PHILIP A. BRIMMER, District Judge.
This matter is before the Court on defendants' motion to dismiss [Docket No. 12]. The motion is fully briefed and ripe for disposition.
Plaintiff lives in Unit B, one of three residential units, in a warehouse in Denver, Colorado. In the early morning hours of July 17, 2010, plaintiff was on the roof over his unit with friends. The ladder they used to access the roof remained leaning against the building. Only Unit A of the building had an internal staircase allowing access to the roof. Plaintiff and his friends did not venture onto the roofs of Units A or C, but one of his friends did walk around on the roof of Unit B.
Janet Feder, the owner of Unit A, heard somebody walking around on the roof and called the police to report what she believed to be a burglary in progress. Defendant Joe Lucero, a Denver Police Department officer, replied to the call. Officer Lucero climbed the ladder to access the roof and identified himself as a police officer. Officer Lucero shined his flashlight into plaintiff's face. Plaintiff could not make out anything other than the light from the flashlight and a dark shadow. Plaintiff's initial reaction was that it was a friend playing a prank, and he therefore responded with a "jeering remark." Docket No. 1 at 3, ¶ 8. Officer Lucero instructed plaintiff "to walk over and get down on the ground." Id.
Apparently, by this point, plaintiff realized Officer Lucero was a police officer because he asked Officer Lucero who called the police. Officer Lucero responded by saying "the homeowner." Docket No. 1 at 4, ¶ 8. Plaintiff informed Officer Lucero that he was the homeowner and that he had not called the police.
Another Denver police officer, defendant Ryan Tuggle, then arrived on the roof of the warehouse. Plaintiff alleges that defendants "continued to assault the Plaintiff until Plaintiff offered to get his identification." Docket No. 1 at 4, ¶ 10. Plaintiff asked the officers if he could stand up so as to provide them with identification. Officer Lucero told him that he could, but when plaintiff attempted to stand up, the officers "forced him back down, pushed his face into the roof again and cracked one of the Plaintiff's ribs." Docket No. 1 at 4-5, ¶ 10. Plaintiff informed the officers that his identification was in his front pocket, so he would have to get off of his stomach to access it. The officers, however, were not listening to plaintiff at this point. During these events, plaintiff's friends told the officers that plaintiff was the property owner and inquired why the police were treating him that way.
The officers thereafter led defendant down the staircase to Unit A. Plaintiff told them that he did not want to enter somebody else's property. The officers then "forced" plaintiff down the remaining stairs, having to pull him back by the handcuffs, causing him severe pain. Docket No. 1 at 5, ¶ 11. The officers arrested plaintiff and took him to jail. Plaintiff was charged with failure to obey a lawful order and resisting arrest.
Plaintiff initiated the present action on June 9, 2011, alleging that defendants violated his right to be free from excessive force pursuant to 42 U.S.C. § 1983. Defendants filed the present motion pursuant to Fed. R. Civ. P. 12(b)(6) on September 2, 2011, arguing that they are entitled to qualified immunity.
"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's Complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).
Generally, "[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.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and citation omitted). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).
The Tenth Circuit has outlined the application of this standard of review in cases, such as this one, where state officials raise the defense of qualified immunity:
Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (citations and footnote omitted).
"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). Qualified immunity provides a defense to trial and the other burdens of litigation such as discovery, rather than just liability. See Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson, 555 U.S. 223. Therefore, a court is to resolve questions of qualified immunity at the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified immunity challenge still does not have a heightened pleading standard. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001); see id. at 914 (although qualified immunity protects public officials "from the costs associated with defending against lawsuits, particularly baseless ones, it d[oes] not follow that a defendant's claim of qualified immunity c[an] always be resolved before at least some discovery [is] conducted.") (citing Crawford-El v. Britton, 523 U.S. 574, 591-93 & 593 n.14 (1998)).
Plaintiff's sole claim against defendants is for excessive force. See Docket No. 19 at 4.
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Upon a public official's assertion of a qualified immunity defense, plaintiff bears a "heavy burden" under a two-pronged analysis. Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008). Under the first prong of the analysis, the plaintiff is required to "establish that the defendant's actions violated a constitutional or statutory right." Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of whether a violation occurred under the first prong of the qualified immunity analysis turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007). Under the second prong, the plaintiff must show that the right at issue was "clearly established" at the time of the defendant's alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
The Court may exercise its discretion "in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances." Pearson, 555 U.S. at 236. The Court will begin by determining whether there has been a violation of plaintiff's rights. For plaintiff to succeed on his § 1983 excessive force claim, he must establish a deprivation of a federal right by a person acting under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Here, the complaint sufficiently alleges that defendants were acting under color of state law. The focus, therefore, is on whether defendants deprived plaintiff of a federal right.
The Fourth Amendment provides that the "right of the people to be secure in their persons . . . against unreasonable . . . seizures . . . shall not be violated." U.S. Const. amend. IV.
