Opinion
Civil Action 22-cv-00106-CNS-SKC
03-13-2023
CLAYTON LOUIS SHRIVER, Plaintiff, v. CITY OF WESTMINSTER, in its official capacity; OFFICER MICHAEL OWEN, in his individual capacity; and OFFICER TYLER FARSON, in his individual capacity, Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS [DKT. 44]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE.
Upon referral and before the Court are Defendants' (Joint) Motion to Dismiss Plaintiff's Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), for failure to plausibly state a claim upon which relief could be granted. [Dkt. 44.] Defendants assert Plaintiff's Fourth Amendment claims of excessive force, unlawful arrest/seizure, and municipal liability lack sufficient facts to be plausible, and the individual Defendants are entitled to qualified immunity. [Id.] Plaintiff filed a response opposing the Motion. [Dkt. 50.]
The Court carefully reviewed the Motion, Plaintiff's complaint, applicable law, and any related briefs in the docket. No hearing is necessary. The Court RECOMMENDS the Motion to Dismiss be GRANTED in part and DENIED in part for the reasons further discussed below.
I. Background
A. The Second Amended Complaint
The Court draws the following allegations from Plaintiff's Second Amended Complaint (SAC), taking all well-pleaded factual allegations as true and construing them in the light most favorable to Plaintiff.[Dkt. 33.] Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). This action stems from a May 5, 2020, altercation between Plaintiff and two Westminster Police Department (WPD) officers at a McDonald's restaurant located next to the entrance of a Walmart store. [Id. at ¶ 12.]
Defendants cite to, and rely on, portions of Plaintiff's original complaint in support of their Motion. [Dkt. 44 n.2.] While it is true the Court may take judicial notice of matters in the docket, that is not true of the original complaint because Plaintiff filed a SAC. “An amended complaint supersedes the original complaint and renders the original complaint of no legal effect.” See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990). Therefore, Defendants' reliance on allegations in the original complaint is improper.
Plaintiff, a 79-year-old retired electrician, alleges feeling illwhen he decided to sit on a stool at McDonald's while he waited for his partner to finish shopping. [Id. at ¶ 12, 16.] At some point, McDonald's staff told Plaintiff he needed to either purchase something or leave the store, but Plaintiff alleges another Walmart staff also said he could sit and wait for 15 minutes. [Id. at ¶ 18.] However, Plaintiff says could not make out what the staff members were saying to him because of his hearing loss and cognitive impairments. [Id. at ¶ 19.] Thus, perceiving the staff could not understand him, Plaintiff raised his voice to explain he needed medical help, but he was unable to speak clearly due to his condition. [Id. at ¶¶ 19. 20.]
The SAC alleges Plaintiff suffers from a host of pre-existing medical conditions, multiple closed head injuries and traumatic brain injuries, memory loss, organic mood disorder, peripheral neuropathy, bilateral osteoarthritis of the knees, bilateral total knee arthroplasty, left-sided sensorineural hearing loss with right side restricted hearing, and spinal stenosis of the lumbar spine with neurogenic claudication. [Dkt. 33 ¶ 8.]
Next, Walmart loss-prevention personnel alerted Defendant Officer Owen (Officer Owen), who was at Walmart on another call, to head over to McDonald's. [Id. at ¶ 22.] The officer arrived and saw Plaintiff speaking loudly and appeared to have trouble understanding what Plaintiff was saying. [Id. at ¶ 27.] Notwithstanding Plaintiff's apparent trouble with his speech, Plaintiff managed to provide Officer Owen with his name and told the officer he was suffering from a medical condition, which is why he needed to sit down. [Id. at ¶ 28.] Plaintiff sat as the McDonald's staff complained about Plaintiff to Officer Owen. [Id., at ¶¶ 29, 30.]
A short time later, Plaintiff told the staff, “Wait a minute, I'm in terrible pain[,]” and then started listing the numerous conditions he suffered from, i.e., severe arthritis, diabetes, neuropathy, gout, polymyalgia rheumatica, bipolar disorder and three brain injuries. [Id. at ¶ 31.] Having committed no crime whatsoever, Plaintiff stood up and attempted to walk out of the McDonald's and away from Officer Owen. [Id. at ¶33.] At that point, Officer Owen grabbed Plaintiff and violently took him to the ground. [Id., ¶¶ 35, 36, 37.] Writhing in pain from the throwdown, Plaintiff stiffened up and tried to roll over. [Id. at ¶ 39.] Officer Owen then grabbed his Taser and tased Plaintiff in the stomach, even though Plaintiff was unarmed, on the ground, and had not committed any crimes. [Id. at ¶ 40.] Plaintiff says after being tased, he experienced significant pain and suffering. [Id. at ¶ 44.] After Officer Owen tased him, Plaintiff called the officer a “little shit” as he tried to pull the painful probes out of his body. [Id. at ¶ 45.]
