United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT ARAPAHOE
COUNTY DEPUTY SHERIFF DERRICK NORRIS' MOTION TO DISMISS
(DOCKET NO. 10)
Michael J. Watanabe United States Magistrate Judge
case is before this Court pursuant to an Order of Reference
to Magistrate Judge issued by Judge Christine M. Arguello on
November 13, 2017. (Docket No. 17.)
before the Court is Defendant Arapahoe County Deputy Sheriff
Derrick Norris' (“Defendant”) Motion to
Dismiss. (Docket No. 10.) The Court has reviewed the subject
motion (Docket No. 10), Plaintiff Rosemary Strassell's
(“Plaintiff”) Response (Docket No. 19), and
Defendant's Reply. (Docket No. 20.) The Court has taken
judicial notice of the Court's file, and considered the
applicable Federal Rules of Civil Procedure and case law. The
Court now being fully informed makes the following findings
of fact, conclusions of law, and recommendation.
case involves a single claim of excessive force asserted
against Defendant personally. In her Complaint (Docket No.
1), Plaintiff alleges that she is a disabled individual with
profound hearing impairment, along with several other serious
health issues for which she is prescribed medication.
Plaintiff asserts that her disability is open and obvious.
Defendant stopped her vehicle on September 24, 2015, at
approximately 6:00 p.m., “on the pretext” of an
obstructed windshield. He arrested Plaintiff for alleged
possession of narcotics, and applied excessive force while
handcuffing and restraining her. As a result, Plaintiff
suffered a shoulder injury that eventually required surgery.
The charges against Plaintiff were ultimately dismissed
because the medications found in her vehicle were
evaluating a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded factual allegations in
the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable
inferences in the plaintiff's favor. Brokers'
Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are
insufficient. Cory v. Allstate Ins., 583 F.3d 1240,
1244 (10th Cir. 2009). Instead, in the complaint, the
plaintiff must allege a “plausible” entitlement
to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-556 (2007). A complaint warrants dismissal if it
fails “in toto to render plaintiffs'
entitlement to relief plausible.” Twombly, 550
U.S. at 569 n.14 (italics in original). “In determining
the plausibility of a claim, we look to the elements of the
particular cause of action, keeping in mind that the Rule
12(b)(6) standard does not require a plaintiff to set forth a
prima facie case for each element.” Safe Street
Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir.
2017) (citation, internal quotation marks, and alteration
omitted). A court may not assume that a plaintiff can prove
facts that have not been alleged, or that a defendant has
violated laws in ways that a plaintiff has not alleged.
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983); see
also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff's complaint”).
The “‘burden[, however, ] is on the moving party
to prove that no legally cognizable claim for relief
exists.'” Hall v. Oliver, No.
15-cv-01949-RBJ-MJW, 2017 WL 1437290, at *4 n.1 (citing 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 1357 (3d ed.)).
contends that he is entitled to qualified immunity.
Government officials are entitled to qualified immunity from
liability for civil damages when their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person in their position would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The Court's analysis of qualified immunity in the
context of a Rule 12(b)(6) motion is a two-part process. One
part of the inquiry is whether the facts taken in the light
most favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). If a violation could be made out on a
favorable view of the parties' submissions, the next step
is to ask whether the right was clearly established.
Id. “Ordinarily, in order for the law to be
clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be
as the plaintiff maintains.” Medina v. City and
County of Denver, 960 F.2d 1493, 1497 (10th Cir. 1992).
to the first factor, Plaintiff asserts a claim pursuant to 42
U.S.C. § 1983 for excessive force in violation of the
Fourth Amendment. Section 1983 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. To assert a claim under
§ 1983, Plaintiff must show (1) that she 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
officer using force in the course of a seizure of a citizen
is entitled to qualified immunity unless the level of force
violated clearly established Fourth Amendment law.
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th
Cir. 2009). “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). To establish a
constitutional violation, the plaintiff must demonstrate the
force used was objectively unreasonable. Estate of Larsen
ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th
Cir. 2008). The objective reasonableness 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) (citation
omitted). 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)).
Plaintiff's Complaint does not allege sufficient facts to
plausibly state that Defendant's use of force was
objectively unreasonable. Indeed, Plaintiff does not describe
that use of force in any detail at all. The following is the
Complaint's description of Plaintiff's arrest and
subsequent injury in its entirety: “During the course
of said arrest, Defendant Norris applied excessive force
while handcuffing and restraining Plaintiff, causing injury
to Plaintiff including to her shoulder. Plaintiff repeatedly
advised defendant that he was causing injury.” (Docket
No. 1 ¶ 19.) The Court first notes that the right to
make an arrest “carries with it the right to use some
degree of physical coercion or threat thereof to effect
it.” Graham v. Connor, 490 U.S. 386, 396
(1989). Beyond Plaintiff's conclusory statement that
Defendant applied excessive force, the Complaint essentially
describes a normal, permissible arrest. See Atwater v.
City of Lago Vista, 532 U.S. 318, 354-55 (2001) (noting
that a lawful custodial arrest, where one is handcuffed,
placed in a patrol car, and taken to the police station, may
be inconvenient and embarrassing, but not violative of the
Fourth Amendment). Moreover, although Plaintiff alleges that
she repeatedly advised Defendant that he was causing injury,
she fails to describe the manner in which Defendant
restrained and then placed her in handcuffs, the amount of
time she was restrained, or how and when the injury to her
shoulder actually occurred. She also does not describe what
role, if any, her open and obvious disabilities played in
Defendant's unlawful use of force. Under these
circumstances, Plaintiff has failed to allege sufficient
facts that Defendant violated her constitutional rights.
See Jones v. Lehmkuhl, No. 11-CV-02384-WYD-CBS, 2013
WL 6728951, at *11 (D. Colo. Dec. 20, 2013) (dismissing a
plaintiff's excessive force claim that rested on nothing
more than conclusory statements of law). Accordingly,
Defendant is entitled to qualified immunity, and
Plaintiff's Complaint should be dismissed.
hereby RECOMMENDED that Defendant Arapahoe
County Deputy Sheriff Derrick Norris' Motion to Dismiss
(Docket No. 10) be GRANTED and that