Lincoln v. Maketa

• Decision Date: 31 March 2016
• Docket Number: Civil Action No. 15–cv–00423–CMA–KMT
• Citation: 176 F.Supp.3d 1179
• Parties: Mitchel Lincoln, Rodney Gehrett, Robert King, Cheryl Peck, and Robert Stone, Plaintiffs, v. Terry Maketa, in his individual capacity and in his official capacity as Sheriff of El Paso County, Paula Presley, in her individual capacity and in her official capacity as Undersheriff of El Paso County, The Board of County Commissioners of the County of El Paso, Bill Elder, in his official capacity as Sheriff, and Joe Breister, in his official capacity as Undersheriff, Defendants.
• Court: U.S. District Court — District of Colorado

176 F.Supp.3d 1179

Mitchel Lincoln, Rodney Gehrett, Robert King, Cheryl Peck, and Robert Stone, Plaintiffs,

v.Terry Maketa, in his individual capacity and in his official capacity as Sheriff of El Paso County, Paula Presley, in her individual capacity and in her official capacity as Undersheriff of El Paso County, The Board of County Commissioners of the County of El Paso, Bill Elder, in his official capacity as Sheriff, and Joe Breister, in his official capacity as Undersheriff, Defendants.

Civil Action No. 15–cv–00423–CMA–KMT

United States District Court, D. Colorado.

Signed March 31, 2016

Jennifer W. Stock, Edward T. Farry, Jr., Law Office of Edward Farry, Colorado Springs, CO, for Plaintiffs.

Andrew David Ringel, Hall & Evans, LLC, Ashley McCall Kelliher, Eric Michael Ziporin, Senter Goldfarb & Rice, LLC, Gillian Marie Fahlsing, Hannon Law Firm, LLC, Beth Ann Lennon, Sherman & Howard, L.L.C., Denver, CO, Diana Kay May, Glenn H. Schlabs, Raymond Myles Deeny, Sherman & Howard, L.L.C., Colorado Springs, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

CHRISTINE M. ARGUELLO, United States District Judge

This matter is before the Court on the following motions:

1. “Motion to Dismiss from Defendant Terry Maketa” (Doc. # 28, filed April 30, 2015);

2. “Defendant Presley's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ” (Doc. # 32, filed May 4, 2015);

3. “County Defendants' Motion to Dismiss Plaintiffs' Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) ” filed by Defendants The Board of County Commissioners of the County of El Paso (“the BOCC”), Bill Elder, and Joe Breister (collectively “County Defendants”) (Doc.# 33, filed May 4, 2015); and4. “County Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) ” (Doc. # 85, filed November 30, 2015).

BACKGROUND

Plaintiffs filed their Second Amended Complaint and Jury Demand on September 21, 2015, alleging claims pursuant to 42 U.S.C. §§ 1983 and 1988 and a claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–17. See (Doc. # 64.)¹ Plaintiffs' claims arise from their employment with the El Paso County Sheriff's Office and are asserted against former Sheriff Terry Maketa, former Undersheriff Paula Presley, current Sheriff Bill Elder, current Undersheriff Joe Breister, and the Board of County Commissioners of the County of El Paso. See (Id. )

Plaintiffs King, Lincoln, and Gherett allege that, on May 12, 2014, they went to Defendant Maketa's office and hand delivered an Equal Employment Opportunity Commission (“EEOC”) complaint charging Defendant Maketa and the County with sexual discrimination in the workplace based on sexual favoritism. (Id. at ¶ 12.) The EEOC charge was handed to Defendant Presley. (Id. ) The EEOC charge stated that Defendant Maketa granted favorable treatment to female subordinates with whom he had intimate sexual relations and discriminated against subordinates who refused to engage in intimate sexual relations with him. (Id. ) Also on May 12, 2014, Plaintiffs King, Lincoln, and Gherett submitted a written complaint to the Board of County Commissioners requesting an investigation of Defendants Maketa and Presley for hostile work environment, threats, a sexually discriminatory workplace, improper procurement and budget practices, and retaliation for political views and civil rights violations. (Id. at ¶ 13.) Plaintiffs Lincoln, King, and Gehrett allege that within three hours of delivering the EEOC complaint and BOCC request for investigation to Defendant Maketa's office, they were placed on administrative leave. (Id. at ¶ 16.) Plaintiffs Lincoln and King also allege Defendants Maketa and Presley filed internal affairs complaints against them in July and September 2014. (Id. at ¶¶ 21–22.)

Plaintiff Stone alleges Defendant Maketa looked at Elder's campaign website on a regular basis to see the names of people listed as supporters of Elder, saw Plaintiff Stone's name on that list, and retaliated against Plaintiff Stone because he supported Elder. (Id. at ¶¶ 42, 92, 94.)

Plaintiff Peck alleges Defendant Maketa asked her to lie to the media, and, when she spoke truthfully instead, she was removed from her position as Lieutenant of Internal Affairs and moved to Lieutenant of Patrol on the midnight shift. (Id. at ¶¶ 62–63.)

Plaintiffs assert the following claims: (1) a section 1983 claim by Plaintiffs Lincoln, King and Gehrett alleging First Amendment retaliation against all defendants related to the plaintiffs' filing of the EEOC charge; (2) a section 1983 claim by Plaintiffs Lincoln, King, and Gehrett alleging First Amendment retaliation against all Defendants related to the Plaintiffs' submission of a request for an investigation by the BOCC; (3) a section 1983 claim by Plaintiff Peck alleging First Amendment retaliation against Defendants Maketa, the BOCC, and Elder for Plaintiff Peck's speaking to the media; (4) a section 1983 claim by Plaintiff Stone alleging First Amendment retaliation against Defendants Maketa, the BOCC, and Elder for Plaintiff Stone's political affiliation; (5) an outrageous conduct claim asserted by all plaintiffs against Defendants Maketa and Presley; and (6) a Title VII retaliation claim by Plaintiffs Lincoln, King, and Gehrett against Defendant Elder for the plaintiffs' filing a claim to the EEOC. See (Id. )

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6) (2007). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted).

“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon , 935 F.2d 1106, 1108 (10th Cir.1991). “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.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Plausibility, in the context of a motion to dismiss, means that the plaintiffs have pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id . The Iqbal evaluation is a two-step analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations that are legal conclusion, bare assertions, or merely conclusory. Id . at 679–81, 129 S.Ct. 1937. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id . at 681, 129 S.Ct. 1937. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id . at 679, 129 S.Ct. 1937.

The court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste , 161 F.3d 1259, 1262 (10th Cir.1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (citation omitted). “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.’ ” Id. (citation omitted).

ANALYSIS

1) Government or Municipal Liability

The County Defendants argue that Plaintiffs have failed to state any plausible claim for relief against Defendant BOCC. (Doc # 33 at 6–13.)

In Monell v. New York City Dept. of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court enunciated the rule for imposing liability on a governmental entity:

[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Monell , 436 U.S. at 694, 98 S.Ct. 2018. “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati , 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). At a minimum, a party asserting a Monell claim must plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation. See, e.g., Hollingsworth v. Hill , 110 F.3d 733, 742 (10th Cir.1997).

Here, Plaintiffs' allegations of an unconstitutional custom or policy maintained by the BOCC or the El Paso County Sheriff's Office are entirely conclusory. Plaintiffs offer only the “formulaic recitation” of a Monell claim, alleging that “El Paso County is liable under § 1983 because the County itself is the...