Opinion
Civil Action 19-cv-02539-RM-STV
04-25-2020
ANDRE WILLIAMS, Plaintiff, v. CITY OF AURORA, COLORADO, MATTHEW MILLIGAN, DOMINIC MARZIANO, GARY RIVALE, JOE MARTINEZ, and EDWARD CLEMENTS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.
This matter comes before the Court on the Individual Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Jury Demand (the “Individual Motion”) [#23] and Defendant City of Aurora, Colorado's Motion to Dismiss Plaintiff's Amended Complaint and Jury Demand (the “City Motion”) [#25]. Both Motions have been referred to this Court. [##24, 30] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, this Court respectfully RECOMMENDS that the Individual Motion be DENIED and that the City Motion be GRANTED IN PART and DENIED IN PART.
The “Individual Defendants” include Aurora Police Officers Matthew Milligan, Dominic Marziano, Joe Martinez, Gary Rivale, and Edward Clements.
The facts are drawn from the allegations in Plaintiff's Amended Complaint [#22], which must be taken as true when considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Plaintiff is a 44-year old African American man with no criminal convictions and a history of epileptic seizure disorder. [#22, ¶ 2] On September 6, 2018, at approximately 4:51 p.m., Plaintiff was involved in a car accident near the intersection of East Alameda Avenue and South Potomac Street. [Id. at ¶ 27] Defendant Aurora Police Officers Edward Clements and Matthew Milligan, along with other officers, responded to the scene. [Id. at ¶ 30] During the course of a thirty-minute interaction, Officer Clements noticed that while Plaintiff was initially responsive to the officer, he began to act oddly. [Id. at ¶¶ 29-32] In fact, Officer Clements specifically commented that Plaintiff seemed lackadaisical and that his behavior was concerning. [Id. at ¶ 31] Officer Clements did not notice that Plaintiff's odd behavior was caused by a seizure. [Id. at ¶ 32] As a result, Officer Clements issued Plaintiff a citation for careless driving, and left him with the tow truck driver. [Id. at ¶¶ 28, 32]
Approximately thirty minutes later, the tow truck company called the Aurora Police Department (“APD”) due to Plaintiff's continuing odd behavior. [Id. at ¶ 33] The company reported that Plaintiff was not fighting, but that he was not cooperating with them. [Id. at ¶ 34] Specifically, Plaintiff was standing on the bed of the tow truck, was not getting off the truck despite being asked to do so, and was not responding to the company's requests. [Id.]
Defendant Aurora Police Officer Dominic Marziano initially responded to the scene. [Id. at ¶ 39] Officer Marziano asked Plaintiff repeatedly-at least eleven times according to his report-to get off the tow truck. [Id. at ¶ 40] Plaintiff was peaceful but non-responsive. [Id. at ¶ 41] Officer Marziano did not realize that Plaintiff was unable to respond due to his medical condition and did not ask Plaintiff whether he had any medical conditions. [Id. at ¶¶ 47-48] Instead, Officer Marziano repeatedly yelled at Plaintiff. [Id. at ¶ 47] When Plaintiff still did not respond, Officer Marziano called for backup, asking that his request be expedited because “this guy is being a pain in the butt.” [Id. at ¶ 48]
Officer Milligan was the next officer to arrive. [Id. at ¶ 50] While Plaintiff continued to exhibit classic signs of a seizure, Officer Milligan began yelling at Plaintiff, further escalating the situation. [Id. at ¶ 51] Officer Clements, along with Defendant Aurora Police Officers Gary Rivale and Joe Martinez, also responded to the scene. [Id. at ¶ 52] At no point did any of the officers ask Plaintiff whether he was suffering from a medical condition. [Id. at ¶ 53]
Eventually, Plaintiff came down from the bed of the tow truck. [Id. at ¶ 56] He did so slowly, voluntarily, and with both of his hands visible at all times. [Id.] When Plaintiff's feet hit the ground, Officer Marziano reached out and grabbed Plaintiff forcibly by the arm. [Id. at ¶¶ 57, 60] Plaintiff pulled his arm away and Officer Milligan jumped in and tackled Plaintiff from behind. [Id. at ¶ 62] The other officers then “joined the assault on [Plaintiff].” [Id. at ¶ 63] While three of the officers had Plaintiff pinned to the ground, Officer Marziano repeatedly punched Plaintiff in the head. [Id. at ¶ 65]
