Cuervo v. Sorenson

Appellate Case: 22-1387     Document: 010111103112   Date Filed: 08/30/2024   Page: 1
                                                                             FILED
                                                                 United States Court of Appeals
                                       PUBLISH                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS                   August 30, 2024

                                                                     Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                      Clerk of Court
                          _________________________________

  PATRICIA CUERVO,

        Plaintiff - Appellant,

  v.                                                      No. 22-1387

  TODD SORENSON, Captain, Mesa
  County Sheriff's Office; TRAVIS
  CHRISTENSEN, Sergeant, Mesa County
  Sheriff's Office; MARCO MONTEZ,
  Sergeant, Mesa County Sheriff's Office;
  TIM ORR, Sergeant, Mesa County
  Sheriff's Office; JENNA REED,
  Investigator, Mesa County Sheriff's Office;
  ERIC OLSON, Investigator, Mesa County
  Sheriff's Office; CURTIS CALLOW,
  Deputy, Mesa County Sheriff's Office;
  DONALD LOVE, Deputy, Mesa County
  Sheriff's Office; SETH PARKER, Deputy,
  Mesa County Sheriff's Office; THOMAS
  STUCKENSCHNEIDER, Deputy, Mesa
  County Sheriff's Office; JOSH SANCHEZ,
  Deputy, Mesa County Sheriff's Office;
  RYAN REASONER, Deputy, Mesa
  County Sheriff's Office; GARTH COWLY,
  Deputy, Mesa County Sheriff's Office;
  SALMINEO ESPINDOLA, Deputy, Mesa
  County Sheriff's Office; DEVRIN
  SANDELL, Deputy, Mesa County Sheriff's
  Office; MIKE MILLER, Investigator,
  Mesa County Sheriff's Office; JAMIE
  PENNAY, Sergeant, Mesa County Sheriff's
  Office,

        Defendants - Appellees.
                       _________________________________
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                     Appeal from the United States District Court
                             for the District of Colorado
                       (D.C. No. 1:20-CV-00671-WJM-GPG)
                       _________________________________

 Sean Michael McDermott, McDermott Stuart & Ward LLP, Denver, Colorado, for
 Plaintiff-Appellant.

 Chris W. Brophy (Andrew B. Clauss with him on the briefs), Dinsmore & Shohl LLP,
 Denver, Colorado, for Defendants-Appellees.
                        _________________________________

 Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges.
                    _________________________________

 CARSON, Circuit Judge.
                     _________________________________

       A district court generally may not rely on facts emanating from outside of a

 plaintiff’s well-pleaded complaint when it grants a motion to dismiss under Federal

 Rule of Civil Procedure 12(b)(6). But in this 

 lawsuit, the district

 court dismissed Plaintiff’s case after it granted qualified immunity based on

 documents outside the complaint that Plaintiff neither attached, incorporated, nor

 relied upon. Our jurisdiction arises under 

. Because the district

 court erred by relying on documents outside of the pleadings, and because we cannot

 affirm its dismissal based on the documents properly before us, we reverse.

                                           I.

       Officers in and around Mesa County, Colorado were on the hunt for a stolen

 Sno-Cat—a large, tracked machine, 8’ wide, 7’5” tall, and 16’3” long. They

 suspected Plaintiff’s son had parked the Sno-Cat in Plaintiff’s garage, so they rang

 her doorbell. Nobody answered, but at least one officer believed he observed

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 someone inside the residence. Plaintiff’s property included both the garage and an

 attached residence—but only the garage could have housed the Sno-Cat.

       Two hours later, officers obtained a search warrant authorizing the search of

 Plaintiff’s property for the Sno-Cat. The Special Weapons and Tactics (“SWAT”)

 units of the Mesa County, Colorado Sheriff’s Office (“MCSO”) and Grand Junction

 Police Department (“GJPD”) descended upon Plaintiff’s residence to execute the

 warrant. Officers made no further attempt to establish contact with anyone who

 might have been inside the residence when they returned with the warrant, but

 instead fired or helped fire chemical munitions into the residence.1 Officers then

 entered the residence and searched for the Sno-Cat. The search of the home turned

 up no humans—only a dog.

