Carbajal v. Warner et al

Filing 804

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 783 is ACCEPTED in part and REJECTED in part as reflected in this Order. ORDERED that defendants Carrol Warner, David Romero, and Joe Quintana's Motion for Summary Judgme nt 694 is GRANTED. ORDERED that defendant Jeffrey Watts Motion for Summary Judgment 697 is GRANTED in part and DENIED in part as reflected in this Order. ORDERED that defendants Adam Barrett, Darin Desel, James Dixon, Jay Lopez, Gilberto Lucio, Michael O'Neill, Jesse Rembert, Joel Smith, Perry Speelman, and the City and County of Denver's Motion for Summary Judgment 700 is GRANTED in part and DENIED in part as reflected in this Order. ORDERED that defendants Bill Railey, Chris W eldon, Benjamin Schroeder, and Fred McKee's Motion for Summary Judgment 714 is GRANTED. ORDERED that defendants Carrol Warner, David Romero, Joe Quintana, Adam Barrett, Darin Desel, Jay Lopez, Jesse Rembert, Joel Smith, Perry Speelman, the Cityand County of Denver, Bill Railey, Chris Weldon, Benjamin Schroeder, and Fred McKee are dismissed from this lawsuit by Judge Philip A. Brimmer on 03/29/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
CARROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in this individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 783] filed on February 17, 2016. 1 The magistrate judge
recommends that the Court (1) grant the State Defendants’ Motion for Summary
Judgment [Docket No. 694]; (2) grant the Motion for Summary Judgment filed by
defendant Jeffrey Watts [Docket No. 697]; (3) grant the Delta Defendants’ Motion for
Summary Judgment [Docket No. 714]; and (4) grant in part and deny in part the Denver
Defendants’ Motion for Summary Judgment [Docket No. 700]. Docket No. 783 at 56.
The Recommendation states that objections to the Recom mendation must be filed
within fourteen days after service on the parties. Id.; See 28 U.S.C. § 636(b)(1)(C).
The Recommendation was served on February 17, 2016. Objections were due on or
before March 7, 2016, but the Court granted plaintiff an extension until March 14, 2016
to file any objections. See Docket No. 793. The Denver Defendants filed a timely
objection. Docket No. 787.
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a
proper objection, the Court may review a magistrate judge’s recommendation under any
standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that
1

For simplicity’s sake, the Court adopts the Recommendation’s naming
convention for the numerous defendants in this case: the “State Defendants” –
defendants Warner, Romero, and Quintana; the “Denver Defendants” – defendants
Barrett, Desel, Dixon, Lopez, Lucio, O’Neill, Rembert, Smith, Speelman, and the City
and County of Denver; and the “Delta Defendants” – defendants Railey, Weldon,
Schroeder, and McKee. See Docket No. 783 at 2. Since the Denver Defendants are
the only parties who object to the Recommendation, the Court will, when discussing
their objections, refer to the Denver Defendants simply as “defendants.”
2

Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). An objection is proper if it is specific enough to enable the Court “to focus
attention on those issues – factual and legal – that are at the heart of the parties’
dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996).
In light of plaintiff’s pro se status, the Court construes his filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.
1991).
I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that 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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”

3

Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation
marks omitted)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
The Court may not grant a motion for summary judgment simply because the
nonmovant has failed to respond. 2 See Galvin v. McCarthy, No. 07-cv-00885-PAB2

This case was reassigned to this Court on January 27, 2016. Docket No. 780.
The procedural history of plaintiff’s actions in response to the instant motions is set forth
in the Honorable Christine M. Arguello’s January 13, 2016 Order, issued before the
case was assigned to the Court:
On December 21, 2015, Magistrate Judge Mix entered a minute order (Doc.
# 762) granting a motion by the Defendants (Doc. # 759) to strike Mr.
Carbajal’s response to a motion for summary judgment (Doc. # 755) for
untimeliness. Mr. Carbajal’s stricken response was initially due on or before
July 30, 2015 (Doc. # 759 at 2). After filing a belated “Motion for Extension
of Time to Respond to Defendants’ Motions for Summary Judgment (All
Pending Motions)” on August 26, 2015 (Doc. # 724), Mr. Carbajal was
granted an extension to respond by September 17, 2015 (Doc. # 726). After
missing his court-ordered deadline, Mr. Carbajal filed a belated “Second
4

