Griego v. City of Albuquerque (100 F. Supp. 3d 1192, 2015)

MEMORANDUM OPINION

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss, filed November 22, 2013 (Doc. 9)(“MTD”). The Court held a hearing on July 24, 2014. The primary issues are: (i) whether a claim exists under 42 U.S.C. § 1983 for failure to properly investigate; (ii) whether Plaintiff Paul Griego has sufficiently alleged a claim for failure to supervise or train, where he makes a conclusory allegation that, on domestic-violence calls, Defendant Albuquerque (New Mexico) Police Department (“APD”) has a policy of making arrests— usually of men rather than woman — éven in the absence of probable cause; and (iii) whether Griego has properly alleged an equal-protection claim, where he makes a conclusory allegation that, on domestic-violence calls, APD systemically arrest men in circumstances in which they would not arrest women. As to the first issue, the Court will dismiss Griego’s failure-to-investigate claim with prejudice, because he has no independent constitutional or federal-statutory right to police investigation; he has only a right to be free from an arrest without probable cause — a right which can be vindicated through a false-arrest claim such as the one Griego alleges as his first claim. As to the second issue, Griego has not sufficiently pleaded the existence of a city-wide policy, practice, or custom. Griego must plead facts that give rise to a plausible inference that the policy exists, rather than baldly asserting its existence. The Court will thus dismiss Grie-go’s claim for failure to train or supervise, but it will do so without prejudice to him seeking leave to amend his Verified Complaint, filed September 24, 2013 (Doc. l)(“Complaint”), to rectify the pleading deficiencies and reassert the claim. As to the third issue, although the policy that Griego asserts exists might plausibly violate the Equal Protection Clause, U.S. Const, amend. XIV, § 1, he runs into the same problem with his equal-protection claim that he does with his claim for failure to train or supervise; he merely asserts the existence of an informal .policy, custom or practice by Defendant City of Albuquerque, without supporting this assertion with facts that render it plausible. The Court will, thus, dismiss his equal-protection claim without prejudice. Last, the Court will dismiss the eleventh claim in the Complaint without prejudice, and will dismiss with prejudice: (i) all claims against APD, because it is not a suable entity under the law of the United States Court of Appeals for the Tenth Circuit; (ii) all claims against Defendant Albuquerque Police Officer Robert Stockton, Jr., in his official capacity, because the official-capacity claims are redundant to claims against the City of Albuquerque; (iii) all state-law claims — the fourth and twelfth claims in the Complaint — because the statute of limitations bars them; and (iv) the substantive and procedural due-process claims in the ninth and tenth claims. Griego stipulated to the dismissal of these claims. See Plaintiffs Memorandum in Opposition to Defendants’ Motion to Dismiss at 1-2, 12, filed December 16, 2013 (Doc. ^(“Response”).

FACTUAL BACKGROUND

The Court accepts as true all facts alleged in the Complaint, as it must in ruling-on a motion to dismiss under rule 12(b)(6). See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))). On September 25, 2010, at approximately 12:40 p.m., Griego arrived at Amie Petersen’s residence. See Complaint ¶ 11, at 4. Petersen and Griego have a daughter together, and Griego was making a previously agreed-upon visit to pick up their three-year-old daughter, Sophia. See Complaint ¶ 11, at 4. Petersen approached Griego with a written list of issues that she wanted to discuss with Griego, and began angrily reading them aloud while Griego was holding Sophia in his arms. See Complaint ¶ 12, at 4. Griego indicated that he did not want to discuss these issues in front of Sophia, at which point Petersen told Griego that he could not take Sophia and tried to pull Sophia out of Griego’s arms. See Complaint ¶ 12, at 4. Petersen’s actions caused Sophia to cry out in pain, and nearly caused Griego to lose his balance and fall on Sophia. See Complaint ¶ 12, at 4.

