Strepka v. Jonsgaard et al

Filing 139

ORDER. The Court AFFIRMS the Magistrate Judges Recommendation 118 . Defendant Jonsgaard's Motion for Summary Judgment 73 is GRANTED. All claims against Defendant Jonsgaard are dismissed, by Judge R. Brooke Jackson on 11/16/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 10-cv-00320-RBJ-KMT
MARK ALAN STREPKA,
Plaintiff,
v.
SERGEANT GERALD JONSGAARD, Individually and in his official capacity as Aurora City
Police Officer, and
CITY OF AURORA, COLORADO, a second class city and a municipal corporation of Colorado
Defendants.

ORDER

This case was referred to United States Magistrate Judge Kathleen M. Tafoya, pursuant
to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. On July 18, 2011, the Magistrate Judge issued a
Recommendation (#118) concerning Defendant Jonsgaard’s Motion for Summary Judgment
(#73)1. The Magistrate Judge recommended that Defendant’s Summary Judgment motion be
granted. On August 22, 2011, Plaintiff Mark Strepka, proceeding pro se, filed timely objections
to the Recommendation (#126).2 Defendant Jonsgaard filed a response on September 6, 2011
(#131).

Facts
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Magistrate Judge Tafoya’s Order also ruled on Defendant’s Motion to Strike Plaintiff’s Exhibits (#102). Because
that was a final order, and was not objected to, it will not be reviewed in this order. The City of Aurora has not
moved for Summary Judgment.
2
Pursuant to an Order granting Plaintiff’s oral Motion for Extension of Time to Submit Objection to Order and
Recommendation of United States Magistrate Judge, Plaintiff had until August 26, 2011 to file his objections
(#122).

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On January 20, 2009, Plaintiff was arrested for several traffic offenses, which ultimately
led to his conviction for felony vehicular eluding. Plaintiff brings suit pursuant to 42 U.S.C. §
1983 and the Fourth and Fourteenth Amendments for injuries resulting from Defendant
Jonsgaard’s use of force during Plaintiff’s arrest.
The following facts are taken from Plaintiff’s Prisoner Complaint (#3) and the party’s
filings regarding Summary Judgment.3 On January 20, 2009 Defendant Jonsgaard was on duty
working as an officer for the Aurora Police Department. While Defendant Jonsgaard was
traveling eastbound on East Colfax Avenue in a marked police vehicle, the plaintiff passed
Defendant Jonsgaard’s vehicle. Defendant Jonsgaard estimated that plaintiff’s speed was
between seventy and eighty miles per hour in a 35mph zone. Plaintiff denies that he was
speeding or driving recklessly. Defendant Jonsgaard activated his emergency lights and siren in
pursuit of plaintiff’s vehicle. Plaintiff did not pull over and proceeded through a number of
intersections and a red traffic signal. For safety reasons, Defendant Jonsgaard deactivated his
emergency lights and terminated his pursuit. Defendant Jonsgaard then followed plaintiff into
the parking lot of an auto parts store. Plaintiff exited his vehicle and began to walk towards the
store.
Defendant Jonsgaard exited his vehicle with his gun drawn, identified himself, and yelled
for the plaintiff to stop and get on the ground. Defendant Jonsgaard repeated his command after
Plaintiff did not respond. Defendant Jonsgaard contends that plaintiff turned and told Defendant
Jonsgaard, “fuck you, I’m not getting on the ground” and started to reach into the waste-band of
his pants. Plaintiff vehemently disputes that he cursed at, threatened, or indeed responded at all
to Defendant Jonsgaard’s commands. Plaintiff was wearing a knit hat that covered his ears and

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Defendant Jonsgaard’s Motion for Summary Judgment (#73); Plaintiff’s Response (#87); Defendant Jonsgaard’s
Reply (#98).

