IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer
Civil Case No. 21-cv-02553-PAB-CYC
WILLIAM MONTGOMERY,
Plaintiff,
v.
TRAVIS LORE,
Defendant. ____________________________________________________________________
ORDER _____________________________________________________________________
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 77]. The Recommendation addresses the defendant’s Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) on Qualified Immunity Grounds [Docket No. 64]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. I. BACKGROUND1 On September 17, 2019, plaintiff William Montgomery entered a Walmart Superstore at approximately 8:36 p.m. to go shopping. Docket No. 61 at 5, ¶ 5. Plaintiff purchased some hand wipes and disinfecting wipes (“wipe packages”) at the register and declined a plastic bag for “environmental reasons.” Id. at 5–6, ¶¶ 6, 8. At approximately 9:02 p.m., plaintiff left the store while carrying the items “in hand.” Id. at
1 The Court assumes that the allegations in plaintiff’s amended complaint are true in considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). 5–6, ¶¶ 6-7. Defendant Travis Lore, an Aurora Police Officer, was “posted up” at the store’s exit and followed plaintiff to plaintiff’s vehicle in the nearby parking lot. Id. at 6, ¶ 7. Once the defendant caught up to plaintiff, the defendant asked to see plaintiff’s receipt. Id., ¶ 8. Plaintiff declined to provide a receipt and placed the wipe packages in the inside pockets of his jacket. Id. Defendant requested plaintiff’s receipt several more
times and then asked for plaintiff’s identification. Id., ¶ 9. Plaintiff asked if he was being detained, and defendant responded affirmatively. Id. Defendant then told plaintiff to sit on the ground, which plaintiff did. Id. Moments later, defendant asked plaintiff to stand, and he escorted plaintiff back to the store for further investigation. Id. At the store, plaintiff provided his identification to defendant. Id. Defendant then patted down plaintiff. Id., ¶ 10. Plaintiff asked if defendant thought he was armed, and defendant replied, “I don’t know you, I don’t know you.” Id. One of plaintiff’s outer jacket pockets contained two “RV body lights,” which plaintiff had purchased on another occasion and had thought about returning. Id. at 7, ¶ 11. Plaintiff
never removed the RV lights from his pocket during the shopping trip. Id. Defendant patted down the outer jacket pocket with the RV lights, but did not reach into the pocket to retrieve the lights. Id. Plaintiff believes that defendant acknowledged the RV lights were not weapons because defendant asked plaintiff whether these items were stolen in addition to the wipes. Id. Plaintiff did not respond, and defendant then reached into plaintiff’s inner jacket pocket that “contained the two packages of wipes, that [defendant] had observed [plaintiff] place in [the inner jacket pocket] initially” and removed the wipe packages. Id., ¶ 12. Shortly afterwards, two more Aurora police officers, Drew Limbaugh and Luke Ingersoll, arrived at the store to assist the defendant. Id., ¶ 13. Defendant asked plaintiff to sit down, and Officers Limbaugh and Ingersoll stood with plaintiff while the defendant left the area to investigate the wipe packages. Id. at 7–8, ¶¶ 13–15. At this point, Officer Limbaugh patted down plaintiff, but did not pat down plaintiff’s outer jacket pocket that contained the RV lights. Id. at 8, ¶ 14. Officer
Limbaugh reached into plaintiff’s outer jacket pocket and, before proceeding to remove the RV light, asked plaintiff, “Is that another stolen item in your pocket, what’s that?”. Id. Plaintiff responded, “[l]ook, I don’t consent to searches.” Id. Officer Limbaugh then briefly “half-removed” one of the RV lights from plaintiff’s outer jacket pocket before returning it to the pocket. Id. Approximately fifteen minutes later, defendant returned and told plaintiff that he would be issuing him a shoplifting citation. Id., ¶ 15. Officer Ingersoll then asked plaintiff, “Is the stuff in your front left pockets more merchandise from the store, that Officer Limbaugh looked at? Grab that out of your front pocket there.” Id. Plaintiff
replied, “I don’t consent to any searches.” Officer Ingersoll reached into plaintiff’s outer jacket pocket, retrieved both RV lights, and handed them to defendant. Id. at 8–9, ¶ 15. Defendant told plaintiff that defendant would “be holding onto them while he started an entirely new investigation with the store.” Id. Fifteen minutes later, defendant returned and informed plaintiff that he would be citing him for shoplifting the two RV lights in addition to the two packages of wipes. Id. at 9, ¶ 16. A few minutes later, defendant explained the charges and released plaintiff, but did not return the wipe packages or RV lights. Id., ¶ 17. The next day, defendant informed plaintiff over the phone that all theft charges would be dropped. Id., ¶ 18. Defendant gave plaintiff instructions for retrieving the items from police custody. Id. On September 17, 2021, plaintiff filed a complaint against defendant for the following Fourth Amendment violations: (1) unreasonable “relocation of person”; (2) unreasonable search; (3) unreasonable seizure of the two wipe packages; (4)