Griego left the house with Sophia and went to a gas station to call the police; this call occurred at 1:31 p.m. the same day. See Complaint ¶ 13, at 5. He then returned to his own home with Sophia and called police again, informing them in more detail about the altercation. See Complaint ¶ 14, at 5. Roughly twenty-five minutes later, paramedics and APD officer George Garcia arrived at Griego’s residence. See Complaint ¶ 15, at 5. After the paramedics tended to Sophia — who had small red marks on her arm — and left, Garcia informed Griego that Petersen had also called police over the incident at her house. See Complaint ¶ 18, at 5. Garcia stated that, in a “two-call situation,” he could not take action until he first spoke to the other police officer at the other scene. Complaint ¶ 18, at 5. Garcia left soon afterward, around 3:05 p.m. See Complaint ¶ 18, at 5.

At 6:03 p.m., APD officers Stockton and Garza arrived at Griego’s home to ask him about the incident with Petersen. See Complaint ¶ 19, at 6. Stockton talked to Griego, while Garza took Sophia into the backyard to play and be away from the discussion. See Complaint ¶ 20, at 6. Grie-go explained to Stockton what happened, and, while the two were talking, Stockton interrupted Griego and told him that he was arresting him. See Complaint ¶ 21, at 6. Stockton admitted that he had not •talked to Garcia, telling Griego only that he was “ ‘required to make an arrest.’ ” Complaint ¶ 21, at 6. Stockton then placed Griego in handcuffs, put him in the back seat of his police cruiser, and drove him to the APD’s Phil Chacon Memorial Substation, located at 800 Louisiana, SE. See Complaint ¶¶ 21-22, at 6-7. Petersen arrived to pick up Sophia; although she lives twenty-five minutes away from Griego, she arrived within a few minutes of Griego being placed in the police vehicle. See Complaint ¶ 22, at 7.

At the substation, Stockton kept Griego handcuffed in the backseat of the cruiser for over an hour as he wrote his criminal complaint against Griego. See Complaint ¶ 24, at 7. Griego was ultimately charged with abandonment of abuse of a child, a third-degree felony under N.M. Stat. Ann. § 30 — 6—1D(1), and battery against a household member, a misdemeanor under N.M. Stat. Ann. § 30-8-15. See Complaint ¶ 26, at 7-8. Around 10:45 p.m., Griego was then taken to the Metropolitan Detention Center, where he was held for three days on a $10,000.00 bond. See Complaint ¶¶ 27-28, at 8. Griego was arraigned, and, at that time, his bond was reduced to $2,000.00. See Complaint ¶ 29, at 8. He posted bond on September 28, 2010, and was released under various conditions that included not being allowed to see Sophia unless the New Mexico Children, Youth and Families Department authorized the contact beforehand. See Complaint ¶ 30, at 8. He did not see his daughter until October 15, 2010, twenty days after the arrest. See Complaint ¶ 30, at 8.

The deputy district attorney handling Griego’s case dismissed the felony abandonment charges against him on October 25, 2010, noting that it was a mistake that it had been filed as a felony. See Complaint ¶ 31, at 9. In December, 2010, Stockton revised his police report to include language indicating that Griego was the “ ‘overwhelming aggressor’ ” in the altercation with Petersen. Complaint ¶ 33, at 9. On February 10 and 11, 2011, Griego took his case to a jury trial and was acquitted. See Complaint ¶ 34, at 9.

On March 14, 2011, Griego became aware of domestic-violence self-defense classes that the APD offered as a part of a program called “ ‘Women Against Crime.’ ” Complaint ¶ 37, at 910. Griego was denied enrollment to the class, because the classes were offered only to females. See Complaint ¶ 37, at 10.

On July 1, 2011, Griego went to pick up Sophia at her daycare center, consistent with the custody agreement he had with Petersen. See Complaint ¶ 38, at 10. Sophia was not at the daycare center and Griego ascertained that she was at the home of Ivy Shofelt, Petersen’s sister. See Complaint ¶ 38, at 10. Griego went to Shofelt’s house to pick up Sophia, but Petersen was there and assaulted Griego, in front of Sophia. See Complaint ¶ 38, at 10. Griego returned to his residence with Sophia and called the APD the following morning to report the assault. See Complaint ¶ 38, at 10. Griego provided the APD with Shofelt’s name and contact information, who was present and observed the assault. See Complaint ¶ 38, at 10. After speaking with Griego, the APD apparently never spoke with Shofelt or investigated the incident. See Complaint ¶ 38, at 10. APD officer Tammy Chavez gave Griego a domestic-violence packet and advised him to get a domestic restraining order. See Complaint ¶ 38, at 10.

