United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge
matter comes before the court on Defendants Todd Tucker, Mark
O'Harold, Amanda Weiss, and Chad Walker's
(collectively, “Defendants”) Motion for Summary
Judgment (or “Motion”). [#16,  filed Mar. 23,
2017]. The undersigned Magistrate Judge considers the Motion
for Summary Judgment pursuant to 28 U.S.C. § 636(c) and
the Order Referring Case dated August 11, 2016 [#9]. Upon
careful review of the Motion and associated briefing, the
applicable case law, the entire case file, and the comments
offered during the June 23, 2017 Motion Hearing, the court
hereby GRANTS IN PART and DENIES IN PART the Motion for
Summary Judgment for the reasons stated herein.
Ryan Lee (“Plaintiff” or “Mr. Lee”)
initiated this action on June 21, 2016, seeking monetary
damages from Defendants pursuant to 42 U.S.C. § 1983 for
allegedly violating his constitutional rights. [#1].
Plaintiff's Complaint alleges the following claims: (1)
Retaliatory Arrest against Defendants Tucker, O'Harold,
and Weiss for allegedly arresting Plaintiff for exercising
his First Amendment right to free speech (Claim I); and (2)
Excessive Force and Failure to Intervene to Prevent Excessive
Force against all Defendants for allegedly using
unreasonable and unnecessary force without legal
justification when arresting Mr. Lee. See
[id. at 7-10].
to the court's Scheduling Order, Defendants filed their
Motion for Summary Judgment [#16] on March 23, 2017. [#11].
On June 23, 2017, the court held a motion hearing on the
Motion for Summary Judgment and took the Motion under
advisement. See [#30]. The Motion is now ripe for
resolution. See [#26; #29].
events giving rise to Plaintiff' Complaint occurred on
the night of July 4, 2014, when Defendants arrived at
Plaintiff's residence in response to a 911 call placed by
Plaintiff's wife Tamila Lee. [#16 at Statement of
Undisputed Material Facts (“SOUMF”) ¶ 1; #26
at Statement of Additional Disputed Facts
(“SADF”) ¶ 1]. Earlier that day, Mr. Lee
attended a barbeque where he consumed approximately 4-5
alcoholic beverages. [#16 at SOUMF ¶¶ 1; #26 at
SADF ¶ 1]. The Parties dispute whether Plaintiff was
“overly intoxicated.” Compare [#16 at
SOUMF ¶¶ 1, 10; #29 at Response to Additional Facts
¶ 1] with [#26 at SADF ¶ 1]. Upon
returning home from the barbeque, Plaintiff and Ms. Lee
argued, and eventually “wrestled, ” over a set of
car keys, because Ms. Lee was concerned that Plaintiff was
too intoxicated to drive. [#16 at SOUMF ¶ 1; #26 at SADF
¶¶ 2-5]. The Parties dispute the severity and
characterization of the altercation between Mr. and Ms. Lee,
compare [#16 at SOUMF ¶¶ 1, 11]
with [#26 at Response To Movants Statement Of
Material Facts (“RMSMF”) ¶ 1; id.
at SADF ¶¶ 2-6]; regardless, it is undisputed that:
(1) Ms. Lee blocked Mr. Lee from exiting their residence; (2)
Ms. Lee attempted to grab the car keys from Plaintiff's
hand and the two began to struggle over the keys; (3)
Plaintiff and Ms. Lee fell to the ground and continued to
struggle for possession of the car keys; (4) Plaintiff threw
the car keys which then struck Ms. Lee's leg; and (5)
both Plaintiff and Ms. Lee suffered minor injuries (e.g.,
cuts and abrasions) because of the altercation. See
[#16 at SOUMF ¶¶ 1-3, 6; #26 at RMSMF ¶ 1
& SADF ¶¶ 2-6].
then called 911. [#16 at SOUMF ¶ 1; #26 at RMSMF ¶
1 & SADF ¶ 2]. During that call, Ms. Lee informed
the 911operator that she did not know how much Plaintiff had
to drink that day, that Plaintiff had thrown car keys at her,
and that Plaintiff was “going to get on the phone and
tell the operator that she (Tamila) [was] crazy.” [#16
at SOUMF ¶ 2]. During the call, Ms. Lee also informed
the 911 operator that she and Plaintiff had been fighting.