Plaintiff repeatedly asked the officers to stop hitting him [Id. at ¶ 66] The officers told Plaintiff to stop resisting and get on his stomach, and Plaintiff said he would. [Id. at ¶¶ 66-67] When the officers ordered Plaintiff to put his arm behind his back, Plaintiff responded, “Ok, I will, stop.” [Id. at ¶ 68] By this point, Plaintiff was bleeding from his head. [Id. at ¶ 69]
Plaintiff's body then became very still, and he repeated the word “stop” rhythmically and repeatedly. [Id. at ¶ 70] The officers responded by yelling at Plaintiff to “fucking relax” and “quit tensing up.” [Id. at ¶ 72] Plaintiff then began groaning repeatedly as the officers pulled Plaintiff's left arm behind his back. [Id. at ¶ 73] Because Plaintiff was having a seizure and could not respond to the officers' orders to stop tensing up, Officer Milligan kneed Plaintiff on the back of his thighs and buttocks three times. [Id. at ¶ 74] Plaintiff's body remained tense due to the seizure. [Id. at ¶ 77] Officer Milligan, not realizing that Plaintiff was having a seizure and instead incorrectly concluding that Plaintiff was refusing to comply with the officers' orders, stated, “I'll just Tase him.” [Id. at ¶¶ 7879] Officer Milligan then used a drive stun technique, forcing the Taser directly into Plaintiff's back. [Id. at ¶¶ 80-81] Officer Milligan Tased Plaintiff even though the officers had restrained Plaintiff on the ground with one hand behind his back. [Id. at ¶ 80] In response, Plaintiff screamed out in pain. [Id. at ¶ 84]
Following this use of the Taser, Plaintiff continued to groan incoherently. [Id. at ¶ 88] In response, the officers yelled at Plaintiff to stop resisting. [Id. at ¶ 89] The officers then successfully pulled Plaintiff's right arm behind his back, and thus had control of both of Plaintiff's arms behind his back. [Id. at ¶ 90] Nonetheless, Officer Milligan again used a stun drive on Plaintiff, pressing the Taser directly into Plaintiff's back. [Id. at ¶ 91] Once again, Plaintiff screamed out in pain. [Id. at ¶ 92]
Following this second use of the Taser, the officers handcuffed Plaintiff. [Id. at ¶ 93] The officers then threatened to tie Plaintiff's arms and feet together behind his back. [Id. at ¶ 94] Plaintiff continued to groan and did not make a coherent response. [Id. at ¶ 95] The officers then asked Plaintiff if he was done and what he was on, but Plaintiff was unable to respond. [Id. at ¶¶ 96-97]
As a result of the officers' actions, Plaintiff was hospitalized. [Id. at ¶ 125] At the hospital, Plaintiff received medical treatment for his seizure and for injuries inflicted by the officers. [Id. at ¶¶ 126-27] The officers charged Plaintiff with one count of resisting arrest, a class 2 misdemeanor, and one count of obstructing a peace officer, a class 2 misdemeanor. [Id. at ¶ 128] On February 28, 2019, the City Attorney dismissed all charges against Plaintiff. [Id. at ¶ 130]
Aurora police officers have previously been accused of reacting improperly and with excessive force to an individual having a seizure. In Burrell v. City of Aurora, Civil Action No. 11-cv-02766-RPM (D. Colo. 2011) (“Burrell Action”), the plaintiff alleged that on December 18, 2010, “Aurora Police Officers brutally assaulted an innocent, unconscious man whose family had called 911 for help after he suffered a seizure.” [Burrell Action, Docket No. 1, ¶ 1] On January 22, 2013, Aurora City Attorney Charles Richardson entered a settlement agreement in the Burrell Action. [#22, ¶ 16] In addition to a monetary payment, the Burrell settlement agreement contained the following nonmonetary requirement: “[T]he parties acknowledge that the City of Aurora shall provide annual seizure-related training to all of its peace officers by July 2013, and that upon the completion of the seizure-related training, all peace officers must satisfactorily pass a test indicating retention of the seizure-related training.” [Id.] This non-monetary provision of the Burrell settlement agreement did not contain an explicit expiration date. [Id. at ¶ 17]
Plaintiff cites to and relies upon the Burrell Action in his Amended Complaint. [#22, ¶¶ 16-26] The Court takes judicial notice of the proceedings in the Burrell Action. “[F]acts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). “This includes another court's publicly filed records ‘concerning matters that bear directly upon the disposition of the case at hand.'” Hodgson v. Farmington City, 675 Fed.Appx. 838, 841 (10th Cir. 2017) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)).