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argues that he could not hear Defendant Jonsgaard’s commands. As a result, plaintiff argues that
Defendant Jonsgaard used force without giving any warnings.
Defendant Jonsgaard then deployed his Taser at plaintiff. Because the Taser did not
impact the plaintiff, he used a “cross-face” maneuver to take plaintiff to the ground. A crossface maneuver is an approved arrest technique for the Aurora Police Department. The Taser was
still active when Defendant Jonsgaard made contact with the plaintiff and both Defendant
Jonsgaard and plaintiff were impacted by the charge. When the charge ceased, Defendant
Jonsgaard contends that plaintiff continued to struggle and he had to pin him to the ground.
Plaintiff claims that in the struggle Defendant Jonsgaard slammed plaintiff’s head into the
pavement at least three times. With the assistance of other officers who arrived at the scene,
Defendant Jonsgaard handcuffed the plaintiff.
Plaintiff was arrested for reckless driving and was eventually convicted after a jury trial
of felony vehicular eluding and resisting arrest in Arapahoe County Court (2009CR000170).
Defendant Jonsgaard asserts that he did not notice that plaintiff had any serious injuries at the
scene of the arrest. Plaintiff alleges that he had headaches, dizziness, and disorientation at the
scene. Plaintiff also claims that he suffered broken bones in his pelvis, a concussion, and an
injured shoulder in addition to cuts and bruises. Medical attention was not called to the scene.
Defendant Jonsgaard was not involved in checking plaintiff for injuries and had no further
contact with plaintiff after plaintiff was handcuffed.
On February 7, 2011 Defendant Jonsgaard filed a motion for summary judgment based
on qualified immunity (#73). The City of Aurora has not moved for summary judgment.
Plaintiff filed his opposition on March 25, 2011 (#87). Defendant Jonsgaard filed a reply in
support of his Motion for Summary Judgment on April 18, 2011 (#98).

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Standard of Review
Recommendation of the Magistrate Judge
Following the issuance of a magistrate judge’s recommendation on a dispositive matter
the district court judge must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The district judge is permitted to
“accept, reject, or modify the recommended disposition; receive further instruction; or return the
matter to the magistrate with instructions.” Id. To be proper, an objection must be both timely
and specific. U.S. v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). An
objection is timely if it is filed within fourteen days of the issuance of the Magistrate’s
recommendation. Fed. R. Civ. P. 72(b)(2). To preserve an issue for de novo review, the
objection must be specific enough to “focus the district court’s attention on the factual and legal
issues that are truly in dispute.” One Parcel, 73 F.3d at 1060. The Federal Magistrates Act does
not “require any review at all, by either the district court or the court of appeals, of any issue that
is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Pro Se Plaintiff
When a case involves a pro se party the court will “review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v.
U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, “it is not the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
could be based…conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Id. Pro se parties must “follow the same rules of

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procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(citing Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
Summary Judgment
The Court may grant summary judgment if “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). The
moving party has the burden to show that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving
party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A
fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court will examine the factual record and make reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v.
City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
Qualified Immunity
Because Defendant Jonsgaard is asserting a qualified immunity defense the summary
judgment standard is subject to a “somewhat different analysis from other summary judgment
rulings.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). The qualified immunity
doctrine “shields government officials performing discretionary functions from liability for
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Toevs v. Reid, 646 F.3d 752, 755 (10th
Cir. 2011) (internal citations omitted). To overcome summary judgment based on qualified