BNB, 2009 WL 890717, at *2 (D. Colo. March 31, 2009) (citing Reed v. Bennett, 312
F.3d 1190, 1194 (10th Cir. 2002)). The Court must apply the usual Rule 56 analysis
and consider whether the moving party has met its burden. Id. (citing Reed, 312 F.3d
at 1194); see also Fed. R. Civ. P. 56(e)(3) (if the opposing party does not respond,
summary judgment should be entered if “the movant is entitled to it”). The Court must
“accept as true all material facts asserted and properly supported in [defendants’]
summary judgment motion” and grant summary judgment if, based on those facts, the
moving party is entitled to judgment as a matter of law. Reed, 312 F.3d at 1195.
Moreover, as the magistrate judge notes, Docket No. 783 at 3 n.4, plaintif f’s sworn
complaint, “is treated as an affidavit for summary judgment purposes as long as it
satisfies the standards for affidavits outlined in Rule 56[].” Adams v. Dyer, 223 F. App’x
757, 764 n.7 (10th Cir. 2007) (unpublished) (citations om itted).

Motion for Extension of Time” on September 21, 2015 (Doc. # 727). In an
act of generosity, Magistrate Judge Mix granted the second belated request,
extending the deadline until October 17, 2015 and stating “[n]o further
extension of time will be permitted, absent extraordinary
circumstances.” (Doc. # 730) (emphasis in original). On October 21, 2015,
Mr. Carbajal filed a belated “Third Motion for Extension Of Time.” (Doc. #
740). Finding no “extraordinary circumstances” permitting an extension and
“no reason why [Mr. Carbajal] could not have timely responded to the
Motions for Summary Judgment . . . ,” Magistrate Judge Mix denied the third
request for an extension. (Doc. # 753 at 18). In defiance of the denial, Mr.
Carbajal filed his response on December 8, 2015 (Doc. # 755).
Docket No. 774 at 2-3, ¶ 2 (emphasis and alterations in original). Because plaintiff’s
response was stricken as untimely, the Court reviews defendants’ motions for summary
judgment under the standard applicable where the nonmoving party fails to respond.
5

II. ANALYSIS
This case involves many claims against many different defendants. In 2001,
plaintiff agreed to a plea deal resolving six criminal cases pending against him,
pursuant to which plaintiff was sentenced to four years imprisonment, three years
mandatory parole, and a deferred judgment with four years supervision set to begin
after his release from confinement. See People v. Carbajal, 198 P.3d 102, 104 (Colo.
2008).
Plaintiff’s claims against the Delta Defendants — Section 1983 claims for
malicious prosecution and conspiracy to commit malicious prosecution — relate to
those defendants’ alleged use of physical coercion in 2006 to obtain plaintiff’s signature
on a document that extended his deferred judgment. See Docket No. 254 at 7-8,
¶¶ 40-42. Against the State Defendants, plaintiff brings Section 1983 malicious
prosecution and conspiracy claims related to their knowing submission of false
affidavits stating that plaintiff violated the terms of his parole and/or deferred judgment.
See Docket No. 229 at 8 (dismissing all claims against the State defendants except the
aforementioned false affidavit claim). Additionally, plaintiff brings Section 1983
unreasonable search and seizure and conspiracy claims against defendant Quintana.
Docket No. 254 at 19-20, ¶¶ 90-95. Against defendant Watts, plaintiff asserts claims
for unreasonable search and seizure, conspiracy, and excessive use of force. Id. at 1921, ¶¶ 90-95, 100-105. Against the Denver Defendants, plaintiff asserts Section 1983
claims for malicious prosecution, conspiracy to commit malicious prosecution,
unreasonable search and seizure, conspiracy to commit unreasonable search and