Initially, Aurora complied with the seizure-related training. [Id. at ¶¶ 19, 22] A video entitled “It Could be Epilepsy” used as part of Aurora's seizure-related training describes the repetitive type of behavior that Plaintiff exhibited as one of several “automatic behaviors” that can be exhibited by someone having a seizure. [Id. at ¶ 44] Seizure-related training also informed officers that going “hands on” with someone in the midst of a seizure can exacerbate the symptoms of a seizure and cause someone in the throes of a seizure to act aggressively, not out of anger or resistance, but because that person is not in control of their emotional and physical responses. [Id. at ¶ 59]
Each of the Defendants in the instant matter initially attended annual seizure-related training and satisfactorily completed the seizure-related training test. [Id. at ¶ 23] ¶ 2014, however, City Attorney Richardson was replaced by City Attorney Michael Hyman. [Id. at ¶ 20] City Attorney Hyman immediately chose to disregard the seizure training component of the Burrell settlement agreement and, in 2016, Aurora completely ended its annual seizure-related training. [Id. at ¶¶ 21, 25] As a result, none of the officers in the instant action attended seizure related training after 2014. [Id. at ¶ 24]
Plaintiff alleges that Aurora and APD “have consistently failed to adequately investigate or to take corrective action to prevent excessive force violations from happening in the future.” [Id. at ¶ 107] Plaintiff further alleges that Aurora and APD “do not properly document incidents of excessive force, do not properly investigate complaints of excessive force, and engage in a policy, pattern, practice, and custom of failing to reprimand or discipline police officers and other agents of law enforcement for excessive force violations.” [Id. at ¶ 109] According to Plaintiff, these failures amounted to a “tacit approval of the use of excessive force.” [Id. at ¶ 110]
On September 6, 2019, Plaintiff filed the instant action. [#1] Plaintiff's Amended Complaint brings three claims: (1) excessive use of force against the Individual Defendants, (2) failure to provide seizure-related training as mandated by the Burrell settlement agreement against Aurora, and (3) pattern and practice of excessive force against Aurora. [See generally #22] On December 30, 2019, the Individual Defendants and Aurora moved to dismiss all of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(6). [##23, 25] Plaintiff has responded to the Motions [##41, 42], and Defendants filed replies [##43, 44].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The Court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. ANALYSIS
As detailed above, Plaintiff brings a single claim of excessive force against the Individual Defendants. [#22 at 15-16] Plaintiff brings two claims against Aurora, both pursuant to Monell v. N.Y. Dep't of Soc. Servs., 436 U.S. 658 (1978). [#22 at 16-19] Plaintiff's Monell claims allege: (1) failure to provide seizure-related training as mandated by the Burrell settlement agreement, and (2) pattern and practice of excessive force. [Id.] Defendants have moved to dismiss each of Plaintiff's claims. [##23, 25] The Court addresses each claim in turn.
A. Excessive Force Claim Against the Individual Defendants
Plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by the Individual Defendants, in violation of Plaintiff's Fourth Amendment rights. [#22, 15-16]] “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV.
“[C]laims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “The reasonableness of the use of force is evaluated under an ‘objective' inquiry that pays ‘careful attention to the facts and circumstances of each particular case.'” Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Mendez, 137 S.Ct. at 1546 (quotation omitted). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
In the Individual Motion, the Individual Defendants contend that they are entitled to qualified immunity. [#23 at 3-14] “Qualified immunity ‘protects government officials 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.'” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) that the right at issue was “clearly established” at the time of the defendant's alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).
The requirement that the right be clearly established presents a “demanding standard” intended to ensure the protection of “all but the plainly incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established. In the Fourth Amendment context, the result depends very much on the facts of each case, and the precedents must squarely govern the present case.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Wesby, 138 S.Ct. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted). “[T]he ‘specificity' of the rule is especially important in the Fourth Amendment context.” Id. (quotation omitted).
1. Constitutional Violation
In analyzing the Individual Defendants' use of force, the Court must look to the reasonableness of their actions. As the Tenth Circuit explained:
“In determining the reasonableness of the manner in which a seizure is effected, ‘[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'” [Scott v. Harris, 550 U.S. 372, 383 (2007)] (quoting United States v. Place, 462 U.S. 696, 703 [] (1983)). This balancing test “requires careful attention to the facts and circumstances of each particular case, 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.” Graham, 490 U.S. at 396 [] (emphasis added). And our balancing must always account “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.” Id. at 397 []. Ultimately, “the inquiry is
always whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force.” [Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)].Pauly v. White, 874 F.3d 1197, 1214-15 (10th Cir. 2017), cert. denied, 138 S.Ct. 2650 (2018). Here, weighing the three Graham factors, the Court concludes that the allegations are sufficient to plausibly allege that the Individual Defendants used excessive force.
