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White v. City and County of Denver

United States District Court, D. Colorado

August 12, 2014

PHILIP WHITE, Plaintiff,
CITY AND COUNTY OF DENVER, ROBERT WYCOFF, in his individual and official capacity, KYLLION CHAFIN, in his individual and official capacity, KRISTY GARCIA, in her individual and official capacity, CODE-3 PROTECTION & SECURITY LLC, and DANIEL BURKE, Defendants.



This matter is before the Court on the March 31, 2014 Recommendation of United States Magistrate Judge Michael J. Watanabe. (Doc. # 103.)[1] Judge Watanabe recommended that Denver Defendants'[2] Motion to Dismiss (Doc. # 62) be granted in part and denied in part. Specifically, Judge Watanabe recommended that Claim One be dismissed with prejudice against Defendants Garcia and Chafin to the extent that it involves Plaintiff Philip White's handcuffing; Claims Two, Three, and Four be dismissed with prejudice in their entirety; and the motion be denied in all other respects. The Recommendation is incorporated herein by reference. See 28 U.S.C. ยง 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a timely objection to the Recommendation (Doc. # 109), to which Denver Defendants responded (Doc. # 110).



When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id. Following a de novo review, this Court finds that Judge Watanabe's Recommendation should be adopted in part and rejected in part.


1. Garcia's Use of Handcuffs

Judge Watanabe recommended that the Court dismiss Plaintiff's excessive force claim against Garcia for excessively tight handcuffing because Plaintiff "does not allege that Chafin[3] or Garcia ignored his complaints, nor does he allege that Chafin or Garcia were otherwise made aware that the handcuffs were too tight." (Doc. # 103 at 7.) Judge Watanabe refused to infer from Garcia's presence at the scene and her subsequent adjustment of Plaintiff's handcuffs that Garcia knew that Plaintiff's handcuffs were excessively tight. ( Id. )

In his Second Amended Complaint Plaintiff alleges that "[a]lthough he was not resisting and was without his cane, [he] was handcuffed and escorted out of the station by Defendant Chafin and Defendant Garcia, who had just arrived on scene to assist." (Doc. # 61 at 8.) Plaintiff complained to the paramedics and Defendant Wyckoff that his handcuffs were too tight. ( Id. at 9-10.) "Approximately thirty-minutes later, Defendant Garcia removed Mr. White's handcuffs and immediately re-cuffed [Plaintiff], still on the floor, without his cane, and not resisting in any form, with a second pair of handcuffs that were only slightly less tight." ( Id. at 10.)

"[I]n a handcuffing case to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional.'" Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (quoting Cortez v. McCauley, 478 F.3d 1108, 1129 n. 25 (10th Cir. 2007)). In order to determine when the use of handcuffs as part of an arrest may constitute excessive force, the Tenth Circuit has adopted the Graham factors, which include: "[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." Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Plaintiff contends that each of the three Graham factors weigh in his favor. (Doc. # 109 at 5.) The Court agrees. Trespassing is undoubtedly a minor misdemeanor. As a blind man without a cane, Plaintiff did not pose an immediate threat to the officers', or anyone else's, safety. Finally, according to the allegations in the complaint, Plaintiff was not actively resisting arrest or attempting flight. Thus, "force [wa]s least justified against..." Plaintiff in this situation. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1285 (10th Cir. 2007).

Even for arrestees who satisfy all of the Graham factors, "a small amount of force, like grabbing [a plaintiff] and placing him in the patrol car, is permissible in effecting an arrest under the Fourth Amendment."[4] Cortez, 478 F.3d at 1128 (citations omitted). Excessively tight handcuffing may go beyond this acceptable amount of force. Id. at 1129. As Judge Watanabe observed, "unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the handcuffs were too tight." Id. (citations omitted). The "actual injury" requisite to support a claim of excessive force must be "not de minimis, be it physical or emotional." Id.

Plaintiff has alleged that he suffered an actual injury because his handcuffs were too tight. In Cortez, the Tenth Circuit determined that "red marks [on plaintiff's wrists] that were visible for days afterward" were insufficient to support an excessive force claim. 478 F.3d at 1129. In contrast, Plaintiff alleges that the incident caused "stiffness in his bilateral thumbs and numbness in his right hand, in addition to bilateral wrist injuries, " which caused him difficulty reading Braille. (Doc. # 61 at 11.) These injuries are more than de minimis. See Vondrak v. City of Las Cruces, 535 F.3d 1198, 1209 (10th Cir. 2008) ("[P]ermanent nerve injury in his wrists" supported plaintiff's excessive force claim).

Plaintiff argues that Garcia's use of handcuffs, presence at the scene, and the fact that she later loosened Plaintiff's handcuffs, is sufficient for this Court to infer that Garcia heard and initially ignored Plaintiff's complaints about the tightness of the handcuffs. (Doc. # 109 at 5-6.) Judge Watanabe declined this inference, determining that inference unreasonable based on Plaintiff's alleged facts. (Doc. # 103 at 7.) However, the Court believes that taking the allegations in the light most favorable to Plaintiff, this inference is reasonable. Plaintiff alleges Garcia handcuffed him and escorted him out of the station, and that Garcia ultimately loosened Plaintiff's handcuffs. Plaintiff specifically alleged that he protested the tightness and complained that he was experiencing numbness in his hands, which could impair his ability to read Braille. (Doc. # 61 at 2, 9-10.) Moreover, Plaintiff's blindness may have impaired his ability to specifically identify individuals standing in his vicinity during his complaints. Plaintiff remained cuffed for at least thirty minutes before Garcia loosened the cuffs.[5] For the purposes of a motion to dismiss, and particularly because Plaintiff alleges that Garcia applied the ...

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