MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY
District Court, City and County of Denver, State of Colorado
Case Number 96 CV 6563
MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY
Approximately March 1997
Persons who wrote
MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY
JUDGMENT and who acted as Attorneys for State
Address, Telephone, & FAX for State Attorneys:
1525 Sherman Street, 5th Floor
Telephone: (303) 866-5240
FAX: (303) 866-5443
Plaintiff: Franklin Perez
THE COLORADO STATE PATROL; RANDY RAHNE, individually, and in his official capacity as a Colorado State Trooper; GERALD LINCOLN, individually, and in his official capacity as a Colorado State Trooper; and, TIMOTHY McCLINCHY, individually, and in his capacity as a Colorado State Trooper
Contents of Web Page:
The MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT filed by the State of Colorado in response to my Verified Complaint and Jury Demand as well as my comments & rebuttals to the State of Colorado's MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
How can you view my comments & rebuttals?
Just click on the hyperlinked parts that link to "Rebuttal_?" - where "?" is my rebuttal number. Please note that not all hyperlinks in this web page are rebuttals - only the ones that link to "Rebuttal_?".
COMES NOW the defendants, by and through the Attorney General of the State of Colorado and for their Motion to Dismiss the Complaint pursuant to C.R.C.P. 12(b)(1) and 12(b)(5) or in the Alternative Motion for Summary Judgment pursuant to C.R.C.P. 56, state and allege as follows:
Plaintiff has brought suit against three Colorado State Troopers and the Colorado State Patrol apparantly claiming that his civil rights were violated when he was given a traffic citation. He claims a 42 U.S.C. @ 1983 violation; false arrest; and numerous state tort actions as a result of the traffic citation.
Plaintiff was stopped for a traffic investigation based on his erratic driving. He was given a roadside sobriety test, was found not to be under the influence of alcohol or drugs and was issued a traffic citation for careless driving. (See Plaintiff's Complaint.)
The traffic stop was made because the State Troopers observed plaintiff driving erratically and thus they had probable cause to stop him. (See affidavit of Trooper Gerald Lincoln attached as Exihibit A and affidavit of Trooper Randy Rahne attached as Exhibit B). The Colorado State Patrol has no policy permitting "profile stops", nor does it allow such. All stops must be based on probable cause to stop the vehicle based on observed violations. (See affidavit of Major King attached as Exihibit C).
The traffic stop of plaintiff was based on his erratic driving and had nothing to do with his race, age or sex. (See affidavits attached as Exihibits A and B).
Defendant, Colorado State Patrol, is an agency of the State of Colorado. @ 24-33.5-201 to 26 C.R.S. (1988 Repl. Vol 10A). Defendants Gerald Lincoln, Randy Rahne, and Timothy McClinchy are State Troopers and are therefore State employees. As such, claims which sound in tort or could sound in tort against the State Defendants are subject to the Colorado Governmantal Immunity Act, @ @ 24-10-101 to 120, C.R.S. (1988 and 1994 Cum. Supp.) ("GIA").
The partial waivers of sovereign immunity set forth in the GIA at @ 24-10-106(1), C.R.S. (1988) define the subject matter jurisdiction of the courts to hear tort claims against public entities. State v. MST&T, 869 P.2d 1289, 1291 (Colo. 1994). A complaint which fails to state a claim within one of the partial waivers must be dismissed for lack of subject matter jurisdiction. C.R.C.P. 12(b)(1); Trinity Broadcasting Co. v. City of Westminster, 848 P.2d 91 (Colo. 1993). The rationale in Trinity has recently been extended by the Colorado Supreme Court to the issue of whether there is a waiver under the GIA. Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995).
This court lacks subject matter jurisdiction over any of the plaintiff's State law tort claims because the factual allegations set forth in the complaint do not implicate any area in which governmental immunity is waived in the GIA. When a factual attack is made on the jurisdictional allegations of the complaint, the court may receive any competent evidence pertaining to the motion. Trinity, 848 P.2d at 924.