In their briefing on the Individual Motion, the parties have not distinguished among the actions of the Individual Defendants. [##23, 42, 43] It is of course conceivable that some of the officers violated Plaintiff's constitutional rights, while others did not. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”) Nonetheless, because the parties have briefed the individual excessive force claims without distinguishing among the actions of each individual officer, the Court will do the same. See Zahourek Sys., Inc. v. Balanced Body Univ., LLC, No. 13-CV-01812-RM-CBS, 2016 WL 1377165, at *13 (D. Colo. Apr. 7, 2016) (“[I]t is not the Court's obligation to create legal arguments for [the parties].”). Further, the Court acknowledges that even officers who do not personally commit an act of excessive force, may nonetheless be liable for failing to intervene. See Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (“[A] law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983.”).
a. The First Graham Factor
The first Graham factor looks to the severity of the crime at issue. 490 U.S. at 396. Here, the underlying crime initially being investigated was a careless driving traffic offense, for which Officer Clements issued Plaintiff a citation, and left the scene. [#22, ¶¶ 28, 32] In response to a call from the tow truck company that Plaintiff was not cooperating with them, the Individual Defendants returned to the scene and had the encounter with Plaintiff that forms the basis of his claims in this lawsuit. [Id. at ¶¶ 34, 35] As a result of that encounter, Plaintiff ultimately was charged with two misdemeanor offenses: one count of resisting arrest and one count of obstructing a police officer. [Id. at ¶ 128] Even accepting that the Individual Defendants had probable cause to believe Plaintiff committed these offenses, both charges were based upon Plaintiff's passive resistance.[Id. at ¶¶ 56, 62-63, 65-68, 74, 77-78] Because the officers were arresting Plaintiff for, at most, a non-violent misdemeanor, the first Graham factor weighs in favor of Plaintiff. See Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th Cir. 2009) (finding first Graham factor weighed in favor of plaintiff where most severe crime he could have committed was a petty misdemeanor (collecting cases)); Long v. Fulmer, 545 Fed.Appx. 757, 760 (10th Cir. 2013) (affirming district court's conclusion that first Graham factor weighed slightly in favor of the plaintiff when the plaintiff was being arrested for a non-violent misdemeanor); see also Morris v. Noe, 672 F.3d 1185, 1198 (10th Cir. 2012) (“Graham establishes that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest.” (quotation omitted)).
The Amended Complaint alleges that Plaintiff “pulled his arm away” when Officer Marziano “grabbed [Plaintiff] forcibly by the arm.” [#22, ¶¶ 60, 62] Viewing these allegations in the light most favorable to Plaintiff, as the Court must at this stage, they do not support an inference that Plaintiff was actively resisting arrest or reacting violently toward the Individual Defendants. See Long v. Fulmer, 545 Fed.Appx. 757, 760 (10th Cir. 2013) (affirming district court's conclusion that first Graham factor weighed slightly in favor of plaintiff where he had “protested and pulled away” from officer seeking to arrest him on non-violent misdemeanor charges).
b. The Second Graham Factor
The second Graham factor asks whether the suspect posed an immediate threat to the safety of the officers or others. 490 U.S. at 396. This factor “is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer's use of force.” Pauly, 874 F.3d at 1216 (quotation omitted). Here, this factor weighs heavily in Plaintiff's favor. Plaintiff exited the bed of the tow struck slowly, with both of his hands visible at all times. [#22, ¶ 56] While Plaintiff pulled his arm away [id. at ¶ 62], the Amended Complaint does not allege that he took any aggressive actions against the officers. Moreover, prior to being Tasered he was attempting to roll on his stomach, had one arm behind his back (prior to the first Tasering) and then both arms behind his back (prior to the second Tasering). [Id. at ¶¶ 67, 80, 91] Given that there is no indication from the Amended Complaint that Plaintiff posed any threat to the five responding officers-despite the officers allegedly tackling Plaintiff, repeatedly punching him in the face, and twice deploying a Taser-the second Graham factors weighs in Plaintiff's favor. Long, 545 Fed.Appx. at 760-61 (finding second Graham factor weighed in favor of plaintiff where plaintiff did not pose active threat to officers, even though plaintiff did provide some minimal resistance).
c. The Third Graham Factor
The third Graham factor asks whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396. Here, the third Graham factor may “weigh[] slightly in [the officers'] favor, as [P]laintiff alleges he . . . pulled away.” Long, 545 Fed.Appx. at 760 (quoting, with approval, district court's decision). “[H]owever, in the light most favorable to [P]laintiff, [P]laintiff has alleged only minimal resistance. On the other hand, the amount of force allegedly used by [the officers] was considerable.” Id. (quoting, with approval, district court's decision). Thus, at best, the third Graham factor weighs slightly in the Individual Defendants' favor.
d. Conclusion
As detailed above, the first and second Graham factors weigh in favor of Plaintiff.