unreasonable seizure of the RV lights; and (5) unreasonable detention after seizing the RV lights. Docket No. 1 at 9–14. Defendant filed a motion to dismiss the claims on May 11, 2022 based on qualified immunity. Docket No. 17. Magistrate Judge Hegarty issued a recommendation on defendant’s motion on August 17, 2022. Docket No. 31. Plaintiff filed an objection on September 15, 2022. Docket No. 34. Defendant responded to the objection, Docket No. 35, and plaintiff filed a reply. Docket No. 36. On March 9, 2023, the Court overruled and accepted in part the magistrate judge’s recommendation. Docket No. 37. The Court accepted the magistrate judge’s recommendation that plaintiff’s Fourth Amendment claims for the (1) unreasonable
“relocation of person”; (2) unreasonable search; and (3) unreasonable seizure of the two wipe packages be dismissed without prejudice. Id. at 16–17. However, the Court overruled the magistrate judge’s recommendation that plaintiff’s Fourth Amendment claims for the (4) unreasonable seizure of the RV lights and (5) unreasonable detention after seizing the RV lights be dismissed. Id. at 10–15. Plaintiff filed an amended complaint on April 5, 2024 that alleged the following Fourth Amendment violations: (1) unreasonable search; (2) unreasonable seizure of the RV lights; and (3) unreasonable detention after seizing the RV lights. Docket No. 61 at 10–15. II. LEGAL STANDARD A. Objections to Magistrate Judge Recommendations The Court must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection “enables the district judge to focus attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” Id. In the absence of an objection, the district court may review a magistrate judge’s recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). The Court therefore reviews the non-objected to portions of
the recommendation to confirm that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). Because plaintiff is proceeding pro se, the Court will construe his objections and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). B. Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide “supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584 F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (citation omitted)). Otherwise, the Court need not accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so general that they encompass a wide swath of conduct, much of it innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted). C. Qualified Immunity “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve questions of qualified immunity at the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001). Under the doctrine of qualified immunity, “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When a defendant raises the defense of qualified immunity, a “plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)
(internal quotation marks omitted). Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case.” Pearson, 555 U.S. at 236. III. ANALYSIS The magistrate judge recommended dismissing plaintiff’s claims of unreasonable search and unreasonable seizure of the RV lights claims, finding that defendant is entitled to qualified immunity because plaintiff failed to cite clearly established law stating defendant had a duty to intervene in an unreasonable search and seizure by his
fellow officers. Docket No. 77 at 9–10. The magistrate judge additionally recommended dismissing plaintiff’s unreasonable detention claim on qualified immunity grounds because the defendant possessed reasonable suspicion that the RV lights were stolen. Id. at 10–14. The magistrate judge additionally recommended denying plaintiff leave to amend his complaint because the claims are being dismissed based on the finding that the defendant is entitled qualified immunity. Id. 14 n.2. Plaintiff makes three objections to the magistrate judge’s recommendation: 1) the defendant is liable for the search and seizures conducted by Officers Limbaugh and Ingersoll; 2) there is clearly established law that dictates plaintiff’s constitutional rights were violated by the defendant’s failure to intervene in Officer Limbaugh’s and Ingersoll’s search and seizure; and 3) defendant lacked reasonable suspicion that the RV lights were stolen necessary to conduct a lawful investigative detention. Docket No. 79 at 1–15. A. Objection One
The magistrate judge did not reach defendant’s argument that plaintiff failed to state a claim under 42 U.S.C. § 1983 for a Fourth Amendment unreasonable search and seizure. Docket No. 77 at 10. Rather, the magistrate judge dismissed plaintiff’s unreasonable search and seizure claims because defendant was entitled to qualified immunity, as there was not clearly established law stating that the defendant had the duty to intervene to prevent an unreasonable search and seizure. Id. at 10. Thus, plaintiff’s objection that the defendant was liable for Officer Limbaugh and Ingersoll’s activities is moot. B. Objection Two
