Richardson v. City and County of Denver, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-03643-SKC-CYC
SCOTT RICHARDSON,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, COLORADO,
DAP OFFICER JENNA HUMPHREYS BADGE #301,
Defendants.
______________________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Dissatisfied with how defendant Jenna Humphreys, an animal control officer, handled an
investigation into his dog’s welfare, plaintiff Scott Richardson asserts that she violated the
Fourth and Fourteenth Amendments by detaining him too long and exposing him to state-created
danger. He also seeks to hold defendant City and County of Denver, Colorado (“Denver”) liable
for its alleged policies causing Humphreys’ actions. But his allegations against Denver are
insufficient formulaic recitations of municipal liability elements; his Fourth Amendment theory
points to no precedent putting Humphreys on notice of her conduct’s was illegal; and the state-
created danger doctrine he invokes requires allegations of private violence that he never makes.
The defendants therefore move to dismiss the complaint. ECF No. 19. The Court
RECOMMENDS that the motion be GRANTED but that dismissal be without prejudice.
BACKGROUND
According to the amended complaint, whose factual allegations the Court accepts as true
for this motion, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), on a hot summer day in August
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 1 of 9

2
2023, the plaintiff visited a Home Depot store in Denver, Colorado with his pregnant wife and
infant child. ECF No. 8 at 7. His dog remained in his vehicle during the visit, and a citizen’s 911
call brought Humphreys to the scene. See id. When the plaintiff and his family returned, they
found that Humphreys had blocked the vehicle. See id. The plaintiff requested an expedient
citation so that he could leave, but Humphreys refused, detaining the plaintiff and his family
inside their vehicle for over thirty minutes. See id. at 7–8. The incident ultimately ended in a
state-court trial, at which the plaintiff was convicted of a municipal animal-cruelty violation. See
ECF No. 19-1 at 3; Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir.
2014) (taking judicial notice of other courts’ dockets)
On November 12, 2025, the plaintiff filed this action pro se. ECF No. 1. He filed an
amended complaint, the currently operative one, three months later. ECF No. 8. It asserts three
claims under 42 U.S.C. § 1983: (1) unlawful seizure in violation of the Fourth Amendment
against Humphreys; (2) state-created danger in violation of the Fourteenth Amendment’s Due
Process Clause against Humphreys; and (3) municipal liability against Denver. Its fourth claim
asserts state-law negligence against both defendants.
This motion followed, and the district judge referred it to the undersigned. ECF No. 24.
ANALYSIS
The defendants move to dismiss the plaintiff’s claims for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The standard for evaluating those
arguments is oft-repeated and well-known. “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.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.”
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 2 of 9

3
Id. Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). Legal conclusions are not
entitled to the assumption of truth, Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011), and “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The ultimate duty of a
reviewing court is to “determine whether the complaint sufficiently alleges facts supporting all
the elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
I. 	Claims Against Humphreys
Humphreys invokes qualified immunity. ECF No. 19 at 4–7. That doctrine shields
“government officials performing discretionary functions . . . 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).
To overcome it, “the onus is on the plaintiff to demonstrate (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Surat v. Klamser, 52 F.4th 1261, 1270–71 (10th Cir. 2022) (internal
quotation marks omitted).
On the first prong on a Rule 12(b)(6) motion, “the plaintiff ‘must allege facts sufficient to
show (assuming they are true) that the defendants plausibly violated [his] constitutional rights.’”
Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins, 519 F.3d at
1249). On the second, “[t]o qualify as clearly established, a constitutional right must be
‘sufficiently clear that every reasonable official would have understood that what he is doing
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 3 of 9

4
violates that right.’” Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (quoting
Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “A case clearly establishes a right ‘when a Supreme
Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from
other courts shows that the right must be as [the] plaintiff maintains.’” Id. (quoting PJ ex rel.
Jensen v. Wagner, 603 F.3d 1182, 1197–98 (10th Cir. 2010)). “And although there need not be a
case precisely on point for a right to be clearly established, ‘existing precedent must have placed
the statutory or constitutional question beyond debate.’” Id. (quoting Mullenix, 577 U.S. at 12).
“This high bar ensures qualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Mullenix, 577 U.S. at 12). Courts may address the
prongs in any order, Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010), and a failure “to
establish either prong of the two-pronged qualified-immunity standard” means “the defendant
prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016).
The plaintiff fails to carry his burden on Claims One and Two.
A. Fourth Amendment Claim (Claim One)
The plaintiff’s first claim asserts that his thirty-minute detention lasted longer than the
Fourth Amendment allows. See ECF No. 31 at 3. That Amendment provides that “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const. amend. IV. Thus, unreasonably long
detentions can, in some circumstances, violate the Fourth Amendment. See, e.g., Florida v.
Royer, 460 U.S. 491, 500 (1983) (noting that “an investigative detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop” when based on less than
probable cause). Here, the plaintiff’s claim depends on his assertion that thirty minutes’
detention was unconstitutionally long. See ECF No. 8 ¶¶ 6–8. He intimates in his response that
retaliation for exercising his right to remain silent animated the detention’s length, see ECF No.
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 4 of 9

