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Estate of Strong v. City of Northglenn

United States District Court, D. Colorado

April 5, 2018

ESTATE OF JAMES STRONG, JR. LANHISHA RICHMOND, individually and as natural parent of minors J.S. and T.S.R., MARCUS STRONG, and HOWARD MITCHELL, JR., Plaintiffs,



         In this civil rights action arising from the fatal shooting of James Strong, Jr. by police, Mr. Strong's Estate (the “Estate”), and Plaintiffs Lanhisha Richmond (“Richmond”), individually and as the parent of minors J.S. and T.S.R., Marcus Strong, and Howard Mitchell, Jr., bring constitutional, statutory and tort claims arising out of alleged excessive use of force, against police officers Nicholas Wilson, Jason Schlenker, and Adam Nielsen, and their employers, the Colorado cities of Northglenn, Thornton, and Westminster (together, the “Cities” or “Municipal Defendants”). Now before the Court is Defendants' Partial Motion to Dismiss (ECF No. 35 (Defendants' “Motion”)), which seeks dismissal under Federal Rule of Procedure 12(b)(6) of the claims pled against the Cities and Defendant Nielsen. For the reasons explained below, the Motion is granted.


         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)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         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).

         However, “[t]he 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.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). “[C]omplaints that are no more than ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action, ' . . . ‘will not do.'” Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 555).


         The following factual background is drawn from Plaintiffs' Amended Complaint (ECF No. 33 (the “Complaint”)), and treated as true for present purposes. See Ridge at Red Hawk, 493 F.3d at 1177.

         On May 28, 2015, Plaintiff Lanhisha Richmond (“Richmond”) and her common-law husband, James Strong, Jr. (“Strong”), were asleep in their home in Northglenn, Colorado, when they were awoken by a loud sound, followed by more loud noises coming from the living room area. (ECF No. 33 ¶¶ 5-6, 18-19.) Also in the home with Strong and Richmond were their minor child, J.S., Richmond's other child, T.S.R., Strong's brother, Marcus Strong, and a visiting friend, Howard Mitchell, Jr., all of whom are Plaintiffs here. (Id. ¶¶ 7-10, 18.)

         The noise turned out be police officers, including Defendants Nicholas Wilson (“Wilson”), who is an officer with Northglenn Police Department, and Defendant Jason Schlenker (“Schlenker”), who is an officer with the Thornton Police Department. (See Id. ¶¶ 15-16, 20, 25, 31.) Both Wilson and Schlenker were assigned to the North Metro Task Force (the “Task Force”) and the Northglenn/Thornton SWAT Team. (Id.¶¶ 15-16.)[1]

         More specifically, unbeknownst to any occupants of the home, “the police had detonated a flash-bang grenade outside the home and used a battering ram to knock the front door from its hinges.” (Id. ¶ 20.) The police (i.e., “members of the North Metro Task Force”) were “acting on a no knock warrant, ” which “had been issued nine days earlier on May 19, 2015 to lead investigator [Defendant] Adam Nielsen” (id. ¶ 40), whom Plaintiffs allege “was a law enforcement officer and served as the detective for the North Metro Task Force” (id. ¶ 17). In addition, Plaintiffs allege that “[d]uring the period between the issuance of the warrant [on May 19, 2015] and the execution of the warrant [on May 28, 2015], a significant change in circumstances had occurred: school had ended . . . on May 28, 2015.” (Id. ¶ 40.)

         When the SWAT Team entered the home, however, “[a]t no time” did Strong or Richmond “hear the intruders identify themselves as law enforcement.” (Id. ¶ 23.) Likewise, the other occupants of the house “never heard the men identify themselves as law enforcement.” (Id. ¶ 24.) The “intruders” also “were wearing dark pants, dark long sleeve shirts, masks, and military style boots.” (Id. ¶ 43.)