The magistrate judge recommended that plaintiff’s unreasonable search and seizure claims be dismissed because defendant is entitled to qualified immunity. Id. Specifically, the magistrate judge found that “the Tenth Circuit held it was not clearly established ‘that an officer must intervene to prevent an illegal search and seizure.’” Id. (quoting Shaw v. Schulte, 36 F.4th 1006, 1020 (10th Cir. 2022)). Plaintiff argues that it was clearly established in the Tenth Circuit at the time of the incident that defendant had a duty to intervene in an unreasonable search and seizure. Docket No. 79 at 2–5. Moreover, plaintiff argues that “most other circuits recognize that failure to intervene claims can involve failing to stop constitutional deprivations beyond just the use of excessive force.” Id. at 4. Plaintiff argues that defendant’s cited authorities for the proposition that the duty to intervene was not clearly established law are inapposite. Id. at 2–4. Plaintiff asserts that Bledsoe v. Carreno, 53 F.4th 589, 617 (10th Cir. 2022), is factually distinguishable
from the instant suit. Id. at 2–3. Plaintiff relies on dicta in Bledsoe, in which the Tenth Circuit held, while defendants were entitled to qualified immunity on the plaintiff’s “failure to intervene claim because such a claim was not clearly established,” the plaintiff nonetheless “might have argued that the duty to intervene in the situation alleged here would have been obvious to any objectively reasonable law enforcement officer.” Bledsoe, 53 F.4th at 617. However, the plaintiff in Bledsoe failed to present such an argument, id., while plaintiff in the instant suit asserts that he is “making such an argument” and as such Bledsoe’s holding does not extend to plaintiff. Docket No. 79 at 3. Plaintiff also argues that defendant’s reliance on Harris v. Mahr, 838 F. App’x 339,
343–44 (10th Cir. 2020) (unpublished), for the proposition that “constitutional principles surrounding a failure to intervene in an unlawful search [are] unclear,” Docket No. 64 at 13, is misplaced as it is “clearly factually distinguishable” from the instant suit. Docket No. 79 at 2. Regardless of how factually distinguishable the above cases may be, plaintiff nonetheless fails to refute Shaw’s holding that was the basis for the magistrate judge’s holding on qualified immunity. Docket No. 77 at 10. The Tenth Circuit in Shaw held that its statement “all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence” (quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008)), was made “in the context of an excessive force claim.” Shaw, 36 F.4th at 1020. As a result, the Tenth Circuit held that “Vondrak does not clearly establish that an officer must intervene to prevent an illegal search and seizure.” Id.; see also Harris, 838 F. App’x at 343 (Vondrak “does not discuss unlawful entries or
searches, thus making it a highly generalized statement”).2 The cases plaintiff cites as clearly established law are distinguishable. Docket No. 79 at 4. The Tenth Circuit has held that, “in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Zia Tr. Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir. 2010) (citation omitted). Plaintiff argues that Reid v. Wren, 57 F.3d 1081, 1995 WL 339401 (10th Cir. 1995), is “literally exactly, fact-for-fact, what Plaintiff is
2 To the extent that plaintiff relies on Bledsoe’s dicta, Docket No. 79 at 2–5, to allege that defendant’s conduct was so “obviously egregious” that “less specificity is required from prior case law to clearly establish the [constitutional violation],” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (citation omitted), the Court rejects that argument. Bledsoe states, if the plaintiff alleged that “the duty to intervene in the situation alleged here would have been obvious to any objectively reasonable law enforcement officer,” the plaintiff may have been able to overcome the qualified immunity bar despite Shaw’s holding. Bledsoe, 53 F.4th at 617 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). In Hope, the constitutional violation at issue was an Eighth Amendment cruel and unusual punishment claim, rather than a Fourth Amendment unreasonable search and seizure claim. Hope, 536 U.S. at 733–35. Further, in Harris, the court held that the defendant’s “failure to take additional steps” to prevent an unreasonable search “is not the type of ‘egregious’ conduct that warrants foregoing our traditional requirement of an on-point case.” Harris, 838 F. App’x at 344. Plaintiff similarly fails to allege sufficiently egregious conduct, see Docket No. 79 at 5, that would suggest “foregoing our traditional requirement of an on-point case.” Harris, 838 F. App’x at 344. likewise pleading.” Docket No. 79 at 4. However, the Tenth Circuit in Harris found that Reid, an unpublished case, among other cases cited by the plaintiff, “fail[s] to show that the law was clearly established at the time of the incident.” Harris, 838 F. App’x at 343. “An unpublished opinion . . . provides little support for the notion that the law is clearly established on this point.” Id. (quoting Mecham v. Frazier, 500 F.3d 1200, 1206 (10th