       The claims at issue in this case relate to damage caused by officers’ unlawful

 forced entry into the residence, use of hazardous chemicals, and failure to close the

 windows and secure the doors when they left—which resulted in further property

 damage from looters. According to Plaintiff, officers caused over $50,000 in

 damage.

       Plaintiff sued over two dozen officers from multiple departments, asserting

 Fourth and Fifth Amendment violations under 

. The defendants



       1
         Officers did not knock and announce their presence before firing munitions
 or entering the residence. So, other than the unverified, nonspecific perception of
 one officer from two hours earlier, the officers lacked any evidence that a person
 occupied the residence—and officers wholly lacked any evidence of imminent
 danger.
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 claimed qualified immunity and moved to dismiss Plaintiff’s complaint under Rule

 12(b)(6). The district court granted the motions. In reaching its decision, the district

 court considered documents outside the pleadings—the search warrant, supporting

 affidavit, and GJPD’s one-page, unsigned after action report (“AAR”)—despite

 Plaintiff’s objection that the district court could not consider outside documents

 without converting the Rule 12(b)(6) motion to a motion for summary judgment and

 allowing the parties to conduct discovery.

       Plaintiff then filed a more detailed First Amended Complaint (“FAC”),

 pleading only a Fourth Amendment § 1983 claim against seventeen MCSO officers

 (“Defendants”). Defendants moved to dismiss the FAC under Rule 12(b)(6) and

 asserted qualified immunity. The district court again granted qualified immunity and

 dismissed Plaintiff’s claims. In its analysis, the district court considered the search

 warrant, supporting affidavit, and AAR, specifically relying on facts within the AAR.

 Plaintiff timely appealed the district court’s order dismissing her FAC.

       On appeal, Plaintiff contends the district court erred in dismissing her FAC on

 qualified immunity grounds. Defendants ask us to affirm the grant of qualified

 immunity. Defendants appear to alternatively seek affirmance on the alternate

 ground that Plaintiff failed to state a claim upon which relief may be granted because

 she failed to adequately plead that each defendant personally participated in the




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 alleged constitutional violations.2 We first address Defendants’ alternative argument.

 We then address the qualified immunity issue.

                                            II.

       We review de novo the district court’s grant of a Rule 12(b)(6) motion to

 dismiss, including a dismissal based on qualified immunity. Truman v. Orem City, 

, 1235 (10th Cir. 2021) (citing Wilson v. Montano, 

 (10th Cir. 2013)). Complaints must contain a “short and plain statement of the claim

 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff

 who fails to plead a plausible claim is subject to dismissal. See Bell Atl. Corp. v.

 Twombly, 

 (2007). We accept all well-pleaded factual allegations

 as true and view them “in the light most favorable to the plaintiff.” Truman, 1 F.4th

 at 1235 (citing Alvarado v. KOB-TV, L.L.C., 

 (10th Cir. 2007)).

                                            III.

       We first examine whether the district court erred in considering the search

 warrant, the affidavit supporting the warrant, and the AAR without converting the

 motion to dismiss into a motion for summary judgment. Generally, a court may

 consider only the contents of a complaint when ruling on a motion to dismiss.

 Goodwill Indus. of Cent. Okla., Inc. v. Philadelphia Indem. Ins. Co., 

,


       2
          The headings in Defendants’ brief suggest Defendants only address personal
 participation insofar as it relates to prong one of qualified immunity. But the textual
 argument also advances the theory that we must affirm because Plaintiff failed to meet
 the pleading requirements for a § 1983 claim because she didn’t plead personal
 participation. Accordingly, we exercise our discretion to address the alternative
 argument.
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 709 (10th Cir. 2021) (citing Berneike v. CitiMortgage, Inc., 

 (10th Cir. 2013)). But courts may also consider documents that a plaintiff

 (1) attaches to her complaint; (2) incorporates by reference in her complaint; or

 (3) refers to in her complaint and that are central to her complaint and indisputably

 authentic. See Berneike, 

 (quoting GFF Corp. v. Associated

 Wholesale Grocers, Inc., 

 (10th Cir. 1997)).

