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Mwangi v. Norman

United States District Court, D. Colorado

December 13, 2016

CARNE M. MWANGI, Plaintiff,
v.
ANTHONY NORMAN, Denver Police Deputy, in his individual capacity, JUSTIN KENNEDY, Denver Police Deputy, in his individual capacity, PERRY SPEELMAN, Denver Police Officer, in his individual capacity, VINCENT TALTY, in his individual capacity, and ALL ARRESTING OFFICERS, in their individual capacity, Defendants.

          RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang United States Magistrate Judge

         Magistrate Judge Nina Y. Wang This civil action is before the court on the following motions:

1. Defendants Anthony Norman, Justin Kennedy, and Perry Speelman's (collectively, “Denver Defendants”) “Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), ” [#28, filed May 4, 2016];
2. Defendant Vincent Talty's “Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), ” [#57, filed July 29, 2016];
3. The Denver Defendants' Motion to Strike Surreply (“Motion to Strike Surreply”) [#64, filed August 4, 2016];
4. Plaintiff Carne M. Mwangi's (“Plaintiff” or “Mr. Mwangi”) “Motion Requesting A Scheduling Conference” (“Motion for Scheduling Conference”), [#71, filed November 10, 2016]; and
5. Denver Defendants and Defendant Talty's Motion to Stay Discovery (“Motion to Stay”), [#76, filed December 1, 2016].

         These matters were referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated April 4, 2016 [#14] and the memoranda dated May 19, 2016 [#34], August 1, 2016 [#60], August 4, 2016 [#65], November 14, 2016 [#72], and December 1, 2016 [#77]. For the reasons set forth below, I respectfully RECOMMEND that Defendant Talty's Motion to Dismiss be GRANTED and the Denver Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART, and ORDER that the Motion to Strike Surreply is GRANTED, the Motion to Stay is GRANTED, and the Motion for Scheduling Conference is DENIED.

         BACKGROUND

         Because it is relevant to the treatment of the pending motions, this court sets forth in more detail than usual the procedural background related to Mr. Mwangi's operative complaint. Mr. Mwangi initiated this action on January 4, 2016, by filing pro se a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, asserting violations of the Fourth and Eighth Amendments arising from an allegedly unlawful arrest that occurred on January 6, 2014. [#1]. He named the Denver Defendants, “Deputy X, ” and “All arresting officers, et. al, ” in their official and individual capacities. [#1]. While the Denver Defendants were individually named, the original Complaint contained no allegations specific to any of them. See [#1]. Rather, the original Complaint focused on a “Deputy X, ” and essentially averred that the “other defendants” failed to intervene. [Id.].

         Later the same day, Plaintiff filed an Amended Complaint asserting additional Fourth and Eighth Amendment violations as well as a violation of the due process clause and equal protection clause of the Fourteenth Amendment. [#6]. The following facts are derived from the Amended Complaint and taken as true for the purposes of this Recommendation and Order. Mr. Mwangi alleges that on the evening of January 6, 2014, a Walgreen's employee ordered him to leave the store because the employee believed Plaintiff was harassing a female customer; the employee then confronted Plaintiff on the sidewalk and shoved him backward.

         Shortly thereafter, as Plaintiff waited for a light rail train in downtown Denver, one or more of the Defendants knocked him to the ground from behind and commanded him to “stop resisting.” [#6 at 9]. According to Plaintiff, he was not resisting. Mr. Mwangi identifies the Denver Defendants as follows: “arresting officers-inluding the said three who submitted and admitted their written statements to discovery, case number 14CR00084.” [#6 at ¶ 4]. Mr. Mwangi states that an officer pulled right, another pushed left, and yet another twisted the same hand. Another buried his knees and/or elbow into Plaintiff's back, causing excruciating pain. Another used his knee or foot to slam and painfully pin Plaintiff's head against the concrete pavement. Plaintiff sensed the rest of the Defendants stomping, kicking, and punching his torso. [Id. at 9]. An officer then handcuffed Mr. Mwangi and led him down the street, where Deputy X leaned him against the back of a police cruiser and repeatedly taunted Plaintiff stating “we don't like you” and “[you] need[] to go back to Africa.” [Id. at 10]. Deputy X then proceeded to squeeze Plaintiff's genitals with significant force, causing him to experience excruciating pain, and slammed Plaintiff head first into the pavement. Subsequently, Deputy X “straddled the Plaintiff and commenced to sexually assault him over his clothes, ” while continuing to lob verbal assaults. [Id. at 11]. Plaintiff states that the other Defendants “shielded [Deputy X] from the public with their bodies, while chanting him on.” [Id. at 16]. Plaintiff suffered “excruciating physical, mental and psychological pain and injury” as a result of the incident, including a “severe facial injury.” [Id.] Mr. Mwangi was subsequently charged with, prosecuted for, and convicted of second degree kidnapping (the “State Criminal Action”). See [#57-1].[1] See also [#6 at 2-6]. The only allegation that specifically identifies a particular actor other than Deputy X is an allegation that “Deputy Y, stated to filming [sic]. This particular video was supposedly admitted into discovery, for case number 14CR00084, for the first time ever on December 4, 2015, almost two years later.” [#6 at ¶ 69].

