Opinion
Civil Action 20-cv-01805-CMA-KLM
08-12-2021
TIMOTHY W. KREBS, Plaintiff, v. DEPUTY JUSTIN WILLIAMSON, #L01022 DEPUTY ZACK ANDERSON, #L17048 Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix United States Magistrate Judge
This matter is before the Court on Defendants' Motion to Dismiss [#34] (the “Motion). Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motion [#34] has been referred to the undersigned for a recommendation regarding disposition. See [#14], [#38]. The Court has reviewed the Motion [#34], the Response [#43], the Reply [#50], the entire case file and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motion [#34] be GRANTED.
“[#34]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
I. Background
The following allegations of the Second Amended Complaint [#11] are accepted as true for the purpose of determining the merits of the Motion [#34]. See Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (stating that the allegations drawn from the complaint must be taken as true when considering the merits of a motion to dismiss). Plaintiff, Timothy Krebs, brings this suit against Defendants Justin Williamson and Zack Anderson, both deputies with the Larimer County Sheriff's Department. Second Am. Compl. [#11] at 2-3. Plaintiff asserts that the Defendants used excessive force during an arrest which violated Plaintiff's Fourth, Eighth, and Fourteenth Amendment rights under the United States Constitution. Id. at 4.
Plaintiff proceeds in this action pro se. The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 594, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff alleges that Defendant Williamson forced Plaintiff to stand in a specific location against Plaintiff's will. Second Am. Compl. [#11] at 4. When Plaintiff attempted to stand where he wanted, Defendant Williamson threw Plaintiff into a window and used his elbow and shoulder to pin Plaintiff down at taser point. Id. Further, Plaintiff alleges that Defendant Anderson punched Plaintiff three times in the face, kneed Plaintiff twice, and punched Plaintiff again in the rib area during the same incident..
Plaintiff avers that the use of force described in the Second Amended Complaint [#11] was excessive in light of the offense which he had committed: a “petty offense theft under fifty dollars.” Id. at 5. As a result of this use of force, Plaintiff argues that Defendants Williamson and Anderson violated his Fourth, Fourteenth, and Eighth Amendment rights.
Additional facts relevant to Plaintiff's claims are stated in the plea documents and related documents from the criminal proceeding attached as Exhibit A to the Motion [#34], Defendants' Incident Report attached as Exhibit B, and videos attached as Exhibit C. Thus, the Court must determine whether they can be considered in connection with the Motion [#34]. Normally, when considering a Rule 12(b)(6) motion to dismiss, the Court must disregard facts supported by documents other than the complaint unless the Court first converts the motion to dismiss into a motion for summary judgment. Jackson v. Integra, Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). However, “there are exceptions to this restriction on what the court can consider, ” which include “(1) documents that the complaint incorporates by reference . . .; (2) ‘documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity' . . .; and (3) ‘matters of which a court may take judicial notice.'” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citations omitted).
The Court will consider the plea documents attached to the Motion [#34] as they are court documents that are subject to judicial notice. See Gee, 627 F.3d at 1186; Tal v. Hogan, 453 F.3d 1244, 1265 n. 24 (10th Cir. 2006). However, these documents will be considered “'to show their contents, not to prove the truth of the matters asserted therein.'” Id. (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (10th Cir. 2002)).
The Court also finds that the Incident Report [#34-2[ may be considered because the Second Amended Complaint [#11] refers to the police reports and they appear to be central to his claims. See Id. at 4 (“When I attempted to stand where I wanted [Deputy Williamson] threw me into the window and used his elbow and shoulder to pin me down at taser point which can be seen in the original complaint police reports that I had attached.”); id. ([Officer Anderson] punch[ed] me twice in the right side of the face, once in the left side, kneed me twice, and punched me again in the rib area[, ] all documented in the police reports sent in the original complaint.”). Additionally, no party questions the authenticity of the Incident Report [#34-2], and the Report may thus be considered. See Obilo v. City Univ. of City of N.Y., No. CV-01-5118 (DGT), 2003 WL 1809471, at *4 (E.D. N.Y. Apr. 7, 2003) (using facts from a police incident report on a motion to dismiss when the incident report was implicitly referenced in the complaint and was clearly central to the plaintiff's claims); see also Roan v. Ensminger, No. 3:17-01177, 2018 WL 3373493, at *2 (M.D. Tenn. July 11, 2018) (using facts reported in a police incident report when the plaintiff referenced and attached the incident report to the original complaint). The Court addresses the details of the Incident Report [#34-2] and plea documents in Section III, infra.