Defendant Officer Farson (Officer Farson) watched Officer Owen's and Plaintiff's initial interaction on Walmart's surveillance cameras before deciding to head over and help, and as he arrived, Officer Owen had restrained Plaintiff to the ground. [Id. at ¶¶ 48, 49, 50.] Despite seeing Plaintiff was elderly, unarmed, and incapacitated on the ground, Officer Farson did not assess the situation and instead, he immediately began to help Officer Owen in arresting Plaintiff. [Id. at ¶ 51.] Both officers forced Plaintiff's arms behind his back to handcuff him, even though they lacked a legal basis to arrest him, then Officer Owen tased Plaintiff a second time in the lower back and buttocks. [Id. at ¶¶ 52-53.] As a result, Plaintiff alleges the second tase caused him severe pain and bleeding where the taser probes injected into his body. [Id. at ¶ 54.] Afterward, Defendants handcuffed Plaintiff. [Id. at ¶ 55.] The SAC contains photographic images of the physical injuries Plaintiff alleges to have suffered from Defendants' use of excessive force.
Plaintiff seeks relief by asserting six claims of excessive force as follows: three claims against Officer Owen, only, related to the initial takedown and seizure, the first and second tasing (Claims 1-3); a claim for failure to intervene against Officer Farson only (Claim 6); and two claims against both Defendants labeled “handcuffing and arrest” (Claims 4-5). Last, Plaintiff asserts a claim against the WPD for municipal liability (Claim 7).
B. The Surveillance Video
Some of Plaintiff's allegations in the SAC reference surveillance video evidence, that captured the altercation, which Plaintiff argues the video shows. [Id. at ¶¶ 25, 26, 36, 126.] As a result, Defendants submitted the video as an exhibit to their Motion. They argue the Court can review the video without converting the Motion to a motion for summary judgment because the SAC references the video. Defendants also make their arguments of the events based on their assessment of what the video shows.
The Court reviewed the video and finds the footage is unhelpful to resolve the Motion. Reviewing the footage in the light most favorable to Plaintiff, it is inconsistent with Defendants' characterization(s) of the events. The Court viewed footage showing Plaintiff sitting on the stool, wearing a medical or similar mask, with one hand to his mouth and the other under his nose. He appeared to be in distress of some sort. At one point he gets up, turns his back to Officer Owen, and points at a staff person while saying something. Officer Owen then shows up behind Plaintiff, places his hands on Plaintiff's shoulders, and helps Plaintiff to sit on the stool.
Then, the two appear to resume talking as Plaintiff starts counting off or listing something with his right-hand fingers. Then as Plaintiff continued to appear in distress, at one point he placed his hand over his face and then started counting with his fingers again. At some point Plaintiff stands and tries to walk past Officer Owen. Officer Owen then stood in front of Plaintiff and placed his hands on Plaintiff's arms. Plaintiff shrugged off one of the officer's hands, stepped back, and positioned his feet parallel to continue facing Officer Owen.Officer Owen then guided Plaintiff to the stool as Plaintiff resumed sitting while Officer Owen continued to hold Plaintiff and pushed him off the stool and the officer eventually took Plaintiff to the ground.
The Court did not observe that Plaintiff “assum[ed] a fighting stance,” as Defendants argue.
The Court was unable to review what happened after Plaintiff's takedown because the footage was largely obstructed after Officer Owen and Plaintiff were on the ground. Moreover, the video has no sound. These are additional reasons why the video is unhelpful at this stage.
Because the surveillance video does not blatantly contradict the allegations in the SAC, the Court, though having reviewed the video, bases its Recommendation on the allegations in the SAC only. See, e.g., Est. of Harmon v. Salt Lake City, No. 204085, 2021 WL 5232248, at *3 (10th Cir. Nov. 10, 2021) (“In reviewing the complaint as well as the body-cam footage at this stage, one cannot say, consistent with the standards for ruling on a motion to dismiss based on qualified immunity, that the Estate's version of facts is blatantly contradicted.”)