The domestic-violence packet that the APD provided indicated that victims of domestic violence can receive assistance through various resource centers, including the Family Advocacy Center. See Complaint ¶ 39, at 10. The Family Advocacy Center Informed Griego to contact the Women’s Law Initiative to obtain assistance in obtaining a domestic restraining order. See Complaint ¶ 39, at 10. Accordingly, Griego sought the Women’s Law Initiative’s assistance via telephone and explained the circumstances of his July 1, 2011 interaction with Petersen. See Complaint ¶ 39, at 10. When Griego called the Women’s Law Initiative, the representative listened to Griego and then told him to “ ‘[h]ave a nice day’ ” before terminating the call. Complaint ¶ 39, at 11. Griego also contacted the other relevant organizations and resources provided in the domestic-violence packet, but received no assistance from any of them. See Complaint ¶ 40, at 11.

On July 28, 2011, Griego applied for a domestic restraining order, which was summarily denied that day; the judge denying the application noted that parents should comply with all court orders involving custody provisions. See Complaint ¶ 41, at 11. Of the five applicants for domestic restraining orders on the court’s docket that day, only Griego’s application was denied. See Complaint ¶ 41, at 11. The other four applicants that day — all women — received domestic restraining orders. See Complaint ¶ 41, at 11.

On November 24, 2011, Griego was scheduled to pick up Sophia. See Complaint ¶ 42, at 11. As it was Thanksgiving, the only location open for a possible exchange was McDonald’s. See Complaint ¶ 42, at 11. An exchange was scheduled for noon, but by 12:30 p.m., Petersen had not arrived, and the McDonald’s had closed. See Complaint ¶ 42, at 11. Griego called the APD, which informed him that, when an exchange has not occurred within thirty minutes of the scheduled time, and there is a history of violence or disputes between the parents, police would arrive to provide a domestic-violence escort for the exchange. See Complaint ¶ 42, at 11. The police arrived at 12:45 p.m., and Griego informed them of the circumstances between himself and Petersen. See Complaint ¶ 42, at 11. Soon thereafter, Petersen arrived with Sophia. See Complaint ¶ 42, at 11. The police spoke with Petersen, and she handed over Sophia in front of the officers. See Complaint ¶ 42, at 11. APD officer Shane Treadway, one of the officers present, called Griego’s brother, Eric. See Complaint ¶ 42, at 11. Treadway informed Eric that Griego should not call the police for trivial matters and that they “gave Griego a break this time because it was Thanksgiving.” Complaint ¶ 42, at 11.

PROCEDURAL BACKGROUND

Griego commenced this action in federal court on September 24, 2013. He alleges twelve claims: (i) a claim for false arrest in violation of the Fourth Amendment to the Constitution of the United States of America under 42 U.S.C. § 1983, see Complaint ¶¶ 44-52, 12-13; (ii) a § 1983 claim for false imprisonment under the Fourth Amendment, see Complaint ¶¶ 53-64, at 14-16; (iii) a § 1983 claim for malicious prosecution, see Complaint ¶¶ 65-75, at 16-18; (iv) state-law claims for false arrest, false imprisonment, and malicious prosecution, see Complaint ¶¶ 76-92, at 18-20; (v) a claim under § 1983 and Monell v. Department of Social Services, 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1918)(“Monell ”), for failure to supervise and failure to train, see Complaint ¶¶ 93-105, at 21-23; (vi) a claim under § 1983 and Monell for failure to properly investigate, see Complaint ¶¶ 106-114, at 23-25; (vii) a claim under § 1983 and Mo-nell for “relief for arrests conducted without probable cause or arrest warrants,” Complaint ¶¶ 115-121, at 26-27 (capitalization altered for readability); (viii) a claim for violation of the Equal Protection Clause, see Complaint ¶¶ 122-132, at 27-29; (ix) a claim for violation of substantive due process, see Complaint ¶¶ 133-143, at 29-31; (x) a claim for violation of procedural due process, see Complaint ¶¶ 144-154, at 31-33; (xi) a claim for violation of “Title VI of the Civil Rights Act of 1964 and the ‘OJP Program Statute,’ ” Complaint ¶¶ 155-166, at 34-36; and (xii) a state-law claim for intentional infliction of emotional distress, see Complaint ¶¶ 167-172, at 36-37. Griego consents to dismissal with prejudice of claims four, nine, ten, and twelve, and to claim eleven without prejudice, until such time as he can amend the claim to rectify the “inapt[ ] allegations]” in the Complaint; he also consents to the dismissal of all claims against the APD and all official-capacity claims against Stockton. Response at 1-2. See note 3, supra, and accompanying text.