Consideration of such evidence does not convert the motion to one for summary judgment. Id. When considering a motion to dismiss for lack of subject matter jurisdiction, the Plaintiff bears the burden of proving such jurisdiction; therefore such a motion differs from one for summary judgment under Rule 56 and one for failure to state a claim upon which relief can be granted under rule 12(b)(5). The difference is that in motion to dismiss for lack of subject matter jurisdiction, there is no presumption of the truth of the well plead allegations of fact in the complaint. Id. at 925. Also, a dispute as to a material issue of fact does not preclude the Court from ruling as the court becomes the trier of fact on this issue. Lafitte v. State Highway Department, 885 P2d 338 (Colo. App. 1994).
In order to survive a motion to dismiss for lack of subject matter jurisdiction, and bring his claim within the waiver of governmental immunity in @ 24-10-106(1), the Plaintiff may not merely make allegations of tort claims within the waivers of immunity. He must prove these allegations. Trinity, supra. Since the supreme court in Trinity, supra, has made the Court the trier of fact on these issues, the Court must hold an evidentiary hearing on this matter prior to letting the case go to trial. The burden of proof is on the plaintiffs. See Trinity at p. 925. Since no evidence exists which can establish the required elements against the State defendants, the plaintiff's state law tort claims must be as to the State defendants.
A motion to dismiss under C.R.C.P. 12(b)(5) is viewed with disfavor and should be granted only if it is beyond doubt that plaintiffs are not entitled to any relief under the facts pleaded Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099 (Colo. 1991). In addition, the ruling court may consider only those matters contained in the Complaint and must not go beyond the confines of the pleading. Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286, 1290 (Colo. 1992); McDonald v. Lakewood Country Club, 461 P.2d 437, 440 (Colo. 1969).
In this case, taking all the allegations of the Complaint as true, the complaint fails to state a cause of action upon which any relief can be granted. This matter must be dismissed.
C.R.C.P. 56(c) provides that "judgment sought shall be rendered forthwith if the pleadings ... together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A valid purpose for this interlocutory procedure is to save expense of litigants and time connected with trial when the indisputed facts indicate that a party could not prevail. O.C. Kinney, Inc. v. Paul Hardman, Inc., 151 Colo. 571, 379 P.2d 628 (1963). When a party is entitled to prevail as a matter of law, summary judgment is proper. Danelle v. City of Englewood, 740 P.2d 536 (Colo. App. 1987); Happy Canyon Investment Co. v. Title Insurance Co. of Minnesota, 38 Colo. App. 385, 560 P.2d 819 (1976); Phelps v. Gates, 40 Colo. App. 504, 580 P.2d 1268 (1978).
In this case the material facts are not in dispute. Applying the law to these facts reveals entitlement to judgment as matter of law in favor of the defendants on all of the plaintiff's claims.
I. TORT CLAIMS
A. THE COLORADO GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFF'S CLAIMS TWO THROUGH NINE: MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(1)
The defendants, the Colorado State Patrol, et. al., fall under the Colorado Governmental Immunity Act @ 24-10-101 to 120, C.R.S. (1988 and 1996 Cum. Supp.) ("GIA"). As such, claims which sound in tort or could sound in tort against them are subject to the GIA.
The Colorado Supreme Court applied the GIA in Moody v. Ungerer, 885 P.2d 200 (Colo. 1994). There, Colorado State Trooper Moody stopped plaintiff, a county employee, from driving a road grader along a highway during rush hour. The road grader's progression impeded rush hour traffic. Trooper Moody asked Ungerer to produce his driver's license, but did not issue Ungerer a traffic citation. Instead, the trooper retained plaintiff's license and instructed him to proceed to the county shop. The trooper then followed plaintiff, who drove the road grader. At the shop, Trooper Moody contacted Ungerer's supervisor and complained about the delay caused by the plaintiff's actions. After their discussion, Trooper Moody returned plaintiff's license and did not charge Ungerer with a violation of motor vehicle laws. Ungerer accordingly filed a claim for relief against Trooper Moody, alleging false arrest. The Colorado Supreme Court denied plaintiff's claim and held that the state trooper was immune from liability under the Governmental Immunity Act. Ungerer, 885 P.2d at 205. The court also found that Trooper Moody's actions did not constitute willful and wanton conduct. Id. See also Jarvis v. Deyoe, 892 P.2d 398 (Colo. Ct. App. 1994), cert. denied (Apr. 3, 1995) (Police officer's failure to offer motorists, a minor driver and passenger, a ride home at night after issuing citation for driving unregistered car and ordering driver not to drive car, did not approach level of conduct required to abrogate immunity from tort claims under Colorado GIA, though motorists were assaulted after the stop); and City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996).