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immunity, the plaintiff “must show that the defendant’s actions violated a specific statutory or
constitutional right, and that the constitutional or statutory rights the defendant allegedly violated
were clearly established at the time of the conduct at issue.” Steffey, 461 F.3d at 1221.
This standard translates into a two-pronged inquiry: “First a court must decide whether
the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.
Second, the court must decide whether the right at issue was ‘clearly established’ at the time of
the defendant’s alleged misconduct.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070
(10th Cir. 2009). A right is clearly established if it would have been “clear to a reasonable
officer that his conduct was unlawful under the circumstances presented.” Id.; See also Saucier
v. Katz, 533 U.S. 194, 202 (2001). The plaintiff must satisfy both prongs to defeat a claim of
qualified immunity. Id.
Conclusions
(1) Violation of a Constitutional Right
In its de novo review, the Court has carefully reviewed all relevant pleadings, the
Magistrate’s Recommendation, Plaintiff’s Objections to the Recommendation and Defendant
Jonsgaard’s Response to Plaintiff’s Objection. Plaintiff alleges that Defendant Jonsgaard
violated his fourth amendment rights through the use of excessive force and his fourteenth
amendment rights by the failure to provide medical attention.
Fourth Amendment Excessive Force
Plaintiff alleges that Defendant Jonsgaard’s use of his Taser, the “cross-face” maneuver,
and physical force to subdue the plaintiff constituted excessive force. In determining whether an
officer used excessive force, and thus violated the arrestee’s fourth amendment rights, the
ultimate question is whether the officer’s actions are objectively reasonable in light of the facts
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and circumstances confronting them. Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th
Cir. 2010). Fourth Amendment claims are analyzed under this “objective reasonableness”
standard, rather than substantive due process. Graham v. Connor, 490 U.S. 386, 388 (1989).
The reasonableness of the officer’s actions must be judged “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. Proper
application of the standard “requires careful attention to the facts and circumstances of each
particular case, including 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.” Id. These “Graham factors” frame the inquiry. See
Casey v. City of Federal Heights, 509 F.3d 1278, 1281 (10th Cir. 2007).
First, the crime at issue was reasonably severe. Plaintiff was convicted of resisting arrest,
a class 2 misdemeanor, and vehicular eluding, a class 5 felony. See Colo. Rev. Stat. § 18-8-103;
§ 18-9-116.5. Resisting arrest is not a serious crime for purposes of excessive force analysis.
See Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th Cir. 2009) (stating that petty
misdemeanors under state law are not severe.) Due to the potential danger to the officer and
public, this Court considers the felony of vehicular eluding to be a serious crime. Plaintiff
disputes that he was speeding, running traffic lights, or that Defendant Jonsgaard activated his
emergency lights behind him. However, from the view of an officer in Defendant Jonsgaard’s
position, it is reasonable that he would believe that the plaintiff was attempting to elude arrest.
Further, this Court, as the Magistrate did, will treat the Arapahoe County jury verdict and
conviction of vehicular eluding as an undisputed fact.
The second Graham factor considers whether the suspect posed an immediate threat to
the safety of the officers or others. Graham v. Connor, 490 U.S. at 396. Here, again, the inquiry
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is whether the officer’s actions were objectively reasonable in light of the facts and
circumstances. Cavanaugh, 625 F.3d at 664. Defendant Jonsgaard believed he was dealing with
a person who was speeding and eluding arrest. Further, Defendant Jonsgaard believed plaintiff
was ignoring or disregarding orders given at gunpoint while continuing to walk away towards a
place of business. The Court agrees with the Magistrate that it would be reasonable for an
officer in identical circumstances to believe that Plaintiff posed an immediate threat to the officer
and possibly the public. As the Magistrate stated in her recommendation, “[i]t is clear that a
reasonable officer would perceive a danger that the perpetrator would engage in activity that
could endanger the officer and the members of the public given his continued evasive behavior
and attempt to leave the presence of the officer on foot.”
Finally, it is clear from the record that Defendant Jonsgaard believed that the plaintiff
was attempting to evade by flight. Plaintiff ignored a marked police car with activated
emergency lights and continued to flee on foot even when the uniformed officer emerged from
his car with his gun drawn. Although plaintiff maintains that he was not fleeing the officer,
either by car or on foot, a reasonable officer would believe that the plaintiff was doing just that.
It is reasonable for an officer to perceive a heightened threat when a suspect refuses to comply.
Given the severity of the crime, that the plaintiff posed a threat to the officer and public,
and that plaintiff was attempting to evade by flight, it is reasonable that an officer in that
situation would use force to control the plaintiff. The question now is whether the level of force
used by Defendant Jonsgaard was objectively reasonable in light of the facts and circumstances
confronting him. Defendant Jonsgaard used his Taser once unsuccessfully. Defendant
Jonsgaard then used physical force to bring the plaintiff to the ground. During this maneuver,
Defendant Jonsgaard’s Taser discharged, shocking the plaintiff across the face and shocking
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Defendant Jonsgaard as well. Defendant Jonsgaard then continued to use physical force to
subdue the plaintiff. According to Defendant Jonsgaard the plaintiff continued to struggle and
resist arrest. Plaintiff disagrees and says that Defendant Jonsgaard slammed his head against the
pavement several times.
This Court agrees with the Magistrate that, in light of the undisputed facts, Defendant