The City of Albuquerque filed the MTD on November 22, 2013, less than two months after Griego filed the Complaint. It first argues for dismissal of the claims against the APD, the official-capacity claims against Stockton, and the state-law claims. See MTD at 5-12. Griego immediately capitulated to these arguments in his Response, so the Court will not summarize them here. It next argues for dismissal of claim five, for failure to supervise and train, and claim six, for failure to properly investigate. See MTD at 12-14. The City of Albuquerque argues that Grie-go has not pled a policy, practice, or custom — and a causal link between that policy and the plaintiffs constitutional injury — as Monell requires, but, rather, has pled only negligence, which it says does not support liability under Monell. See MTD at 13. As for the failure-to-investigate claim, the City of Albuquerque appears to argue that such a claim does not exist at all, in any circumstances. See MTD at 14. It argues that a failure to investigate does not amount to a violation of a federal right, which it says is what is required to maintain a § 1983 action. See MTD at 14.

The City of Albuquerque also moves to dismiss Griego’s equal-protection claim in claim eight. See MTD at 15-17. It asserts that the Equal Protection Clause is triggered only “ ‘when the government treats someone differently than another who is similarly situated.’ ” MTD at 16 (quoting Buckley Const., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 859 (10th Cir.1991)). It also asserts that the plaintiff must allege some sort of discriminatory intent, “and although ‘the discriminatory purpose need not be the only purpose, it must be a motivating factor in the decision.’ ” MTD at 16 (alterations omittedXquoting Villanueva v. Carere, 85 F.3d 481, 485 (10th Cir.1996)). The City of Albuquerque contends that the Complaint does not allege that Stockton arrested Griego out of any discriminatory intent and that Griego cannot show that he was treated any differently than a woman would be in a similar situation. See MTD at 16.

Griego filed his Response less than a month later, on December 16, 2013. Grie-go argues that his Monell claims for failure to supervise and train and failure to properly investigate are properly pled. See Response at 3-8. He contends that, when a “ ‘municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,’ it is liable,” Response at 3 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1309 (10th Cir.1998)), and that, additionally,

in a “narrow range of circumstances,” ... deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations.

Response at 4 (quoting Barney v. Pulsipher, 143 F.3d at 1307-08). Griego then quotes extensively from ¶¶ 107-111, 116— 118, 124-128, 141, and 151 of his Complaint, which he says alleges a policy, custom, or practice. See Response at 4-6. He draws special attention to ¶¶ 124 and 125, which state:

Upon information and belief, it was the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to make an arrest whenever the police respond to calls of domestic disturbances and/or abuse, regardless of the source of information.

Upon information and belief, it was also the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to arrest a male participant instead of a female participant at the scene of a domestic disturbance.

Response at 6 (citations omitted)(quoting Complaint ¶¶ 124-125, at 28). Griego notes that, every place in which the Complaint mentions negligence, it is in the context of Stockton’s actions being “ ‘intentional, reckless, malicious and/or negli-. gent.’ ” Response at 6. Griego also argues that he has adequately alleged a causal link between those policies and Stockton’s deprivation of Griego’s constitutional rights, quoting from ¶¶ 98-101 of the Complaint. See Response at 7-8.

