Livingston v. Wright

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          William J. Martinez, United States District Judge

         Plaintiff 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.)

         Before 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.

         I. LEGAL STANDARD

         Summary 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).

         In 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. 1987).

         II. BACKGROUND

         The following facts are undisputed unless attributed to a party or otherwise noted.

         On the 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.)^[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.)

         Livingston 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.)

         Passersby 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, ¶ 24.)

         Wright 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.)

         As 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.)

         About 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.)

         At this 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.)

         Regardless 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.)

         No 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 ...