United States District Court, D. Colorado
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
MARCIA S. KRIEGER, Chief Judge.
THIS MATTER comes before the Court on the Recommendation (#54) of the Magistrate Judge that Defendant John Hickenlooper's Motion to Dismiss (#20) be granted in part and denied in part, and that the Defendants Michael Hancock and James Henning's Motion to Dismiss (#24) be granted in part and denied in part.
The following facts are derived from the factual allegations contained in the Plaintiff John Thomas Sexton, Jr., 's pro se prisoner Complaint (#1).
In 2011, Mr. Sexton participated in the Occupy Denver movement in Denver's Civic Center Park. At some unspecified time, Defendant Hickenlooper ordered Defendant Hancock to have the Occupy Denver movement "disbanded." That order was passed on by Defendant Hancock to Defendant Henning and the Denver Police Department.
On October 29, 2011, while Mr. Sexton was in Civic Center Park as part of Occupy Denver about eight to ten officers, led by Defendant Henning, came into the park to remove a plastic tarp that was draped over a tree. As the officers began to remove the tarp, Defendant Henning became engaged in a "tug o' war" with an unknown protester. Mr. Sexton was standing nearby with his hands in the air to show that he was not a threat.
Presumably while the first officers were engaged with removing the tarp, about twenty or more additional officers entered the park dressed in riot gear. Mr. Sexton was dragged to the ground by an unknown officer. He was placed in handcuffs almost immediately and was separated from other protesters by circling police, led by Defendant Henning. As he sat, Mr. Sexton argued with Defendant Henning over the nature of his arrest. Defendant Henning pointed at Mr. Sexton and reprimanded him.
Shortly thereafter, an Unknown Officer entered the scene and put his hands around Mr. Sexton's neck. He began choking Mr. Sexton and moving him toward the ground "as if to shut [him] up." The officer squeezed Mr. Sexton's neck so hard that he began to fear for his life.
Mr. Sexton was then escorted through a crowd of protestors being held back by police. He was taken to a police van full of other arrestees and waited for a period of time. Eventually, he was informed that he was being charged with disobeying a lawful order.
Mr. Sexton and the other arrestees were transported to the Denver Detention Center. Before Mr. Sexton was removed from the van, an officer put a mask on his face. He asked why he needed to wear the mask, and an officer said, "Because we don't want to get spit on." Mr. Sexton told the officer he never spit on anyone. An officer told him that it was going to be "a long night" for him.
During processing, Mr. Sexton was told that he was being charged with second degree felony assault of a police officer. After two days in jail, Mr. Sexton was bailed out by an unknown supporter of the Occupy Denver movement. Ultimately, the assault charge against him was dismissed. Later, he was issued a ticket for violating city ordinances, including citations for "resistance and disturbance." All charges were dismissed, except violation of a Denver ordinance prohibiting disturbing the peace, to which Mr. Sexton pled guilty.
The Complaint asserts the following claims: (1) a claim under 42 U.S.C. § 1983 for infringement of Mr. Sexton's First Amendment rights to free speech and freedom of assembly; and (2) a claim for "police brutality" and "false arrest." The parties agree that Mr. Sexton's second claim encompasses a claim under 42 U.S.C. § 1983 for the use of excessive force in effectuating an unlawful arrest under the Fourth Amendment, and state law tort claims for false arrest and assault and battery. Mr. Sexton seeks damages, as well as equitable relief in the form of Defendant Henning and the Unknown Officer being relieved from their duties as officers.
Defendants Hickenlooper, Hancock, and Henning move to dismiss (#20, 24) Mr. Sexton's claims under Fed.R.Civ.P. 12(b)(6) and 12(b)(1). The Defendants argue that the Complaint fails to state a claim against them for violations under the First or Fourth Amendments; that his § 1983 claim for unlawful arrest is barred under Heck v. Humphrey, 512 U.S. 477 (1994); and that any state law tort claims are barred under the Colorado Governmental Immunity Act (CGIA). Each Defendant also raises the defense of qualified immunity.
The matters were referred to the Magistrate Judge, who recommends that the Defendants' Motions to Dismiss (#20, 24) be granted in part and denied in part. The Recommendation found that (1) the Complaint states a plausible claim for violation of First Amendment rights; (2) the claim for unlawful arrest under the Fourth Amendment is barred under Heck; (3) the Complaint fails to state a claim of excessive force against Defendants Hickenlooper and Hancock, but states a plausible claim of excessive force against Defendant Henning; and (4) the state law tort claims are barred under the CGIA because he failed to provide notice as required under the statute.
Defendants Hancock and Henning object (#55) to the Recommendation. They argue that the Recommendation improperly found that the Complaint stated viable claims for violations under the First Amendment and for excessive ...