Griego also defends his eighth claim, the equal-protection claim. See Response at 8-12. Griego contends that gender is a quasi-suspect characteristic and, thus, governmental gender-based classification are subject to intermediate scrutiny. See Response at 9. He asserts that the appropriate test for the Court to apply is “whether the government can demonstrate that its classification serves ‘important governmental objectives’ and is ‘substantially related to achievement of those objectives.’ ” Response at 9 (quoting Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 321 F.3d 950, 959 (10th Cir.2003)). He further argues that, although “ ‘there is no general constitutional right to police protection, the state may not discriminate in providing such protection.’ ” Response at 9 (quoting Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir.1988)). Griego then quotes extensively from ¶¶ 37-43, and cites to ¶¶ 124, 125, and 127-129 of the Complaint, arguing that these paragraphs sufficiently allege Equal Protection Clause-violating policy. See Response at 9-11. Griego argues that “these policies directly affect the male population,” and that “violations can be established through the use of statistical analysis,” which can be obtained only through discovery. Response at 12 (citing Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)). Accordingly, Griego contends that dismissal of his equal-protection claim is more appropriately reserved for the summary-judgment stage. See Response at 12.

The City of Albuquerque replied to the Response two weeks later, on December 30, 2013. See Defendants’ Reply in Support of Their Motion to Dismiss, filed December 30, 2013 (Doc. 14)(“Reply”). The City of Albuquerque first addresses the claim for failure to supervise or train, arguing that, unless the municipality’s failure was a deliberate, conscious choice, it cannot be held liable under Monell. See Reply at 3 (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). It asserts that the fifth claim contains no allegation of deliberate indifference, and that Griego borrowed the allegations that he cites in his Response from the sixth claim — and the fifth claim does not incorporate the sixth claim’s allegations. See Reply at 3-4. The City of Albuquerque contends that all that Griego alleges is “that the City failed to ‘adequately supervise, oversee, control and train Stockton,’ resulting in ‘intentional, reckless, malicious and/or negligent’ acts by” Stockton. Reply at 4 (emphasis in originalXquoting Complaint ¶¶ 97105, at 21-23). The City of Albuquerque argues that these allegations amount to allegations of negligence against it — although the allegations are more serious against Stockton. See Reply at 4.

The City of Albuquerque next tackles Griego’s failure-to-properly-investigate claim, which it says lacks a basis in clearly established law. See Reply at 5 (“Plaintiff has not articulated how a ‘failure to investigate’ amounted to a violation of his Fourth Amendment [or Fifth or Sixth Amendment] rights.”). Last, the City of Albuquerque turns to Griego’s equal-protection claim. See Reply at 6-8.- It contends that Griego

has not made a factual allegation that he was arrested because he was a male participant in a domestic violence situation. Plaintiff has only alleged that Officer Stockton told Plaintiff that he was “required to make an arrest.” Plaintiff has made one averment that “[u]pon information and belief, it was also the policy, practice, pattern, procedure and/or custom of ALBUQUERQUE and/or APD to arrest a male participant instead of a female participant at the scene of a domestic disturbance.” This averment is contrary to Plaintiff’s factual allegations wherein he was involved in at least two subsequent domestic disturbance/violence situations with Amie Peterson in which he was not arrested.

In an effort to bolster his Equal Protection claim, Plaintiff attempts to rely on events that occurred involving entities outside of the City, including, but not necessarily limited to the Second Judicial Cburt (for denying him a restraining order), the Family Advocacy Center, as well as two other incidents he had with Amie Peterson involving domestic disturbances in which he was not arrested. However, Plaintiff has failed to make any allegation that there are others who were similarly situated, who were treated differently than him, other than generally referring to males as a class of persons and make a general allegation that “upon information and belief’ it was the City’s policy to arrest a male participant instead of a female participant in a domestic disturbance incident.

Reply at 7 (emphasis in original) (citations omitted).

