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Livingston v. Wright

United States District Court, D. Colorado

September 6, 2017

OFFICER ADAM WRIGHT, in his individual and official capacities; OFFICER JACOB GERSON, in his individual and official capacities; JOHN and JANE DOE, an officer or officers of the Englewood Police Department, as yet unidentified, in their individual and official capacities; Defendants.


          William J. Martinez, United States District Judge.

         Plaintiff Chadwick S. Livingston (“Livingston”) brings this civil rights action against Englewood Police Officers Adam Wright (“Wright”), Jacob Gerson (“Gerson”), and John and Jane Doe (together, “Defendants”), alleging that they subjected him to excessive force in violation of the Fourth Amendment, and/or failed to intervene in each other's use of excessive force. (ECF No. 45.) Before the Court is Defendants' Motion to Dismiss. (ECF No. 53.) As explained in detail below, the Court grants this motion as to one specific theory of excessive force liability, as to Wright and Gerson in their official capacities, and as to John and Jane Doe, but the motion is otherwise denied.


         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         II. FACTS

         The Court accepts the following allegations as true for purposes of this motion.

         Livingston, a 38-year-old male at the time of the incident in question, “suffers from recurring seizures.” (ECF No. 45 at 5-6.) He has a handicap placard hanging from the rearview mirror of his vehicle (id. ¶ 7), although it is not clear if he received this handicap placard on account of his seizures.

         Livingston was driving to meet some friends on August 23, 2014. (Id. ¶ 6.) As he was driving, he began to recognize the onset of seizure symptoms. (Id. ¶ 8.) “He pulled into a nearby residential driveway in an attempt to minimize any possible danger to himself and to others.” (Id.) However, the most serious effects of the seizure came quickly and Livingston was not able to put the vehicle in park or turn off the engine before he lost control of his limbs. (Id. ¶ 9.) His vehicle drifted into the corner of a detached garage and came to a stop there, with the engine still running. (Id.)

         At around 8:00 PM, Wright and Gerson arrived at the scene to investigate a report that a vehicle had collided with a residential structure. (Id. ¶ 10.) As the seizure symptoms dissipated, Livingston noticed the officers outside of his vehicle. (Id. ¶ 11.) Wright approached the driver's side of the vehicle with his gun drawn and aimed at Livingston. (Id.) Wright and Gerson were yelling at Livingston and one of them asked if he was on drugs. (Id.)

         Apart from the lingering seizure symptoms, the site of a gun pointed at him exacerbated Livingston's inability to speak or move normally, and he feared for his life. (Id. ¶ 12.) He was unable to speak or otherwise respond to the officers' questions and commands, and was too weak to exit his vehicle. (Id. ¶ 13.) Wright soon opened Livingston's driver's side door and “facilitated [his] exit from the vehicle.” (Id.) Presumably Wright had holstered his gun by this point.

         After helping Livingston out of the vehicle, Wright forced Livingston to the concrete pavement, chest first, with his head turned sharply to the side. (Id. ¶ 14.) Livingston “did not resist and lacked the strength and motor control to do so.” (Id.) Wright, possibly with Gerson's assistance, then “wrenched [Livingston's] arms behind his back and placed him in handcuffs.” (Id.) “This was done with such force that it caused severe and lasting injuries to [Livingston's] shoulders and arms, including tears to the tendon in his left bicep and to a tendon in his right shoulder.” (Id.) “These are not . . . injuries that one would expect in a suspect who is not resisting and [who] lacked the strength and ability to resist.” (Id. ¶ 23.)

         The portion of the encounter involving Wright's drawn firearm and the portion involving Livingston's rough handcuffing procedure “were [both] acts which occurred over the span of a few minutes and not instantaneously.” (Id. ¶ 15.) Once Livingston was cuffed, Wright and Gerson “jerked [him] from the ground using the handcuffs as well as [his] belt.” (Id. ¶ 17.) He was thus lifted and carried into the back of a police car. (Id. ¶¶ 18-19.) Being carried this way “plac[ed] additional severe and unnecessary pressure on [Livingston's] back and shoulders and caused him further injury.” (Id. ¶ 17.)

         While in the police car, Livingston suffered another seizure. (Id. ¶ 19.) Paramedics soon arrived, examined Livingston, and transported him to a medical facility for treatment and evaluation. (Id. ¶¶ 19-20.)

         Livingston was never cited for any violation in connection with this incident. (Id. ¶ 21.) He now sues Wright and Gerson under 42 U.S.C. § 1983, claiming that they applied excessive force in violation of the Fourth Amendment. (Id. ¶¶ 30-41.) He also sues them for failing to intervene in each other's allegedly unconstitutional actions. (Id. ¶¶ 42-57.) Finally, he names a John Doe defendant and a Jane Doe defendant, who are “as yet unknown officers of the [Englewood Police Department]” and who may have been present and participating in the various allegedly unconstitutional acts, or who failed to intervene. (Id. ¶ 38; see also id. ¶ 52.)

         III. ANALYSIS

         A. General Standards

         1. Excessive Force

         “[A]ll claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard . . . .” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis removed). Under this standard, “the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012).

         Applying this standard “requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (1989); see also Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (referring to the Graham factors as the “three, non-exclusive factors relevant to [an] excessive force inquiry”). The Court may further consider whether “the officers' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009) (internal quotation marks omitted).

         2. Qualified Immunity

         Defendants assert qualified immunity. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “The judges of the district courts . . . [may] exercise their sound discretion in deciding which of the two prongs of the qualified immunity ...

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