       When the district court considers documents outside the pleadings without a

 valid exception, it must convert the motion to dismiss into a motion for summary

 judgment. Fed. R. Civ. P. 12(d); Carter v. Stanton, 

 (1972). The

 district court must inform the parties of its conversion and give the parties a

 reasonable opportunity to accumulate and present all relevant evidence. Fed. R. Civ.

 P. 12(d); Miller v. Glanz, 

 (10th Cir. 1991) (citing Ohio v.

 Peterson, Lowry, Rall, Barber & Ross, 

 (10th Cir. 1978)). Failure

 to do so constitutes reversible error unless we can affirm the district court’s dismissal

 under Rule 12(b)(6), considering only the pleadings and any documents properly

 before us. Lowe v. Town of Fairland, 

 (10th Cir. 1998) (citing

 Miller, 948 F.2d at 1565–66).

       Plaintiff did not attach documents to her FAC or expressly incorporate any

 documents by reference. But the district court relied on facts within the AAR,

 finding that Plaintiff referenced the AAR in Paragraph 56 of the FAC—even though




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 Defendants did not ask the district court to consider the AAR.3 Plaintiff contends the

 district court erred by relying on the AAR. We agree.

       Defendants contend the district court appropriately considered the AAR

 because Plaintiff attached the document to her briefing on Defendants’ motion to

 dismiss her original complaint. But this argument misses the mark. Although

 Plaintiff indeed attached the AAR to a document she filed earlier in the case, the

 document was part of a prior round of motions to dismiss based on a prior pleading,

 and in response to specific allegations from prior defendants. In that context,

 Plaintiff attached the AAR to show its deficiencies and to bolster her asserted request

 for discovery. But Plaintiff never relied on the AAR to establish her claims in any

 document she filed opposing Defendants’ motion to dismiss her FAC.

       Because the FAC does not reference the AAR, and because the AAR is not

 central to any claim in the FAC, the district court could not properly consider the

 AAR when ruling on a motion to dismiss the FAC.4 Instead, if the district court



       3
           Paragraph 56 of the FAC states, in full:

       Reports provided by the Mesa County Sheriff’s Office and the Grand
       Junction Police Department do not detail which of the Defendants
       actually entered beyond the garage at the residence at 1867 S Deer Park
       Circle, nor do they detail which Defendants launched chemical weapons
       into the structure or otherwise physically damaged the property.
       4
         We do not reach the questions of whether the district court improperly
 considered the warrant or the supporting affidavit, or whether a district court is
 constrained by any limitations in considering such documents, because Plaintiff did
 not brief these issues (or, for that matter, even specifically object to the district

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 wished to consider the AAR, our precedents required it to convert the motion to

 dismiss the FAC into a motion for summary judgment and allow any appropriate

 discovery. Miller, 

 (citing Peterson, 

). The district

 court failed to do so and thus committed error.

                                            IV.

       Having concluded that the district court erred by considering the AAR, we

 conduct a de novo review under Rule 12(b)(6). See Lowe, 

 (citing

 Miller, 

). We disregard the AAR and look only to well-pleaded facts

 and reasonable inferences from the FAC, the search warrant, and the affidavit to

 determine whether Plaintiff has alleged a plausible claim for relief. See 

 (citing

 Miller, 

).

       We affirm the district court’s dismissal only if we can do so based on the facts

 properly within our consideration. 

 (citing Miller, 

). Otherwise,

 we must reverse and remand for the district court to conduct further proceedings—

 presumably so the district court may (if it chooses to consider documents outside the

 pleadings) properly convert the motion to dismiss Plaintiff’s FAC into a motion for

 summary judgment by providing notice of conversion and allowing for appropriate

 discovery so both parties may present relevant evidence. See Brown v. Zavaras, 63




 court’s consideration of the documents). See United States v. Egli, 

,
 1149 (10th Cir. 2021) (applying waiver because party failed to raise issue on appeal).

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 (10th Cir. 1995) (reversing and remanding for the district court to

 properly convert to a motion for summary judgment).

       Defendants argue that Plaintiff did not state a plausible claim because she

 failed to plead that each of them personally participated in the alleged constitutional

 violation. Because the district court granted qualified immunity, it did not decide

 this question. Section 1983 allows an individual to sue a government actor in his

 individual capacity for violating her constitutional rights and recover money damages

 from resulting injuries that the actor caused by his violation. 