Plaintiff's assertion in the Second Amended Complaint [#11] that he attached these reports is inaccurate; however, Plaintiff did attach a portion of the Incident Report to his original Complaint. See [#1-9-10].
The Court will not, however, consider the videos attached to the Motion submitted by Defendants. While Defendants cite the Supreme Court's opinion in Scott v. Harris, 550 U.S. 372 (2007), to support their argument that the videos can be considered, the videos in that case were viewed in connection with a motion for summary judgment, not a Rule 12(b)(6) motion to dismiss. See Id. at 376. Defendants also rely on Jackson v. Gatto, No. 13-cv-02516-CBS, 2014 WL 2743130 (D. Colo. June 17, 2014) to support their use of videos. However, in that case the plaintiff specifically referenced the video evidence of the incident in her complaint, and the plaintiff agreed that the video should be considered. Id. at *3. Here, the Second Amended Complaint does not reference the videos, and Defendants have not shown that any other exception applies that would permit the Court to consider them without converting the motion to a summary judgment motion. The Court declines to do so.
The Incident Report [#34-2] provides more detail as to incident at issue. Defendant Williamson was dispatched to the report of a theft in progress at the Quality Inn in Fort Collins. Id. at 6. It was reported that a transgender male guest, who later turned out to be the Plaintiff, had stolen a woman's clothing from the laundry room, was wearing that clothing, and was “potentially trying to leave the property.” Id. A deputy aired over the radio that the suspect had taken a bike that was not his from another motel. Id. Officer Andersons's Incident Report states that he responded in his “marked patrol vehicle with the lights and sirens on[, ]” that the person on the bicycle did not initially stop, and that the suspect then “stopped and flipped the bicycle around in a fast, aggressive [sic] manner.” Id. at 10. Officer Anderson placed Plaintiff at gunpoint, advised him that he was under arrest and to get onto the ground, and he did not comply. Id. Fearing Plaintiff would ride away again, Defendant Anderson “grabbed h[is] left arm in a[n] arm bar control hold and attempted to take h[im] to the ground.” According to the Incident Report [#34-2], this resulted in Plaintiff “violently and actively resisting[, ]” and the use of force at issue followed. With the assistance of a citizen who “helped to control” Plaintiff, Plaintiff was put into handcuffs. Id. Officer Anderson stated that, as a result of the altercation, he had cuts to his arm, hand, and knees, as well as abrasions and redness on the neck. Id. Plaintiff “was booked into the Jail with the charges of Second-Degree Assault on a Peace Officer, Resisting Arrest, and Theft.” Id. at 8. The force used by Defendants as alleged in the Second Amended Complaint [#11] and the Incident Report [#34-2] is discussed in more detail in Section III, infra.
While the Incident Report refers to Plaintiff as a “she[, ]”, using feminine pronouns, the Court refers to Plaintiff as a male since that is consistent with his pleadings in this case.
II. Standard of Review
A. Rule 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “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); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader is entitled to relief, ” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
B. Qualified Immunity
Defendants assert qualified immunity in connection with Plaintiff's claims. Motion [#34] at 7. Therefore, the Court first examines whether Plaintiff's Second Amended Complaint survives the requirements of Fed.R.Civ.P. 12(b)(6). Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003) (“Since [Defendants] raised the defense of qualified immunity in [their] motion to dismiss, we first examine whether [Plaintiff] asserted a violation of federal law in [his] complaint.”). Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities for monetary damages. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982) (“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”).
A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate).
