Sebastian v. Douglas Cnty.

• Decision Date: 12 September 2013
• Docket Number: Court of Appeals No. 12CA1112
• Citation: 370 P.3d 175
• Parties: Fabian SEBASTIAN, Plaintiff–Appellant, v. DOUGLAS COUNTY, COLORADO ; Douglas County Sheriff's Office; David A. Weaver, Douglas County Sheriff; and Greg A. Black, Douglas County Sheriff's Deputy, Defendants–Appellees.
• Court: Colorado Court of Appeals

370 P.3d 175

Fabian SEBASTIAN, Plaintiff–Appellant,

v.DOUGLAS COUNTY, COLORADO ; Douglas County Sheriff's Office; David A. Weaver, Douglas County Sheriff; and Greg A. Black, Douglas County Sheriff's Deputy, Defendants–Appellees.

Court of Appeals No. 12CA1112

Colorado Court of Appeals, Div. III.

Announced September 12, 2013

Rehearing Denied Oct. 10, 2013

The Law Offices of Sandomire & Schwartz, Andrew Sandomire, Eric V. Field, Denver, Colorado, for Plaintiff–Appellant

Lance J. Ingalls, County Attorney, Kelly Dunnaway, Deputy County Attorney, Castle Rock, Colorado, for Defendants–Appellees

Opinion by JUDGE DAILEY

¶ 1 Plaintiff, Fabian Sebastian, appeals from the district court's order, entered on remand from this court, denying his C.R.C. P. 60 (b)(1)

motion to set aside the court's judgment entered in favor of defendants, Douglas County, Colorado; Douglas County Sherriff's Office; David A. Weaver, Douglas County Sheriff; and Greg A. Black, Douglas County Sheriff's Deputy. We affirm.

I. Background

¶ 2 Sebastian was a passenger in the back seat of a vehicle stopped by sheriff's deputies soon after it left the scene of a reported gang fight involving guns. Upon being stopped, two of the car's passengers fled, leaving a door open behind them. According to the amended complaint filed by Sebastian in this case,

? as the two went over a nearby fence, Deputy Black, without any preliminary warning, directed his K–9 police dog to give chase;

? the dog jumped from the deputy's vehicle and ran to the fence where it stopped;

? the dog turned, saw Sebastian seated in the back seat of the car with his hands up, entered the car through the open door, and attacked him; and,

? the assault continued until Black and two other deputies dragged the dog off Sebastian.

¶ 3 Based on these allegations, Sebastian asserted that he was entitled to recover damages because the attack violated rights guaranteed him by the Fourth and Fourteenth Amendments to the United States Constitution, Deputy Black was negligent, and his conduct was outrageous.

¶ 4 Pursuant to C.R.C.P. 12(b)(5)

, defendants moved to dismiss the action for failure to state a claim upon which relief could be granted. In this regard, they asserted that (1) Sebastian had not set forth facts which, if true, would warrant relief under 42 U.S.C. § 1983 ; (2) Sebastian's 42 U.S.C. § 1983 constitutional claims were, in any event, barred by the doctrine of qualified immunity; and (3) Sebastian's state law (i.e., negligence and outrageous conduct) claims were barred by the Colorado Governmental Immunity Act (CGIA).

¶ 5 Sebastian filed, and the court granted, an unopposed motion for an extension of time in which to respond to the motion to dismiss, although it was unclear whether the extension was for one or two weeks. In any event, Sebastian failed to respond within either period. He filed his response five calendar days after the expiration of the two-week period—one day after the district court had dismissed his complaint pursuant to C.R.C.P. 121

§ 1–15(3) (failure to file a responsive brief may be considered a confession of the motion).

¶ 6 Subsequently, Sebastian filed a motion to set aside the judgment of dismissal under C.R.C.P. 60(b)(1)

, asserting that (1) he missed the filing deadline due to his attorney's excusable error in interpreting C.R.C.P. 6(e) as allowing additional time in which to respond beyond the expiration of the two-week period, (2) he had a meritorious defense to defendants' motion to dismiss, and (3) no prejudice to Deputy Black would result from granting the motion, but Sebastian would be prejudiced if it were not granted. The district court denied Sebastian's motion.

¶ 7 On appeal, a division of this court vacated the district court's order denying Sebastian's C.R.C.P. 60(b)(1)

motion and remanded the matter for further consideration. See Sebastian v. Douglas Cnty., 2011 WL 1420290 (Colo.App. No. 10CA0660, Apr. 14, 2011) (not published pursuant to C.A.R. 35(f) ).

