Lovern v. Investigator Bart Dorscheid
| Decision Date | 07 February 2014 |
| Docket Number | Civil Case No. 13-cv-02446-LTB-KLM |
| Parties | DENNY LOVERN, Plaintiff, v. INVESTIGATOR BART DORSCHEID, Eighteenth Judicial District Attorney's Office Investigator, and CHIEF INVESTIGATOR KNIGHT, Eighteenth Judicial District Attorney's Office, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before me on a Motion to Dismiss filed by Defendants Bart Dorscheid and Michael Knight, who are being sued in their official capacity as Investigators with the Eighteenth Judicial District Attorney's Office, by Plaintiff Denny Lovern, pursuant to 42 U.S.C. §1983. [Doc #9] Defendants seek to have Plaintiff's single §1983 claim - for false arrest and malicious prosecution without probable cause, in violation of the Forth Amendment - dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, based on the defense of qualified immunity. Oral arguments would not materially assist me in my determination of this motion. After consideration of the parties' arguments, and for the reasons stated, I GRANT the motion and, as such, I DISMISS this case.
In his complaint, Plaintiff concedes that he has been charged and convicted of over adozen alcohol-related driving offenses over the last thirty years. With regard to the incident at issue here, Plaintiff alleges that in the late afternoon of October 9, 2008, Shane Donahoe observed a silver Saab, driven by Plaintiff, pull out of a carport and hit the cinderblock wall. Plaintiff then passed out at the wheel, woke up, and hit the carport wall again with his Saab. After passing out again, and again awaking, Plaintiff pulled out into the street and passed out again. Mr. Donahoe, and several other witnesses, called 911 to report the incident.
Thereafter, an Arapahoe County Sheriff's Deputy took Plaintiff into custody after he hit a wooden fence in an alley at approximately 10 miles per hour. Plaintiff had a blood alcohol content/concentration (BAC) of approximately .321, which is four times the legal limit to operate a vehicle. Plaintiff was taken into custody and hospitalized due to his high BAC. An initial complaint was filed charging him with various traffic misdemeanors, including Driving Under the Influence, in Arapahoe County Case No. 2008T5230. After Plaintiff failed to appear at his arraignment, a bench warrant was issued and he was arrested on May 2, 2009.
Plaintiff asserts that after he was arrested, Defendant Chief Investigator Knight instructed his subordinate, Defendant Investigator Dorscheid, to "fabricate" felony charges against Plaintiff. Specifically, he contends that Defendant Dorscheid - who drafted and signed the affidavit supporting probable cause dated July 1, 2009 - perjured himself by stating that he had probable cause for believing that Plaintiff committed the felony crimes of attempted manslaughter and attempted assault in the second degree. Plaintiff avers that "there was no probable cause for believing that the Plaintiff committed these felonies because his alleged reckless actions were directed at a fence and a cinderblock [wall], not at an identifiable human being." He argues that Defendants intentionally or recklessly omitted from the probable causeaffidavit the fact that there was no human victim of Plaintiff's reckless conduct when driving under the influence of alcohol on October 9, 2008.
Plaintiff further asserts that Defendants "conspired with an Arapahoe County Deputy District Attorney . . . to procure the malicious prosecution of the Plaintiff by dismissing the initial complaint, and filing a new Complaint and Information that charged Defendant with the felonies of: Criminal Attempt to Commit Manslaughter, in violation of Colorado Revised Statute §18-3-104(1)(a), and Criminal Attempt to Commit Assault in the Second Degree with a Deadly Weapon (namely, a motor vehicle), in violation of Colorado Revised Statute §18-3-203(1)(d), in Arapahoe County Case No. 2009CR1653. Plaintiff avers that the felony charges against him were ultimately dismissed on the grounds that he could not be charged with attempted manslaughter (dismissed by the trial court) and attempted assault (voluntarily dismissed by the People) when the evidence was that Plaintiff's criminal actions were not directed at a human victim.
Plaintiff then filed this lawsuit seeking damages for Defendants' unconstitutional acts, in pursuing the felony charges against him, for false arrest and malicious prosecution as single claim for relief under 42 U.S.C. §1983. In his §1983 claim, Plaintiff asserts that Defendants acted maliciously, knowingly, intentionally, willfully and wantonly by drafting and executing the affidavit of probable cause which, in turn, caused Plaintiff to ultimately be wrongfully prosecuted for felony attempted manslaughter and felony attempted second degree assault.
In this motion, Defendants seek dismissal of Plaintiff's §1983 claim against them for failure to state a claim upon which relief can be granted based on the defense of qualifiedimmunity. 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)).
The Fed. R. Civ. P. 12(b)(6) standard to survive a motion to dismiss requires that a plaintiff's pleadings must "nudge[ ] their claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(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, 662 F.3d 1152, 1162-63 (10th Cir. 2011)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
Plaintiff's §1983 claim is premised on his contention that Defendants knowingly acted toarrest and prosecute him for attempted manslaughter and attempted assault in the second degree, by drafting and executing a probable cause affidavit that failed to reveal there was no identifiable human victim of Plaintiff's criminal acts in driving under the influence of alcohol. In this motion, Defendants argue that they are protected by qualified immunity in that the decision of Defendant Dorscheid to draft (and Defendant Knight to approve) the probable cause affidavit in support of charging Plaintiff with attempted manslaughter and attempted second degree assault, when there was no direct identifiable human victim of his actions, "was grounded in a reasonable interpretation of applicable precedent."
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." In suits brought against officials in their individual capacities, officials may raise the defense of qualified immunity. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). 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.
Defendants agree that the knowing or reckless falsification or omission of evidence in the pre-arrest and post-arrest stages of prosecution runs afoul of an accused's constitutional rights under the Fourth Amendment. See Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004) ( Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).Defendants argue, however, that they are entitled to immunity under the second prong of the qualified immunity defense because their conduct, as alleged, was objectively reasonable in light of clearly established law at the time. Pierce v. Gilchrist, supra, 359 F.3d at 1297 (citing Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Colorado law recognizes the crime of attempted reckless manslaughter. See People v. Thomas, 729 P.2d 972 (Colo. 1986). The elements of the crime of attempted reckless manslaughter - as defined by Colorado case law - do not specifically require that the conduct be directed at a named potential victim, but rather that the accused commence the acts or conduct "with a conscious disregard of a...
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