III. Analysis
Plaintiff asserts that Defendants' use of excessive force violated his Fourth, Eighth, and Fourteenth Amendment rights. Second Am. Compl. [#11] at 4. As a preliminary matter, both the Eight and Fourteenth Amendment claims are inappropriate in this context. The Eighth Amendment is implicated only after a detainee is convicted of a crime. See Ingraham v. Wright, 430 U.S. 651, 664 (1977) (stating that the Eighth Amendment “was designed to protect those convicted of crimes”). Similarly, a Fourteenth Amendment claim is inappropriate because it can only be used in excessive force cases where neither the Fourth nor Eighth Amendment applies, Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003), and the Fourth Amendment applies here. Fourth Amendment reasonableness, not more generalized substantive due process, governs excessive force claims involving pretrial detainees arrested without a warrant. Graham v. Connor, 490 U.S. 386, 395 (1989). Thus, Plaintiff's excessive force claims will be analyzed solely in the context of the Fourth Amendment's proscription against excessive force. See Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“[W]e have held that the Fourth Amendment, not the Fourteenth, governs excessive force claims arising from the ‘treatment of [an] arrestee detained without a warrant' and ‘prior to any probable cause hearing'”) (citation omitted)). It is therefore recommended that the claims under the Eighth and Fourteenth Amendment be dismissed.
Turning to the Fourth Amendment, an excessive force claim under the Fourth Amendment requires that Plaintiff “show both that a ‘seizure' occurred and that the seizure was ‘unreasonable.'” Graham, 490 U.S. at 395 (citing Brower v. Cty. of Inyo, 489 U.S. 593, 599 (1989)).). The showing of unreasonableness is necessary because it is well-settled that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Accordingly, in order to state a Fourth Amendment excessive force claim, the plaintiff must plausibly allege (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) that some actual injury was caused by the unreasonable seizure that is not de minimis, be it physical or emotional. Cortez, 478 F.3d at 1129 n.25 (10th Cir. 2007).
The reasonableness assessment “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotations omitted). The Court must determine whether the force purportedly used by the defendants was “reasonable under the facts and circumstances presented.” See Fogarty v. Gallegos, 523 F.3d 1147, 1159 (10th Cir. 2008) (citing Graham, 490 U.S.at 396). The “reasonableness of an officer's conduct” must be assessed “from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances.” Buck v. City of Albuquerque, 549 F.3d 1269, 1287-88 (10th Cir. 2008).
In assessing reasonableness, the Court considers “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers and others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. This test is used regardless of whether probable cause exists for the arrest itself. Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir. 2007) (“[I]n a case where police effect an arrest without probable cause or a detention without reasonable suspicion, but use no more force than would have been reasonably necessary if the arrest or the detention were warranted, the plaintiff has a claim for unlawful arrest or detention but not an additional claim for excessive force.”).
1. Defendant Williamson
The Court first addresses the claim against Defendant Williamson. Plaintiff alleges that Defendant Williamson used excessive force when he “threw [Plaintiff] into the window and used his elbow to pin [Plaintiff] down at taser point.” Second Am. Compl. [#11] at 4. Plaintiff asserts in his Response [#43] that “Deputy Williamson physically attempted to move me into a spot that he wished when I attempted to stand [in] a place or position that” Plaintiff was more comfortable in, thus violating the Fourth Amendment seizure requirements. Id. at 1-2. He further argues that “[a] person cannot be said to have resisted arrest or not cooperat[e] with law enforcement if they simply do not follow all of their directives.” Id. at 1.
Thus, the Court must analyze the seizure and use of force. The Court first finds that Defendant Williamson had reasonable suspicion to detain Plaintiff. Williamson had “a particularized and objective basis for suspecting” Plaintiff of criminal activity, i.e., theft of clothing as reported in the call by the hotel. United States v. Winder, 557 F.3d 1129, 1133 (10th Cir. 2009). Williamson also developed probable cause to detain and arrest Plaintiff for the theft after he arrived at the scene. The Fourth Amendment allows a warrantless arrest if an officer has “probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." Mocek v. City of Albuquerque, 813 F.3d 912, 925 (10th Cir. 2015). In this case, Defendant Williamson had reasonably trustworthy information which were sufficient to lead a prudent person to believe that Plaintiff had committed the crime of theft, as the victim was on scene, identified Plaintiff as the thief, and Plaintiff was reportedly wearing the victim's clothes.