Cir. 2007)). Plaintiff also cites Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012), Docket No. 79 at 4, to apparently argue that the “clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Montoya, 597 F.3d at 1155 (citation omitted). In Livers, the Eighth Circuit found that “other circuits have recognized a duty to intervene outside of the excessive force context,” and cited Reid as an example. Livers, 700 F.3d at 360. However, as described above, more recent precedent, including Harris and Shaw, undermine the assertion that Reid is clearly established law. Thus, plaintiff’s reliance on Livers does not show that the “clearly established weight of authority from other courts . . . found the law to be as the
plaintiff maintains.” Montoya, 597 F.3d at 1155. Accordingly, the Court overrules plaintiff’s second objection. C. Objection Three The magistrate judge recommended that plaintiff’s third claim for unreasonable detention to investigate the RV lights also be dismissed. Docket No. 77 at 10–14. Given the new allegations in plaintiff’s complaint, the magistrate judge found that defendant is entitled to qualified immunity because he had reasonable suspicion to briefly detain plaintiff and investigate whether the RV lights were stolen. Id. Plaintiff objects, arguing that the factual differences between his original and his amended complaints should not change the Court’s holding, Docket No. 37 14–15, that defendant’s detention to investigate the RV lights as stolen was not based upon reasonable suspicion. Docket No. 79 at 6–15. Specifically, plaintiff disputes the significance of the RV lights being located in the same jacket as the wipe packages and the significance of Officer Ingersoll announcing in defendant’s presence, “[i]s the stuff in
your front left pockets more merchandise from the store, that Officer Limbaugh looked at? Grab that out of your front pocket there,” before retrieving the RV lights and handing them to defendant. Id. at 8, ¶ 15. Further, plaintiff argues that the magistrate judge erred by considering plaintiff’s refusal to answer defendant’s questions and that the RV lights were still in their original package in its reasonable suspicion determination. Id. at 7–15.3 Fourth Amendment detentions require reasonable suspicion of criminal activity. Romero v. Story, 672 F.3d 880, 886 (10th Cir. 2012). “An officer who stops and briefly detains a person for questioning must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. (internal quotations and citation omitted). “Reasonable suspicion does not rise to the level of probable cause, but it does demand something more than an inchoate and unparticularized suspicion or hunch.” Id. (internal quotations and citation omitted).
3 Plaintiff appears to challenge the magistrate judge’s finding that defendant had reasonably determined that the wipes were stolen. Docket No. 79 at 8–9. The Court will not consider this objection. The magistrate judge previously recommended that defendant’s claims related to the search and seizure of the wipe packages be dismissed, Docket No. 31 at 17, and the Court accepted that recommendation. Docket No. 37 at 16–17. The potential bases for defendant’s reasonable suspicion to investigate the RV lights are the following: defendant witnessed Officer Ingersoll (1) ask plaintiff, “[i]s the stuff in your front left pockets more merchandise from the store, that Officer Limbaugh looked at? Grab that out of your front pocket there;” and (2) retrieve the unopened RV light packages from plaintiff’s outer jacket pocket, the same jacket in which defendant
saw plaintiff place the wipe packages. Docket No. 61 at 8 –9, ¶¶ 14–15. When determining the existence of facts that support reasonable suspicion, courts consider information supplied by a third-party and not only that based on the officer’s personal observations. United States v. McHugh, 639 F.3d 1250, 1257–58 (10th Cir. 2011); Adams v. Williams, 407 U.S. 143, 147–49 (1972). If the third-party information was supplied by another law enforcement officer, “knowledge and reasonable suspicions of one officer can be imputed to another.” United States v. Whitley, 680 F.3d 1227, 1234 (10th Cir. 2012). As is relevant here, Under the horizontal collective knowledge doctrine, a number of individual officers have pieces of the probable cause or reasonable suspicion puzzle, but no single officer has sufficient information to satisfy the necessary standard. The inquiry in such a circumstance is whether the individual officers have communicated the information they possess individually, thereby pooling their collective knowledge to satisfy the relevant standard.