¶ 8 In reaching its decision, the division agreed with the district court that the cause of Sebastian's belated response—counsel's misinterpretation of the rules—was not excusable. However, relying on Goodman Associates, LLC v. WP Mountain Properties LLC, 222 P.3d 310 (Colo.2010)

, the division concluded that that fact alone was not dispositive; it was just part of a fundamentally broader, equity based determination. Under Goodman, the division noted, a court had to consider not only (1) whether the neglect that resulted in the entry of the judgment was excusable, but also (2) whether the moving party has alleged a meritorious claim or defense, and (3) whether relief from the challenged judgment would be consistent with considerations of equity. See Goodman, 222 P.3d at 319, 321.

¶ 9 Because the district court had not considered the latter two factors, the division vacated the district court's order and remanded the matter for reconsideration and entry of new findings and conclusions in conformity with the requirements of Goodman

. Sebastian, slip op. at 9–11.

¶ 10 On remand, after conducting a hearing, the district court issued a written order once again denying Sebastian's C.R.C.P. 60(b)(1)

motion.

II. Analysis

¶ 11 On appeal, Sebastian contends that the district court erred in denying his rule 60(b)(1)

motion. We disagree.

¶ 12 A district court's decision to grant or deny relief under C.R.C.P. 60(b)(1)

is generally reviewed under an abuse of discretion standard. See Goodman, 222 P.3d at 314. A court abuses its discretion when its decision rests on a misunderstanding or misapplication of the law, Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo.App.2003), or when its decision is manifestly arbitrary, unreasonable, or unfair. Goodman, 222 P.3d at 314.

¶ 13 To set aside a judgment under C.R.C.P. 60(b)

, the movant—here, Sebastian—bears the burden of establishing by clear and convincing evidence that the motion should be granted. Goodman, 222 P.3d at 315

.

¶ 14 The present case involves the application and balancing of the three factors identified in Goodman.

Because the resolution of disputes on their merits is favored, the Goodman factors should be "liberally construed in favor of the movant, especially when the motion is promptly made." Goodman, 222 P.3d at 320 ; see also Gumaer v. Bell, 51 Colo. 473, 482–83, 119 P. 681, 684 (1911) ("The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and, when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application.") (quoting Watson v. San Francisco & Humboldt Bay R.R. Co., 41 Cal. 17, 20–21 (1871) ).

¶ 15 Sebastian concedes—as he must, under the prior decision of the division of this court – that, under the firstGoodman

factor, his neglect was not excusable. Nonetheless, he argues, he is entitled to relief upon a proper consideration of the other two factors.¹ It is to those two factors, and the district court's balancing of them, that we now turn.

A. The Second Goodman Factor: The Presence of a Meritorious Claim

¶ 16 Sebastian has conceded that his state law tort claims are, as the defendants argued, barred by the CGIA. He asserts, however, that he has alleged meritorious 42 U.S.C. § 1983

claims.

¶ 17 In his amended complaint, Sebastian asserted that, by directing his K–9 dog to subdue the fleeing occupants of the car without distinguishing between those who were fleeing and those remaining in the car, Deputy Black employed excessive force in effecting or maintaining the seizure of his person in violation of the Fourth Amendment to the federal constitution.

¶ 18 The district court found that the allegations did not state a claim under 42 U.S.C. § 1983

because

? to be an actionable Fourth Amendment violation, an aggrieved person's detention must be accomplished purposefully, rather than accidentally, and

? Sebastian's allegations raised, at most, a negligent act, and, as such, were actionable, if at all, only under state law.

¶ 19 "To state a claim for relief under [42 U.S.C.] § 1983

, a complaint must allege that some person deprived the plaintiff of a right, privilege, or immunity established by the constitution or laws of the United States and that such person's actions were under color of state law." Cnty. of Adams v. Hibbard, 918 P.2d 212 (Colo.1996).

¶ 20 In the analogous, fourteenth amendment context, the United States Supreme Court has agreed that the word " ‘deprive’ ... connote[s] more than a negligent act." Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986)

. Consistent with this, courts have recognized that, to be successful, a section 1983 claimant "must establish that the defendant acted knowingly or intentionally to violate his or her constitutional rights, such that mere negligence or recklessness is insufficient." Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir.1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982) ).

¶ 21 Consequently, in a Fourth Amendment excessive force case, a section 1983

plaintiff must show, as a threshold matter, that he or she has been "seiz[ed]" by "means intentionally applied" by a government actor. Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) ("Violation of the Fourth Amendment requires an intentional acquisition of physical control.... This is implicit in the word ‘seizure’, which can hardly be applied to an unknowing act."); see also Apodaca v. Rio Arriba Cnty. Sheriff's Dep't, 905 F.2d 1445, 1447 (10th Cir.1990)

("[O]ne seized unintentionally does not have a constitutional complaint."); Koetter v. Davies, 2010 WL 3791482, at *5 (D.Utah No. 2:07–CV–724 TS, Sept. 22, 2010) (unpublished order) ("[T]he Fourth Amendment prohibition on excessive force during arrest does not...