6

seizure, excessive force, and municipal liability. See generally Docket No. 254 at 1623. Plaintiffs’ claims are primarily based on incidents occurring on April 29, 2009,
October 13, 2009, April 5, 2010, August 14, 2010, and August 28, 2010. See id.
Additional relevant facts are set forth in considerable detail in the Recommendation3
and will not be recited here except as relevant to the Court’s de novo review.
As plaintiff has not objected to any of the magistrate judge’s findings that
recommend granting defendants’ respective motions for summary judgment, the Court
has reviewed those findings and is satisfied, with one exception that will be discussed
below, that there is “no clear error on the face of the record.”4 Fed. R. Civ. P. 72(b),
Advisory Committee Notes.
The magistrate judge recommends that the Court grant the Denver Defendants’
motion with two exceptions: the Recommendation finds that defendants are not entitled
to summary judgment with respect to plaintiff’s § 1983 excessive use of force claims
against defendants Barrett and Dixon in connection with the events of April 29, 2009
and against defendants Lucio and O’Neill in connection with the August 28, 2010
incident. See Docket No. 783 at 55. The Denver Defendants object to the magistrate
judge’s recommendation that their motion be denied in part on several grounds.

3

See Docket No. 783 at 3-5, 7-19, 22-24, 30 -31, 33-35, 39, 41-44, 47-49.

4

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
7

A. The April 29, 2009 Incident
Defendants object to the magistrate judge’s finding that defendants Barrett and
Dixon are not entitled to summary judgment on plaintiff’s excessive use of force claim.
Defendants argue that the magistrate judge did not address evidence that defendant
Barrett was not present during plaintiff’s arrest on April 29, 2009. Docket No. 787 at 6.
Defendants also argue that plaintiff’s claim against defendant Dixon fails because he
cannot state with certainty whether defendant Barrett or defendant Dixon used force
against him and because plaintiff does not establish that he suffered injuries due to the
alleged excessive use of force. Id. at 6-8. The Court addresses each of these
arguments in turn.
1. Defendant Barrett
Defendants argue that the magistrate judge erred in disregarding evidence that
defendant Barrett was not present during plaintiff’s arrest on April 29, 2009. Docket No.
787 at 6. Specifically, defendants point to declarations submitted by defendant Barrett
and defendant Dixon, each stating that defendant Barrett was not present, Docket No.
700-9 at 1-2, ¶¶ 2-5; Docket No. 700-4 at 4-5, ¶¶ 13, 16; an “Incident Detail Report”
from the incident, which does not list defendant Barrett as a responding officer, Docket
No. 700-4 at 6-8; and defendant Barrett’s dispatch records dated April 29, 2009, which
indicate that he was responding to other calls at the time of plaintiff’s arrest. Docket
No. 700-9 at 6-10. 5
5

Both the dispatch call from the incident involving plaintiff and defendant Barrett’s
dispatch records indicate that the respective calls occurred shortly before midnight on
April 28, 2009 and that the incidents lasted until af ter midnight on April 29, 2009. See
Docket No. 700-4 at 7-8; Docket No. 700-9 at 6-7. It appears that the parties ref er to
8

The Court agrees with defendants that no genuine dispute of material fact exists
with respect to plaintiff’s excessive use of force claim against defendant Barrett.
Plaintiff’s complaint alleges that, during the April 29, 2009 incident, defendants “Dixon
or Barrett forcefully grabbed and assaulted” him. Docket No. 254 at 11-12, ¶ 56. Given
the lack of specificity of plaintiff’s allegation and defendants’ evidence that defendant
Barrett was not present during the April 29, 2009 incident, there is no evidence upon
which a reasonable jury could find for plaintiff on his excessive use of force claim
against defendant Barrett related to this incident.
2. Defendant Dixon
Defendants argue that plaintiff’s allegation that either “Dixon or Barrett”
committed the alleged excessive use of force fails to establish personal participation
and that the magistrate judge did not address plaintiff’s failure to establish that he
suffered any injuries as a result of the alleged April 29, 2009 excessive use of force.
Docket No. 787 at 8-9.
In analyzing an excessive use of force claim, 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,

this as the “April 29, 2009 incident” because April 29 was the date of plaintiff’s arrest.
See Docket No. 700-4 at 10. The Court will do the same.
9