. A

 plaintiff in a § 1983 action must allege that each defendant is subject to personal

 liability based on his own actions. See Brown v. Montoya, 

, 1163–65

 (10th Cir. 2011) (holding that a single generalized allegation of conduct was

 insufficient to allege personal conduct by fifty-four defendants).

       Defendants claim Plaintiff’s allegations are insufficient because she copied

 and pasted identical allegations of conduct for each defendant. But Defendants point

 to no rule—and we find none—stating that a party cannot sue multiple defendants for

 the same wrongful conduct.5 And Plaintiff did not merely allege general conduct by

 “Defendants.” Instead, she pleaded each defendant’s conduct in a separate

 paragraph, alleging that each defendant acted by participating, entering and


       5
         We value individualized allegations in a § 1983 suit, particularly when each
 defendant has different powers and duties. See Brown, 

. But here,
 all defendants served on the SWAT team. We can infer that all defendants had
 identical or similar duties. So we do not find Plaintiff’s identical allegations
 suspect—especially in the absence of discovery allowing her to more specifically
 describe each defendant’s purported conduct.
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  searching, and aiding and abetting. See Twitter, Inc. v. Taamneh, 

  (2023) (holding that aiding and abetting involves culpable conduct by the individual

  and does not merely rely on the wrong acts of another). These allegations provided

  each defendant with “fair notice as to the basis of the claims against him or her”

  because they made clear “exactly who is alleged to have done what to whom.”

  Robbins v. Oklahoma, 

 (10th Cir. 2008). So, limiting our review

  to the documents properly before us, we conclude that Plaintiff plausibly alleged

  individual action by each defendant.

                                              V.

        We next consider whether the facts properly before this Court allow us to

  affirm the district court’s grant of qualified immunity. A defendant who asserts

  qualified immunity in a § 1983 suit—including in a motion to dismiss—is

  presumptively immune from suit. Truman, 1 F.4th at 1235 (quoting Est. of Smart by

  Smart v. City of Wichita, 

 (10th Cir. 2020)). A plaintiff can

  overcome the presumption by showing that “(1) the defendant’s actions violated a

  constitutional or statutory right, and (2) that right was clearly established at the time

  of the defendant’s complained-of conduct.” 

 (citing Thomas v. Kaven, 

 (10th Cir. 2014)). On Rule 12(b)(6) review, when a complaint is

  susceptible to multiple interpretations, we construe it liberally to allege a

  constitutional violation. See Peterson v. Jensen, 

, 1202–03 (10th Cir.

  2004) (citing Sutton v. Utah State Sch. for Deaf & Blind, 

 (10th



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  Cir. 1999) (viewing the complaint in the light most favorable to the non-moving

  party in a Rule 12(b)(6) analysis)).

                                             A.

        To satisfy the first prong to overcome qualified immunity, Plaintiff alleges that

  Defendants violated her constitutional rights under the Fourth Amendment. The

  Fourth Amendment protects the right of the people to be secure in their houses

  against unreasonable searches. U.S. CONST. amend. IV; accord Payton v. New York,

  

, 585–86 (1980) (quoting United States v. U.S. Dist. Ct., 

 (1972)) (“[P]hysical entry of the home is the chief evil against which the

  wording of the Fourth Amendment is directed.”). A search inside a home is

  presumptively unreasonable apart from the authority of a search warrant or an

  exception approved by the Supreme Court. United States v. Najar, 

  (10th Cir. 2006) (first quoting Payton, 

; and then quoting Illinois v.

  McArthur, 

 (2001)).

        Plaintiff argues Defendants’ search was unreasonable because they entered her

  residence without authority. A search warrant must describe with particularity the

  place to be searched and the item(s) to be seized. U.S. CONST. amend. IV. A valid

  warrant authorizes law enforcement to search only at the stated place and only for the

  stated item(s). See Mink v. Knox, 

 (10th Cir. 2010) (applying the

  particularity requirement to limit searches not only as to the location the warrant

  specifies but also to the scope of the specified evidence). This means officers may

  search at the listed location, but only in areas where the listed item could be. See,

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  e.g., United States v. Naugle, 

 (10th Cir. 1993) (quoting United

  States v. Ross, 

, 820–21 (1982)) (concluding a warrant provided

  authority to enter spaces within the search premises where officers might find the

  specified items).