While the third factor may slightly favor the Individual Defendants, it is insufficient to overcome the other two factors. This is especially true given that the second factor, which soundly favors Plaintiff, “is undoubtedly the most important . . . factor in determining the reasonableness of an officer's use of force.” Pauly, 874 F.3d at 1216 (quotation omitted)
Ultimately, the Court must review Plaintiff's excessive force claims under a standard of objective reasonableness, “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Here, it was the middle of the day. There were five officers present. Plaintiff did not have any weapons and was being investigated for passively refusing to exit the bed of a tow truck.
Once Plaintiff did exit, slowly and with his hands raised, officers tackled Plaintiff and punched him repeatedly in the head. They then Tasered Plaintiff twice-once when he was restrained on the ground with one hand behind his back and a second time when he was restrained on the ground with both hands behind his back. Such actions, if proven, are not objectively reasonable.
2. Clearly Established Law
The Court likewise concludes that the law was clearly established that the Individual Defendants' alleged actions violated Plaintiff's Fourth Amendment rights. Plaintiff alleges that, as soon as he stepped down from the bed of the tow truck slowly and with his hands up, the Individual Defendants “began using violence against him.” [#22, ¶ 57] Specifically, he alleges that Officer Marziano forcibly grabbed his arm, followed by Officer Milligan tackling him from behind, and the remaining Individual Defendants joining in to pin him to the ground and assault him-all while he was expressing his willingness to comply. [Id. at ¶¶ 60, 62, 63, 65, 66, 67] In Morris, officers responding to a domestic disturbance took a man to the ground after he asked one of the men involved in the domestic disturbance a “confrontational question” and walked toward the officers. 672 F.3d at 1196. The man taken down by the officers, who was at most suspected of misdemeanor assault, carried no weapon, made no overt threats, and did not struggle with the officers before or after they took him to the ground. Id. Based upon these facts, the Tenth Circuit concluded that the officers had violated the man's rights by forcibly taking him to the ground and further found that it was clearly established that officers could not forcefully takedown a misdemeanor suspect who posed no threat to the officer or others and who was neither resisting nor seeking to flee arrest. Id. at 1196, 1198.
In Casey v. City of Fed. Heights, an officer grabbed the plaintiff, who was suspected of committing a misdemeanor by removing court records, and then, after the plaintiff moved his arm and started to walk away from the officer, the officer jumped on the plaintiff's back and tackled him. 509 F.3d 1278, 1280 (10th Cir. 2007). The officer took these actions “without ever telling [the plaintiff] that he was under arrest” or “giv[ing] [the plaintiff] a chance to submit peacefully to an arrest.” Id. at 1282. The Tenth Circuit concluded that the officer's conduct in grabbing and tackling the plaintiff “was not reasonable for a nonviolent misdemeanant who was neither dangerous nor fleeing.” Id.
In Long, when an officer attempted to place the plaintiff under arrest for, at most, misdemeanor offenses, the plaintiff “protested and pulled away, ” and the officer then tackled the plaintiff to the ground. 545 Fed.Appx. at 760. The Tenth Circuit affirmed the trial court's finding that the officer's actions in tackling the plaintiff constituted excessive force. Id. at 761. That holding-given that the decision was unpublished-is of limited value in forming clearly established law. Importantly, however, the Tenth Circuit found that, pursuant to Morris and Casey, at the time of the incident in Long, the plaintiff's “right to be free from a forceful takedown [under the circumstances alleged], even where he exercised some resistance, was clearly established.” Id.
Although the Tenth Circuit has advised that “an unpublished opinion provides little support for the notion that the law is clearly established on a given point, ” it “ha[s] never held that a district court must ignore unpublished opinions in deciding whether the law is clearly established.” Morris, 672 F.3d at 1197 n.5. Thus, “[a]lthough not dispositive of [the Court's] inquiry because of its unpublished status, [the Long decision] need not be ignored in determining whether the law was clearly established.” Estate of Booker v. Gomez, 745 F.3d 405, 428 n.29 (10th Cir. 2014).
