United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion
to Dismiss for Failure to State a Claim
[#37] (the “Motion”). Plaintiff, who
proceeds in this matter pro se,  filed a Response [#38] in
opposition to the Motion, and Defendants filed a Reply [#41].
Plaintiff subsequently filed two Surreplies [#44,
#45]. 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.
is currently an inmate at the Trinidad Correctional Facility
in Model, Colorado. According to the Amended Complaint,
prior to his incarceration, Plaintiff had an outstanding
warrant for felony possession with intent to
distribute 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
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.
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. 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.”
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
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).
“[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).
“[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
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.
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.
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).
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)).
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)
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 ...