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Lee v. Tucker

United States District Court, D. Colorado

July 3, 2017

RYAN LEE, Plaintiff,


          Nina Y. Wang, United States Magistrate Judge

         This 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, [1] 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.


         Plaintiff 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[2] against all Defendants for allegedly using unreasonable and unnecessary force without legal justification when arresting Mr. Lee. See [id. at 7-10].

         Pursuant 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].


         The 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].

         Ms. Lee 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].

         Defendants 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].

         Then, 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, [3] 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].

         Following 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.[4] [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].

         As 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.[5] [#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].

         Defendant 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].

         Once at 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].

         Mr. Lee 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 ¶ 37].

         Finally, 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].


         I. Rule 56 Generally

         Summary 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).

         If the 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).

         II. Qualified Immunity

         The 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)).

         In § 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).


         I. Claim I - Retaliatory Arrest

         To 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.”[6] 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. Clearly Established

         “For 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)).

         As 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 Plaintiff's arrest.

         In 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.

         Following 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 ...

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