United States District Court, D. Colorado
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 ...