II. Discussion
Defendants argue all of Plaintiff's claims fail for insufficiently alleging facts to plausibly assert excessive force, and thus, qualified immunity shields the individual Defendants from liability. [Dkt. 44.] They also argue Plaintiff has failed to plausibly allege a claim for municipal liability.
A. Legal Principles
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court accepts the well-pleaded facts as true and views the allegations in the light most favorable to the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). But the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard requires courts to take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a liberal one, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
2. Qualified Immunity
When a defendant raises the defense of qualified immunity, as is applicable here, the Plaintiff bears the burden to show: (1) the defendant's alleged conduct violated a constitutional right; and (2) the right was clearly established at the time of the conduct “such that every reasonable officer would have understood, that such conduct constituted a violation of that right.” Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016) (quotation omitted). If the plaintiff fails to satisfy either prong, a defendant is entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The court has the discretion to consider these prongs in any order. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
III. Analysis
A. Excessive Force Claims
Courts evaluate excessive force claims under an objective reasonableness standard judged from the perspective of a reasonable officer on the scene. Perea, 817 F.3d at 1202. To determine if an officer's actions were objectively reasonable, courts “carefully consider the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)) (quotation omitted).
1. Officer Owen's Alleged Excessive Force - Claims 1-3
a. Constitutional Violation
Taking Plaintiff's well-pleaded allegations in the SAC, and in Plaintiff's favor, the Court recommends finding the SAC plausibly alleges Officer Owen's conduct violated the Fourth Amendment - the first prong of the analysis. According to the SAC: Plaintiff sat on a stool, had not committed a crime, he was unarmed, he was in medical distress (and told Officer Owen), he got up to walk away, and Officer Owen grabbed Plaintiff and violently threw him to the ground. [See, supra.] The officer then proceeded to tase Plaintiff, and once Plaintiff was “incapacitated,” Officer Owen tased him a second time. [Dkt. 33 at ¶¶ 51-53.]
Considering the Graham factors, as is alleged in the SAC, Plaintiff had committed no crime (and at best he was a trespasser), he was sitting down as he told Officer Owen he was experiencing medical distress. And, while Plaintiff initially got up to walk away, the allegations do not suggest - from an “objective reasonableness” viewpoint - that Plaintiff was actively resisting arrest or attempting to flee to evade arrest. Nor do the allegations suggest Plaintiff posed an immediate threat to Officer Owen's safety, or the safety of others. For these reasons the Court recommends finding the SAC plausibly alleges excessive force claims against Officer Owen for having unreasonably used excessive force and thus violated Plaintiff's constitutional rights.
b. Clearly Established
Because Officer Owen raised qualified immunity as a defense, it is insufficient that the SAC plausibly alleges constitutional violations. To avoid dismissal, the plaintiff must also demonstrate that the constitutional violation was clearly established. Maresca v. Bernalillo Cty., 804 F.3d 1301, 1307 (10th Cir. 2015). That is, “[t]he contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, this means that ‘there must be a Supreme Court or Tenth Circuit decision on point ... [finding] the law to be as the plaintiff maintains.' ” Maresca, 804 F.3d at 1308 (quoting Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)). However, the standard does not require that “the very action in question has previously been held unlawful.” Anderson, 483 U.S. at 640.
At this stage, based on the SAC's allegations, Plaintiff met his burden of identifying Tenth Circuit precedent. Plaintiff first cited Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir. 2007). In that case, the Tenth Circuit relied on Graham, supra, to hold the law had clearly established “the use of a large amount of force” was least justified against nonviolent misdemeanants who did not flee or actively resist arrest. Id. at 1285. Plaintiff also cited, Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010). In Cavanaugh, the Tenth Circuit held:
Of course, we are bound by prior Tenth Circuit precedent. Following Casey's holding that the law was clearly established as of August 25, 2003, it was clearly established on December 8, 2006 that Officer Davis could not use his Taser on a nonviolent misdemeanant who did not pose a threat and was not resisting or evading arrest without first giving a warning. The district court therefore properly denied qualified
immunity.Id. at 667.
Thus, the Court agrees these cases provide a reasonable officer with notice that it is unconstitutional to use excessive or a high level of force against a non-violent misdemeanant who did not resist or evade arrest, and who posed no threat. And by applying that clearly established right to Plaintiff's allegations of non-violence, nonflight, non-crime (or a misdemeanor at best), and lack of a threat, the Court recommends finding Officer Owen is not entitled to qualified immunity at this early pleading stage.