The Court held a hearing on July 24, 2014. See Transcript of Hearing (taken July 24, 2014)(“Tr.”). Griego described his failure-to-train claim as follows:

[W]hy is it that this is a Monell claim, and why is it that they failed to supervise and failed to train, I think it’s going to be clear after we have ample discovery on this that in fact the city takes a posture consistent with what it says in the complaint when it’s written and tacit or whether it’s an accepted procedure and a pattern and practice that in fact when police do go to the scene of a domestic violence dispute someone is going to be arrested and the overwhelming majority of those instances, that individual is going to be the male, whether there is any evidence supporting any assault or any action on the part of the male that will gets arrested. So just as no more August body than the U.S. Department of Justice and their investigation as determined that there were constitutional violations that APD caused that were base had on a pattern and practice of APD that included among many other things, the failure to take internal, inadequate internal accountability. They found there was systemic insufficiency including insufficient oversight, inadequate training, ineffective policies contributing total Fourth Amendment violation. A lack of proper supervisory review, a failure to identify and address officers requiring direction, improper supervisory documentation, failure to record incidents with their lapel cameras, internal review mechanisms.

Tr. at 8:3-9:5 (Baker). The Court asked Griego what he contended to be the underlying constitutional violation — ie., the one that Stockton committed — because the City of Albuquerque’s policy must have caused that violation for it to be held hable under Monell. See Tr. at 10:2-7 (Court). Griego responded that Stockton had arrested him without probable cause, thus constituting a false arrest under the Fourth Amendment — a claim that Griego alleged in his Complaint and that the City of Albuquerque had not challenged in its MTD. See Tr. at 10:8-11:1 (Baker, Court). The Court stated that it “doubt[ed] very seriously that the APD doesn’t train its officer[s] to arrest people ... on the basis of probable cause,” and asked Griego how the City of Albuquerque had fostered a policy, custom, or practice of lacking probable cause. Tr. at 12:12-14 (Court). Grie-go responded that,

clearly if they went to a scene and the man’s arm was cut off and the woman was holding a [machete] I they would arrest the female, because there it’s clear that there is probable cause and it’s clear that the male has suffered the injury at the hands of the female. So I’m not saying in every instance the male is arrested. What I’m saying is because they have a practice and a pattern of arresting men when they come to a scene, because there is an unwritten rule or an un written policy and a practice that someone is going to go, that therefore they make the decision to arrest the man in those circumstances. And there is no supervision of these officers when they do it. Because they’re not properly trained in how to address the circumstances and determine who in fact.

Tr. at 13:6-22 (Baker). The Court then asked the City of Albuquerque if it should dismiss Griego’s failure-to-train and failure-to-supervise claims, given that he was alleging (i) an APD-wide policy of usually arresting males on domestic-violence calls; and (ii) a personal constitutional injury, in the form of Stockton arresting him without probable cause. See Tr. at 18:18-22 (Court). The City of Albuquerque conceded that Griego’s claim was viable, if the Court read Griego’s policy allegations broadly. See Tr. at 18:23-24 (Dalton)(“If the Court were to read the complaint that broadly yes, I would agree.”).

The Court briefly addressed the failure-to-investigate claim, with the City of Albuquerque noting that it appeared to be without precedent, see Tr. at 21:18-23 (Dalton), the Court noting that a failure to investigate might form a viable claim if it led to an arrest without probable cause, but that such a claim would simply be for false arrest, see Tr. at 20:7-22 (Court), and Griego making a somewhat vague, legally unsourced argument for why the right to investigation is separate from the right to be free from unwarranted arrest, see Tr. at 22:2-23:9 (Baker). The Court and the parties last discussed the equal-protection claim, with the City of Albuquerque focusing on the Complaint’s failure to allege: (i) discriminatory intent or purpose; or (ii) that a hypothetical, similarly situated female would be subject to different treatment. See Tr. at 26:3-23 (Dalton, Court). Griego focused heavily on the APR’s refusal to allow him to attend a domestic-violence self-defense class, as well as the APD’s purported unwritten policies of arresting men and favoring women during domestic-violence disputes. See Tr. at 31:4-33:6 (Baker, Court).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)(“[O]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,' do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(emphasis omitted). The Tenth Circuit stated:

“[Plausibility” in this context must refer 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.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct.1955)(internal citations omitted).

