Carr v. C. El Paso County

          ORDER

          Michael E. Hegarty United States Magistrate Judge

         This action arises out of the incarceration of Plaintiff Heshimo Carr (“Carr”) as a pretrial detainee at the Criminal Justice Center of El Paso County, Colorado (the “CJC”). Carr's Third Amended Complaint (“Complaint”) brings three claims pursuant to 42 U.S.C. § 1983: (1) excessive force in violation of the Fourteenth Amendment against Defendant Corpuz; (2) excessive force in violation of the Fourteenth Amendment against Defendant Cable; and (3) municipal liability against El Paso County. In response, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, Defendants' Motion to Dismiss the Third Amended Complaint [filed October 15, 2018; ECF No. 60] is granted in part and denied in part.

         BACKGROUND

         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Carr in his Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On March 24, 2017, Carr entered the CJC as a pretrial detainee. Compl. 3, ECF No. 59. At the time of his admission, Carr had recently suffered a gunshot wound to his right foot that fractured his second metatarsal bone. Id. At all relevant times, Defendants Corpuz and Cable were employed by El Paso County as Deputy Sheriffs serving in the CJC and acting under color of state law. Id.

         Carr's first claim for relief arises from an incident that occurred on or about May 18, 2017. Carr alleges that, at approximately 7:40 p.m., Deputy Corpuz was sitting at the staff table at the front of the Bravo Unit, Pod 3 at the CJC. Id. at 4. Carr approached Corpuz to request assistance either to obtain an item or to call the medical staff regarding his broken foot. Corpuz refused and when Carr complained about the refusal, Corpuz ordered Carr to “lock down” in his cell. Carr turned around and began walking to his cell. Corpuz followed very closely behind Carr, essentially “marshaling him” toward his cell, although Carr was already heading in the direction of his cell. Without turning his body, Carr turned his head to ask why Corpuz was following him and walking so fast, noting that he was injured, in a medical boot, and unable to walk as fast as Corpuz. At no time did Carr threaten Corpuz or otherwise disturb the orderly functioning of the CJC. Id.

         Carr alleges that suddenly and without provocation or warning, Corpuz reached out with both hands and violently shoved Carr in the small of the back. Given the suddenness and force of the shove, combined with Carr's unsteadiness from his foot injury, Carr lost his balance and struck the wall. The impact with the wall cut and scraped Carr's right arm, which started to bleed at the elbow. Unable to regain his balance after being shoved, Carr stumbled into the nearest cell (which was not his own), banging his body against the doorframe. Corpuz slammed the cell door and locked Carr inside. Witnesses to the incident yelled at Corpuz, complaining that his treatment of Carr was improper and unfair. In response, Corpuz ordered everyone in the pod to lock down. Corpuz then summoned assistance by pushing an emergency button. The sergeant on duty responded to Pod 3 and removed Corpuz from duty. Carr claims that, as a result of Corpuz's shove, he suffered injuries and pain to his right arm, neck, back, and foot, as well as emotional distress, anxiety, and fear of authority. Carr filed a grievance against Corpuz regarding the incident but was told by a lieutenant that the grievance would not be addressed. Id. 4-5.

         Carr's second claim for relief arises from an incident that occurred on or about September 12, 2017. Carr alleges that, at approximately 2:30 a.m., he was asleep in his cell when Deputy Cable opened the cell door and yelled for Carr to remove a sheet that Carr had placed alongside his bunk as a curtain. Id. 6. Carr immediately pulled down the sheet and stood up out of bed. Cable and a second unknown deputy entered Carr's cell and advanced toward him. Carr was confused and disoriented, as he had just been awakened and was groggy from medications that can cause dizziness or drowsiness. Carr did not understand why Cable continued to advance on him after he had followed Cable's directive to take down the sheet, so asked what else he wanted; Cable responded by asking Carr, “What's your attitude for?” Carr was confused and responded, “What attitude?” Cable ordered Carr to sit down on the bed, but without giving Carr an opportunity to do so, Cable told Carr, “this is not going to be pretty for you, Carr; this is not going to end well for you.” At no time did Cable order Carr to “cuff up.”

         Instead, Cable raised his fists and advanced toward Carr. Carr asked, “What are you talking about?” Carr contends that Cable then turned to the unknown deputy, asked “[a]re you ready for this?, ” and began punching Carr. According to the Complaint, Cable punched Carr in the head three to four times; one of the blows swelled the area around Carr's eye and the bridge of his nose. Cable also punched Carr three to four times in the abdomen. Carr did not fight back, but tried to hug Cable in an attempt to keep Cable from punching him further. Someone nearby must have called for help, because Deputy Coffee arrived, entered Carr's cell, grabbed Cable's arm, and told him to “get out of here.” Cable left the cell, and Coffee asked Carr if he was okay. Carr offered to “cuff up” for Coffee and turned around while Coffee applied handcuffs. Coffee then took Carr to the “cool-off” cell. Carr believes the medical staff examined him while he was in the cool-off cell and may have photographed his face and swollen eye. As a result of Cable's punches, Carr suffered injuries to his face and abdomen, neck pain, emotional distress, anxiety, insomnia, and fear that his life was in danger even while asleep. Id. 6-7.

         Carr brings his third claim for relief against El Paso County for municipal liability. Carr alleges that, as recently as July 2018, El Paso County paid $675, 000 to a former inmate to settle her civil rights claims, including claims of excessive force, after deputies slammed her face-first on a cell floor, causing her to suffer a torn ACL, broken knee, and other injuries. Id. 8 (citing McCully v. El Paso County, el al., No. 16-cv-00867-WJM-MEH (D. Colo., May 2, 2016)). A formal investigation in that case revealed that from 2012 to 2016, certain El Paso County deputies participated in a “rankings competition” for use of force on inmates at the CJC, many of whom were pretrial detainees who had not been convicted of any crime. Even though a whistleblower deputy reported the deputies' behavior to his superiors on more than one occasion, no action was taken until late April 2016. Plaintiff alleges that this history of disciplinary actions, the lawsuit, and the subsequent settlement, which involved allegations of law enforcement excessive force at CJC, evidence a culture and custom of excessive use of force within the El Paso County Sheriff's Office and demonstrate that El Paso County and the El Paso County Sheriff's Office created, maintained, and tolerated a culture, custom, and policy of law enforcement officers using excessive force against pretrial detainees at the CJC in violation of Carr's constitutional rights.

         LEGAL STANDARDS

         I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         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.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).

         II. Qualified Immunity

         The individual Defendants base their request for dismissal on the doctrine of qualified immunity, which protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”). The “driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims ...