FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      November 26, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ERNIE J. SAVANNAH,

             Plaintiff-Appellee,

v.                                                        No. 13-1245
                                              (D.C. No. 1:12-CV-02403-RBJ-MJW)
BILL COLLINS,                                              (D. Colo.)

             Defendant-Appellant,

and

ROBERT KNAB,

             Defendant.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      Officer Bill Collins appeals from the district court’s denial of his Federal Rule

of Civil Procedure 12(b)(6) motion to dismiss Ernie Savannah’s 42 U.S.C. § 1983

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
civil rights complaint alleging that Officer Collins failed to intervene to stop

excessive use of force during Mr. Savannah’s arrest. In denying the motion to

dismiss, the court rejected Officer Collins’s asserted entitlement to qualified

immunity. We reverse the denial of the motion to dismiss and remand with

directions to grant the motion.

       We accept as true Mr. Savannah’s pro se factual assertions in his complaint1

with respect to his excessive force claim against Officer Collins.2 See Ashcroft v.

al-Kidd, 

, 2079 (2011) (accepting as true factual allegations in

complaint where case arose from motion to dismiss). Officer Collins arrived at the

arrest scene first, drew his gun, and ordered Mr. Savannah, a robbery suspect, to lie

face down on the ground. Mr. Savannah did so and did not resist arrest. Three to

five minutes later, Officer Robert Knab and his police dog Zorro arrived, and

Officer Knab deployed Zorro immediately without assessing the situation. Zorro first

bit Mr. Savannah on the back of the head and under his right ear. Then Zorro jumped

over him and bit him on the left side of the head at the top of the left ear, on his

left-side jugular vein, and at the base of the left side of his neck.

1
      We construe Mr. Savannah’s pro se filings liberally. See Hall v. Bellmon,

, 1110 (10th Cir. 1991).
2
       Mr. Savannah also asserted claims against various other defendants for
improper housing in administrative segregation, failure to treat his injuries while in
segregation, and harassing his family and friends. These dismissed claims are not at
issue in this appeal. Nor does this appeal concern the excessive force claim asserted
against Officer Robert Knab, and we express no opinion on the sufficiency of the
allegations against him.

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      The magistrate judge directed Mr. Savannah to file an amended complaint

complying with the pleading requirements of Federal Rule of Civil Procedure 8.

Instead, Mr. Savannah filed a motion to add an addendum to his complaint consisting

of the two officers’ reports and the medical report from the hospital where he was

treated after his arrest. The district court granted the motion and stated the three

reports would amend the complaint. See Smith v. United States, 

, 1098

(10th Cir. 2009) (“In evaluating a Rule 12(b)(6) motion to dismiss, courts may

consider not only the complaint itself, but also attached exhibits and documents

incorporated into the complaint by reference.” (citations omitted)).

      Officer Collins moved to dismiss the complaint. The magistrate judge

recommended dismissal, finding no allegation that Officer Collins used any force

against Mr. Savannah, much less excessive force; the allegation that Officer Collins

failed to intervene and stop the excessive force was conclusory; and the allegations

were insufficient to state a claim for excessive force. The district court rejected the

recommendation, however, deciding, based on Mick v. Brewer, 

, 1136

(10th Cir. 1996), that Mr. Savannah’s assertion that Officer Collins failed to

intervene and stop the alleged excessive force used by Officer Knab through Zorro

was sufficient to state a claim under § 1983. Additionally, the court decided that

Officer Collins was not entitled to qualified immunity because Mr. Savannah asserted

a violation of his Fourth Amendment rights and 

, recognized

clearly-established precedent since 1992 holding that an officer could be held liable


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under § 1983 for failing to intervene when another officer used excessive force.

      “We review the district court’s denial of a motion to dismiss based on

qualified immunity de novo.” Brown v. Montoya, 

, 1162 (10th Cir.

2011) (internal quotation marks omitted). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 

, 678 (2009)

(internal quotation marks 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.” 

are not

accepted as true, however; instead, they must be supported by facts. 

      “The doctrine of qualified immunity protects government officials 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.”

Pearson v. Callahan, 

, 231 (2009) (internal quotation marks omitted).

“To survive a motion to dismiss based on qualified immunity, the plaintiff must

allege sufficient facts that show—when taken as true—the defendant plausibly

violated his constitutional rights, which were clearly established at the time of

violation.” Schwartz v. Booker, 

, 579 (10th Cir. 2012).

      We have held that “[a]n officer who fails to intervene to prevent a fellow

officer’s excessive use of force may be liable under § 1983.” Fogarty v. Gallegos,

, 1162 (10th Cir. 2008) (citing 

); see also Casey


                                          -4-
v. City of Fed. Heights, 

, 1283 (10th Cir. 2007) (stating first officer on

scene has duty to keep arrest from getting out of hand). “This duty was clearly

established law at the time of [Mr. Savannah’s] arrest.” 

.

But the officer must have had a realistic opportunity to intervene to prevent harm

from occurring. Vondrak v. City of Las Cruces, 

, 1210 (10th Cir.

2008) (citing Anderson v. Branen, 

, 557 (2nd Cir. 1994)); see also Lusby

v. T.G. & Y. Stores, Inc., 

, 1433 (10th Cir. 1984) (“[A]lthough [officer]

was not liable merely because he was present at the scene of a constitutional

violation, . . . he may be liable if he had the opportunity to intervene but failed to do

so.”), vacated on other grounds, City of Lawton v. Lusby, 

(1985).

      Mr. Savannah did not plead sufficient facts, taken as true, to state a claim

against Officer Collins for failure to intervene to stop excessive use of force.

See 

. The factual assertions do not plausibly suggest that

Officer Collins had a realistic opportunity to intervene. Although Mr. Savannah

asserts that Officer Collins should have stopped Zorro, he does not assert that

Officer Collins could have stopped Zorro. Officer Collins did not deploy Zorro and

there is no assertion that he had the ability to control the dog. Thus, Mr. Savannah

only concludes, without factual support, that Officer Collins could have intervened

during the attack by Zorro.

      Nor does Mr. Savannah assert facts suggesting that Officer Collins had

sufficient time to intervene. Compare Thompson v. Boggs, 

, 857 (7th Cir.


                                           -5-
1994) (deciding that where one officer tackled and cuffed plaintiff quickly, another

officer had no realistic opportunity to prevent attack); Gaudreault v. Municipality of

Salem, 

, 207 n.3 (1st Cir. 1990) (deciding that officer was not liable for

failing to intervene where “attack came quickly and was over in a matter of

seconds”); and O’Neill v. Krzeminski, 

, 11 (2nd Cir. 1988) (concluding

defendant had no realistic opportunity to prevent three blows struck in rapid

succession), with 

(deciding qualified immunity should be

denied because defendant could intervene where plaintiff described arrest as lasting

between three and five minutes); and Priester v. City of Riviera Beach, 

,

925 (11th Cir. 2000) (deciding two minutes was sufficient time for officer to

intervene and order another officer to restrain police dog). Because there are

insufficient facts for us to draw a reasonable inference that Officer Collins’s conduct

was constitutionally impermissible and because Mr. Savannah’s assertion of a failure

to intervene is an unsupported legal conclusion, Mr. Savannah should not have the

opportunity to continue with litigation against Officer Collins. See 

(“Rule 8 marks a notable and generous departure from the hyper-technical,

code-pleading regime of a prior era, but it does not unlock the doors of discovery for

a plaintiff armed with nothing more than conclusions.”).




                                         -6-
      Accordingly, the judgment of the district court is reversed and the case is

remanded for further proceedings consistent with this order and judgment.


                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




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