         Fearing for his and his family's safety, Strong picked up a gun (which was registered to his wife), and “stood behind the door with the gun pointed upward.” (Id. ¶¶ 21-22.) Strong and Richmond heard footsteps moving closer to their bedroom, and when the “intruders” began to enter the bedroom, Strong fired two shots. (Id.¶¶ 23, 25.) The person entering the bedroom turned out to be Officer Wilson, who fired his weapon at Strong. (Id. ¶¶ 25-26.) Strong was injured and fell to the floor; as he fell, his gun fired a third shot. (Id. ¶ 26.) Wilson continued firing at Strong, “through the bedroom wall as he retreated down the hall, ” entering the bedroom of Strong and Richmond's child, J.S. (Id. ¶¶ 27-28.) Richmond remained in hers and Strong's bedroom, as did Strong, who lay motionless on the floor. (Id. ¶ 29.)

         Schlenker then entered the bedroom, pointing a gun at Strong. (Id. ¶ 31.) As Strong “lay severely injured on the ground, ” Schlenker “began to shoot Strong repeatedly with a .233 caliber rifle which was equipped with a silencer.” (Id.) Schlenker began “firing at a distance of eight feet and progressed until he stood over [Strong's] prone body.” (Id. ¶ 32.) Richmond was “yelling at the [sic] Schlenker to stop shooting, ” but Schlenker continued to shoot and move closer to Strong, who “was in a fetal position on the floor and not resisting.” (Id. ¶¶ 34-35.) Schlenker then-according to the Complaint-stood over Strong and “shot [Strong] in his head from a distance of ten inches.” (Id. ¶ 35.)

         Strong “was shot twenty times, including six shots to the head and neck area, ” and died from the resulting severe injuries. (See Id. ¶¶ 33, 36, 38, 44.)[2] Plaintiffs also allege that “numerous shots were directed through walls where no target acquisition was possible, ” and that “the projectiles penetrated . . . to the f loor below and struck . . . a sofa where TSR . . . was asleep.” (Id. ¶ 39.) Afterwards, each of the three adults in the residence was handcuffed and jailed, and Richmond's children were “placed in state custody.” (Id. ¶ 45.)

         This lawsuit followed. Plaintiffs filed a first Complaint on May 25, 2017 (ECF No. 1), and an Amended Complaint on August 15, 2017 (ECF No. 33). The Amended Complaint pleads nine claims: claims for excessive force brought by the Estate against Wilson and Schlenker (Claims 1 & 2); a claim by the Estate against Nielsen for Failure to Intervene (Claim 3); claims for municipal liability brought by the Estate against each of Northglenn, Thornton, and Westminster (Claims 4-6); and three separate claims against Wilson and Schlenker for false arrest, brought respectively by Richmond, on behalf of herself and her children (Claim 7), by Defendant Marcus Strong (Claim 8), and by Defendant Howard Mitchell, Jr. (Claim 9).

         III. ANALYSIS

         A. Failure-to-Intervene Claim Against Nielsen

         Defendant Nielsen moves to dismiss Count 3 of Plaintiffs' Complaint, which alleges Nielsen violated Strong's rights by failing to intervene to halt the use of force by Wilson and Schlenker. (ECF No. 33 ¶¶ 73-85.)

The Complaint alleges that Wilson and Schlenker used excessive force in violation of the Constitution (id. ¶ 74), that Nielsen “was the detective in charge of the North Metro Task Force” (id. ¶ 77), that he “had knowledge that the . . . conduct of [Wilson and Schlenker] constituted unreasonably excessive force, ” and “knowledge that [Strong's] constitutional rights were being violated, ” and that Nielsen “had a realistic opportunity to intervene and prevent the deprivation of [Strong's] constitutional rights”

(id. ¶¶ 79-81).

         Defendants argue Nielsen cannot be held liable absent plausible allegations that he had personal involvement in the alleged constitutional violation. Further, given no allegation that Nielsen was present in Plaintiffs' home at the time of the shooting, Defendants argue the Complaint “fails to allege that Nielsen observed the use of force by ...

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