Id. at 1234 n. 3 (internal quotation and citation omitted). Under the horizontal collective knowledge doctrine, “courts may consider whether officers who are acting together collectively possess sufficient information to support probable cause, provided that they have actually communicated the information to each other.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 881 (10th Cir. 2014). In the presence of defendant, Officer Ingersoll merely asked plaintiff whether the products in plaintiff’s jacket pocket were stolen. Docket No. 61 at 8–9, ¶ 15. Officer Ingersoll did not communicate any information that supported reasonable suspicion that the RV lights were stolen. Id. Nor does defendant argue that Officer Ingersoll had information to support reasonable suspicion. See Docket No. 64 at 9–14. Therefore, there was no knowledge from a fellow officer that defendant could have relied on to support his reasonable suspicion that the RV lights were stolen. See United States v. Shareef, 100 F.3d 1491, 1504
(10th Cir. 1996) (holding that where one officer knew the suspect’s height and weight and the other officer knew the height and weight listed of a person of interest in the National Crime Information Center, but failed to communicate this information to one another, “neither officer knew the significance of the information, and the information could contribute to neither officer's suspicion of the suspect”). The next issue is whether defendant witnessing Officer Ingersoll retrieve the unopened RV lights from the same jacket as the wipe packages provided reasonable suspicion that the RV lights were stolen. Unlike the wipe packages, defendant did not witness plaintiff walk out of the store with the RV lights in his hands. Docket No. 61 at
9, ¶ 16. Furthermore, defendant saw plaintiff place the wipe packages in plaintiff’s inner jacket pocket. Id. at 6, ¶ 8. The RV lights, however, were in plaintiff’s outer jacket pocket. Id. at 7, ¶ 11. Regardless of the significance, if any, of the wipe packages and the RV lights being in different locations in plaintiff’s jacket, the unopened RV lights being retrieved from the same jacket that contained the wipe packages does not change the fact that defendant did not have “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ing]” plaintiff’s investigatory detention regarding theft of the RV lights. Romero, 672 F.3d at 886 (citation omitted). Thus, defendant’s detention of plaintiff for fifteen additional minutes to investigate the RV lights, without any objectively reasonable suspicion that the RV lights were stolen merchandise, exceeded the scope of plaintiff’s detention for the wipe packages. See United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994). Accordingly, plaintiff has stated a plausible claim that defendant violated his Fourth Amendment rights by
detaining him to investigate the RV lights. The Court also finds that the law was clearly established that an officer cannot continue to detain a suspect, absent reasonable suspicion, once the purpose of the stop is satisfied. See id.; see also Vasquez v. Lewis, 834 F.3d 1132, 1136 (10th Cir. 2016). Accordingly, the Court sustains plaintiff’s objection and overrules that portion of the recommendation that recommends dismissing the claim regarding plaintiff’s detention for the RV lights. D. Non-Objected Portions of the Recommendation The Court has reviewed the remainder of the magistrate judge’s recommendation to satisfy itself that there is “no clear error on the face of the record.” Fed. R. Civ. P.
72(b), Advisory Committee Notes. Plaintiff did not object to the magistrate judge’s recommendation that plaintiffs’ claims be dismissed with prejudice. The Court finds no error in this portion of the recommendation. Based on this review, the Court has concluded that the remainder of the recommendation is a correct application of the facts and the law. IV. CONCLUSION It is therefore ORDERED that Plaintiff's Objection to the Magistrate Judge’s Report and Recommendation to Grant Defs MTD PTF’s Amended Complaint [Docket No. 79] is OVERRULED in part and SUSTAINED in part. It is further ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 77] is OVERRULED in part and ACCEPTED in part. It is further ORDERED that defendant's Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) on Qualified Immunity Grounds [Docket No. 64] is GRANTED in part and DENIED in part. It is further ORDERED that plaintiff's first and second claim are DISMISSED with prejudice.
DATED February 4, 2025.
BY THE COURT: ia“ of PHILIP A. BRIMMER Chief United States District Judge