Excessive force can render a seizure unreasonable. The Court must "analyze whether the force used to effectuate an arrest violates an individual's Fourth Amendment rights under the `objective reasonableness' standard of the Fourth Amendment." Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir. 2005) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)). That analysis is conducted "from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances." Buck v. City of Albuquerque, 549 F.3d 1269, 1287-88 (10th Cir. 2008) (quoting Marquez, 399 F.3d at 1220). "Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: 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." Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008) (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). In addition to such justifications for the use of force, the Court must also consider "the degree of force . . . used to effect it." Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007).
In this case, the Court concludes that the initial application of force by Officer Lucero, i.e., striking plaintiff, tackling him to the ground, driving his knee into his back, and handcuffing him, was objectively reasonable. Officer Lucero suspected that plaintiff was engaged in a burglary, which is a severe crime. Plaintiff's allegations also reveal that he failed to comply with an order and began walking away from the officer. Cf. Chidester v. Utah County, 268 F. App'x 718, 727 (10th Cir. 2008) (concluding that tackling plaintiff was unreasonable where officer was "faced with a compliant suspect whose hands were above his head"). At that time, the officer was alone at night on the roof of a building and plaintiff was walking back toward a group of unidentified individuals.
Similarly, plaintiff does not allege facts showing that the officers' conduct when leading him down the stairs was objectively unreasonable. Plaintiff alleges that defendants "forced" him down the stairs and had to hold him back by the handcuffs to keep him from falling. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396 (quotation marks and citation omitted); see Marquez v. City of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005) ("[T]he Fourth Amendment does not require police [officers] to use the least intrusive means in the course of a detention, only reasonable ones."). And, although plaintiff alleges that being held back by the handcuffs caused extreme pain, there is no indication that he suffered anything other than temporary, de minimis harm. See Fisher v. City of Las Cruces, 584 F.3d 888, 898 (10th Cir. 2009) ("We . . . have consistently continued to reject `a bright-line rule requiring plaintiffs to demonstrate physical [as opposed to other] injury when bringing excessive force claims.' What we do require, though, is actual harm whether it be `physical or emotional.'") (citations omitted).
Plaintiff also alleges that, while restrained and compliant on the roof in handcuffs and apparently with Officer Lucero's knee on his back, he was given permission to stand up. When he stood up, the officers forced him back to the ground with force sufficient to break a rib. Such force is excessive.
Because plaintiff has adequately alleged a Fourth Amendment violation, the Court must turn to the second prong of the qualified immunity analysis, namely, whether the right at issue was clearly established at the time. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Casey, 509 F.3d at 1283-84 (quoting Saucier, 533 U.S. at 202); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987). Qualified immunity provides "ample room for mistaken judgments," Malley v. Briggs, 475 U.S. 335, 343 (1986); cf. Casey, 509 F.3d at 1286 ("[A]n officer's violation of the Graham reasonableness test is a violation of clearly established law if there are `no substantial grounds for a reasonable officer to conclude that there was legitimate justification' for acting as she did." (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1197 (10th Cir. 2001))); Whitington v. Lawson, No. 06-cv-00759-LTB-CBS, 2009 WL 3497791, at *3 (D. Colo. Oct. 29, 2009) ("Qualified immunity exists so long as reasonable officials in the same situation as the defendants could disagree on the appropriate course of action to follow.") (citing Holland, 268 F.3d at 1186). "[D]efendants are required to make `reasonable applications of the prevailing law to their own circumstances.'" Currier, 242 F.3d at 923 (quoting Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1999)).
"A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits." Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)) (internal quotation marks omitted).
And, as the Tenth Circuit has pointed out, the "difficult part of this inquiry is identifying the level of generality at which the constitutional right must be `clearly established.'" Casey, 509 F.3d at 1284. For instance, it is beyond dispute that it was clearly established at the time that individuals had a right to be free of excessive force. See Graham, 490 U.S. at 395. But "the Supreme Court has held that Graham's `general proposition . . . is not enough' to turn all uses of excessive force into violations of clearly established law." Casey, 509 F.3d at 1284 (quoting Saucier, 533 U.S. at 201-02). "In other words, the fact that it is clear that any unreasonable use of force is unconstitutional does not mean it is always clear which uses of force are unreasonable." Id.; see Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) ("We have repeatedly told courts . . . not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.") (citations omitted).
However, factual novelty alone will not automatically provide a state official with the protections of qualified immunity. See Casey, 509 F.3d at 1284 (noting that in the Fourth Amendment context, "there will almost never be a previously published opinion involving exactly the same circumstances"); Blake, 469 F.3d at 914 ("[A] general constitutional rule that has already been established can apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful." (internal quotation marks and alteration marks omitted)).
In this case, the Court finds that "there are `no substantial grounds for a reasonable officer to conclude that there was legitimate justification' for acting as []he did." Casey, 509 F.3d 1278, 1286 (10th Cir. 2007) (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1197 (10th Cir. 2001).
For the foregoing reasons, it is
