Kemp v. Lawyer

846 F. Supp. 2d 1170, 2012 WL 400303, 2012 U.S. Dist. LEXIS 15881
CourtDistrict Court, D. Colorado
DecidedFebruary 8, 2012
DocketCivil No. 11-cv-01368-LTB-KMT
StatusPublished
Cited by3 cases

This text of 846 F. Supp. 2d 1170 (Kemp v. Lawyer) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemp v. Lawyer, 846 F. Supp. 2d 1170, 2012 WL 400303, 2012 U.S. Dist. LEXIS 15881 (D. Colo. 2012).

Opinion

MEMORANDUM AND OPINION

BABCOCK, District Judge.

This matter is before me on a Motion to Dismiss filed by Defendant, Ralph C. Turano, who is being sued in his individual capacity, as Legal Training Attorney for the Colorado State Patrol, by Plaintiffs Keith and Connie Kemp, individually and as personal representative of the Estate of Jason Kemp. [Doc # 41] Defendant Turano seeks to have the claim asserted against him by Plaintiffs in their First Amended Complaint [Doc #22] dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and 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.

I. BACKGROUND

Plaintiffs are the parents and personal representative of the estate of Jason Kemp, who was killed by a gunshot wound to his chest during an altercation with Colorado State Patrol (“CSP”) officers on July 20, 2010. Plaintiffs allege that Defendants Ivan Lawyer, Kirk Firko, and Chad Dunlap executed a forced entry into Jason’s residence — against his express request for a warrant — in order to obtain blood alcohol evidence to support a possible DUI following an accident that resulted in minor property damages. Once they obtained entry into the home, Defendant Lawyer shot and killed Jason, who was unarmed.

Plaintiffs have filed this lawsuit against the officers involved seeking damages for violations of his constitutional rights pursuant to 42 U.S.C. § 1983 (“ § 1983”), and other rights under state law. Plaintiffs assert the following claims against Defendants Lawyer, Firko, and Dunlap, as the CSP officers on the scene: (1) a § 1983 claim for warrantless entry in violation of the Fourth Amendment; (2) a § 1983 claim for excessive/deadly force in violation of the Fourth Amendment; (3) a claim for conspiracy to violate § 1983; (4) a § 1983 claim for supervisor liability; and (5) a claim for wrongful death under Colorado law.

Plaintiffs also assert one claim against Defendant Turano. Plaintiffs allege that in his role as the CSP Legal Training Attorney, Defendant Turano was responsible for developing training materials and procedures relevant to legal search and seizure — specifically, warrantless entry and use of force — and for ensuring that the CSP officers involved were adequately trained on these policies and procedures. Plaintiffs maintain that Defendant Turano acted recklessly or with deliberate indifference to Plaintiffs constitutional rights, in violation of § 1983, by failing to proved or in providing inadequate policies and training. [Doc # 22-Sixth Claim for Relief]

[1172]*1172II. LAW

In this motion, Defendant Turano seeks dismissal of Plaintiffs’ claim against him, for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted, based on the defense of qualified immunity. 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)).

Defendant Turano’s qualified immunity defense is raised in the context of a motion to dismiss, and so I bear in mind the Fed.R.Civ.P. 12(b)(6) standard. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Brown v. Montoya, 662 F.3d 1152, 1162-63 (10th Cir.2011). To survive a motion to dismiss, a plaintiffs pleadings must “nudge[ ] their claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, supra, 550 U.S. at 570, 127 S.Ct. 1955. In Ashcroft v. Iqbal, supra, 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.

129 S.Ct. at 1949 (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, supra, 662 F.3d at 1162-1163 (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)).

Defendant Turano also seeks dismissal, on the basis of qualified immunity, pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A facial attack on subject matter jurisdiction, as here, “looks only to the factual allegations of the complaint in challenging the court’s jurisdiction.” Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n. 1 (10th Cir.2010). A court reviewing a facial attack pursuant to Rule 12(b)(1) “aceept[s] the complaint’s factual allegations as true and asks whether the complaint, standing alone, is legally sufficient to state a claim for relief.” Wyoming v. United States, 279 F.3d 1214, 1222 (10th Cir.2002).

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Cite This Page — Counsel Stack

Bluebook (online)
846 F. Supp. 2d 1170, 2012 WL 400303, 2012 U.S. Dist. LEXIS 15881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-lawyer-cod-2012.