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Lee v. City and County of Denver

United States District Court, District of Colorado

January 20, 2015

ELROY LEE, Plaintiff,
CITY AND COUNTY OF DENVER, COLORADO; DAVID RYAN, individually and in his official capacity; CHOICE JOHNSON, individually and in his official capacity; and RANDALL KROUSE, individually and in his official capacity, Defendants.



The case is before the Court on Defendant City and County of Denver’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 16]. For the reasons set forth herein, the motion is granted in part and denied in part.


For purposes of this motion, the Court assumes the truth of the allegations set forth in the Complaint. During the morning of September 23, 2012 three Denver Police Department (“DPD”) officers arrived at the home of the plaintiff, Elroy Lee, explaining that they believed a stolen cell phone was located in Mr. Lee’s home. Mr. Lee, then 76 years old, stated that he did not possess a stolen cell phone, and he gave permission for the officers to search his home. Before entering the home, one of the defendants, Officer Ryan, walked around the perimeter of the house. He was accompanied by an elderly friend of Mr. Lee, Barbara Williams, who had been at the house when the officers arrived. Officer Ryan used a tracking device to conclude that the stolen cell phone was in the southwest corner of Mr. Lee’s home.

When Officer Ryan and Ms. Williams returned, the three officers again asked permission to search Mr. Lee’s home, which Mr. Lee again granted. Ms. Williams led the officers inside, and when Mr. Lee turned to follow Officer Johnson “commanded ‘no’ and violently grabbed Mr. Lee’s shoulder, twisted his body around, and grabbed his hand, intentionally bending his fingers so far back that the tips of his fingers nearly touched the top of his hand.” Complaint [ECF No. 1] ¶ 31. Officer Johnson then handcuffed Mr. Lee “extremely and excessively tightly” with the assistance of Officers Ryan and Krouse. Id. ¶ 34. Mr. Lee immediately complained that the handcuffs were too tight and that they were causing him significant wrist and shoulder pain, but none of the officers took any action to loosen or remove the handcuffs. Mr. Lee continued making these complaints throughout his interaction with the officers.

At this point, Officer Ryan insisted that Ms. Williams accompany him while he searched Mr. Lee’s home, adding that Mr. Lee could not be present. Mr. Lee remained handcuffed on his porch, in the custody of Officers Johnson and Krouse, while Officer Ryan searched the home. Officers Johnson and Krouse then forced Mr. Lee to exit his porch and walk down his driveway to the street. When halfway down the driveway, Officer Krouse left Mr. Lee in custody of Officer Johnson so that he could go back to the house and assist in the search. At some point thereafter, Officer Johnson took Mr. Lee back to the porch and removed his handcuffs; approximately 15 minutes had passed since they had first been placed on him. Officer Johnson then instructed Mr. Lee to sit down on a chair in his kitchen.

Soon after, the officers completed their search. The officers did not find the stolen cell phone they had been looking for, and no criminal charges or citations were brought against Mr. Lee or Ms. Williams. The officers then left Mr. Lee’s house.

Later that same day, Mr. Lee filed a complaint against the officers with the Internal Affairs Bureau of the DPD (“Internal Affairs”) alleging that the officers has unjustifiably arrested him and deliberately caused him significant physical and mental harm. According to the plaintiff, although Internal Affairs interviewed witnesses that confirmed Mr. Lee’s depiction of the incident it chose not to investigate further and DPD never disciplined the officers.

The plaintiff includes in his complaint allegations that DPD officers have continuously and consistently been permitted to use inappropriate force without being held accountable for their actions. In effect, he claims that the City of Denver (the “City”) has failed to adequately train or supervise its officers with respect to the use of excessive force. He includes statements of Richard Rosenthal, who served as the City’s Independent Monitor from July 2005 through January 2012, and Alvin LaCabe, the City’s former Manager of Safety, in support of these allegations. He adds that upon information and belief all three defendant officers had complaints filed against them for the use of excessive force between 2003 and the first half of 2011, before the incident took place. In particular, Officers Ryan and Krouse each had at least two excessive force complaints and Officer Johnson (the individual who grabbed and cuffed Mr. Lee) had twelve.[1] Meanwhile, all three remained active police officers. Mr. Lee contends that the City’s custom, policy, or practice of failing to adequately train, supervise and/or discipline its police officers was the moving force behind the constitutional violations he suffered.

On September 17, 2014 Mr. Lee filed the present suit. He brings two 42 U.S.C. § 1983 claims against the three officers in their individual capacities, alleging unlawful seizure/false arrest and excessive force in violation of the Fourth Amendment as incorporated by the Fourteenth Amendment. He also asserts both of his § 1983 claims against the City and against the officers in their official capacities under a theory of municipal liability.

The City filed the pending motion to dismiss on the grounds that the plaintiff failed to sufficiently plead municipal liability such that all claims against it, and against the officers in their official capacities, must be dismissed. Mr. Lee contends that the allegations in his complaint are sufficiently well pled such that all claims should move forward. The officer defendants did not file a motion to dismiss the claims brought against them individually.


To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

To plead a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that the defendant, acting under color of state law, deprived him of a right secured by the United States Constitution or its laws. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “A defendant may not be held liable under § 1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to be subjected to ...

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