The facts in this case are almost identical with those in Ungerer. In both cases, plaintiffs bring suit against Colorado State Troopers for actions taken within the scope of their employment and under the color of state law. Both plaintiffs allege the state tort claim of false arrest. This type of tort claim is not waived under the Colorado GIA. In addition, the defendant troopers in the present case did not commit a willful or wanton tort. Their actions proved even less egregious than those of Trooper Moody. In Ungerer, Trooper Moody took Ungerer's driver's license, only to remand it after following Ungerer some distance and then talking to Ungerer's supervisor at the county shop. Here, the defendant troopers took Perez's license only briefly, for identification purposes. They remanded the license immediately and at the same location. Further, Trooper Moody ended his traffic stop by following plaintiff's vehicle to its destination, instead of issuing the driver a citation. Here, the defendant troopers decided to issue a citation instead of forcing Perez to reenter his vehicle, order him to the police station, and follow him there. In the present case, the troopers did not discuss Perez's traffic violation with outside parties, such as a supervisor. As in Ungerer, then, the present allegations of false arrest enumerated in plaintiff's complaint do not set forth a willful and wanton state tort claim which avoids the sovereign immunity bar contained in the Colorado Governmantal Immunity Act.
Further, plaintiff's other claims for damages are in the nature
of a tort or could be brought in the nature of a tort. C.R.S.
@ 24-10-102. Claims three through nine, and the damages
therein, exist in the Restatement of Torts, Second
(1965) : Negligent Infliction of Emotional Distress (@@ 46-48);
Negligence, Negligent Supervision, Negligent Training (@@ 281-328);
Outrageous Conduct (@46); Malicious Prosecution (@@ 653-673).
These claims do not fall within a waived area. C.R.S. @
24-10-106(1) and therefore must be dismissed for lack of
subject matter jurisdiction. When compared to the facts in
Ungerer, where the Court held that the acts of Trooper
Moody were not willful or wanton as a matter of law,
Ungerer 885 P.2d at 205, the facts in this case likewise
show that the alleged torts are neither willful nor wanton.
Because plaintiff's claims for damages are in the nature of tort or could have been brought in the nature of tort, and because there is no waiver for this type of claim in @ 24-10-106, the defendants are immune from plaintiff's damages claims. Therefore, this Court lacks subject matter jurisdiction over Perez's claims, and they must be dismissed pursuant to C.R.C.P. 12(b)(1).
B. THE COLORADO GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFF'S CLAIMS TWO THROUGH NINE: MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(5)
Because plaintiff's claims for damages are in the nature of tort or could have been brought in the nature of tort, and because there is no waiver of this type of claim in @ 24-10-106, and because the defendants are immune from plaintiff's damages claims, this Court must dismiss plaintiff's claims pursuant to C.R.C.P. 12(b)(5).
II. QUALIFIED IMMUNITY FROM 1983 CLAIM: MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
For plaintiff's first claim, this Court must grant plaintiff's motion to dismiss, or, in the alternative, grant plaintiff's motion for summary judgment.
A. STATE TROOPERS' ACTIONS DID NOT VIOLATE CONSTITUTIONAL LAWS GOVERNING SEIZURE, DUE PROCESS, OR LIBERTY
In Ungerer, the plaintiff filed a claim for damages under 42 U.S.C. @ 1983 against Trooper Moody. Plaintiff alleged a violation of his constitutional right to be free from an unreasonable seizure, as well as his right to due process of law. The Colorado Supreme Court held that, in order to state a claim for relief under 42 U.S.C. @ 1983, a plaintiff must establish that he was deprived of a right, privilege, or immunity secured by the federal constitution or federal laws by a person acting under the color of state law. Ungerer, 885 P.2d at 201. In the context of an allegedly illegal search, plaintiff must not only prove that there was a seizure but that the seizure was unreasonable. Id. at 202. Government officials performing discretionary functions generally are shielded 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. Id. When a police officer who is acting under color of state law is charged with a violation of a plaintiff's federal rights, the officer can assert qualified immunity. Id. In evaluating a police officer's claim of qualified immunity, a reviewing court must determine whether the right allegedly violated was clearly established such that a reasonable officer would understand that the right was violated. Id. This requires a specific inquiry, rather than a general one bases upon abstract facts. Id.
