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Sexton v. Hickenlooper

United States District Court, D. Colorado

February 20, 2014



KATHLEEN M. TAFOYA, Magistrate Judge.

This case comes before the court on Defendant John Hickenlooper's Motion to Dismiss (Doc. No. 20, filed May 24, 2013 [Hickenlooper Mot. Dismiss]) and Defendants Michael Hancock and James Henning's Motion to Dismiss (Doc. No. 24, filed June 11, 2013 [Denver Defs.[1] Mot. Dismiss). For the following reasons, the court recommends that the Motions to Dismiss be GRANTED in part and DENIED in part.


The following facts are taken from Plaintiff's Prisoner Complaint (Doc. No. 1, filed Aug. 17, 2013) and the parties' briefing with respect to this Recommendation. In this case, Plaintiff alleges that Defendants Hickenlooper, Hancock, and Henning-as well as Defendant "Unknown Officer of the Denver Police Department (hereinafter "Unknown Officer")-violated his First Amendment rights to free speech and peaceful assembly, falsely arrested him, and subjected him to "police brutality."

On October 29, 2011 Defendant John Hickenlooper, the Governor of Colorado, allegedly made a "direct order" to Defendant Michael Hancock, the Mayor of Denver, Colorado, to disband an assembly of the Occupy Denver movement in Denver's Civic Center Park. (Compl. at 4.) Plaintiff maintains Defendant Hancock passed the order down to Defendant Henning, a Denver Police Lieutenant, who, in turn conveyed the order to the Denver Police Department. ( Id. )

That same day, October 29, 2011, Denver Police Officers were sent to Civic Center Park in downtown Denver, to break up the Occupy Denver assembly. ( Id. at 3.) Initially, eight to ten officers led by Defendant Henning went into the park to remove a plastic tarp that was draped over a tree branch. ( Id. ) As these officers began to remove the tarp, Defendant Henning became in engaged in what Plaintiff characterizes as a "tug o' war" with an unknown protestor. ( Id. )

Plaintiff maintains he was standing nearby with his hands in the air to show that he was not a threat. ( Id. ) Nevertheless, Plaintiff was dragged to the ground by an unidentified police officer[2] and into the center of what was then thirty or more police officers dressed in riot gear. ( Id. ) Plaintiff was placed in blue handcuff restraints. ( Id. )

Plaintiff became engaged in an argument with Defendant Henning about the "nature of his arrest." ( Id. ) As part of this argument, Plaintiff alleges that Defendant Henning pointed at and reprimanded him. ( Id. )

Shortly thereafter, the Unknown Officer put his hands around Plaintiff's neck and began choking Plaintiff, which took Plaintiff to the ground. ( Id. ) Plaintiff maintains that the Unknown Officer had his hands around Plaintiff's neck for so long and with such a strong grip, that Plaintiff feared for his life. ( Id. at 10.)

Plaintiff was then escorted through a crowd of upset protestors that witnessed this attack as a group of unidentified police officers in riot gear held them back. ( Id. ) Plaintiff was taken to a police van full of other arrestees, where he sat for 30 to 45 minutes. ( Id. ) Plaintiff was then removed from the van and read charges by an unidentified police officer for disobeying a lawful order. ( Id. )

After returning to the van and waiting for another "hour or so, " Plaintiff was taken with other arrestees to the Downtown Denver Detention Center. ( Id. ) When unidentified police officers came to remove Plaintiff, they placed what Plaintiff characterizes as a "Hannibel [sic] Lector" mask on Plaintiff's face. ( Id. ) When Plaintiff asked why the mask was necessary, the unidentified police officers responded, "because we don't want to get spit on." ( Id. ) After Plaintiff informed these officers that he would not spit on them, the officers informed Plaintiff that it was going to be "a long night" for him. ( Id. at 10-11.)

Plaintiff was then taken to a "mobile processing center" in the garage of the detention facility, where he learned he was being charged with second degree felony assault of a police officer. ( Id. at 11.) Plaintiff maintains that Defendant Henning was responsible for these charges. ( Id. ) Plaintiff was subsequently bailed out by an unknown supporter of the Occupy Movement. ( Id. )

The Denver District Attorney's office ultimately decided there was not enough evidence to charge Plaintiff with second degree assault of a police officer. ( Id. ) An unidentified Denver Police Detective then delivered a city ordinance violation ticket, signed by Defendant Henning for "Resistance" and "Disturbance." ( Id. ) In October 2012, Plaintiff pleaded guilty to one charge of disturbing the peace. (Hickenlooper Mot. Dismiss, Ex. A.)


Plaintiff's Complaint asserts two claims for relief. The first claim is asserted pursuant to 42 U.S.C. § 1983, and alleges that Defendants Hickenlooper, Hancock, and Henning violated his First Amendment rights to freedom of speech and peaceful assembly. Plaintiff's second claim is for "Police Brutality" and "false[] arrest" against Defendants Hickenlooper, Hancock, Henning and the Unknown Officer. Defendants have construed this claim to assert § 1983 claims for false arrest and excessive force, in violation of the Fourth Amendment, as well as state law claims for false arrest and assault and/or battery. In light of Plaintiff's pro se status, the court agrees with this construction and addresses Plaintiff's second claim accordingly.[3]

Defendant Hickenlooper's Motion to Dismiss was filed on May 24, 2013. ( See Hickenlooper Mot. Dismiss.) Plaintiff's Response to Defendant Hickenlooper's Motion to Dismiss was filed on June 12, 2013 (Doc. No. 25 [Resp. Hickenlooper Mot.]), and Defendant Hickenlooper filed a reply on June 26, 2013 (Doc. No. 26 [Hickenlooper Reply].

The Denver Defendants' Motion to Dismiss was filed on June 11, 2013. ( See Denver Defs. Mot. Dismiss.) Plaintiff's Response[4] to the Denver Defendants' Motion to Dismiss was filed on July 5, 2013. (Doc. No. 35 [Resp. Denver Defs. Mot.].) Pursuant to D.C.COLO.LCivR 7.1C and Fed.R.Civ.P. 6(d), the Denver Defendants had until July 22, 2013 to file a reply. No reply was filed on or before that date.

Accordingly, these matters are ripe for the court's review and recommendation.


A. Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not ...

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