The Court thus finds-pursuant to Morris, Casey, and Long and viewing all allegations in the light most favorable to Plaintiff-that the Individual Defendants violated Plaintiff's clearly established Fourth Amendment rights by tackling him to the ground, pinning him down, and punching him in response to Plaintiff, at most, committing a nonviolent misdemeanor and pulling away when forcibly grabbed. See, e.g., Vallejo ex rel. A.V. v. Duchesne Cty., No. 2:17-CV-0776, 2019 WL 4962592, at *10 (D. Utah Oct. 8, 2019) (finding law clearly established under Morris that officer used excessive force by tackling non-threatening plaintiff who struggled with officer in response to officer grabbing his arm); Nilges v. Gilmour, No. 16-CV-00884-MEH, 2018 WL 1610303, at *6 (D. Colo. Apr. 2, 2018) (finding “law was clearly established in 2014 that an officer engaged in excessive force in violation of the Fourth . . . Amendment by forcefully taking down a nonviolent person who was perceived to be, at most, a misdemeanant, who posed no threat to the officer, and who was neither resisting nor attempting to flee.”); Emery v. Salt Lake City Corp., No. 2:13-CV-00860-RJS, 2018 WL 1620928, at *14 (D. Utah Mar. 30, 2018) (finding that Casey “clearly established . . . right under the Fourth Amendment to be free from . . . tackling, punching, and Tasing” where suspect “was not threatening anyone or fleeing, had no weapons, had not disobeyed any instructions from the Officers, and was in no danger of harming anyone”).
Moreover, the Individual Defendants' alleged misconduct did not stop there. Even after Plaintiff was pinned to the ground and expressed his intent to comply, the Individual Defendants allegedly continued to knee and assault Plaintiff and twice Tasered him. [#22, ¶¶ 67, 68, 74, 80, 86, 91] Tenth Circuit decisions “have consistently concluded that a suspect's initial resistance does not justify the continuation of force once the resistance ceases.” McCoy v. Meyers, 887 F.3d 1034, 1051 (10th Cir. 2018) (collecting cases). At the time Officer Milligan Tasered Plaintiff the first time, Plaintiff allegedly was “restrained on the ground with one hand behind his back” and had verbally expressed his willingness to comply with the officers. [#22, ¶¶ 68, 80] Even after Plaintiff was Tasered, the Individual Defendants allegedly “continued their assault” on Plaintiff. [Id. at ¶ 86] By the time Officer Milligan deployed the Taser a second time, Plaintiff was “pinned . . . down” and the officers had “control of both of [Plaintiff's] arms behind his back.” [Id. at ¶ 91] “Plaintiff was not shouting, was not attempting to run, and was not doing anything that could be interpreted as attempting to flee. The most [Plaintiff] did was that initial flinching movement of his arm.” [Id. at ¶ 87] The Amended Complaint does not allege that Officer Milligan warned Plaintiff prior to deploying the Taser either time.
Although the Amended Complaint alleges that Officer Milligan told his fellow officers, “I'll just [T]ase him, ” prior to deploying the Taser the first time, there is no indication that the comment was delivered as a warning to Plaintiff or that Officer Milligan delayed between making the comment and deploying the Taser. [#22, ¶¶ 79-80]
The law has been clearly established since at least 2003 that a police officer “could not use his Taser on a nonviolent misdemeanant who did not pose a threat and was not resisting or evading arrest without giving a warning.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 667 (10th Cir. 2010) (citing Casey, 509 F.3d at 1282-84); see also Emery, 2018 WL 1620928, at *14 (finding that Casey “clearly established . . . right under the Fourth Amendment to be free from . . . tackling, punching, and Tasing” where suspect “was not threatening anyone or fleeing, had no weapons, had not disobeyed any instructions from the Officers, and was in no danger of harming anyone”); Simmons v. Hinton, No. cv-13-2566-CMA-MJW, 2015 WL 1041583, at * 2, 6 (D. Colo. Mar. 5, 2015) (finding law clearly established that officer's kneeing and punching of plaintiff in the face and continued use of Taser constituted excessive force, even though plaintiff was initially non-compliant).
In Casey, after the officer had tackled the plaintiff to the ground, another officer arrived on the scene and Tasered the plaintiff without providing any warning. 509 F.3d at 1285. The Tenth Circuit concluded that the officer's use of the Taser constituted excessive force, in part because “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force-or verbal command-could not exact compliance.” Id. at 1286. The Tenth Circuit further held that the law was clearly established at the time of the incident-August 25, 2003-that the officer's use of the Taser under those circumstances violated the plaintiff's Fourth Amendment rights. Id. at 1279, 1286.