        Here, the search warrant authorized a search of Plaintiff’s property for the

  Sno-Cat. Under our precedent, this means Defendants could search any place on

  Plaintiff’s property where they could find the Sno-Cat. Plaintiff pleaded the Sno-

  Cat’s dimensions and stated that it could fit only inside the garage—not the

  residence. The warrant’s description of the Sno-Cat as containing a toolbox on its

  “right rear side” merely described the Sno-Cat and did not add a separate item for

  which Defendants could search. So, the warrant did not authorize Defendants to

  search for the Sno-Cat inside the residence itself (rather than the garage) because the

  Sno-Cat obviously could not fit inside the residence.

        Plaintiff also argues Defendants’ search was unreasonable because they used

  excessive force. When a search warrant authorizes officers to search inside a home,

  the officers must knock and “announce their presence and authority before entering.”

  United States v. Moore, 

 (10th Cir. 1996) (citing Wilson v. Arkansas,

  

, 935–36 (1995)) (applying 

 as a reasonableness

  inquiry under the Fourth Amendment). Exigent circumstances excuse this knock-

  and-announce requirement when officers reasonably believe an emergency exists. 

  (quoting United States v. Maden, 

 (10th Cir. 1995)). The

  emergency must be more than a general concern for safety. United States v. Stewart,

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 (10th Cir. 1989). Officers’ knowledge of unknown occupants or

  firearms in a house does not justify failure to knock and announce—nor does it

  justify destroying property. See id.; Moore, 91 F.3d at 98–99.

        Defendants did not knock and announce their presence or authority before

  shooting chemical munitions and entering. Defendants rely on facts in the AAR to

  demonstrate their mistaken belief that a dangerous individual with access to weapons

  occupied the house. But we do not consider facts arising out of the AAR and no facts

  within the FAC, warrant, or affidavit show exigent circumstances. No officer

  identified any specific danger or occupant. Thus, the warrant did not expressly

  authorize Defendants to forcibly enter Plaintiff’s home without knocking and

  announcing or to shoot munitions that physically damaged her home.6

        We conclude that under the facts properly within our consideration,

  Defendants lacked authority for their search of the residence because they exceeded

  the scope and authority of the warrant and lacked a valid exception.7 See Ross, 456



        6
           Plaintiff implies that Defendants should have used thermal imaging to learn
  that the residence was unoccupied before assaulting it. But Defendants could not
  have done so without authority to conduct a search inside the residence. See Kyllo v.
  United States, 

 (2001) (thermal imaging generally constitutes a
  search).
        7
          The district court mentioned the protective sweep warrant exception but did
  not find that a protective sweep occurred. Defendants do not develop a protective-
  sweep argument. See Lundstrom v. Romero, 

 (10th Cir. 2010)
  (citing Najar, 

) (government actor bears the burden to show the
  existence of an exception to the warrant requirement). So we do not consider
  whether the protective sweep exception applies. See Garrett v. Selby Connor

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  U.S. at 825 (quoting Mincey v. Arizona, 

 (1978)). Defendants

  lacked justification for their forcible entry. Thus, Plaintiff sufficiently alleged

  Defendants violated her Fourth Amendment rights based on Defendants’ entry into

  her residence (apart from the garage)—both physically and by shooting chemical

  munitions—and their use of excessive force.8

                                              B.

            We now examine the second prong of the qualified immunity analysis. We

  conclude Defendants violated Plaintiff’s clearly established Fourth Amendment

  rights.