When determining if Ungerer had a clearly established right existed, the Court found no law stating that when an officer retains a license, the seizure is per se unreasonable and the traffic stop becomes a violation of the driver's constitutional rights. Id. at 203-204. A traffic stop is a limited seizure within the meaning of the Fourth Amendment. Id. at 204. The reasonableness of a traffic stop turns on the facts and circumstances of each case, and in particular on the public interest served by the seizure, the nature and scope of the intrusion, and the objective facts upon which the law enforcement officer relied in light of his knowledge and experience. ID. The Court found that Trooper Moody's actions were reasonable. Id. As a result, the Court denied plaintiff's @ 1983 claim and held that the state trooper was entitled to qualified immunity. Id. at 205.
The facts of the present case are on all fours with those of Ungerer. Both cases involve state troopers detaining the plaintiffs at traffic stops. Both cases involve the state trooper seizing the plaintiff's driver's license. In Ungerer, the Court found it reasonable that Trooper Moody did not detain Ungerer and his road grader on the highway during rush hour, but in the interest of safety directed Ungerer not to further impede traffic. Here, the defendant Troopers likewise acted as any reasonable officer would. In the interest of safety, they pulled over Perez's erratically and hazardously driven vehicle, preventing an accident with drivers on the highway. Every officer knows that dangerously driven vehicles will likely collide with other vehicles unless stopped. The troopers then took plaintiff's license in order to systematically commence a check on the identity of the vehicle's driver. Such a course of events occurs in every traffic stop, in order to reasonably protect the security of citizens. The troopers then conducted a roadside sobriety check based on the erratic driving. They had probable cause to do this.
In Jarvis v. Deyoe, 892 P.2d 398, 399-400 (Colo. Ct. App. 1995), the Colorado Court of Appeals found no clearly established right in the form of a liberty interest. In that case, a Parker police officer stopped a car driven by a minor and carrying one minor passenger. The officer concluded that the automobile's license plate had been altered and he issued a citation to the driver. Ordering the driver to park the car and cease driving it, the officer did not offer the minors a ride home. Later on, some men assaulted the minors. The minors brought a 42 U.S.C. @ 1983 suit against the officer, alleging violation of rights and privileges secured by the Fifth and Fourteenth amendments. Holding that no clearly established right existed, the Court strictly limited their analysis of "clearly established rights" and declined to find a liberty interest for the two minor plaintiffs in Jarvis. Id. at 399-400. Further, in Jarvis the Court reasoned that no precedent existed which would have made it apparent to a reasonable police officer that by allowing plaintiffs to seek their own way home, he was exposing them to such danger as to violate their due process rights. Id. at 400.
The present case involves a traffic stop by an officer, as it did in Jarvis. Here, the traffic stop, license check, and sobriety tests were as routine as the traffic stop in Jarvis. No reasonable officer would consider this a violation of Perez's liberty or due process interests. If it were, such a breach of constitutional rights would be occuring every day, whenever an officer who spots erratic or dangerous driving indicative of substance abuse, stops that driver, and inquires into the driver's identity and sobriety. This reason supports limited finding of "clearly established rights" such as occurred in Jarvis.
Because the Court found no clearly established right under the narrow analysis of Jarvis or in the parallel facts of Ungerer, it cannot find a clearly established right in the present case. Accordingly, as the Court dismissed the case in Ungerer, this Court must also grant defendant's motion for dismissal pursuant to C.R.C.P. 12(b)(5) or (1), or motion for summary judgment, pursuant to C.R.C.P. Rule 56.