Accordingly, the Court finds that Plaintiff has plausibly alleged actions by the Individual Defendants that violated Plaintiff's clearly established Fourth Amendment rights. The Court thus respectfully RECOMMENDS that the Individual Motion be DENIED.
B. Monell Claims
Plaintiff brings two Monell claims against Aurora. [#22, 16-19] Plaintiff's Monell claims allege: (1) failure to provide seizure-related training as mandated by the Burrell settlement agreement, and (2) pattern and practice of excessive force. [ Id. ]
“[Municipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff.” Fofana v. Jefferson Cty. Sheriff's, No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, to establish a municipality's liability, the plaintiff must demonstrate that a municipal policy or custom directly caused his injury. Id.
“A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). After identifying an official policy or custom, the plaintiff must demonstrate causation by showing that the policy or custom “is the moving force behind the injury alleged.” Cacioppo v. Town of Vail, 528 Fed.Appx. 929, 931 (10th Cir. 2013) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (same). Finally, the plaintiff must demonstrate “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Cacioppo, 528 Fed.Appx. at 931 (quoting Schneider, 717 F.3d at 769).
1. Failure to Provide Seizure-Related Training
Claim Two alleges that Aurora is liable for its failure to provide seizure-related training as mandated by the Burrell settlement agreement. [#22 at 17-18] In his Response, Plaintiff makes clear that he is not alleging that Aurora owed him a duty as a third-party beneficiary to the Burrell settlement agreement. [#41 at 12] Rather, he argues that Aurora's decision to stop the training mandated by the Burrell settlement agreement demonstrates deliberate indifference to Plaintiff and others suffering from seizure disorders. [ Id. ]
“A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact, ” because “[o]nly where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom.'” City of Canton v. Harris, 489 U.S. 378, 388-89 (1989). Deliberate indifference is a “stringent standard, ” requiring the plaintiff to demonstrate that “the City had ‘actual or constructive notice that its action or failure to act [was] substantially certain to result in a constitutional violation' and ‘consciously or deliberately [chose] to disregard the risk of harm.'” Murphy v. City of Tulsa, 950 F.3d 641, 651 (10th Cir. 2019) (quoting Barney, 143 F.3d at 1307).
“A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (quotation omitted). “If a [training] program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for.” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997). The decisionmakers' “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action-the ‘deliberate indifference'- necessary to trigger municipal liability.” Id. “[T]he existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the moving force behind the plaintiff's injury.” Id. at 407-08 (quotation omitted). “Deliberate indifference ‘may be found absent a pattern of unconstitutional behavior' only in ‘a narrow range of circumstances' where ‘a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality's action or inaction.'” Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quoting Barney, 143 F.3d at 1307-08).
Plaintiff has failed to satisfy this burden with respect to the APD's alleged lack of annual seizure-related training. Beside the instant case, Plaintiff has identified only a single other incident in which anyone alleged that APD officers violated an individual's civil rights by failing to recognize symptoms of a seizure. [#22, ¶¶ 16-26 (citing the Burrell Action)] That incident occurred nearly eight years before the incident giving rise to the instant action. [Compare Burrell Action, Docket No. 1, ¶ 1 (alleging an incident date of December 18, 2010) with #22, ¶ 3 (alleging an incident date of September 6, 2018)] Moreover, the Amended Complaint alleges that Aurora stopped complying with the Burrell training requirements in 2014, with the annual seizure-related training ending completely in 2016 [#22, ¶¶ 20-21, 24-25], yet it does not allege any incidents of police misconduct related to improper training between 2014 and the instant incident. Nor does Plaintiff allege any facts that would support a finding that the lack of annual seizure-related training since 2016 created a situation where “a violation of federal rights [wa]s a highly predictable or plainly obvious consequence” of that lack of training. Waller, 932 F.3d at 1284 (quotation omitted).
The deliberate indifference prong of Plaintiff's second claim is made even more problematic by the fact that Plaintiff alleges that each of the Individual Defendants attended the annual seizure-related training and satisfactorily completed the seizure-related training test. [Id. at ¶ 23] Thus, even if the single incident in Burrell could have put Aurora on notice that a complete lack of training was “substantially certain to result in a constitutional violation, ” Murphy, 950 F.3d at 651 (quotation omitted), that would still fail to satisfy Plaintiff's burden here where each of the Individual Defendants were trained and satisfactorily completed the seizure-related training test. Rather, Plaintiff would need to plausibly plead facts demonstrating that failure to provide the annual renewal of the seizure training was “substantially certain to result in a constitutional violation, ” Murphy, 950 F.3d at 651 (quotation omitted). The Amended Complaint fails to offer any such factual support.