549 F.3d 1269, 1287-88 (10th Cir. 2008) (quotation omitted). “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
quotations 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).
Defendants argue that plaintiff has failed to allege personal participation because
he has not identified precisely which defendant engaged in the alleged excessive use of
force. Docket No. 787 at 7-8. The Court disagrees. Plaintiff’s complaint, construed as
an affidavit for summary judgment purposes, states that either defendant Dixon or
defendant Barrett assaulted him. Docket No. 254 at 12, ¶ 56. Drawing all inferences in
plaintiff’s favor, a jury could conclude that defendant Dixon personally participated in
using excessive force during the April 29, 2009 incident. Cf. Guion v. Spurlock, No. 14cv-00391-LTB-MEH, 2015 WL 394020, at *9 (D. Colo. Jan. 29, 2015) (“Plaintif f’s
allegations that [one of two defendants] destroyed Plaintiff’s mail on specific dates in
2013 is sufficient to demonstrate their personal participation in the alleged constitutional
violation”). The case that defendants cite, Shouse v. Price, 2008 WL 360854 (W.D.
Okla. Feb. 8, 2008), does not compel a contrary result. In that case, not only had the
plaintiff stated that he could not identify which of four defendants “took the actions
about which he complains,” the plaintiff “attaches [evidence] . . . that show[s] it was
10

indeed not any of the four [defendants] who physically placed him under arrest.” Id. at
*9 (emphasis in original). Here, although there is evidence that defendant Barrett could
not have personally participated in employing excessive use of force during the April 29,
2009 incident, there is no such evidence with respect to defendant Dixon. The fact that
defendant Barrett could not have participated makes it more certain that defendant
Dixon did.
Defendants argue that the magistrate judge erred in not addressing plaintiff’s
failure to establish that the alleged excessive use of force caused him any injuries.
Docket No. 787 at 8-9. Defendants point to “photographic evidence,” namely, plaintiff’s
booking photo from April 29, 2009, see Docket No. 700-8, and to a prior filing in
plaintiff’s criminal case in state court where plaintiff provided a description of the events
of April 29, 2009 that did not include any injury. See Docket No. 700-7 at 2, 5.
In Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), the Tenth Circuit
considered an excessive force case based on “unduly tight handcuffing” and found that
such a claim “requires some actual injury that is not de minimis, be it physical or
emotional.” Id. at 1129. “Although this language from Cortez was broadly worded . . .
[the Tenth Circuit’s] post-Cortez cases reflect the view that the holding in Cortez is
limited to handcuffing cases.” United States v. Rodella, 804 F.3d 1317, 1327 (10th Cir.
2015), petition for cert. filed, --- U.S.L.W. ---- (U.S. Mar. 16, 2016) (No. 15-1158); see
also Maresca v. Bernalillo County, 804 F.3d 1301, 1315 (10th Cir. 2015) (“Generally,
since Cortez, the Tenth Circuit has required a showing of more than de minimis injury
only in Fourth Amendment excessive force cases based on handcuffing,” and has only

11

suggested that the requirement might apply in other contexts in dicta); Fisher v. City of
Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (stating that Cortez “explain[s]” what
must be shown to recover for an excessive force claim “in a handcuffing case”); Koch v.
City of Del City, 660 F.3d 1228, 1247 (10th Cir. 2011) (noting that the standard
excessive force factors do not require a showing of injury but “an examination of the
resulting injury supplements our inquiry” in “cases in which the handcuffing is
permissible yet the manner of handcuffing may render the application of force
excessive”) (emphasis in original) (citation and quotations omitted). “[T]here is no de
minimis injury requirement for Fourth Amendment excessive force claims that involve
more than mere handcuffing.” Rodella, 804 F.3d at 1329. 6
Because the injury requirement in excessive force claims applies is limited to
handcuff cases, the Court finds no error in this aspect of the Recommendation.

