Walker v. Amling

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Defendants' Motion to Dismiss (“the Motion”) filed by Defendants Kelly Amling, Jeff Mayers, and the City of Loveland (“Officer Amling, ” “Officer Mayers, ” and “the City, ” respectively; “Defendants” collectively) [#27, filed July 20, 2018]. The undersigned Magistrate Judge fully presides over this case pursuant to the parties' consent [#19] and the Order of Reference dated June 26, 2018 [#21]. Plaintiff Johny Walker (“Mr. Walker” or “Plaintiff”) responded in a one-page letter to the court filed November 23, 2018.^[1] [#49]. Defendants filed a Reply on December 7 [#51], and the matter is now fully briefed. For the reasons stated in this Memorandum Opinion and Order, the Motion is GRANTED.

         BACKGROUND

         Mr. Walker filed this case pro se on April 9, 2018, asserting claims against Officers Amling and Mayers and a third officer no longer a party to this case. See generally [#1]. The City of Loveland was not named in this initial complaint. [Id.]. Because Mr. Walker was pro se and did not pay the initial filing fee, the Complaint underwent an initial screening under Local Rule 8.1(a). In this process, the then-presiding judge, the Honorable Gordon P. Gallagher, ordered Plaintiff to file an Amended Complaint, which he did on May 2, 2018. [#4]. This Amended Complaint was filed concurrently with the entry of appearance of counsel for Mr. Walker who also paid his filing fee shortly thereafter. [#5; #7]. Because Mr. Walker was proceeding with counsel and not in forma pauperis, the case was drawn to a presiding judge with the Amended Complaint as the operative complaint. [#8].

         The Amended Complaint asserts claims arising from a nighttime traffic stop on April 9, 2016 in Loveland, Colorado. [#4 at ¶ 2]. Officers stopped Mr. Walker on suspicion of speeding and driving while intoxicated. [Id.]. In the process of pulling over, Mr. Walker urinated on himself due in part to his use of blood pressure medication, which increases the frequency and urgency of urination, and in part due to his nervousness as a black man being pulled over in the dark. [Id. at ¶¶ 15-16]. Officer Newbanks, originally named as a defendant but since dismissed, inquired whether Mr. Walker had been drinking, to which Mr. Walker replied affirmatively but indicated that it was only a “sip” of beer. [Id. at ¶ 18]. Officer Newbanks did not smell alcohol from Mr. Walker or the vehicle. [Id. at ¶ 19]. Shortly thereafter Officer Newbanks left and a “DUI officer, ” Officer Mayers, and Officer Amling arrived at the scene. [Id. at ¶¶ 21-23]. Mr. Walker was ordered out of his vehicle. [Id. at ¶ 24].

         Once out of his vehicle Mr. Walker explained that he was headed home to use the restroom and requested permission to urinate by the side of the road, to which the Officers on-scene agreed. [Id. at ¶¶ 25-27]. While relieving himself, Mr. Walker noticed the Officers searching his vehicle without permission. [Id. at ¶ 28]. When Mr. Walker returned, he began a field sobriety test, but the situation quickly deteriorated. Officers placed Mr. Walker under arrest, forced him to the ground, and repeatedly struck Mr. Walker as he protested that he was not resisting. [Id. at ¶¶ 30- 49]. More officers arrived on scene. [Id. at ¶ 52].

         Mr. Walker was placed in the back of a police cruiser and complained that his handcuffs were too tight, and in response, Officer Mayers slammed Mr. Walker's head into the back of the barrier dividing the rear passenger area from the front driver's area. [Id. at ¶¶ 55-58]. Mr. Walker was transported to the police station where a breathalyzer test indicated a blood alcohol level well below the legal limit. [Id. at ¶ 62]. Mr. Walker eventually pleaded guilty to Noise Disturbance, id. at ¶ 64, and initiated this lawsuit on April 9, 2018, exactly two years after the incident. The original Complaint asserted one claim, a § 1983 claim for excessive force against Officers Newbanks, Amling, and Mayers. [#1 at 3].

         Following Judge Gallagher's order dated April 10, 2018 [#3], Mr. Walker filed his Amended Complaint through counsel, adding the City of Loveland as a defendant for the first time, on May 2, 2018, two years and twenty-two days after the traffic stop. The Amended Complaint is much more detailed and asserts two claims: (1) a § 1983 claim for excessive force based on violations of Mr. Walker's Fourth and Fourteenth Amendment rights asserted against Officers Amling and Mayers [#4 at ¶¶ 75-96]; and (2) a § 1983 claim against the City of Loveland for maintaining constitutionally deficient policies, practices, and/or customs regarding officer conduct which resulted in Mr. Walker's injuries [id. at ¶¶ 97-114].

         Defendants filed the Motion to Dismiss on July 20, 2018, arguing that Mr. Walker's claim against the City of Loveland is barred by the statute of limitations because the Amended Complaint does not relate back to the filing of the original Complaint, which was filed on the last day of the limitations period. [#27 at 4]. Defendants further argue that the claim against the City must be dismissed because it is inadequately pled. [Id. at 11-14]. The Motion also argues that the Fourteenth Amendment claim should be dismissed because the Fourth Amendment is the proper, exclusive basis for excessive force claims against an arrestee. [Id. at 16]. Mr. Walker received an extension of time in which to file his Response until August 20, 2018. [#34]. Four days after that deadline passed without either a Response or an explanation, Mr. Walker's attorney sought leave to withdraw. [#35]. The court scheduled a hearing on the motion to withdraw because it would leave Mr. Walker without counsel, and after a further extension granted to accommodate said counsel, that hearing was held on September 5, 2018. [#42].

         The court granted Mr. Walker's counsel leave to withdraw and stayed the case for thirty days to permit Mr. Walker to retain new counsel. Mr. Walker sought, and this court granted, a further thirty-day extension, until late October, to find a new attorney. [#44; #45]. Mr. Walker eventually indicated that he would proceed without an attorney and filed, on November 23, a one-page letter to the court informing the court that the Motion to Dismiss [#27] was opposed, but making no substantive argument. [#49]. Defendants filed a Reply on December 7 [#51].

         LEGAL STANDARD

         I. Rule 12(b)(6).

         Rule 12(b)(6) states that 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). To state a claim, a complaint must contain factual allegations that, when taken as true, establish a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is distinct from, and more demanding than, mere conceivability. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).

         When reviewing a motion to dismiss under Rule 12(b)(6), a court accepts as true all well-pleaded factual allegations and views those allegations in the light most favorable to the plaintiff. Sec. & Exch. Comm'n v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). Legal conclusions, whether presented as such or masquerading as factual allegations, are not afforded such deference. Dahn v. Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017). An unadorned, conclusory ...