5
31 at 3, but no facts supporting that theory appear in his complaint, and a plaintiff “cannot amend
[his] complaint by adding factual allegations in response to Defendant’s motion to dismiss.”
Abdulina v. Eberl’s Temp. Servs., Inc., 79 F. Supp. 3d 1201, 1206 (D. Colo. 2015).
As pled, then, liability is premised on the roughly thirty-minute period alone. That cannot
overcome qualified immunity: the Fourth Amendment sets “no rigid time limitation.” United
States v. Sharpe, 470 U.S. 675, 685 (1985). To the contrary, “[i]n the Fourth Amendment
context, ‘the result depends very much on the facts of each case,’ and the precedents must
‘squarely govern’ the present case” to overcome qualified immunity. Aldaba v. Pickens, 844
F.3d 870, 877 (10th Cir. 2016) (quoting Mullenix, 577 U.S. at 13). Here, the plaintiff cites no
precedents at all, let alone ones that squarely govern this case. See ECF No. 31 at 3. That will not
do. A court must construe a pro se plaintiff’s pleadings “liberally” and hold him “to a less
stringent standard than formal pleadings drafted by lawyers,” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991)), but it cannot “supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Even liberally construed, the
plaintiff’s simple say-so that Humphrey’s conduct violated clearly established law, see ECF No.
31 at 3, cannot satisfy his burden of plausibly alleging that she actually did so.
The short of it is that the plaintiff failed to show that binding precedent clearly
established that Humphrey’s conduct was unconstitutional. Claim One should therefore be
dismissed. For a pro se litigant, the first dismissal on a Rule 12(b)(6) motion should generally be
without prejudice, see Hall, 935 F.2d at 1109–10, and, especially, given that there are unpled
facts not considered here, the Court recommends such dismissal here.
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 5 of 9

6
B. State-Created Danger (Claim Two)
Claim Two invokes the state-created danger doctrine. The Fourteenth Amendment
prohibits “any State” from “depriv[ing] any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. When a state engages in affirmative conduct that
places a citizen in danger, it can limit “in some way the liberty of a citizen to act on his own
behalf” and implicate this clause. Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 916 (10th
Cir. 2012). Here, the plaintiff’s theory is that Humphreys required him to remain inside of a hot
car, creating a danger. See ECF No. 8 ¶¶ 9–12, 15.
But in this Circuit, “a showing of affirmative conduct and private violence are
preconditions necessary to invoking the state-created danger theory.” Est. of B.I.C. v. Gillen, 710
F.3d 1168, 1173 (10th Cir. 2013) (citing Gray, 672 F.3d at 920 n.8). The plaintiff alleges no
private violence. That precludes his claim.
The plaintiff protests that he need not do so. See ECF No. 31 at 4. But he cites no
authority in his argument. And the Tenth Circuit has criticized as “oversight” any state-created
danger analysis that “fails to expressly incorporate” the “preconditions necessary in this
Circuit—affirmative conduct and private violence—to invoking the state-created danger theory.”
Gray, 672 F.3d at 920 n.8. The Court therefore cannot overlook those preconditions here.
This claim, then, must also be dismissed. Again, because the plaintiff is pro se, and it is
unclear whether he could plead additional facts to conform to an actual state-created danger
theory, dismissal should be without prejudice.
II. 	Municipal Liability (Claim Three)
Claim Three seeks to hold Denver liable. “[A] local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 694 (1978). Instead, a municipality “may be liable under this section
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 6 of 9