         On January 6, 2016, the court granted Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915. [#5]. That statute and the Local Rules of this District require a court to evaluate a prisoner complaint and dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); D.C.COLO.LCivR 8.1(b). On January 13, 2016, the Honorable Gordon P. Gallagher ordered Plaintiff to file a second amended complaint addressing, among other pleading deficiencies, whether he had suffered an injury caused by a municipal policy or custom and how each named Defendant personally participated in the alleged constitutional violations. [#7]. Judge Gallagher ordered Mr. Mwangi file a Second Amended Complaint within 30 days of the January 13 Order and warned Mr. Mwangi that failure to file an amended complaint that cured the identified deficiencies could result in the court dismissing the action altogether without further notice. [Id. at 5]. Mr. Mwangi then requested an extension of time to file the amended complaint, which the court granted, permitting Plaintiff to file a Second Amended Complaint within 30 days of the February 18, 2016 Minute Order. [10, #11]. Plaintiff thereafter failed to timely file an amended complaint.

         On April 4, 2016, well after the 30-day extension expired, the Honorable Lewis T. Babcock issued an Order to dismiss the case in part and to draw to a district court judge and magistrate judge. [#12]. In construing Mr. Mwangi's claims liberally, Judge Babcock found that the following § 1983 claims did not appear to be appropriate for summary dismissal: Fourth Amendment excessive force claim against Defendants sued in their individual capacities; Fourteenth Amendment equal protection claim against Deputy X sued in his individual capacity; and Fourteenth Amendment due process claim asserted against Defendants in their individual capacities. [Id.]. The court dismissed all other claims as legally frivolous. [Id.]. The case was then drawn to the Honorable Christine M. Arguello, who referred the matter to the undersigned Magistrate Judge for pre-trial proceedings. See [#14].

         On April 4, 2016, Mr. Mwangi filed a proposed Second Amended Complaint, naming as Defendants Sergeant Speelman, Officer Talty, Officer Kennedy, Officer Bloodworth, Officer Norman, and “all other arresting officers, ” and asserting two new claims arising from the January 6, 2014 arrest. [#16]. On April 11, 2016, Plaintiff filed a motion to amend, asking the court to consider his proposed Second Amended Complaint as timely-filed. See [#19]. This court recommended granting the motion so as to permit the substitution of Officer Talty for “Deputy X, ” and to allow Plaintiff's Fourteenth Amendment equal protection claim to proceed against Defendant Talty in his individual capacity. See [#22]. This court also recommended denying the motion to the extent it sought to include new defendants (beyond identification of Defendant Talty) and claims asserted against Defendants in their individual capacities, beyond what Judge Babcock allowed in his April 4, 2016 Order. See [id.] Unlike Officer Talty and Deputy X, there is no correlation between “Deputy Y” as identified in the Amended Complaint, see [#6 at ¶ 69], and any Defendant as identified in the proposed Second Amended Complaint, see [#16 at 13-14].

         On May 16, 2016, the court adopted the Recommendation. See [#32]. Accordingly, the operative pleading in this case is Mr. Mwangi's Amended Complaint filed on January 4, 2016, [#6], as amended to substitute Defendant Talty for Deputy X. The remaining claims are as follows: a Fourth Amendment excessive force claim and Fourteenth Amendment due process claim against all Defendants sued in their individual capacities; and a Fourteenth Amendment equal protection claim against Defendant Talty sued in his individual capacity. See [#6]; see also [#12]. Plaintiff seeks declaratory relief along with compensatory and punitive damages. [#6 at 16-17]. Although separately docketed as a (Proposed) [Second] Amended Complaint, the pleading at docket entry [#16] has no force or effect, other than to identify Defendant Talty as Defendant X.

         The Denver Defendants filed their Motion to Dismiss on May 4, 2016, directed at the Amended Complaint. [#28]. Mr. Mwangi filed a Response on June 16, 2016 [#49]; the Denver Defendants filed a Reply on June 30, 2016 [#51]; and Mr. Mwangi filed a second Response, which the Defendant Defendants characterize as a surreply, on July 29, 2016 [#58]. The Denver Defendants filed the Motion to Strike Surreply on August 4, 2016. [#64].

         Defendant Talty filed his Motion to Dismiss on July 29, 2016. [#57]. Mr. Mwangi filed a Response out of time on November 10, 2016 [#70], along with the Motion for Scheduling Conference [#71]. Seven days later, Defendant Talty filed a Motion to Strike the Response as untimely, and asked in the alternative that the court permit a reply. [#73]. This court granted in part and denied in part the motion to strike and ordered Defendant Talty to file a reply, which he submitted on December 7, 2016. See [#75; #78]. All Defendants filed the Motion to Stay on December 1, 2016. [#76]. These motions are now ripe for review. See D.C.COLO.LCivR 7.1(d).

         STANDARD OF REVIEW

         Defendants collectively argue that Mr. Mwangi fails to state a cognizable claim. Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the 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) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, 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 Atlantic 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, 129 S.Ct. 1937, 1949 (2009). 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) (citation omitted). “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. The ultimate duty of the court 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).

         Because Mr. Mwangi is appearing pro se, the court “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 Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[Court's] role is not to act as [pro se litigant's] advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues”) (internal citation omitted).

         ANALYSIS

         I. The Non-Dispositive Motions ...


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