Thus, the Court must determine whether the use of force in connection with the detention was unreasonable “under the facts and circumstances presented[.]” Fogarty, 523 F.3d at 1159. The Incident Report [#34-2] provides additional information as to the contact between Plaintiff and Defendants, and the Court refers to that to the extent it is not inconsistent with Plaintiff's allegations. The Incident Report [#34-2] states that when Plaintiff tried to walk past Defendant Williamson, he “directed [Plaintiff] to stand near the windows.” Id. at 6. Williamson then “redirected [Plaintiff] and touched h[im] on h[is] shoulder to redirect h[im] towards where [Williamson] asked h[im] to stand[, ] and that point Plaintiff started to escalate his behavior and refused to comply.” Id. at 6-7. Defendant Williamson then “pushed” Plaintiff “into the window and informed h[im] that [he] was being detained.” Id. at 7. Plaintiff became agitated and refused to comply with orders to place his hand behind his back. Williamson “was trying to maintain the position on the window by pressing against [Plaintiff] into the window” with Plaintiff pressing back against him. Id. Defendant Williamson drew his taser and ordered Plaintiff to place his hands behind his back or he would be tased. Id. Deputy Zemple arrived, a physical struggle ensued, and Plaintiff broke away and began running. Id. Defendant Williamson “deployed his taser” at Plaintiff while running. Id. He then lost visual when Plaintiff “continued westbound and then rounded the corner of the 9 Motel. Id.
While Defendant Williamson states that he struck Plaintiff once in the back with the taser, id., Plaintiff does not allege that or assert that issue as a basis for his excessive force claim. See Second Am. Compl. [#11].
Considering the first factor, i.e., the severity of the crime at issue, Plaintiff alleges that the only crime committed was “petty theft 1 theft under fifty dollars[, ]” a relatively minor violation. Second Am. Compl. [#11] at 5. The Tenth Circuit has stated that a minor offense, at most, supports the use of minimal force. Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). This factor weighs in favor of Plaintiff's claim and against the use of force deployed by Officer Williamson.
The second and third Graham factors, however, weigh in favor of the use of force. The Court finds as to the second factor that from Plaintiff's struggles, refusal to comply with orders, and resistance over being arrested, he posed an immediate threat to the safety of the officers. The third factor, which looks to Plaintiff's active resistance, also weighs in favor of using some force, as does the fact that Plaintiff fled the scene after resisting arrest.
Considering the totality of the circumstances, the Court must next consider whether the amount of force in that situation was reasonable, which is “judge[d] from the perspective of a reasonable officer on the scene.” Perea, 817 F.3d at 1202. The Tenth Circuit has made clear that “[a]n ‘assessment of the degree of force actually used is critical to the question of whether the force was excessive.'” Id. (quotation omitted). Here, Plaintiff does not allege excessive force as a result of being struck with the taser. He alleges excessive force in connection with his seizure when he was thrown against the window with Defendant Williamson using his elbow and shoulder to pin him down at taser point, and the drawing of the taser on him. Second Am. Compl. [#11] at 4. The Court first questions, even accepting the allegations as true and construing the facts in the light most favorable to Plaintiff, whether the force used was objectively unreasonable in light of the circumstances presented to Defendant Williamson where Plaintiff was actively resisting and attempting to flee. Cf. Fisher v. City of Las Cruses, 584 F.3d 888, 892, 895-96 (10th Cir. 2009) (finding that a reasonable jury could find that the manner of handcuffing was excessive when applied to a non-threatening, cooperative petty misdemeanant who “lay bleeding on the ground, ” whose “bicep wound had swollen to the size of a grapefruit, ” who “pleaded with the officers to avoid exacerbating the injuries, and who was injured when “an officer placed a knee in [his] back to leverage his arms [due to his swollen bicep], and handcuffed him with his arms behind his back[, ]” but “hasten[ing] to add that this might [have been] a very different case” if, for example, the officers had no knowledge of the injuries or if the misdemeanant had “refused to cooperate.”) (emphasis added). Indeed, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
However, even if the allegations could be deemed to rise to the level of excessive force, the claim still fails as Plaintiff fails to allege any injury which resulted from Defendant Williamson's seizure. While he alleges that he was “slammed into a window” and a taser was pulled on him; he does not allege that Defendant actually used the taser or that he was injured from Defendant Willamson's actions, either emotionally or physically. Second Am. Compl. at 4. As discussed earlier, the Tenth Circuit generally requires “some actual injury that is not de minimis, be it physical or emotional to state an excessive force claim. Cortez, 478 F.3d at 1129. Accordingly, the Court finds that there is no constitutional violation.
