United States District Court, D. Colorado
CARNE M. MWANGI, Plaintiff,
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
Y. Wang United States Magistrate Judge
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
3. The Denver Defendants' Motion to Strike Surreply
(“Motion to Strike Surreply”) [#64, filed August
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].
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
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.
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.
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]. 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].
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.
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].
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].
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.
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].
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).
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).
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).
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).
The Non-Dispositive Motions ...