Waller v. City of Denver

• Decision Date: 05 August 2019
• Docket Number: No. 17-1234,17-1234
• Citation: 932 F.3d 1277
• Parties: Anthony WALLER, Plaintiff - Appellant, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant - Appellee, and Brady Lovingier, individually and in his official capacity; Gina McCall, individually and in her official capacity, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

932 F.3d 1277

Anthony WALLER, Plaintiff - Appellant,

v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant - Appellee,andBrady Lovingier, individually and in his official capacity; Gina McCall, individually and in her official capacity, Defendants.

No. 17-1234

United States Court of Appeals, Tenth Circuit.

Filed August 5, 2019

Kenneth A. Padilla of Padilla & Padilla, PLLC, Denver, Colorado, for Plaintiff-Appellant.

David C. Cooperstein, Assistant City Attorney, Denver City Attorney’s Office, Civil Litigation Section, Denver, Colorado, for Defendant-Appellee.

Before HOLMES, McKAY, and MORITZ, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff Anthony Waller appeals the district court’s Rule 12(b)(6) dismissal of his municipal liability claim against the City and County of Denver for a Denver deputy sheriff’s use of excessive force against him.

I.

On September 11, 2012, while in pretrial detention, Mr. Waller was escorted in handcuffs and other restraints to a courtroom located within the Denver City Jail for a first advisement hearing. Mr. Waller remained "very respectful and calm throughout the advisement." (Appellant’s App. at 28.) After the judge finished the advisement, Mr. Waller "politely address[ed] the Court in a normal and subdued voice," stating that he thought the investigation should have come before his arrest. (Id. ) The judge began to respond, but while she was speaking, Deputy Sheriff Brady Lovingier, who had been standing directly behind Mr. Waller, suddenly and "without warning, justification[,] or provocation" grabbed Mr. Waller, spun him around, and threw him face first into a nearby glass wall and metal post, causing him to sustain "serious and permanent injuries." (Id. at 25, 29.) Deputy Lovingier’s assault on Mr. Waller was captured on video recorded by the courtroom cameras.

Approximately one year later, on September 24, 2013, Deputy Lovingier received a thirty-day suspension for his assault on Mr. Waller. The official who issued the suspension order concluded that Deputy Lovingier had violated "DSD RR-300.22-Inappropriate Force; DSD RR-300.19.1-Disobedience of Rule: Department Order 5011.1J-Use of Force; Career Service Rule 16-60 for Neglect of Duty, Carelessness in Performance of Duties and Responsibilities, and Conduct Prejudicial to the Good Order and Effectiveness of the Department or Conduct That Brings Disrepute on or Compromises the Integrity of the City." (Id. at 32.) The official explained that Deputy Lovingier’s attack on Mr. Waller was "unprovoked," "egregious and unprofessional," and "breached several of the [Sheriff Department’s] Guiding principles," as well as compromising the efficiency and reputation of the Sheriff Department and the City and County of Denver. (Id. at 32–33.) A hearing officer affirmed Deputy Lovingier’s thirty-day suspension.

Mr. Waller filed this federal lawsuit under 42 U.S.C. § 1983 in July 2014. His complaint included two claims that are pertinent to this appeal: a claim of excessive force against Deputy Lovingier, and a claim of municipal liability against Denver premised on Deputy Lovingier’s use of force. The municipal liability claim alleged that Denver could be found liable for Deputy Lovingier’s unconstitutional use of force based on the municipality’s "failure to train and to appropriately supervise and discipline officers of the [Denver Sheriff Department]." (Id. at 67.) Defendants filed separate motions to dismiss the complaint, and Mr. Waller then filed a motion for leave to amend. As pertinent here, Mr. Waller’s proposed amended complaint raised two new theories of municipal liability relating to Deputy Lovingier’s use of force, asserting that Denver could also be found liable based the Sheriff Department’s poor hiring decisions and inadequate investigation of excessive force allegations.