[#16-1 at 1-2]. Plaintiff then took the phone from Ms. Lee
and told the operator that there was “nothing going
on;” that he had not consumed much more alcohol than
Ms. Lee; that Ms. Lee hits and abuses him (including with
weapons) and that he can show the officers proof of physical
abuse; that he never threw the car keys at Ms. Lee; and that
the officers will see that “somebody is crazy and
somebody isn't.” [Id. at SOUMF ¶ 3].
Plaintiff then stated, “Jesus Christ. F*ck. I'm
getting off the phone, bye.” [Id.]. At that
time, Plaintiff was aware that “police officers were
either coming or already outside[.]” [Id. at
SOUMF ¶ 4].
O'Harold and Tucker arrived at Plaintiff's residence
first-both at some point heard yelling from inside
Plaintiff's residence-and, upon knocking on
Plaintiff's door, Ms. Lee answered and consented to their
entry. See [#16 at SOUMF ¶¶ 5-6; #26 at
SADF ¶ 7]. Defendant O'Harold informed Plaintiff
that he was there to investigate a domestic disturbance
complaint; Plaintiff, standing in the living room, said,
“Get the f*ck out.” [#16 at SOUMF ¶ 7].
Plaintiff also demanded to see a warrant authorizing their
entry, to which either Defendant O'Harold or Tucker
responded, “what are you some kind of lawyer or
something.” [#26 at SADF ¶ 9]; cf. [#29-2
at 81:3-15]. Mr. Lee replied, “no, but you don't
look like a lawyer either, you look like a dumba**.”
[#26 at SADF ¶ 9].
Defendants Walker and Weiss arrived at Plaintiff's
residence and separated Plaintiff and Ms. Lee. See
[#16 at SOUMF ¶ 8; #26 at RMSMF ¶ 8]. When
questioned by Defendants Walker and Weiss, Ms. Lee stated
that Plaintiff was intoxicated, had been arrested for driving
under the influence in the past, had pinned her to the ground
so she bit him, had shoved but not hit her,  that the two were
arguing over the car keys, that the argument continued in the
parking lot where the two continued to push one another, and
that she cut her thumb and had bruises from the walls. [#16
at SOUMF ¶ 11]. Plaintiff, however, initially refused to
answer Defendants O'Harold and Tucker's questions
(including the cause of abrasions on Plaintiff's arm),
apparently exercising his right to remain silent but, in
doing so, Plaintiff employed “profane language;”
however, Plaintiff eventually told Defendants O'Harold
and Tucker that he and Ms. Lee were arguing but that he
“never laid a hand on her.” See
[id. at SOUMF ¶ 9; #26 at RMSMF ¶ 9 &
SADF ¶¶ 10-11].
the respective interviews, Defendants O'Harold and Weiss
convened outside the front door of Plaintiff's residence
to discuss the information gleaned from Plaintiff and Ms.
Lee. [#16 at SOUMF ¶ 12; #26 at SADF ¶ 12]. Mr. Lee
remained in the living room with Defendant Tucker, and Ms.
Lee remained in a bedroom with Defendant Walker. [#16 at
SOUMF ¶ 12]. Defendants contend that Defendants
O'Harold and Weiss concluded that they had probable cause
to arrest Mr. Lee pursuant to Colo. Rev. Stat. §
18-6-803.6. [Id.]. Plaintiff disagrees,
contending that the conversation between Defendants
O'Harold and Weiss was very brief and was interrupted by
Defendant Tucker's yelling. See [#26 at RMSMF
¶ 12 & SADF ¶¶ 13-14, 20]. The
interruption occurred because Plaintiff turned to Defendant
Tucker and stated, “F*cking idiot, ” before
arising from the couch and allegedly announcing his intention
to get a glass of water from the kitchen. [#16 at SOUMF
¶ 13; #26 at RMSMF ¶¶ 13-14 & SADF
¶¶ 13-15]. The Parties also dispute whether: (1)
Mr. Lee actually announced his intention to get a drink of
water; (2) Mr. Lee was aware that he was being arrested or
detained and could not move freely about his residence; or
(3) upon arising from the couch, Defendant Tucker asked
and/or ordered Plaintiff to stay seated and away from the
kitchen due to a perceived risk of harm. Compare
[#16 at SOUMF ¶ 14-15] with [#26 at RMSMF
¶¶ 13-14, 17 & SADF ¶¶ 15-17].
Nonetheless, Plaintiff stated “something to the effect
of ‘its [sic] my house, ' and/or ‘I can go in
my own kitchen, ” and continued in the direction of the
kitchen. See generally [#26 at SADF ¶ 19].