Jonsgaard’s use of force was reasonable. Based on the totality of the circumstances, a reasonable
officer would find it appropriate, even necessary, to deploy his Taser and use physical force to
prevent the plaintiff from leaving the scene, and to bring the plaintiff under control. Therefore,
this Court agrees with the Magistrate that Defendant Jonsgaard did not violate plaintiff’s fourth
amendment rights by deploying his Taser and tackling the plaintiff.
Fourteenth Amendment Failure to Provide Medical Attention
Under the Fourteenth Amendment, pretrial detainees are entitled to receive the same
protections against denial of medical attention as convicted inmates do under the Eighth
Amendment. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The Supreme Court has
held that “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an
unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind,’”
and thus constitute a Constitutional violation. Estelle v. Gamble, 429 U.S. 97, 106 (1976). To be
successful a plaintiff must show a “deliberate indifference to serious medical needs.” Martinez,
563 F.3d at 1088. An official or officer’s deliberate indifference must be shown by
demonstrating that officer knew of and disregarded an excessive risk to the arrestee’s health or
safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This analysis has both an objective and
subjective component: “the official must both be aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
The “failure to alleviate a significant risk that he should have perceived but did not, while no
cause for commendation,” is also not to be condemned under the Supreme Court’s case law. Id.
at 838.
Defendant Jonsgaard argues that not only did he not know of and deliberately disregard
plaintiff’s serious medical needs, but plaintiff did not suffer any objectively serious medical
needs to begin with. Defendant Jonsgaard states that the Aurora Detention Center’s Initial
Medical Screen suggested that plaintiff had nothing more than some abrasions. Further,
Defendant Jonsgaard argues that he was not aware of any injuries to the plaintiff, aside from
some “road rash,” which cannot be characterized as an objectively serious injury. Thus, he could
not have been deliberately indifferent to plaintiff’s serious medical needs. Plaintiff argues that
after being “subdued” by Defendant Jonsgaard, he suffered headaches, dizziness, and
disorientation. As plaintiff believes these symptoms are indicative of a concussion, he argues
that he should have been taken immediately to the detention center’s “infirmary.” The plaintiff
was seen by medical staff at the jail.
In response to a question about whether the plaintiff had any injuries, Defendant
Jonsgaard testified, “[n]othing visible that I remember. Maybe road rash, scuffs…” Doc. 73,
Exhibit 4, 87:23-25. Road rashes and minor abrasions do not rise to the level of serious medical
need. This Court agrees with the findings of the Magistrate that even if the plaintiff was
experiencing headaches and dizziness, that also most likely does not rise to the level of serious
medical need. Even if headaches, dizziness, and disorientation do qualify as “serious medical
need,” Defendant Jonsgaard has testified that he was unaware of these symptoms. Defendant
Jonsgaard must both be aware of the risk, and consciously disregard it. The plaintiff has not
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produced evidence that indicates that Defendant Jonsgaard did so here. Plaintiff has failed to
establish that Defendant Jonsgaard knew of and disregarded any risk to the plaintiff’s health and
safety. Therefore, the Court agrees with the Magistrate that the plaintiff has not established a
violation of his Fourteenth Amendment rights.
(2) Clearly Established Law
As the plaintiff has not established that his Constitutional rights were violated, this Court
need not decide whether the rights were clearly established in law at the time of the conduct.
However, in the interest of completeness, the Court will briefly address the second prong of the
qualified immunity analysis.
In general, a rule is ‘clearly established’ if there is a Supreme Court or Tenth Circuit
decision on point, or if the clear weight of the authority from other courts has shown the law to
be established. Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (2007). The relevant
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 (citing Saucier, 533 U.S. at 207). In instances where excessive force is alleged, the
Tenth Circuit has adopted a sliding scale approach: “[t]he more obviously egregious the conduct
in light of prevailing constitutional principles, the less specificity is required from prior case law
to clearly establish the violation.” Id. at 1284.
Unlike in Casey, Defendant Jonsgaard did not use his Taser “immediately and without
warning against a misdemeanant.” Id. at 1286. Instead, Defendant Jonsgaard issued several
warnings prior to engaging his Taser and attempting to gain the plaintiff’s compliance by
physical force. Defendant Jonsgaard reasonably believed that he, and others, were placed in
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danger by the plaintiff’s behavior. Here, there are “substantial grounds for a reasonable officer
to conclude that there was legitimate justification” for his conduct. Holland ex. Rel. Overdorff v.
Harrington, 268 F.3d 1179, 1197 (10th Cir. 2001). The Graham factors establish “that force is
least justified against nonviolent misdemeanants who do not flee or actively resist arrest.”
Casey, 506 F.3d at 1286. In this case, the plaintiff was ultimately convicted of a felony. Further,
an officer in identical circumstances could reasonably believe that the plaintiff was attempting to
flee the scene. Thus, Defendant Jonsgaard’s use of force was reasonable and justified. The
Court agrees with the Magistrate that Plaintiff has failed to establish that Defendant Jonsgaard’s
conduct violated clearly established law.
Order
Based on the foregoing, the Court AFFIRMS the Magistrate Judge’s Recommendation
(#118). Accordingly, Defendant Jonsgaard’s Motion for Summary Judgment (#73) is
GRANTED. All claims against Defendant Jonsgaard are dismissed.

DATED this 16th day of November, 2011.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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