2. Failure to Intervene - Claim 6
Plaintiff asserts a claim for failure to intervene against Officer Farson. An officer can be liable for a failure to intervene when he (1) observed a constitutional violation and (2) had a realistic opportunity to intervene. Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015); see also Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (it is well established that a police officer has a duty to intervene to prevent use of excessive force by another police officer).
Plaintiff relies, in part, on the allegations in the SAC that Officer Farson watched the initial interaction between Officer Owen and Plaintiff on the security footage. [Dkt. 33, ¶¶ 48, 49.] But the parties do not dispute that the camera footage has no sound. And as the Court noted, both Officer Owen and Plaintiff were out of view as they were on the ground. Without sound, and an obstructed view, the Court does not find the SAC plausibly alleges Officer Farson saw a constitutional violation, or that he had reason to know of a constitutional violation based on the silent video.
When Officer Farson arrived at the scene, he saw Officer Owen and Plaintiff tussling on the ground as Officer Owen tried to arrest Plaintiff. [Id. at ¶¶ 49-55.] While the SAC alleges Officer Farson “failed to assess the situation” before aiding Officer Owen in the arrest, that allegation is conclusory. Plaintiff's allegation is also somewhat contradicted by the SAC's allegation that Officer Owen was attempting to arrest Plaintiff at the time Officer Farson arrived, and Officer Farson rendered his assistance in that endeavor. [Id. at ¶¶ 51, 52.] Moreover, as discussed below, this Court previously concluded the arrest was not unlawful.
For these reasons, the Court recommends finding the SAC fails to plausibly allege Officer Farson observed or had reason to know of a constitutional violation; therefore, Claim 6 should be dismissed.
B. False Arrest/Unlawful Seizure Claims - Claims 4-5
Defendants argue Plaintiff inadequately pleaded claims for unlawful arrest. The Court agrees.
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citations omitted). “Probable cause is not a precise quantum of evidence - it does not, for example, require the suspect's guilt to be more likely true than false. Instead, the relevant question is whether a substantial probability existed that the suspect committed the crime, requiring something more than a bare suspicion.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (internal quotation marks omitted).
“To determine whether an officer had probable cause for an arrest, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” D.C. v. Wesby, 138 S.Ct. 577, 586 (2018) (cleaned up). The “arresting officer's state of mind (except for the facts that [the officer] knows) is irrelevant to the existence of probable cause.” Devenpeck, 543 U.S. at 153() (citations omitted). “Probable cause to arrest exists only when the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.” Cortez, 478 F.3d at 1116. “Probable cause is based on the totality of the circumstances[.]” Id.
The Court recommends finding Plaintiff's SAC fails to allege facts demonstrating an absence of probable cause. See, e.g., Montgomery v. Chernak, No. 18-CV-00217-REB-KLM, 2019 WL 979071, at *11 (D. Colo. Feb. 28, 2019). First, the SAC plausibly alleges Officer Owen had the requisite reasonable suspicion to detain Plaintiff for investigatory purposes. Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000) (explaining an investigative stop occurs when an officer stops and briefly detains a person for investigative purposes; noting these stops are constitutional if the officer has a reasonable suspicion supported by articulable facts that the detainee is involved in criminal activity). According to the SAC, McDonald's staff told Plaintiff to buy something or leave, but he did neither. [Dkt. 33, ¶¶ 17, 29.] After Walmart staff alerted Officer Owen to head to McDonald's, and as he arrived, he saw Plaintiff sitting at McDonald's and speaking loudly. [Id., ¶¶ 22-24, 27.] Plaintiff remained seated while McDonald's staff complained to Officer Owen about Plaintiff. [Id., ¶¶ 29, 30.] At a minimum, these facts articulate support for a reasonable suspicion of trespass under the Westminster Municipal Code, as cited by Defendants. [Dkt. 44 pp. 11-12.]
But further, while being lawfully detained for an investigatory purpose based on a reasonable suspicion of trespass, the SAC alleges Plaintiff stood up and told Officer Owen, “Okay, I'll go to my car[,]” as he “attempted to walk out of the McDonald's and away from Defendant Owen.” [Dkt. 33 ¶¶ 32, 33.] The alleged excessive force ensued from there. The Court agrees with Defendants the SAC plausibly alleges a lawful Terry stop (Terry v. Ohio, 392 U.S. 1, 26-27 (1968)). Specifically, Plaintiff attempted to walk away from Officer Owen as he conducted his investigation, thereby establishing probable cause for obstruction under the WPD's penal code. [Dkt. 44, p. 12.]