7
if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person
‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing
Monell, 436 U.S. at 692). A plaintiff therefore must allege facts that show “(1) that a municipal
employee committed a constitutional violation; and (2) that a municipal policy or custom was the
moving force behind the constitutional deprivation.” Jiron v. City of Lakewood, 392 F.3d 410,
419 (10th Cir. 2004). This means the plaintiff must allege both a constitutional deprivation and
the existence of a “municipal policy or custom.” Connick, 563 U.S. at 60-61; Waller v. City &
Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019).
The latter requirement entails specific factual allegations. A “plaintiff cannot simply
allege that there is a policy in place, but, rather, must plead facts that, if true, would give rise to a
plausible inference that such a policy exists.” Gonzalez v. Brunnemer, No. 21-CV-02851-RMR-
NRN, 2023 WL 3005749, at *10 (D. Colo. Apr. 19, 2023) (quoting Abila v. Funk, No. CV 14-
1002 JB/SMV, 2016 WL 9021834, at *17 (D.N.M. Dec. 14, 2016)), recommendation adopted,
2023 WL 11643800 (D. Colo. May 16, 2023). That is, “conclusory statements and ‘formulaic
recitation[s]’ of the elements of a municipal liability claim are insufficient to state a claim for
relief.” Clark v. Spurlock, No. 23-CV-01435-GPG-STV, 2024 WL 6475088, at *4 (D. Colo. Apr.
26, 2024) (quoting Twombly, 550 U.S. at 555 and collecting cases), recommendation adopted,
2024 WL 6475123 (D. Colo. May 14, 2024).
The plaintiff’s complaint, however, offers only such formulaic recitations. It says that
Denver “maintained a widespread custom or practice of permitting” what Humphreys did, ECF
No. 8 ¶ 17, but does not plead facts showing “a pattern of multiple similar instances of
misconduct” or “a police officer[’s] statements attesting to the policy’s existence.” Gonzalez,
2023 WL 3005749, at *10 (quoting Abila, 2016 WL 9021834, at *17). It alleges that Denver
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 7 of 9

8
“failed to adequately train and supervise Animal Protection Officers regarding constitutional
limits,” ECF No. 8 ¶ 18, but does not allege facts showing, for instance, “[a] pattern of similar
constitutional violations by untrained employees,” which is “ordinarily necessary . . . because
‘without notice that a course of training is deficient in a particular respect, decisionmakers can
hardly be said to have deliberately chosen a training program that will cause violations of
constitutional rights.’” Rosales v. Sandberg, No. 24-CV-01718-GPG-CYC, 2025 WL 2391526,
at *10 (D. Colo. Aug. 15, 2025) (quoting Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1285
(10th Cir. 2019)), recommendation adopted, 2025 WL 4724657 (D. Colo. Sept. 4, 2025). And it
alleges that unnamed Denver “[f]inal policymakers . . . ratified Officer Humphreys’ conduct by
approving her actions and taking no corrective or disciplinary action,” ECF No. 8 ¶ 21, but that
does not even formulaically recite the Monell-liability basis of “the ratification by such final
policymakers of the decisions—and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval,” as there are no facts indicating
that policymakers delegated any authority to Humphreys. Bryson v. City of Okla. City, 627 F.3d
784, 788 (10th Cir. 2010) (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d
1175, 1189–90 (10th Cir. 2010)).
In sum, a Monell claim requires facts, but the plaintiff’s has none. It should therefore be
dismissed without prejudice. See Marshall v. Dix, 640 F. Supp. 3d 1033, 1069 (D. Colo. 2022).
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS1 that the defendants’ Motion to
Dismiss Under Fed. R. Civ. Pro. 12(b)(6), ECF No. 19, be GRANTED in part and that Claims
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 8 of 9

9
One through Three be DISMISSED without prejudice. Given the recommended dismissal of
all federal claims, the Court further RECOMMENDS declining to exercise supplemental
jurisdiction over the state-law Claim Four and DISMISSING it without prejudice. Smith v. City
of Enid By & Through Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998).
Given this recommendation, it is ORDERED that the defendants’ Motion for Stay of
Discovery, ECF No. 22, which seeks a stay pending a decision on the motion to dismiss, is
DENIED as moot. The Motion Hearing scheduled for October 13, 2026 on that motion is
VACATED. The Clerk of the Court is directed to send a copy of this Order and
Recommendation to the plaintiff via email at scottlmt@hotmail.com to ensure that he receives
notice of the vacating of the October 13 hearing.
Respectfully submitted this 8th day of October 2026, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C.
§ 636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen days after being served with a copy may bar the aggrieved
party from appealing the factual findings and legal conclusions of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties
must consult and comply with the District Judge’s practice standards for any specific
requirements concerning the filing and briefing of objections.
Case No. 1:25-cv-03643-SKC-CYC Document 43 filed 10/08/26 USDC Colorado
pg 9 of 9