While the Court acknowledges Athat there is no “'bright-line' standard dictating that force cannot be excessive unless it leaves visible cuts, bruises, abrasions or scars, ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001), the Tenth Circuit has found excessive force in situations where an injury was absent or de minimis only where the use of force was much more egregious. See id. (affirming district court's determination of excessive force when officers held children at gunpoint in connection with a raid even after the officers had gained control of the situation); Buck v. City of Albuquerque, 549 F.3d 1269, 1275, 1290 (10th Cir. 2008) (finding that despite district court's determination that any injury was de minimis, a jury could find excessive force when the plaintiff did not attempt to flee or pose a threat, and the plaintiff was pushed face down onto the pavement, kneed in the small of his back, pinned to the ground, handcuffed, and exposed to tear gas).
Moreover, Plaintiff has not shown that the law was clearly established that the use of force such as in this case by Defendant Williamson was objectively unreasonable. In fact, he did not address the issue. Cf. Myers v. Brewer, 773 Fed.Appx. 1032, 1038 (10th Cir. 2019) (holding that it was clearly established that shooting the plaintiff with a beanbag round fired from a 12-gage shotgun when he had committed to crime, possessed no weapon, and immediately complied with orders, was not objectively reasonable, and stating that is it clearly established that an officer uses excessive force when he executes a forceful takedown of a subject who at most was a misdemeanant, but otherwise poses no threat and did not resist arrest or flee) (citing Morris v. Noe, 672 F.3d 1185, 1198 (10th Cir. 2012)).
Based on the foregoing, the Court recommends that the Motion [#34] be granted as to the Fourth Amendment claims against Defendant Williamson, and that Williamson be afforded qualified immunity.
2. Defendant Anderson
Plaintiff also alleges that Defendant Anderson used excessive force when he “punch[ed] [Plaintiff] twice in the right side of the face, once in the left side, kneed [Plaintiff] twice, and punched [him] again in the rib area.” Second Am. Compl. [#11] at 4. Plaintiff further alleges that his altercation with Defendant Anderson caused a black eye and a large laceration on the left side of his shoulder. Id. Thus, Plaintiff alleges an injury as a result of the force. The question the Court must address is whether Plaintiff has adequately asserted that Defendant Anderson's use of force was unreasonable “under the facts and circumstances presented[, ]” Fogarty, 523 F.3d at 1159, considering the three Graham factors. See 490 U.S. at 396.
As discussed in the previous section, the crime at issue is alleged only to be a minor offense. Second Am. Compl. [#11] at 5. As a minor offense, this factor weighs “against the use of anything more than minimal force.” Perea, 817 F.3d at 1203.
The Court next considers the second Graham factor, i.e., whether Plaintiff posed an immediate threat to the safety of the officers and others. The Incident Report [#34-1] states that Officer Anderson knew in pursuing Plaintiff that he had been held at taser point by Corporal Williamson, and that Plaintiff had fled the scene on a bicycle. An objectively reasonable officer could find from this that Plaintiff posed an immediate threat to the officer's safety. However, there is no suggestion that Plaintiff had any type of weapon or that he had attempted to harm anyone. Accordingly, while this factor weighs in favor of some force, it would not appear to support a use of significant force.