As for Officer Farson's involvement in the arrest, he benefits from the same reasonable suspicion and probable cause findings stated above. Moreover, he arrived on the scene at the precise moment when Officer Owen and Plaintiff tussled on the ground as Officer Owen tried to arrest Plaintiff. [Dkt. 33, ¶¶ 49-55.] See Rodriguez v. Chavez, 2015 WL 5174226, at *10 (D. Colo. Sept. 3, 2015) (“a reasonable officer in [the secondary officer's] situation, upon hearing and/or viewing [the primary officers] attempting to restrain plaintiff, would have proper grounds to believe that she was entitled to assist her fellow officers”); see also Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1260 (10th Cir. 1998) (“An officer who is called to the scene to [assist other officers] is not required to reevaluate the arresting officer's probable cause determination in order to protect [him]self from personal liability.”).
Based on these allegations, the Court recommends finding the SAC fails to plausibly allege claims for unlawful arrest, i.e., a violation of Plaintiff's Fourth Amendment rights. Thus, Claims 4 and 5 should be dismissed.
C. Municipal Liability - Claim 7
It is long-standing precedent that “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676 (citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978)); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989) (A governmental entity “can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue.”) (citing Monell, 436 U.S. at 694-95, 698). “[M]unicipal liability under § 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010) (internal quotation marks and citations omitted); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (“[T]he Supreme Court require[s] a plaintiff to show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.”). To establish municipal liability under Monell, a plaintiff must show (1) a municipal employee committed a constitutional violation and (2) a municipal policy or custom was the moving force behind the violation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). Thus, to defeat the Motion, Plaintiff must plausibly allege (1) an official policy or custom, (2) causation, and (3) deliberate indifference. Schneider, 717 F.3d at 769.
Based on the Court's above recommendations, the only surviving claims are Plaintiff's three excessive force claims against Officer Owen. The Court considers the municipal liability claim in light of these three claims. Moreover, the SAC expressly pleads two theories of municipal liability: (1) official policies and (2) failure to train.[Dkt. 33 ¶¶ 133-160.]
The Motion seems to believe the SAC also raises a ratification theory of municipal liability and argues for dismissal on this theory too. But in doing a word search in the SAC, the words “ratify,” “ratification,” “ratified,” or any other variations on the word, do not appear in the pleading. And Plaintiff did not respond to Defendants' arguments (in their Motion) for dismissal based on a ratification theory. Thus, to the extent the SAC could somehow be read to plausibly allege a ratification theory, the theory has been waived. Gunn v. Carter, No. 13-CV-2197-WJM-MEH, 2016 WL 8446261, at *2 (D. Colo. Oct. 24, 2016) (“[I]nadequately briefed arguments are deemed waived.”)
1. Formal Policy
The SAC alleges the WPD'stwo written policies are the moving force behind Officer Owen's use of excessive force: (1) the use of force spectrum, and (2) the taser policy. However, these are not separate policies because they are included in the WPD's overall Use of Force policy. [Dkt. 45-2.] Plaintiff pleaded these policies in the SAC, and Defendants attached them to the Motion. [Id.] The Court may review these policies without converting the Motion to one for summary judgment because they are referenced in the SAC, are central to Plaintiff's claims, and their authenticity does not appear to be in question.
The WPD is an organization of the City of Westminster.
Plaintiff alleges the use of force spectrum is unconstitutional because it allows officers to escalate their use of force without limitation. [Dkt. 33 ¶¶ 134-140.] The Court is unpersuaded because this interpretation wholly ignores the emphasized advisement at the bottom of page 1, to wit: CONFRONTATION CAN OCCUR AT ANY POINT ON THE SPECTRUM, AND THE OFFICER'S RESPONSE TO THE PERCEIVED ACTION MUST BE OBJECTIVEL Y REASONABLE, CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES. [Dkt. 45-2, p.1 (emphases in original).] This language not only emphasizes a limitation on officers' use of force, but is also an accurate recitation of the law. Reavis estate of Coale v. Frost, 967 F.3d 978, 985 (10th Cir. 2020) (articulating the same legal standard).
