United States District Court, D. Colorado
CHADWICK S. LIVINGSTON, Plaintiff,
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.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
William J. Martinez, United States District Judge.
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.
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).
Court accepts the following allegations as true for purposes
of this motion.
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
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.
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.)
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
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.)
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.)
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.)
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.)
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).
this standard “requires careful attention to the facts
and circumstances of each particular case, including  the
severity of the crime at issue,  whether the suspect poses
an immediate threat to the safety of the officers or others,
and  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).
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