Considering the third Graham factor, i.e., whether the suspect was actively resisting, Plaintiff alleges that the injuries caused by Defendant Anderson occurred when he was “at best passively refusing to be restrained[.]” Second Am. Compl. [#11] at 4; see Graham, 490 U.S. at 396. While the Incident Report [#34-1] asserts to the contrary and presents a very different picture as to Plaintiff's resistance, the Court must accept Plaintiff's allegations as true. See Tal, 453 F.3d at 1266 (stating that Rule 12(b)(6) motions to dismiss “are not designed to weigh evidence or consider the truth or falsity of an adequately pled complaint”) This is a different situation than the claim against Defendant Williamson as Plaintiff's allegations contradict Defendant Anderson's Incident Report [#34-2] in a significant way. From the foregoing, the Court finds that the first and third Graham factors weigh against the use of significant force, while the second factor weights in favor of using some force, but not significant force. With that assessment in mind, and considering the totality of the circumstances, the Court finds that a reasonable jury could find that punching Plaintiff twice in the right side of the face, once in the left side, kneeing Plaintiff twice, and punching him again in the rib area[, ]” Second Amended Complaint [#11] at 4, was objectively unreasonable.
The Incident Report [#34-1] suggests that Plaintiff was actively resisting by, for example, “attempting to pull [Defendant Anderson's] head/neck down into a grappling type position” and attempting to grab Anderson in what he believed “was going to be a ground fighting technique.” Id. at 10.
Nonetheless, the Court recommends that the excessive force claim against Defendant Anderson be dismissed based on the Heck doctrine. See Heck v. Humphey, 512 U.S. 477 (1994). In Heck, the Supreme Court established that a state prisoner's claim for damages is not cognizable under 42 U.S.C. §1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, ” unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated. Heck, 520 U.S. at 487. .
Plaintiff' does not reference his plea agreement in the Second Amended Complaint [#11], but the Court can take judicial notice of the criminal proceedings flowing from Plaintiff's arrest, as discussed in Section I, supra. See Plea Disposition and Related Proceedings, Ex. A to Motion [#34]. Originally, Plaintiff was charged with three counts: (1) 2nd degree assault on a Peace Officer (C.R.S. §18-3-203(1)(f)); (2) Resisting Arrest (C.R.S. §18-8-102(1)(a)); and (3) theft between $50-299 (C.R.S. §18-4-401(2)(c)). See Statement of Plea Disposition [#34-1] at 2; Incident Report [#34-2]. Plaintiff entered a Plea Disposition, and in so doing pled a plea of nolo contendere to a fourth count- "Assault in the Second Degree, a Class Four Felony” (C.R.S. §18-3-20 3(1)(i)). As part of the plea agreement, the original counts were dismissed. A person commits the crime of assault in the second degree if:
(i) With the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.C.R.S. §18-3-20 3(1)(i)).
Given the entry of the nolo contendere plea, Plaintiff admitted that his actions were intended to cause bodily injury, that he applied pressure sufficient to impede or restrict the breathing or circulation of blood by the application of pressure to the neck or blocking the nose or mouth of Deputy Anderson, thereby causing bodily injury. This is necessarily inconsistent with Plaintiff's theory of recovery, i.e., that the force used by Deputy Anderson was excessive because it occurred when Plaintiff was, at best, passively resisting arrest, Second Amended Complaint [#11] at 4. Plaintiff's “version of events[, ]” that he only passively resisted arrest, could not sustain the elements of [Assault in the Second Degree] under Colorado law and the factual basis for [Plaintiff's] plea.” Havens v. Johnson, 783 F.3d 776, 783 (10th Cir. 2015). Further, Defendants represent, and Plaintiff does not dispute, that Plaintiff's conviction has not been reversed or otherwise invalidated.