Accordingly, the Court respectfully RECOMMENDS that the City Motion be GRANTED to the extent it seeks dismissal of Claim Two but DENIED to the extent it seeks dismissal with prejudice and that Claim Two be DISMISSED WITHOUT PREJUDICE.
Generally, “[b]y the time of a second amended complaint, it is often the case that pleading deficiencies . . . may be deemed irreparable, and the complaint will be dismissed with prejudice.” Dyer v. Lajeunesse, No. 15-cv-02404-WJM-CBS, 2017 WL 262692, at *4 n.4 (D. Colo. Jan. 20, 2017). But here, Plaintiffs have filed only a single amended complaint, and have “never before received an opportunity to cure deficiencies identified by this Court.” Id. Because Plaintiff may be able to cure the defects discussed herein, the Court recommends that the dismissal of Claim Two be without prejudice.
2. Pattern and Practice of Excessive Force
Claim Three alleges that APD has a pattern and practice of using excessive force. [#22 at 18-19] But, outside of the Burrell Action and the instant matter, Plaintiff fails to identify a single instance where APD engaged in excessive force. [ See generally #22] Indeed, the allegations of a pattern and practice of excessive force are entirely conclusory. [See, e.g., id. at ¶ 107 (“Defendant Aurora and the [APD] have consistently failed to adequately investigate or to take corrective action to prevent excessive force violations from happening in the future.”); ¶ 142 (“The actual customs, policies, and practices of Defendant Aurora in failing to properly train, supervise, and/or discipline its employees were a moving force and proximate cause of substantial harm to [Plaintiff].”); ¶ 144 (“Aurora's inadequate training, supervision, and discipline results from a conscious and deliberate choice that was foreseeably likely to result in the deprivation of constitutional rights of people who came into contact with the police.”); ¶ 147 (“Defendant Aurora's policies, customs, and practices in failing to properly train, supervise, and/or discipline its employees was a moving force and proximate cause of the Individual Defendants' violation of [Plaintiff's] constitutional rights.”)] The conclusory nature of the allegations, coupled with a failure to provide specific instances of a pattern and practice of excessive force, renders Plaintiff's Claim Three against Aurora deficient. See Garcia v. Adams Cty., No. 16-cv-01977-PAB-NYW, 2017 WL 4251931, at *5 (D. Colo. Sept. 25, 2017) (dismissing Monell claim where “plaintiff does not allege any specific factual allegations that would support a finding of deliberate indifference by Adams County, and instead alleges legal conclusions regarding Adams County's policies”); Granato v. City & Cty. of Denver, No. 11-cv-00304-MSK-BNB, 2011 WL 3820730, at *8 (D. Colo. Aug. 30, 2011) (dismissing plaintiff's Section 1983 claim against municipal hospital because the allegations were “entirely conclusory” and offered “only the ‘formulaic recitation' of a Monell claim”).
Although Plaintiff alleges generically that “Aurora, the [APD], and its employees have been sued for numerous excessive force violations” [#22, ¶ 106], that allegation lacks the specificity necessary “to ensure that [Aurora] is placed on notice of [its] alleged misconduct sufficient to prepare an appropriate defense, ” Sylvia v. Wisler, 875 F.3d 1307, 1326 (10th Cir. 2017) (quotation omitted).
The paragraphs in the Amended Complaint are numbered sequentially, but Paragraph numbers 131-145 are inadvertently utilized twice. The reference to Paragraph numbers 142, 144, and 147 in this citation refer to the paragraphs found on pages 18-19 of the Amended Complaint.
Nor does the Amended Complaint allege facts to allow the Court to conclude that any alleged constitutional violation was committed by, or ratified by, a final policymaker. See Randle v. City of Aurora, 69 F.3d 441, 448-49 (10th Cir. 1995) (setting forth factors to consider in determining whether official was a final policymaker).
Accordingly, the Court respectfully RECOMMENDS that the City Motion be GRANTED to the extent it seeks dismissal of Claim Three but DENIED to the extent it seeks dismissal with prejudice. Because Plaintiff may be able to cure the defects outlined herein through better pleading, the Court RECOMMENDS that Claim Three be DISMISSED WITHOUT PREJUDICE. Dyer, 2017 WL 262692, at *4 n.4.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that:
1. The Individual Motion [#23] be DENIED;
2. The City Motion [#25] be GRANTED IN PART and DENIED IN PART; and
3. Claims Two and Three be DISMISSED WITHOUT PREJUDICE.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and 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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).