B. STATE TROOPERS' ACTIONS DID NOT VIOLATE THE EQUAL PROTECTION CLAUSE
The Court in Wilkenson v. State, 830 P.2d 1121, 1126 (Colo. App. 1992) declined to recognize a clearly established right of employment when a parole board member filed action claiming that his civil rights were violated when the patrol board was abolished and he was not appointed to the newly created parole board. Plaintiff filed suit under 42 U.S.C. @ 1983. The Court in Wilkerson did not decide the issue of a clearly established equal protection right, but an employment right. However, both the plaintiff in Wilkerson and the plaintiff here allege violation of a clearly established right by way of racial discrimination. Wilkerson serves to point out the added burden on plaintiffs who allege discrimination in 1983 claims. The Court emphasized the motive in Wilkerson. They held that the plaintiff carries the burden of convincing the court that the law was "clearly established." Id. They went on to reason that, while the question of qualified immunity generally turns on objective factors, inquiry into subjective factors is not excluded when the applicable substantive law makes the official's state of mind an essential element of plaintiff's claim. Id. at 1127. They continued: "Here, the racial animus claim requires that plaintiff prove defendants acted with an improper motive in not appointing (the plaintiff) to the new Board." Id. at 1127.
The clearly established right to equal protection in a traffic stop hinges on the subjective motivation of officers in making that traffic stop. Therefore, the racial animus which plaintiff claims that the officers had at the time of the traffic stop and detainment must be proven by plaintiff. However, the State Trooper defendants treated plaintiff as similarly situated reckless drivers or those drivers who appear to be under the influence of drugs or alcohol. It was plaintiff's driving inability, not his nationality, that was apparent to the officer's driving behind and ahead of plaintiff. Plaintiff fails to carry the burden described in Jarvis, of proving that a discriminatory motivation violated a clearly established right. Plaintiff's complaint fails to carry this burden, especially in light of the obvious facts and the troopers' affidavits attached as Exihibits "A" and "B" which show that probable cause motivated the stop and detainment. See also Part C: Probable Cause, below. Due to plaintiff's dangerous driving, as witnessed by the troopers, the officers stopped plaintiff and inquired into Perez's identity and sobriety. As communication gaps (and/or lack of Perez's cooperation in communicating with the officers at the traffic stop) developed, the state troopers also inquired into Perez's nationality and ability to understand the English language. This however, does not rise to the level of an equal protection violation. Further, Perez cannot meet his burden of proving that a racially discrimatory profile exists which guided the defendant troopers' actions in stopping and detaining Perez. No profile exists. See Exhibit "C" Affidavit by Major King. The plaintiff has not met his burden to prove that an unconstitutional profile stop was made in this case. See Whitfield v. Bd. of County Commissioners, 837 F. Supp. 338 (C. Colo. 1993).
C. PROBABLE CAUSE EXISTED FOR THE TRAFFIC STOP, DETAINMENT, AND INVESTIGATION OF PLAINTIFF AND/OR PLAINTIFF'S VEHICLE, IN ADDITION TO THE CHARGES OF CARELESS DRIVING
As can be seen from the attached affidavits of Troopers Gerald Lincoln and Randy Rahne, they had probable cause for a traffic stop of plaintiff based on their observations of his erratic driving.
Whether or not the charges could be sustained at trial is a different inquiry than whether they were instituted in the first place in violation of clearly established law, and plaintiff has failed to show this. In order to proceed on a claim of false arrest or malicious prosecution under @ 1983, a plaintiff must demonstrate that the defendant acted without probable cause. Easton v. Boulder, 776 F.2d 1441, 1448 (10th Cir. 1985); Winslow v. Romer, 759 F. Supp. 670, 675 (D. Colo. 1991). The question is not simply whether probable cause existed for plaintiff's arrest, but rather whether a reasonable police official could have believed the arrest to be lawful, in light of clearly established law and the information the official possessed.
Plaintiff must provide credible evidence that the troopers did not have cause to stop him and ticket him for careless driving. He has not and can not do this. Plaintiff must also offer evidence that would support a charge of malicious prosecution. See Anthony v. Baker, 767 F.2d 657 (10th Cir. 1985).
Since plaintiff has failed to sustain his burden of proof on these claims, defendants are entitled to have these claims dismissed.
As can be seen from the foregoing all of the plaintiff's State law tort claims must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) as there is no waiver of the defendants' governmental immunity. Additionally all of the plaintiff's claims fail to state a course of action and are therefore subject to dismissal pursuant to Rule 12(b)(5).
Finally, all of the plaintiff's claims are subject to summary judgment in favor of the defendants. No material facts are in dispute and as a matter of law judgment must be entered in favor of defendants.
Below are my numbered comments & rebuttals to the MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT: