United States District Court, D. Colorado
CHADWICK S. LIVINGSTON, Plaintiff,
OFFICER ADAM WRIGHT, in his individual capacity; and OFFICER JACOB GERSON, in his individual capacity, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
William J. Martinez, United States District Judge
Chadwick S. Livingston (“Livingston”) brings this
civil rights action against Englewood Police Officers Adam
Wright (“Wright”) and Jacob Gerson
(“Gerson”) (together, “Defendants”),
alleging that they subjected him to excessive force in
violation of the Fourth Amendment, and/or failed to intervene
in each other's use of excessive force. (ECF No. 45.)
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 97.) For the reasons explained below, the motion is
granted as to Gerson's potential liability for a part of
Livingston's claimed injuries, but otherwise denied. The
parties will be referred to the Magistrate Judge to schedule
a Final Pretrial Conference.
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
following facts are undisputed unless attributed to a party
or otherwise noted.
evening of August 23, 2014, Livingston was driving through
Englewood, Colorado, on his way to a card game with some
friends. (ECF No. 97 at 4, ¶ 1.) He was driving a Ford F350
pickup truck, and his dog (a very protective German Shepherd)
was in the cab of the truck with him. (Id.; ECF No.
97-1 at 7.)
suffers from seizures due to head injuries. (ECF No. 97 at 4,
¶ 2.) During his drive that evening, he began
experiencing symptoms presaging a seizure. (Id.
¶ 1.) He quickly turned onto a residential street and
into a driveway leading to a detached garage, and slammed his
brakes. (Id. ¶¶ 3, 5.) The seizure then
fully took effect and Livingston lost consciousness.
(Id. ¶ 4.) During his unconscious state, his
vehicle remained in drive and his foot somehow depressed the
gas pedal, causing the vehicle to collide with a divider
between two of the detached garage's garage doors.
(Id. ¶ 5; ECF No. 97-1 at 13; ECF No. 97-2.)
The divider prevented Livingston's truck from moving
further, so Livingston's rear tires began to spin in
place. (ECF No. 97 at 5, ¶ 8; ECF No. 97-1 at 5.)
soon called the police. (ECF No. 97 at 5, ¶ 7.) The
first to arrive at the scene was Wright. (Id. ¶
8.) At first, Wright could not see who was inside the truck
because Livingston's rear tires were generating
“extensive amounts of smoke.” (Id.
¶¶ 8, 10.) The revving engine and spinning tires
also created a lot of noise. (Id. ¶ 8.)
Livingston had a handicap placard on his dashboard but Wright
never saw it (either initially or later). (Id. at 7,
believed that the vehicle's driver might be intoxicated
and attempting to flee the scene. (Id. at 5, ¶
9.) He therefore cautiously approached the driver's side
door. (Id. ¶ 10.) Around this time, Gerson
arrived and provided cover. (Id.)
Wright approached, he shouted commands for Livingston
“to put his hands on his face, turn the car off, and
get out of the truck.” (Id. ¶ 11.)
Livingston did not comply. (Id.) Wright concluded
that Livingston was a safety threat and needed to be
immobilized. (Id. ¶ 14.) Wright decided he
would break Livingston's driver's side window
“in an effort to reach Livingston, ” but as he
got close, Livingston's dog “leaped across
Livingston toward the window in an aggressive manner.”
(Id. ¶ 13.)
this time, Livingston became more responsive and opened the
driver's side door himself. (Id. ¶ 15.)
Wright prevented the door from opening any wider than
necessary to allow Livingston to exit, because Wright did not
want to allow the dog out of the truck. (Id.) Wright
assisted Livingston out of the truck by “guiding”
him “with one hand.” (Id. ¶ 16.)
Livingston does not remember how he got out of the truck.
(Id. ¶ 17.)
point, the parties' stories differ significantly.
According to Defendants, Livingston remained standing, Wright
handcuffed Livingston without resistance, and Wright guided
Livingston to a prone position on the back seat of his patrol
vehicle, with Gerson walking alongside-although Gerson made
no physical contact with Livingston. (Id. at 7,
¶¶ 18-20; ECF No. 101 at 4-5, ¶¶ 2, 6,
11.) In contrast, Livingston claims that he remembers
immediately falling to the ground, chest down, with his face
turn to the left. (ECF No. 101 at 4, ¶ 1.) He further
claims that, while on the ground, his arms “were raised
forcefully behind his back and then upwards, placing extreme
pressure on his shoulders and arms, which he described as
excruciating and likened to touching an electric
fence.” (Id. ¶ 3.) Then, he says, he
“felt himself being lifted up off the ground by the
area around his waist and buttocks, until his legs and torso
cleared the ground, ” but he blacked out at this point
“either due to another seizure or from the intense pain
he was experiencing, ” and the next thing he remembers
is laying across the rear seat of the patrol vehicle, on top
of his still-handcuffed wrists. (Id. at 5,
¶¶ 9-10.) As further support of this narrative,
Livingston claims that the jeans he wore that night had a
rear belt loop completely torn off. (ECF No. 97-1 at 7.)
Finally, Livingston claims that the rough treatment by one or
both police officers created “long-lasting and serious
bodily injuries, some of which persist to this day, ”
such as torn tendons and a left bicep that is no longer
properly attached at the shoulder area. (ECF No. 101 at 5,
¶ 13; ECF No. 101-1 at 9-11.)
of the parties' conflicting stories, they agree that, by
the time Livingston was in Wright's patrol vehicle,
Wright had begun to suspect “that Livingston might be
having a ‘medical event.'” (ECF No. 97 at 7,
¶ 22.) An ambulance had already arrived at the scene,
and Wright asked the paramedics to examine Livingston.
Livingston was soon taken to the hospital, and spent a night
there. (ECF No. 101-1 at 8.)
charges were ever filed against him based on this incident
(ECF No. 45 ¶ 21; ECF No. 71 ¶ 3), and “[t]he
entire encounter [with Wright and Gerson] lasted no more ...