Hayenga v. Garth

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim [#37]^[1] (the “Motion”). Plaintiff, who proceeds in this matter pro se, ^[2] filed a Response [#38] in opposition to the Motion, and Defendants filed a Reply [#41]. Plaintiff subsequently filed two Surreplies [#44, #45].^[3] The parties have consented to proceed before the undersigned for all proceedings pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2(d). See [#31, #47]. The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#37] is GRANTED in part and DENIED in part.

         I. Background

         Plaintiff is currently an inmate at the Trinidad Correctional Facility in Model, Colorado. According to the Amended Complaint, ^[4] prior to his incarceration, Plaintiff had an outstanding warrant for felony possession with intent to distribute^[5] and for weapon possession by a previous offender. Am. Compl. [#21] at 10. Defendants are both sheriff's deputies with Adams County. Id. At 2-3. The circumstances surrounding their June 2, 2018 arrest of Plaintiff form the basis for Plaintiff's claim against them.

         Prior to his arrest, Plaintiff was walking on the sidewalk in a residential neighborhood when Defendants approached in their patrol vehicles. Id. at 4. Plaintiff got into his car, and Defendants promptly boxed him in so that he could not drive away. Id. At this point, Plaintiff alleges that Defendant Curtis Garth (“Garth”) pointed his gun at him, causing him to flee his car in fear. Id. Defendants gave chase, and Plaintiff vaulted a fence and ran into a back yard before Defendants caught up. Id.

         Plaintiff alleges that both officers utilized their tasers against him during the ensuing struggle. Id. He also alleges that Defendant Garth used his fists and knees to deliver blows to Plaintiff. Id. Further, Plaintiff alleges that Defendant Lance Kestal (“Kestal”) punched his face multiple times, and that he sustained injuries as a result of the blows from both Defendants. Id. Eventually, Plaintiff was handcuffed and then punched in the stomach by one Defendant.^[6] After the struggle ended, Plaintiff was walked to a patrol car and placed in the back seat for an unspecified length of time. Id. Plaintiff alleges that the temperature reached ninety degrees on the day of his arrest and that the air conditioning was not on in the patrol car. Id. As a result of Defendants' actions, Plaintiff alleges that he suffered “multiple abrasions, a concussion, severe dehydration, acute kidney failure, fractured jaw, and an eye that was swollen shut.” Id.

         Plaintiff initiated this lawsuit on August 10, 2018, see Compl. [#1], and filed an Amended Complaint [#21] on November 16, 2018. Plaintiff asserts that he was subjected to excessive force resulting in violations of his rights under the Fourth Amendment. See Order [#26] at 2 (construing Plaintiff's allegations as such). As relief, Plaintiff seeks $100, 000 in damages, court costs, medical costs, and an injunction in the form of heightened training requirements for the Adams County Sheriff's Department. Am. Compl. [#21] at 4. In the present Motion [#37], Defendants seek dismissal of the claim pursuant to Fed.R.Civ.P. 12(b)(6).

         II. Legal Standard

         Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility 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 plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).

         Similarly, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[a] pleading that offers ‘labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). That said, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint include all facts necessary to carry the plaintiff's burden.” Khalik, 671 F.3d at 1192 (citation omitted).

         Further, “[t]he plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (citation omitted).

         To determine if a complaint survives a motion to dismiss, courts utilize Rule 8, instructing that “[a] plaintiff must provide a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule 12(b)(6), “to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible.” Id. Indeed, “Rule 8(a)'s mandate. . . has been incorporated into the 12(b)(6) inquiry.” United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables “the court and the defendants to know what claims are being asserted and to determine how to respond to those claims.” Tuttamore, 429 Fed.Appx. at 689.

         III. Analysis

         Liberally construing the Amended Complaint, Plaintiff argues that Defendants used excessive force in violation of the Fourth Amendment: (1) when they “deployed tasers” against him, (2) when he was struck by them after being tased, (3) when he was “punched in the stomach while handcuffed” by a defendant, and (4) when he was “placed in the backseat of cop car [sic] with no air on a 90 [degree] day.” Am. Compl. [#21] at 4. Defendants argue that they are entitled to qualified immunity on all aspects of this claim. Motion [#37] at 3.

         Certain government officials may be exempt from liability when sued in their individual capacities, as a result of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). When a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). Courts may exercise discretion regarding which of the two prongs to address first, as the failure of a single prong will trigger qualified immunity. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

         When determining whether allegations of excessive force rise to the level of stating a viable constitutional claim, the Court “must slosh [its] way through the factbound morass of ‘reasonableness.'” See Scott v. Harris, 550 U.S. 372, 383 (2007). In the Tenth Circuit, “[w]e treat excessive force claims as seizures subject to the reasonableness requirement of the Fourth Amendment, ” and as such, “to establish a constitutional violation, the plaintiff must demonstrate the force used was objectively unreasonable.” Davis v. Clifford, 825 F.3d 1131, 1134 (10th Cir. 2016) (quoting Havens v. Johnson, 783 F.3d 776, 781 (10th Cir. 2015)). The test considers the totality of the circumstances, “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Havens, 783 F.3d at 781-82 (quoting Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008) (internal quotation marks omitted)).

         The Court weighs three factors to determine whether excessive force has been adequately alleged: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Davis, 825 F.3d at 1135 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989) (alteration omitted)).

         Courts weigh two major considerations when contemplating the severity of a crime under the Graham factors. First, the felony or misdemeanor status of the crime is an essential consideration. Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007). Second, whether the crime at issue is accompanied ...