United States District Court, D. Colorado
KENNETH R. ZARTNER, Plaintiff,
CITY AND COUNTY OF DENVER, COLORADO, SHAWN L. MILLER, DAVID PACHECO, ROBERT MAZOTTI, MARIO GALLARDO, CRAIG PENSON, JEFFREY STEED, RICHARD GILSTRAP, and APRIL KULHANEK, R.N., Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on Defendant City and County of
Denver's Motion to Dismiss Plaintiff's First Amended
Complaint [Docket No. 36], wherein the City and County of
Denver (“the City”) seeks to dismiss
plaintiff's claim against it pursuant to Fed.R.Civ.P.
12(b)(6). The Court has jurisdiction pursuant to 28 U.S.C.
October 9, 2013, plaintiff was arrested by Denver Police
Officer Shawn Miller. Docket No. 27 at 3, ¶ 12. Officer
Miller placed plaintiff in handcuffs, which he made
“sadistically tight, ” and transported him to a
police substation. Id. During the booking process,
plaintiff resisted being fingerprinted because “of the
excruciating pain he was experiencing as a result of the
injury to his wrists by the sadistic handcuffing by Defendant
Miller.” Id. at 5, ¶ 14. Officers
Pacheco, Mazotti, Gallardo, and Penson took plaintiff's
fingerprints by force and exacerbated his handcuff-related
injury. Id. at 5, ¶ 16. On October 14, 2013,
plaintiff was evaluated by a doctor who ordered an x-ray.
Id. at 6, ¶ 19. The x-ray showed a fracture in
plaintiff's wrist. Id. at 6, ¶ 20. On
November 26, 2013, plaintiff was again arrested. Id.
at 6-7, ¶¶ 23. Plaintiff was handcuffed and
involuntarily restrained to a bench in a holding cell despite
his protests that he was suffering from a prior injury to his
wrists and hands. Id. at 7, ¶ 25. In 2014,
plaintiff was diagnosed with nerve damage to both wrists,
which plaintiff states was “caused by the cumulative
trauma by the Defendants on October 9 and 10, 2013 and
November 27, 2013.” Id. at 8, ¶¶
Miller has been a Denver police officer for ten years.
Id. at 3-5, ¶ 13. The Denver Police Department
has received at least 40 complaints against Officer Miller,
17 of which alleged excessive use of force. Id.
Denver Police Commander Matthew Murray, who plaintiff states
was authorized to speak on behalf of the Denver Police
Department regarding an investigation into Officer Miller
following his February 27, 2015 reassignment to a desk job,
stated in reference to Officer Miller:
The warning signs were being flashed at us. The problem is
what we did with them after we got the warning signs. We
didn't follow through in a way to help correct his
behavior to prevent a situation where what we are facing now,
where we have liability on the city and on the department.
Id. The amended complaint claims that the Denver
Police Department had a policy of not taking corrective
action, and that “under the leadership of police chief
Robert White, who took office on December 12, 2011, the
police department has changed the way it responds to
performance reviews.” Id. The complaint also
alleges that the Denver Police Department's
“[f]ailure to take corrective action with respect to
repeated constitutional violations is evidence of deliberate
indifference.” Id. In February 2015, Officer
Miller was placed on non-line assignment while the Denver
Police Department investigated his performance. Id.
STANDARD OF REVIEW
of a claim under Rule 12(b)(6) is appropriate where the
plaintiff fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). Rule 8 requires “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. (8)(a)(2).
Rule 8(a)'s “short and plain statement”
mandate requires that a plaintiff allege enough factual
matter that, taken as true, makes his “claim to relief
. . . plausible on its face.” Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003). In doing so, the Court
“must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the plaintiff.” Alvarado v. KOB-TV,
L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). However, a
court need not accept conclusory allegations. Moffett v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232
(10th Cir. 2002).
“[s]pecific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Twombly, 550 U.S. at 555) (ellipses
omitted). The “plausibility” standard requires
that relief must plausibly follow from the facts alleged, not
that the facts themselves be plausible. Bryson, 534
F.3d at 1286.
pleading rules serve two purposes: (1) they ensure that
defendants know the actual grounds of the claims against
them, allowing them to prepare a defense; and (2) they avoid
the costly undertaking of civil discovery on claims that are
largely groundless. Bryson, 534 F.3d at 1287.
governing bodies . . . can be sued directly under § 1983
for monetary, declaratory, or injunctive relief where . . .
the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body's officers.” Monell v. Dep't of Soc.
Servs. of N.Y., 436 U.S. 658, 690 (1978) (footnote
omitted). “[I]t is when execution of a government's
policy or custom, whether made by its lawmakers or by those
whose edicts or acts ...