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Zartner v. City And County of Denver

United States District Court, D. Colorado

March 14, 2017

KENNETH R. ZARTNER, Plaintiff,
v.
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.

          ORDER

          PHILIP A. BRIMMER United States District Judge.

         This 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. § 1331.

         I. BACKGROUND[1]

         On 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, ¶¶ 30-31.

         Officer 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.

         II. STANDARD OF REVIEW

         Dismissal 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 (2007)).

         “The 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).

         Generally, “[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.

         The 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.

         III. ANALYSIS

         “Local 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 ...


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