United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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. [#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.
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].
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].
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].
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].
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].
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].
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].
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).
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 ...