While the Court acknowledges that not every excessive force claim is necessarily inconsistent with a conviction for assault on the officer, id., the Court finds that Plaintiff's claim meets this criteria.
Plaintiff argues, however, that a plea of no contest (nolo contendere) is “not an admission of guilt.” Response [#43] at 1. Plaintiff further asserts that, by its nature, the plea “is saying that I cannot present sufficient evidence to dispute the claim in court.” Id. The Court rejects Plaintiff's argument. A plea of nolo contendere (“no contest”), as opposed to a guilty plea, is a distinction without a difference, and Plaintiff cites no legal authority to suggest otherwise. Under a Heck analysis, a plea of “nolo contendere” is treated in the same fashion as a “guilty plea”-both types of pleas are incompatible with Plaintiff's § 1983 claim. See Havens v. Johnson, 783 F.3d 776, 784 (10th Cir. 2015) (citing North Carolina v. Alford, 400 U.S. 25, 35-36 (1970) (accepting a plea of nolo contendere, the Court did not think it constitutionally significant that the defendant's plea was denominated by a plea of guilty rather than a plea of nolo contendere finding an express admission of guilt . . . is not a constitutional requisite to the imposition of criminal penalty). Even within the context of an “Alford plea” (a plea “in which a defendant may maintain their innocence while foregoing his right to a trial”), courts have applied Heck to bar §1983 claims. See e.g., Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir. 2013) ("We agree with the district court that [the plaintiff's] abuse of process, false imprisonment, and conspiracy claims are barred by Heck. All three claims rest on [the plaintiff's] allegation that the charges for which he entered an Alford plea were false."); Green v. Chvala, 567 Fed.Appx. 458, 459 (7th Cir. 2014) (holding that "[l]ike any plea, an Alford plea results in a conviction to which Heck applies).
Wirsching v. Colorado, 360 F.3d 1191, 1204 (10th Cir. 2004).
The Court therefore recommends that the Motion [#34] be granted as to Plaintiff's Fourth Amendment excessive force claim as to Defendant Anderson, and that this claim be dismissed.
III. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion to Dismiss [#34] be GRANTED, and that the claims against Defendants be dismissed.
IT IS HEREBY ORDERED that, pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
According to the Incident Report [#34-2], Defendant Williamson he was dispatched to the report of a theft in progress at the Quality Inn in Fort Collins. Id. at 6. It was reported that a transgender male guest, who later turned out to be the Plaintiff, had stolen a woman's clothing from the laundry room, was wearing that clothing, and was “potentially trying to leave the property.” Id. A deputy aired over the radio that the suspect had taken a bike that was not his from another motel. Id. Officer Andersons's Incident Report states that he responded in his “marked patrol vehicle with the lights and sirens on[, ]” that the person on the bicycle did not initially stop, and that the suspect then “stopped and flipped the bicycle around in a fast, aggressive [sic] manner.” Id. at 10. Officer Anderson placed Plaintiff at gunpoint, advised him that he was under arrest and to get onto the ground, and he did not comply. Id. Fearing Plaintiff would ride away again, Defendant Anderson “grabbed h[is] left arm in a[n] arm bar control hold and attempted to take h[im] to the ground.” This resulted in Plaintiff “violently and actively resisting[, ]” and the use of force at issue followed. With the assistance of a citizen who “helped to control” Plaintiff, Plaintiff was put into handcuffs. Id. Officer Anderson stated that, as a result of the altercation, he had cuts to his arm, hand, and knees, as well as abrasions and redness on the neck. Id. Plaintiff “was booked into the Jail with the charges of Second-Degree Assault on a Peace Officer, Resisting Arrest, and Theft.” Id. at 8. The force used by Defendants as alleged in the Second Amended Complaint [#11] and the Incident Report [#34-2] is discussed in more detail in Section III, infra.
While the Incident Report refers to Plaintiff as a “she[, ]”, using feminine pronouns, the Court refers to Plaintiff as a male since that is consistent with his pleadings in this case.