            “[A] right is clearly established when our precedent encompasses ‘“materially

  similar conduct” or applies with “obvious clarity” to the conduct at issue.’” Sanchez

  v. Guzman, 

, 1292–93 (10th Cir. 2024) (quoting Shepherd v. Robbins,

  

, 815 (10th Cir. 2022)). Precedent must place the “constitutional

  question beyond debate,” Kisela v. Hughes, 

 (2018) (quoting White

  v. Pauly, 

 (2017)), and provide “fair warning to a defendant,”

  Sanchez, 

 (quoting Shepherd, 55 F.4th at 815). In the Fourth

  Amendment context, we require a particularly high level of specificity and even more



  Maddux & Janer, 

 (10th Cir. 2005) (issues inadequately briefed are
  waived).
            8
           We express no opinion on whether, after discovery and full summary
  judgment briefing, Plaintiff may establish her claims in this case. We conclude only
  that the FAC pleaded sufficient allegations to state a constitutional violation under
  Fed. R. Civ. P. 12(b)(6).
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  closely analogous facts than otherwise; thus we look for precedent that “‘squarely

  governs’ the specific facts at issue.” Kisela, 584 U.S. at 104–05 (quoting Mullenix v.

  Luna, 

, 12–13, 18 (2015)).

        At least two Tenth Circuit cases provided fair warning that the warrant did not

  authorize Defendants’ search of the residence. In United States v. Angelos, 

 (10th Cir. 2006), the search warrant at issue authorized a search for drugs

  and related items located in the trunk of a car and in a safe that the officers believed

  was in a basement. The warrant stated the location of the search as the

  “residence/premises” and listed its street address, without limitation. 

. We

  held that the officers exceeded the scope of the warrant and acted unreasonably in

  violation of the Fourth Amendment when they searched the residence in places other

  than the basement. 

 at 745–46. In short, the broad search warrant did not

  authorize officers to search spaces in which the item in question could not be located.

  Thus, Angelos notified Defendants at a sufficient level of specificity that the search

  warrant did not authorize Defendants’ search of the residence because the Sno-Cat

  could not have been in the residence—indeed, officers believed the Sno-Cat was in

  the garage, not in the residence.

        Similarly, in Peterson, 

, officers obtained a valid search

  warrant authorizing them to search a particular residence for the belongings of two

  individuals. Officers searched the specified residence even after learning that the two

  individuals no longer resided there. 

 at 1202–03. In so doing, the officers violated

  clearly established law—even though the warrant stated that it authorized search of

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  the residence—because they should have known that searching the residence would

  not fulfill the purpose of the warrant. 

 Thus, Peterson clearly notified Defendants

  that they violated Plaintiff’s rights by searching for the Sno-Cat in her residence

  because they should have known that this did not fulfill the purpose of the warrant.

         And insofar as Plaintiff alleges that officers damaged her property, decades of

  jurisprudence clearly establishes that Defendants violated the Fourth Amendment by

  forcibly entering and destroying Plaintiff’s property without knocking and

  announcing because the record reflects no exigencies. In United States v. Nielson,

  

, 1197–98 (10th Cir. 2005), officers knew that the defendant had

  previously possessed firearms in his home and feared for their safety because they

  believed the residents in the home would arm themselves if the officers knocked and

  because the defendant had “the potential for violence.” But this knowledge and

  belief did not constitute reasonable suspicion that justified a no-knock entry, so when

  the officers entered before knocking and announcing, they violated the Fourth

  Amendment. 

 at 1201–02. And in Moore, 91 F.3d at 97–98, officers announced

  their presence at virtually the same instant they used a battering ram to batter down

  the door. The officers’ knowledge that the occupants were armed did not constitute

  exigent circumstances justifying their immediate, destructive entry because the

  officers failed to present facts showing specific fear for their safety. Id. at 98.

         Here, Defendants knew even less than the Nielson officers—only that an

  unidentified person had possibly occupied the house earlier in the day. And, like the

  Moore officers, Defendants lacked any specific fear for their safety. These materially

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  similar fact patterns show at a sufficient level of specificity that Defendants violated

  Plaintiff’s clearly established Fourth Amendment rights by failing to knock and

  announce their presence. Plaintiff, therefore, satisfies the second prong necessary to

  overcome Defendants’ qualified immunity defense at the pleading stage.

        Plaintiff’s FAC, along with the documents properly within our consideration,

  show Plaintiff alleged a plausible § 1983 claim against each defendant and

  overcomes the presumption of qualified immunity. So we cannot affirm the district

  court’s finding of qualified immunity and dismissal of Plaintiff’s FAC. We reverse

  and remand for proceedings consistent with this opinion.

        REVERSED AND REMANDED.




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