6

Although Rodella is the clearest statement the Tenth Circuit has provided
concerning the lack of injury requirement in non-handcuffing excessive force cases, the
fact that Rodella was only recently decided does not entitle defendants to qualified
immunity. As of at least 2001, the Tenth Circuit has upheld non-handcuffing excessive
force cases where there was no evidence of physical injury. See Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001). In so doing, the Tenth Circuit
recognized that “the interests protected by the Fourth Amendment are not confined to
the right to be secure against physical harm; they include liberty, property and privacy
interests– a person’s ‘sense of security’ and individual dignity.” Id. at 1195. Given the
holding in Holland, and the Tenth Circuit’s limitation of the de minimis injury requirement
to handcuffing cases, see Koch, 660 F.3d at 1247 (“we examine the resulting injury in
tight-handcuffing cases in order to fill a small analytical void that Graham [v. Connor,
490 U.S. 386 (1989),] left open)” (citing Fisher, 584 F.3d at 902 (Gorsuch, J,
concurring) (internal quotations omitted)), it was “clear to a reasonable officer in
[defendants’] position” that plaintiff had a constitutional right to be free from excessive
use of force, whether or not that force caused plaintiff injury. Saucier v. Katz, 533 U.S.
194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223
(2009).
12

B. The August 28, 2010 Incident
Defendants object to the magistrate judge’s recommendation that the Court deny
defendants’ motion for summary judgment with respect to plaintiff’s excessive use of
force claim against defendants Lucio and O’Neill. Specifically, they argue that plaintiff
has provided no evidence to support his claim that he was beaten and sustained
“serious injuries to his head, back and ribs, as well as serious emotional trauma,”
Docket No. 787 at 10 (citing Docket No. 254 at 15, ¶ 74), and that there is no ev idence
that plaintiff suffered any injury as a result of the alleged use of force. Id.
As the magistrate judge noted, defendants admit that the parties “offer conflicting
accounts” with respect to what happened on August 28, 2010. Docket No. 700 at 27.
Defendants argue that, pursuant to the Supreme Court’s decision in Scott v. Harris, 550
U.S. 372 (2007), the Court should reject plaintiff’s version of events. Scott concerned
an excessive use of force claim in which a police officer, during a car chase, “applied
his push bumper to the rear of [plaintiff’s] vehicle,” causing plaintiff to lose control of the
vehicle and crash. Id. at 375. In the plaintiff’s version of events, he “remained in
control of the vehicle, slowed for turns and intersections, and typically used his
indicators for turns. He did not run any motorists off the road.” Id. at 379. A video
recording of the incident, however, showed “[plaintiff’s] vehicle racing down narrow, twolane roads in the dead of night at speeds that are shockingly fast. We see [plaintiff’s
vehicle] swerve around more than a dozen other cars, cross the double-yellow line, and
force cars traveling in both directions to their respective shoulders to avoid being hit,”
requiring the officers in pursuit to “engage in the same hazardous maneuvers just to

13

keep up.” Id. at 379-80. The Supreme Court held that, “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380.
The magistrate judge declined defendants’ invitation to apply Scott to the facts of
this case on the ground that Scott requires that a nonmovant’s evidence or testimony
be “blatantly contradicted by the record,” such as an “incontrovertible video or audio
recording of relevant events.” Docket No. 783 at 53 (quoting Carbajal v. St. Anthony
Central Hosp., No. 12-cv-02257-REB-KLM, 2015 WL 3896902, at *2 (D. Colo. June 23,
2015)). Defendants urge the Court to find just such a blatant contradiction here.
Defendants point to evidence that, when plaintiff was examined by a nurse as part of
his jail admissions process several hours after he was allegedly beaten, the only injury
plaintiff complained of was to his head and the only injury the nurse noted was a cut
above plaintiff’s left temple. Docket No. 787 at 11; see also Docket No. 702 at 1-2.
Defendants argue that “[c]ommon sense alone” should compel the conclusion that
plaintiff’s physical injuries would have been more extensive had he been beaten as he
alleges. Docket No. 787 at 11-12. Defendants also argue that the evidence “provides
a conclusive explanation” for plaintiff’s cuts, namely, before plaintiff was apprehended,
he had smashed the window of an apartment and climbed inside, cutting his head on
broken glass. Id. at 12. Defendants point to photos of the broken glass, blood
evidence that matched plaintiff’s DNA, testimony from defendants Lucio, O’Neill, and
Lopez that plaintiff had already sustained the cuts when they first encountered him, and

