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Gurule v. Ambuehl

United States District Court, D. Colorado

March 16, 2018

ISAAC GURULE, Plaintiff,
v.
BRENT AMBUEHL, Officer Individual Capacity, and MICHAEL FINN, Officer Individual Capacity, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang Magistrate Judge

         This civil action is before the court on Defendant Michael Finn's Motion to Dismiss, [#45, filed December 12, 2017], and Defendant Brent Ambuehl's Motion to Dismiss, [#52, filed February 6, 2018]. These Motions were referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated October 6, 2017 [#21] and the memoranda dated December 13, 2017 [#46] and February 6, 2018 [#53]. For the reasons set forth below, this court respectfully RECOMMENDS that Defendant Finn's Motion to Dismiss be GRANTED and that Defendant Ambuehl's Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         Plaintiff Isaac Gurule initiated this action on April 3, 2017, by filing pro se a form Prisoner Complaint asserting a single claim pursuant to 42 U.S.C. § 1983 for excessive force in violation of his Fourth Amendment rights under the Constitution. [#1]. The court granted Mr. Gurule leave to proceed in forma pauperis under 28 U.S.C. § 1915, [#7], and ordered Mr. Gurule to file an amended pleading. [#8]. On September 15, 2017, Mr. Gurule filed an Amended Complaint, adding two claims for violation of his rights arising under the Eighth and Fourteenth Amendments. [#17]. Pursuant to § 1915 and Local Rule 8.1, the court dismissed all but the Fourth Amendment claim for excessive force asserted against Defendants Brent Ambuehl and Michael Finn in their individual capacity.[1] The court then reassigned the matter to the Honorable William J. Martinez, who referred the case to the undersigned Magistrate Judge for pretrial management. See [#20; #21]. The following facts are derived from the Amended Complaint and taken as true for the purposes of this Recommendation.

         On March 31, 2015, several law enforcement officers from the Colorado Springs Police Department (“CSPD”) and its divisions assembled at an Econo Lodge in Colorado Springs to execute a warrant for Plaintiff's arrest. The arrest warrant addressed Plaintiff's failure to return to a community corrections facility after he had signed out for work, one month earlier. Mr. Gurule, who apparently knew of the officers' presence, exited the motel from a second story window. He landed barefoot on a rocky landscape and fell forward to the ground. Plaintiff states that he was temporarily disoriented from the fall and, as he attempted to stand up, Defendants Finn and Ambuehl released a police dog, Dax, who bit Plaintiff and caused a severe injury to his left arm. Plaintiff states that Defendants released Dax without warning, and that Plaintiff did not pose any threat to the police officers at the time they released the dog. Plaintiff alleges that Dax “remained solidly attached [to his arm] while [Defendants] casually strolled over to the Plaintiff who was 7-10 ft away.” [#17 at 7]. Plaintiff received emergency medical treatment for the wound, followed by surgery, and now suffers from permanent disfigurement and impairment of arm function as a result of the attack. [Id. at 7, 10]. He seeks monetary damages.

         Defendant Finn filed his Motion to Dismiss on December 12, 2017, [#45], and Defendant Ambuehl filed his Motion to Dismiss on February 6, 2018, [#52]. Despite instruction from the court, see [#48, #54], Plaintiff did not file a Response to either Motion and has not asked for additional time in which to do so. Thus, these Motions are now ripe for adjudication.

         STANDARD OF REVIEW

         Defendants collectively argue that Mr. Gurule fails to state a cognizable claim. Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations … and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). “The burden is on the plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         Because Mr. Gurule is appearing pro se, the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[Court's] role is not to act as [pro se litigant's] advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues”) (internal citation omitted).

         ANALYSIS

         I. Applicable Law A. 42 U.S.C. § 1983

         Plaintiff asserts a claim for excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983, which allows an injured person to seek damages for the violation of his or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988). To assert a claim under section 1983, Plaintiff must show (1) that he had a right secured by the Constitution and laws of the United States that was violated (2) by a person who acted under color of state law. Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009). “A defendant cannot be liable under § 1983 unless personally involved in the deprivation.” Olsen v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (citation omitted). The complaint must allege an affirmative link between the alleged constitutional violation and the specific individual's participation in that violation. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001).

         B. Qualified Immunity

         Defendants each assert entitlement to qualified immunity. See [#45 at 5; #52 at 3]. The doctrine of qualified immunity “shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (internal quotation marks omitted)). Qualified immunity is an affirmative defense to § 1983 liability, (see Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)); once a defendant asserts the defense, the plaintiff must demonstrate that qualified immunity is not proper by showing that “(1) the defendant's conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation.” DeSpain, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255).

         C. Excessive Force in Violation of the Fourth Amendment

         “The Fourth Amendment forbids unreasonable seizures, including the use of excessive force in making an arrest.” Casey v. City of Federal Heights, 509 F.3d 1278, 1281 (10th Cir. 2007). Claims of excessive force are analyzed under the objective reasonableness standard of the Fourth Amendment. See, e.g., Graham v. Connor, 490 U.S. 386, 395 (1989); Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009). This standard “requires inquiry into the factual circumstances of every case; relevant factors include the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest.” Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) (citing Graham, 490 U.S. at 396). A “court assesses the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances.” Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir. 2005) (quoting Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) (further citation omitted)).

         II. Application

         As an initial matter, Defendants do not dispute that a seizure occurred, and this court finds that Dax's apprehension of Plaintiff constitutes a seizure. See Couture v. Bd. of Educ. of Albuquerque Public Sch., 535 F.3d 1243, 1250 (10th Cir. 2008) (asking first in the analysis of Fourth Amendment claim whether there was a seizure); Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (“[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control”). Mr. Gurule's claim for excessive force in violation of his Fourth Amendment rights is based on the injury he received incident to his encounter with the police dog. A liberal reading of the Amended Complaint indicates that Plaintiff's sole claim should be analyzed as consisting of two separate theories of excessive force: Defendants' decision to dispatch Dax; and Defendants' decision to wait to command Dax to release Plaintiff after Dax had been dispatched.[2]

         Defendant Finn argues first that Plaintiff fails to allege facts to support that he personally participated in the alleged constitutional violation, such as by alleging that he “had the ability or responsibility to control Dax, ” that Finn “handcuffed [Plaintiff] in an illegal manner or that [Plaintiff] suffered any injury as a result of being handcuffed, ” that Finn “could have prevented [Plaintiff's] injury by reaching him sooner, ” or that Finn “could have ordered Dax to release [Plaintiff].” [#45 at 4-5]. Defendant Finn argues second that Plaintiff does not allege facts to suggest that CSPD's use of Dax was objectively unreasonable. [Id. at 6]. Defendant Ambuehl, whom Plaintiff identifies as “canine dog handler, ” [#17 at 9], does not argue lack of personal participation, but contends that the facts as alleged demonstrate that the use of Dax was objectively reasonable. [#52 at 5-6].

         A. Dispatch of Dax

         1. Personal Participation ...


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