A magistrate judge reviewed these motions and recommended that the district court grant Defendants’ motions to dismiss but permit Mr. Waller to amend his complaint in part. Specifically, the magistrate judge recommended that Mr. Waller be permitted to amend his original complaint to clarify the legal basis of his excessive force claim against Deputy Lovingier. However, the magistrate judge concluded that neither the original nor the proposed first amended complaint contained sufficient factual allegations to set forth a plausible claim of municipal liability against Denver. The magistrate judge therefore recommended that the district court deny as futile Mr. Waller’s motion for leave to amend his claim against Denver and grant Denver’s motion to dismiss. Mr. Waller objected to this recommendation, but the district court ultimately adopted it.

Mr. Waller then filed a second amended complaint and proceeded with his excessive force claim against Deputy Lovingier. This claim was tried before a jury, which found that Deputy Lovingier had violated Mr. Waller’s right to be free from excessive force. The jury awarded Mr. Waller $50,000 in actual damages but rejected his request for punitive damages. The district court entered final judgment consistent with this verdict and the earlier Rule 12(b)(6) dismissal, thus entering judgment in favor of Denver and against Deputy Lovingier. In addition to the $50,000 in damages awarded by the jury, the district court also awarded Mr. Waller $176,226 in attorney’s fees under 42 U.S.C. § 1988(b).

In this appeal, Mr. Waller challenges the Rule 12(b)(6) dismissal of his municipal liability claim against the City and County of Denver. Although he does not directly challenge the district court’s denial of his motion for leave to amend his complaint, his arguments regarding the court’s Rule 12(b)(6) dismissal are based primarily on the allegations in his proposed first amended complaint.

II.

"We review de novo a district court’s decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim." Alvarado v. KOB-TV, L.L.C. , 493 F.3d 1210, 1215 (10th Cir. 2007). Under this standard, we "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Id. (internal quotation marks omitted). However, "mere ‘labels and conclusions’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice." Khalik v. United Air Lines , 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Accordingly, in examining a complaint under Rule 12(b)(6), we will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id. Stated differently, "[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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

"In reviewing a Rule 12(b)(6) motion to dismiss, our first step is to review the factual allegations that should have been considered by the district court." Alvarado , 493 F.3d at 1215. As an initial matter, we note a potential issue regarding which complaint is the operative complaint for us to consider in this appeal. Mr. Waller assumes that our review should be based on the allegations in his proposed first amended complaint; however, his motion for leave to amend the complaint was denied, at least as it related to his municipal liability claim, and Mr. Waller does not challenge that decision on appeal. Nevertheless, we need not resolve this potential issue because we agree with the magistrate judge and district court that neither complaint states a plausible claim of municipal liability, for the reasons discussed below.

Mr. Waller also contends that we may consider evidentiary materials outside his complaints. Specifically, his appellate briefs refer extensively to two reports regarding the Denver Sheriff Department that were released in May 2015, after he had filed both his original complaint and his proposed first amended complaint. Mr. Waller attached these reports to his objection to the magistrate judge’s report and recommendation, and he argues both that the district court should have considered these reports below and that we should consider them on appeal because they "substantiate" his municipal liability claims against Denver. (Appellant’s Br. at 19.)

The "usual rule" is "that a court should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss." Alvarado , 493 F.3d at 1215. We have recognized a limited exception to this rule: "[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity." Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 (10th Cir. 2002). Mr. Waller argues that the reports may be considered because they are central to his claim of municipal liability. However, he ignores the clear language of our precedents, under which this exception applies only to "documents referred to in the complaint." Id. The reports are not referred to in either the original or the first amended complaint, and thus we are not persuaded that this exception would have permitted the district court to consider them in evaluating Mr. Waller’s Rule 12(b)(6) motion to dismiss.

Mr. Waller also contends that the district court was permitted—and even mandated—to consider the 2015 reports because Rule 72(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) both provide that district courts "may ... receive further evidence" in conducting a de novo review of objected-to portions of a magistrate judge’s report and recommendation. We are not persuaded that the district court’s general discretionary authority to receive further evidence in reviewing a magistrate judge’s report and recommendation—which could entail, for instance,...