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense — the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M.2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir.2008)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure: Civil § 1277 (3d ed.2014). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir.1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir.1945); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M.2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir.1954) (holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from case law in several circuits, that the plaintiff may avoid this problem altogether — at least at the motion-to-dismiss stage — by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir.2007); Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.2006); Harris v. New York, 186 F.3d 243, 251 (2d Cir.1999); Honeycutt v. Mitchell, 2008 WL 3833472 (W.D.Okla. Aug. 15, 2008) (West, J.), although the Tenth Circuit has not squarely addressed this practice.

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of-this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012)(“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”)(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court of the United States has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011)(Browning, J.)(citing Monell, 436 U.S. 658, 689, 98 S.Ct. 2018 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).

1. Color of State Law.

“Under Section 1983, liability attaches- only to conduct occurring ‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 826, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). “The authority with which the defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to find that an action was- taken under color of state law, the court must find that “‘the conduct allegedly causing the deprivation of a federal right’ must be ‘fairly attributable to the State.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor ... [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be “ ‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell, 436 U.S. at 663, 98 S.Ct. 2018). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles — including principles of causation .... ” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009)(Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” 72 F.3d at 400. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability; See, e.g., Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated, on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit:

Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[fjoreseeable intervening forces are within the scope, of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under. 42 U.S.C. § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s personal participation, ... exercise of control or direction, or ... failure to supervise.’ ” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)) (alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)).

The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ”

614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Su-’ preme Court’s previously enunciated § • 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may ... succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained' of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199— 1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.

Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382)(internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

Establishing an informal policy or custom requires the plaintiff to show that the misconduct was “widespread”— i.e., that it involved a “series of decisions.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Although the existence or nonexistence of such a policy, practice, or custom is a question of fact for the jury, see Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 599 (6th Cir.2007)(“[T]he evidence showed at least a disputed question of fact as to the existence of its alleged policy or custom....”); Surprenant v. Rivas, 424 F.3d 5, 21 (1st Cir.2005)(“0’Mara challenges the very existence of the interdicted policy, custom, or practice. Proving the existence of a policy, custom, or practice normally entails questions of fact.” (citation omitted)); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000) (“In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation.”); Gregory v. City of Rogers, Ark, 921 F.2d 750, 757 (8th Cir.1990) (“[Ajppellants have raised material questions of fact whether it was the custom of the Rogers Police Department that officers could use their discretion in deciding whether or not to arrest intoxicated individuals, despite the state statute requiring their arrest.”); Fancher v. Barrientos, No. CIV 11-0118 LH/LAM, 2013 WL 8600085, at *4 (D.N.M. Aug. 19, 2013) (Hansen, J.)(“[A]t this time the record is unclear and it remain a question of fact as to which policy was in place.”); Jacobs v. Dujmovic, 752 F.Supp. 1516, 1525 (D.Colo.1990) (“[TJhe Jacobs have failed to meet their summary judgment burden of showing that it adopted a policy, custom or procedure that caused constitutional violations, or that there is a question of fact as to the existence of such a policy.”), it is not a fact that can be baldly asserted at the pleading stage, see Young v. City of Albuquerque, 77 F.Supp.3d 1154, 1187-88, No. CIV 13-1046 JB/RHS, 2014 WL 7473806, at *27 (D.N.M. Dec. 24, 2014) (Browning, J.); Atwell v. Gabow, Nos. CIV 06-2262, 07-2063 JLK, 2008 WL 906105, at *6 (D.Colo. Mar. 31, 2008) (Kane, J.). Pleading a municipal policy, custom, or practice is like pleading the breach element of negligence — which is also ultimately a question of fact for the jury. The 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. With formal or written policies, satisfying this pleading standard is easy; the plaintiff can simply allege what the policy is and where it is codified. With informal, unwritten policies, customs, or practices, the plaintiff can plead either a pattern of multiple similar instances of misconduct — no set number is required, and the more unique the misconduct is, and the more similar the incidents are to one another, the smaller the required number will be to render the alleged policy plausible — or use other evidence, such as a police officers’ statements attesting to the policy’s existence. The Tenth Circuit has not explicitly held as much, but they have implied that district court’s should analyze policies, practices, or customs under Mo-nell as “legal conclusions” at the pleading stage — which must be supported by facts, rather than conclusorily alleged — and not “facts” in and of themselves, to be taken as true at face value:

[TJhe complaint alleges that the City of Denver Police Department had an official policy and plan to repress, vilify, and deny rights to Mexicanos, American Indians, and other “oppressed” national minorities, and that, pursuant to that plan, the Department formulated and issued a “get Martinez” policy and instructions. In furtherance of that policy, we are told, the Department kept a dossier on plaintiff, including reports, recordings, and other materials concerning his views, associations, and meetings. The Department also entered into a campaign to charge plaintiff and harass him and others advocating unpopular causes with unfounded prosecutions and to discourage him and others from asserting their rights. In or about October 1973, we are told, the Department, because of racial hatred and in order to chill the assertion of rights, obtained a warrant for the false and unfounded arrest of plaintiff, and, in or about November 1973, the Department “determined, in furtherance of its policy ... as afore-stated, to issue an order to all Denver Police Officers to ‘shoot on sight’ plaintiff.”

We think these allegations are clearly sufficient, as a matter of pleading, to satisfy the “policy” or “custom” requirement of Monell.

Martinez v. Winner, 771 F.2d 424, 443-44 (10th Cir.1985) (citations to the complaint omitted). If a conclusory assertion that the Denver Police Department had such a policy in place would have sufficed to clear the rule 12(b)(6) bar, the Court sees little reason for the Tenth Circuit to have gone into this detailed recitation. The United States Courts of Appeals for the Seventh and Ninth Circuits have addressed this question squarely, and both have come down on the side that Monell policies must be supported by factual allegations giving rise to an inference that the policies exist. See McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir.2011) (“In order to state a facially plausible equal-protection claim under Monell, the factual allegations in McCauley’s complaint must allow us to draw the reasonable inference that the City established a policy or practice....”); Svastics v. City of Beverly Hills, 178 F.3d 1300, at *1 (9th Cir. May 14, 1999) (unpublished) (“The district court also properly dismissed the claims against the City because any allegations of an unconstitutional custom or policy, even after amendment of the complaint, remained too conclusory to support a claim pursuant to Monell.”); Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (“A complaint that tracks Monell’s requirement of official policy with bare allegations cannot stand.... The absence of any facts at all to support plaintiffs claim renders the allegations mere legal conclusions of Section 1983 liability devoid of any well-pleaded facts ....” (footnote omitted)); Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir.1981) (“[T]he mere allegation of a single act of unconstitutional conduct by a municipal employee will not support the inference that such conduct was pursuant to official policies. On the other hand, where the pláintiff alleges a pattern or a series of incidents of unconstitutional conduct, then the courts have found an allegation of policy sufficient to withstand a dismissal motion.”). The three district courts in the Tenth Circuit — including the Court — to have addressed the issue agree. In Atwell v. Gabow, the Honorable Thomas K. Kane, United States District Judge for the District of Colorado, dismissed a series of Monell claims on this ground:

From the inception of this litigation, I have admonished counsel regarding the import of Monell and its progeny for Plaintiffs’ municipal liability claims and have explicitly ordered them to identify “specific factual allegations supporting the conclusory allegations in the First Amended Complaint that Denver Health and/or Defendant Gabow acting in her official capacity made a policy decision, or engaged in a custom or practice of discrimination, for purposes of municipal liability.”

Plaintiffs do not identify a custom, policy or practice applicable to all of them that would render Denver Health liable under Monell for the discrimination each claims to have suffered, and none pleads actual facts giving rise to a plausible inference that such a policy, custom or practice existed. Simply aggregating eight individual claims and calling them the