Plaintiff continued toward the kitchen, Defendant Tucker
attempted to detain Plaintiff, but was unsuccessful in doing
so and a struggle ensued. [#16 at SOUMF ¶ 15; #26 at
RMSMF ¶ 15 & SADF ¶¶ 19, 21]. Defendants
O'Harold and Weiss, upon hearing the confrontation
between Defendant Tucker and Plaintiff, entered
Plaintiff's residence and observed the struggle. [#16 at
SOUMF ¶ 17; #26 at SADF ¶ 22]. At this point,
Defendant O'Harold grabbed Plaintiff and applied an
“arm bar hold” in an attempt to subdue Plaintiff,
causing Mr. Lee to collide with his kitchen cabinets and
refrigerator. [#16 at SOUMF ¶ 17; #26 at SADF
¶¶ 23-24]. Then, Defendant Weiss entered the
struggle, delivering two “hammer strikes” to
Plaintiff's shoulder in an attempt to loosen his grip on
the refrigerator; Defendant O'Harold also struck
Plaintiff's neck with a “hammer strike.” [#16
at SOUMF ¶ 18; #26 at SADF ¶¶ 25-26]. See
also [#16-4 at 1; #16-8 at 3]. Because Defendants
O'Harold, Tucker, and Weiss could not subdue Plaintiff,
Defendant Tucker drew his Taser and administered
approximately 3-5 “drive stuns” to
Plaintiff's back, lasting roughly 3, 5, and 8
seconds. [#16 at SOUMF ¶¶ 19-20; #26 at
RMSMF ¶ 19 & SADF ¶¶ 27-28; #26-9]. During
oral argument, counsel for Defendants conceded that
“drive stuns” was not synonymous with Taser
contacts; a single drive stun could include multiple contacts
with Plaintiff's person. At some point, Plaintiff lost
consciousness and it is alleged that Defendant Weiss twice
informed Plaintiff that he was under arrest but nevertheless
resisted. Compare [#16 at SOUMF ¶¶ 16-18,
20] with [#26 at RMSMF ¶¶ 17-20 & SADF
¶¶ 26-27, 34-35]. Defendant Walker allegedly
observed the struggle but did not intervene. [#26 at SADF
¶ 31]. Ultimately, Defendant Weiss handcuffed Mr. Lee,
and Defendants escorted Plaintiff to the rear seat of
Defendant Weiss' squad car where Plaintiff stated Ms. Lee
was “out of control and was ‘being a
c**t.'” [#16 at SOUMF ¶ 21].
O'Harold remained on the scene with Ms. Lee, who
allegedly completed a Douglas County Sheriff's Office
Domestic Violence Victim Statement Form, while Defendants
Weiss and Walker transported Mr. Lee to Castle Rock Adventist
Hospital (the “hospital”) for jail clearance.
See [#16 at SOUMF ¶¶ 22-23]; but
see [#26 at RMSMF ¶ 22]. During his transport to
the hospital, Plaintiff informed Defendants Weiss and Walker
that his handcuffs were too tight but to no avail, and that
if Defendant Tucker did not have a badge or a Taser Plaintiff
“could have kicked his a**.” [#16 at SOUMF ¶
23; #26 at RMSMF ¶ 23 & SADF ¶ 36].
the hospital, Dr. Britney Anderson examined Plaintiff.
See [#16 at SOUMF ¶ 24]. Dr. Anderson's
treatment notes indicate that Plaintiff complained only that
his handcuffs were too tight; that he refused a breathalyzer;
that he denied any trauma, rashes, or abrasions, muscle pain,
joint pain, or swelling; that he had normal range of motion
in his extremities; that he had three small abrasions on his
back with no tenderness or underlying contusions and an
abrasion on his arm, treated with Neosporin; and that he was
medically cleared for incarceration. [#16 at SOUMF ¶ 24;
#16-13]. Plaintiff avers that Dr. Anderson's medical
notes do not accurately reflect his injuries, injuries that
include “obvious physical injuries from the beating,
including pain and suffering, electric shock, bleeding,
bruising, numbness in his wrist, and a torn rotator
cuff.” [#26 at RMSMF ¶ 24 & SADF ¶ 37].
was then booked into the Douglas County Jail (the
“jail”) where he allegedly admitted to resisting
arrest-Plaintiff denies he made this statement.
