. ¶ 55. Plaintiff asserts that Defendant Denver's "policies, practices, and lack of training and supervision were likely to lead to the deprivation of Plaintiffs' [sic] Constitutional rights and if not changed would likely lead to the deprivation of other similarly situated persons' rights." Id. ¶ 56. According to Plaintiff, Defendant Denver's "policies, practices and lack of...