14

plaintiff’s criminal conviction for felony burglary which was based on the physical and
documentary evidence of the break-in. Id.; see also Docket No. 700-3 at 3, ¶ 11, 7-13,
Docket Nos. 700-21 to 700-23; Docket No. 700-16 at 2, ¶ 5; Docket No. 700-17 at 3,
¶ 11; Docket No. 700-24.
The Court finds that defendants’ evidence is not, as they contend, “so
overwhelming as to be conclusive” that plaintiff’s version of events is a fabrication.
Docket No. 787 at 12. First, while the blood evidence to which defendants refer is
evidence of an alternate cause of the cuts on plaintiff’s head, it does not foreclose the
possibility plaintiff was beaten. Second, defendants’ invitation to the Court to apply its
“common sense” to conclude that plaintiff’s injuries would have been more severe if his
version of events were true is, in this context, an invitation to draw inferences in
defendants’ favor. This, of course, the Court cannot do on summary judgment. The
Court agrees with the magistrate judge that, if plaintiff’s version of events is believed,
the elements of an excessive force claim are satisfied with respect to the August 28,
2010 incident.
C. Defendant Watts’ Motion
Although plaintiff does not object to defendant Watts’ motion for summary
judgment, the Court addresses it as part of its independent review of the
Recommendation. The magistrate judge recommends granting defendant Watts’
motion on the ground that plaintiff has failed to present evidence of any injury caused
by defendant Watts’ alleged use of force on August 24, 2010. Docket No. 783 at 26-27.
As discussed above, the Tenth Circuit does not require an excessive force plaintiff to

15

demonstrate injury, except in handcuffing cases. Thus, the Recommendation’s finding
in this respect will be overruled.
The Court has reviewed defendant Watts’ motion and finds that defendant Watts
is not entitled to summary judgment with respect to plaintiff’s excessive use of force
claim related to the August 24, 2010 incident. The only ground besides lack of injury
that defendant Watts offers with respect to this injury is that defendant Watts’ actions
“were insufficient to obtain an arrest[.]” Docket No. 697 at 8. T he Court is unaware of
any case that immunizes officers from excessive force claims if the victim of such force
is able to evade capture. While the fact that plaintiff was fleeing arrest is certainly
relevant to whether defendant Watts employed excessive force, see Weigel, 544 F.3d
at 1151-52, it is not dispositive. The Court finds that, if plaintiff’s version of events is
true, namely, that defendant Watts “rac[ed] his car at [plaintiff] and [struck] him with the
intent to cause him serious injury,” Docket No. 254 at 21, ¶ 109, a reasonable jury could
find that defendant Watts employed excessive force. Accordingly, defendant Watts’
motion for summary judgment will be denied with respect to plaintiff’s excessive use of
force claim related to the events of August 24, 2010. The Court has reviewed the
remainder of the Recommendation concerning defendant Watts’ motion for summary
judgment and is satisfied that there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes.
III. CONCLUSION
For the foregoing reasons, it is

16

ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 783] is ACCEPTED in part and REJECTED in part as reflected in this Order. It is
further
ORDERED that defendants Carrol Warner, David Romero, and Joe Quintana’s
Motion for Summary Judgment [Docket No. 694] is GRANTED. It is further
ORDERED that defendant Jeffrey Watts’ Motion for Summary Judgment [Docket
No. 697] is GRANTED in part and DENIED in part as reflected in this Order. It is further
ORDERED that defendants Adam Barrett, Darin Desel, James Dixon, Jay Lopez,
Gilberto Lucio, Michael O’Neill, Jesse Rembert, Joel Smith, Perry Speelman, and the
City and County of Denver’s Motion for Summary Judgment [Docket No. 700] is
GRANTED in part and DENIED in part as reflected in this Order. It is further
ORDERED that defendants Bill Railey, Chris Weldon, Benjamin Schroeder, and
Fred McKee’s Motion for Summary Judgment [Docket No. 714] is GRANTED. It is
further
ORDERED that defendants Carrol Warner, David Romero, Joe Quintana, Adam
Barrett, Darin Desel, Jay Lopez, Jesse Rembert, Joel Smith, Perry Speelman, the City
and County of Denver, Bill Railey, Chris Weldon, Benjamin Schroeder, and Fred McKee
are dismissed from this lawsuit.

DATED March 29, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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