Compare [#16 at SOUMF ¶ 25] with [#26
at RMSMF ¶ 25]. While in jail, medical personnel
informed Plaintiff that his blood pressure was elevated. [#16
at SOUMF ¶ 26]. Accordingly, after his release on July
7, 2014, Plaintiff saw Dr. Shane Knepshield on five separate
occasions. See [id. at SOUMF ¶¶
26-32; #16-17; #16-18; #16-19; #16-20; #16-21]. On four of
those occasions, Dr. Knepshield's treatment notes focus
solely on Plaintiff's elevated blood pressure,
see [#16-17; #16-18; #16-19; #16-20]; however, on
August 22, 2014, Dr. Knepshield reported that Mr. Lee
complained of persistent right shoulder pain, this being
after Plaintiff met with attorneys regarding this matter.
See [#16 at SOUMF ¶¶ 27-32; #16-21].
Plaintiff denies that he did not report his right should pain
or any other injuries to Dr. Knepshield until the August 22,
2014 visit. [#26 at RMSMF ¶¶ 27-30]. Rather, Dr.
Knepshield diagnosed the rotator cuff injury and referred
Plaintiff to physical therapy, therapy that lasted several
months and resulted in Plaintiff regaining only 90% of his
right shoulder use. [#26 at RMSMF ¶ 27 & SADF ¶
on April 27, 2015, Plaintiff entered a guilty plea to charge
of “Harassment-strike/shove/kick An Act of Domestic
Violence” pursuant to Colo. Rev. Stat. §
18-9-111(1)(a) and received a deferred sentenced upon
completion of 18 months of supervised probation that included
completion of domestic violence and alcohol treatment. [#16
at SOUMF ¶ 33; #16-21; #26 at RMSMF ¶ 33]. Mr. Lee
completed probation, the plea was withdrawn, and all charges
were dropped. [#26 at RMSMF ¶ 33].
Rule 56 Generally
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal
Co., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is
a genuine dispute as to a material fact depends upon whether
the evidence presents a sufficient disagreement to require
submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);
Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th
Cir. 1987). A fact is “material” if it pertains
to an element of a claim or defense; a factual dispute is
“genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable party could
return a verdict for either party. Anderson, 477
U.S. at 248. “A ‘judge's function' at
summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.'” Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014).
moving party demonstrates an absence of evidence supporting
an essential element of the opposing party's claims, the
burden shifts to the opposing party to show that there is a
genuine issue for trial. Celotex, 477 U.S. at 324.
To satisfy this burden, the nonmovant must point to specific
facts in an affidavit, deposition, answers to
interrogatories, admissions, or other similar admissible
evidence demonstrating the need for a trial. Id.;
Mares v. ConAgra Poultry Co., 971 F.2d 492, 494
(10th Cir. 1992). “[A] mere ‘scintilla' of
evidence will be insufficient to defeat a properly supported
motion for summary judgment; instead, the nonmoving party
must introduce some ‘significant probative evidence
tending to support the complaint.'” Fazio v.
City & County of San Francisco, 125 F.3d 1328, 1331
(9th Cir. 1997) (quoting Anderson, 477 U.S. at 249,
252). In reviewing a motion for summary judgment the court
views all evidence in the light most favorable to the
non-moving party. See Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
doctrine of qualified immunity applies to government
officials in their individual, as opposed to official,
capacity, and does not attach to government entities. See
Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005).
Accordingly, the doctrine “protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Clark v. Wilson, 625 F.3d 686, 690
(10th Cir. 2015) (quoting Pearson v. Callahan, 555
U.S. 223 (2009)).
§ 1983 cases, when a defendant moves for summary
judgment on the basis of qualified immunity, the plaintiff
must do more than simply identify a genuine dispute of
material fact. Once an individual defendant asserts qualified
immunity, Mr. Lee must demonstrate that Defendants violated
his constitutional rights and that those rights were clearly
established. See Cox v. Glanz, 800 F.3d 1231, 1246
(10th Cir. 2015). And, “although we review the evidence
in the light most favorable to the nonmoving party, the
record must clearly demonstrate the plaintiff[s] ha[ve]
satisfied [their] heavy two-part burden.” Felder ex
rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir.
2014) (internal quotations and citation omitted). Courts have
discretion to consider either prong first. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that trial
courts should exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first); Panagoulakos v. Yazzie,
741 F.3d 1126, 1129 (10th Cir. 2013).
Claim I - Retaliatory Arrest
state a First Amendment retaliation claim, Plaintiff must
allege “(1) he was engaged in constitutionally
protected activity, (2) the government's actions caused
him injury that would chill a person of ordinary firmness
from continuing to engage in that activity, and (3) the
government's actions were substantially motivated as a
response to his constitutionally protected
conduct.” Nielander v. Bd. of Cty.
Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009).