Plaintiff also alleges the WPD's taser policy is unconstitutional because it does not require officers to give notice prior to tasing “even when the individual that is about to be tased is unarmed, elderly and has not committed a significant offense.” [Dkt. 33, ¶¶ 141-44.] The policy contains the following:
Taser Warning: Time permitting, a warning is encouraged to the suspect that the Taser is about to be deployed. This warning may be accompanied by an arc display and/or “painting” the suspect with the laser sight. The deterrent effect of the Taser is a valuable feature and many times compliance may be gained by such warning.[Dkt. 45-2 p. 5.] The policy also includes the following concerning the elderly: “Use Against the Elderly and Young Children: Use of the Taser on elderly persons and young children is discouraged, except in the most extreme situations.” [Id.]
Plaintiff's argument about the taser policy takes the “taser warning” provision in isolation. But because the taser policy is part-and-parcel of the Use of Force policy, the Court reads these provisions together. This includes the policy's caution about using a taser on the elderly, and the above-referenced policy-limitation that “the officer's response to the perceived action must be objectively reasonable, considering the totality of the circumstances”. Reavis estate of Coale, 967 F.3d at 985. Additionally, the policy adds (in various scenarios) that “[t]he goal of the officer . . . is to gain control of the subject while minimizing the risk of injury to the officer, the person being placed into custody and innocent bystanders.” [Dkt. 45-2 pp. 2-3.]
The cases Plaintiff relies on do not stand for the proposition that a warning is constitutionally required before deploying a taser; they merely stand for the proposition that the failure to warn before deploying a taser may violate the constitution based on the totality of the applicable circumstances.
Because the Use of Force Policy is consistent with applicable law, the Court recommends finding the SAC fails to allege a plausible Monell claim based on a formal policy. See Est. of Valverde v. Dodge, No. 16-CV-01703-MSK-MEH, 2017 WL 1862283, at *9 (D. Colo. May 9, 2017), report and recommendation adopted, 2017 WL 3530282 (D. Colo. Aug. 17, 2017) (“The Court finds that these alleged deficiencies do not render the policy constitutionally deficient.... Therefore, to the extent Plaintiff attempts to assert a municipal liability claim based on Denver's formal policies, the Court recommends holding that Plaintiff fails to state a claim.”).
2. Failure to Train
As to deliberate indifference in the context of a failure-to-train claim, a plaintiff must show facts that “a municipality [had] actual or constructive notice that its action or failure to act [was] substantially certain to result in a constitutional violation, and it consciously or deliberately [chose] to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998); see Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003) (a city had notice by showing the existence of a pattern of tortious conduct); see also Bd. Cnty. Comm'rs v. Brown, 520 U.S. 397, 409 (1997) (explaining that although rare, deliberate indifference exists when a violation of federal rights is a “highly predictable” or “plainly obvious” result of a municipality's inaction). Further, greater scrutiny is applied to the causation element when a municipality's policy or custom refers to a failure to train. See Brown, 520 U.S. at 405 (determining causation by using a rigorous standard to help ensure that a municipality does not become liable solely for the improper actions of its employee); Schneider, 717 F.3d at 770.
The SAC fails to plausibly meet this rigorous standard on the failure-to-train theory. First, to the extent this theory is based wholly or partially on the Use of Force policy, this Court has already recommended finding that the policy is not unconstitutional. See, supra. Second, the allegations in support of this theory, though numerous, are entirely conclusory. [See Dkt. 33 ¶¶ 143-56, 159-60.] Erickson v. City of Lakewood, Colorado, 489 F.Supp.3d 1192, 1208 (D. Colo. 2020) (“Missing from these allegations, however, are any supporting factual allegations providing a basis for plaintiff's failure-to-train theory; plaintiff does not set forth any facts concerning how the individual defendants were trained, who they were trained by, or why their training was deficient.”) For these reasons, the Court recommends finding the SAC fails to plausibly allege a claim for municipal liability.
Therefore, the Court RECOMMENDS the Motion be GRANTED insofar as Claims 4, 5, 6, and 7, are concerned, and DENIED regarding Claims 1, 2, and 3.
It is FURTHER ORDERED, considering this Recommendation, that Defendants' Motion to Stay Discovery [Dkt. 46] is DENIED AS MOOT.
ADVISEMENT
The parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz , 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, a failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn , 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).