Defendants move for summary judgment on Claim I for two
reasons. First, Plaintiff cannot prove that his hurled
insults at Defendants substantially motivated his arrest,
because, at a minimum, probable cause existed to arrest
Plaintiff and, therefore, his arrest was required by Colorado
statute. [#16 at 12, 13]. Second, even if Plaintiff could
prove that retaliatory animus played some role in his arrest,
Defendants are nevertheless entitled to qualified immunity
because the “right to be free from retaliatory arrest
that is otherwise supported by probable cause” was not
clearly established at the time of his arrest. [Id.
at 12-13; #29 at 7]. The court examines both arguments, first
considering whether such a violation is clearly established,
and ultimately concluding that Defendants are entitled to
summary judgment on Claim I.
a constitutional right to be clearly established, the
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Wilson v. Montano, 715
F.3d 847, 852 (10th Cir. 2013) (internal quotations,
brackets, and citation omitted). Plaintiff may do so
“by identifying an on-point Supreme Court or published
Tenth Circuit decision; alternatively, ‘the clearly
established weight of authority from other courts must have
found the law to be as the plaintiff[s] maintain.”
Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)
(quoting Weise v. Casper, 593 F.3d 1163, 1167 (10th
Cir. 2010)). However, the Supreme Court has again reminded
lower federal courts that “‘clearly established
law' should not be defined ‘at a high level of
generality.'” White v. Pauly, 137 S.Ct.
548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011)).
mentioned, Defendants assert, “the Supreme Court has
held that there is no national precedent clearly establishing
a ‘right to be free from retaliatory arrest that is
otherwise supported by probable cause.'” [#16 at
12-13 (quoting Reichle v. Howards, 566 U.S. 658
(2012)]. While true that the Supreme Court in Reichle v.
Howards recognized that “[t]his Court has never
held that there is such a right, ” and held that at the
time of Mr. Howards' arrest in 2006 the United States
Court of Appeals for the Tenth Circuit's (“Tenth
Circuit”) precedent did not clearly establish such a
right, see 566 U.S. 658, 132 S.Ct. 2088, 2093-95
(2012), this court respectfully concludes that such a right
was clearly established in 2014, the year of
DeLoach v. Bevers, the Tenth Circuit held that an
arrest “taken in retaliation for the exercise of a
constitutionally protected right is actionable under §
1983 even if the act, when taken for a different reason,
would have been proper.” 922 F.2d 618, 620 (10th Cir.
1990) (internal quotations and citations omitted).
DeLoach implied that a plaintiff could pursue a
retaliatory arrest claim notwithstanding the existence of
probable cause. Id. The Tenth Circuit eventually
extended this proposition to retaliatory prosecution claims.
See Poole v. Cty. of Otero, 271 F.3d 955, 961-62
(10th Cir. 2001), abrogated by Hartman v. Moore, 547
U.S. 250 (2006). However, the Supreme Court cast doubt on the
validity of DeLoach in 2006 when it held that the
absence of probable cause is a necessary element of a
retaliatory prosecution claim, because of the
complex causal relationship inherent in such claims, i.e.,
the retaliatory animus is not between one person and that
person's injurious conduct, but between one person and
the injurious act of another-the prosecutor.
Hartman, 547 U.S. at 259, 262.
Hartman, the Circuits were split as to whether
Hartman applied equally to retaliatory arrest
claims, i.e., whether the existence of probable cause was
fatal to such a claim. See, e.g., Skoog v. Cnty.
of Clackamas, 469 F.3d 1221, 1231 & n.31 (9th Cir.
2006) (detailing the split among circuits). In 2011, the
Tenth Circuit had occasion to reconsider
DeLoach's prudence in the wake of
Hartman. See Howards v. McLaughlin, 634
F.3d 1131, 1147-48 (10th Cir. 2011). In Howards, Mr.
Howards alleged that the defendants (Secret Service Special
Agents) unlawfully arrested him in violation of his Fourth
and First Amendment rights after he publicly criticized and
touched then Vice President Dick Chenney outside a shopping
mall in Beaver Creek, Colorado. Id. at 1135-38.
After concluding that the defendants were entitled to
qualified immunity on Mr. Howards' Fourth Amendment claim
given the existence of probable cause, the Tenth Circuit
considered whether that probable cause was equally fatal to
his First Amendment retaliatory arrest claim. Id. at
1145. The Tenth Circuit explicitly held that it declined to
extend Hartman to retaliatory arrest claims, noting
the “care the Supreme Court took to distinguish between
[the causal relationships in] complex [retaliatory