Carbajal v. Warner et al
Filing
879
ORDER. ORDERED that defendant Jeffrey Watts' Motion for Reconsideration of this Court's Order Dated March 29, 2016 from Defendant Watts 809 is granted in part and denied in part. ORDERED that defendant Jeffrey Watts is granted summary judgment on plaintiff's Fourth Amendment claim of excessive force. Signed by Judge Philip A. Brimmer on 12/13/16. (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.
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
MICHAEL O’NEILL, 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 Defendant Jeffrey Watts’ Motion for
Reconsideration of this Court’s Order Dated March 29, 2016 [Docket No. 809].
I. BACKGROUND
Plaintiff originally asserted claims against Mr. Watts for unreasonable search and
seizure, conspiracy, and excessive use of force as violations of the Fourth and
Fourteenth Amendments. Docket No. 254 at 19-21, ¶¶ 90-95, 100-105. On July 13,
2015, Mr. Watts moved for summary judgment. Docket No. 697. Plaintiff did not file a
response. Based on Mr. Watts’ motion, the magistrate judge recommended the
dismissal of Mr. Watts as to all claims. Docket No. 783 at 22-30. Plaintiff did not object
to the magistrate judge’s recommendation. Although plaintiff did not object to the
recommendation, the Court conducted an independent rev iew of the magistrate judge’s
recommendation to determine if the dismissal of Mr. Watts was appropriate. Docket
No. 804 at 15-16. The Court rejected the magistrate judge’s recommendation as to
plaintiff’s excessive force claim regarding the alleged August 24, 2010 incident on two
grounds: first, because the recommendation erroneously relied on whether plaintiff has
alleged anything more than a de minimis injury, id., and, second, because the Court
was “unaware of any case that immunizes officers from excessive force claims if the
victim of such force is able to evade capture.” Id. at 16.
Mr. Watts seeks reconsideration [Docket No. 809] because, in the course of
researching a potential interlocutory appeal, he discovered an unpublished opinion of
the Tenth Circuit, United States v. Beamon, 576 F. App’x 753 (10th Cir. 2014), that
addressed the question of whether a “seizure” under the Fourth Amendment can take
place where a police officer attempts an arrest, but the plaintiff’s liberty is not restrained
by such attempt. Id. at 757-58. Beamon held that a show of authority, which does not
result in actual restraint, is not a seizure and therefore does not implicate the Fourth
Amendment. Id.
II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
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However, in order to avoid the inefficiency which would attend the repeated
re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were
available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
Mr. Watts states that counsel “discovered” Beamon while researching another
matter. Docket No. 809 at 2. Mr. W atts filed his summary judgment motion on July 13,
2015. Docket No. 697. Beamon was decided in 2014. In his summary judgment
motion, Mr. Watts failed to identify Beamon or any other case standing for the
proposition that the Fourth Amendment does not apply where force is used but a
seizure is not effectuated. Compare Docket No. 697 with Docket No. 809 at 2-3. As
noted, it is generally inappropriate to reconsider a previous ruling when the grounds for
the motion to reconsider were available at the time of the original motion.
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However, it is appropriate to reconsider an order where the prior ruling was
clearly in error. Mr. Watts’ summary judgment motion did not cite Beamon and the
Court’s order did not differentiate between the Fourth and Fourteenth Amendments in
addressing plaintiff’s excessive force claims. As a result, the Court will reconsider its
prior ruling in light of Beamon to determine whether the Court clearly erred in denying
summary judgment.
III. ANALYSIS
As noted in the Court’s prior order [Docket 804 at 3-5], sum mary 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 fact 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).
The Court must “accept as true all material facts asserted and properly
supported in the 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 v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
According to Mr. Watts’ statement of undisputed facts, on or about August 24,
2010, Mr. Watts pursued plaintiff after observing plaintiff violate a no-contact order.
Docket No. 697 at 2-3, ¶¶ 3, 5-9. W hile attempting to evade Mr. Watts, plaintiff crashed
his bicycle. Id. at 3, ¶¶ 11-12. In his summary judgment motion, Mr. Watts concedes
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that there is a dispute of fact between him and the plaintiff regarding the cause of
plaintiff’s crash. Mr. Watts claims “Plaintiff simply crashed his bicycle, got up, back on
and continued to flee apprehension. Plaintiff claims Mr. Watts hit him with his vehicle,
knocking Plaintiff off the bicycle, onto the hood of the vehicle and then to the ground.”
Docket No. 697 at 8. Thus, although plaintiff did not respond to the summary judgment
motion, the Court will assume that the circumstances of the bicycle crash are in dispute.
The Court finds that plaintiff was able to successfully flee the scene after falling to the
ground and did not receive any treatment for injuries arising from his fall from the
bicycle. Id. at 3, ¶¶ 13-14.
Mr. Watts argues that, according to Beamon and the authorities cited therein, his
alleged violations of the Fourth Amendment were not clearly established law and
therefore he is entitled to qualified immunity. The plaintiff bears the burden of rebutting
the presumption of qualified immunity and must demonstrate that (1) the defendant’s
conduct violated the law; and (2) the law was clearly established when the alleged
violation occurred. Camfield v. City of Oklahoma City, 248 F.3d 1214, 1225-26 (10th
Cir. 2001).
In Beamon, the court stated that “there is no Fourth Amendment seizure when
officers apply physical force in a brief struggle, if the force is insufficient to physically
subdue the suspect.” 576 F. App’x at 758; see also Brooks v. Gaenzle, 614 F.3d 1213,
1221-22 (10th Cir. 2010) (“none of our holdings suggest the mere use of physical force
or show of authority alone, without termination of movement or submission, constitutes
a seizure”). The Beamon court acknowledged that even a momentary stop falls within
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the protections of the Fourth Amendment, but stated that submission to police authority
or termination of movement must occur. 576 F. App’x at 758. Plaintiff concedes that
Beamon and the related decisions of the Tenth Circuit foreclose any relief to him under
the Fourth Amendment in the context of an attempted seizure. Docket No. 832 at 4
(“Plaintiff agrees with the Defendant to the extent that the ‘attempted seizure’ of Mr.
Carbajal is beyond the scope of the Fourth Amendment.”).
However, in response to Mr. Watts’ motion for reconsideration, plaintiff argues
that he has presented a claim against Mr. Watts under the Fourteenth Amendment.1 Id.
Claim three of plaintiff’s third amended complaint alleges that Mr. Watts, among others,
used unreasonable and excessive force in violation of the Fourth and Fourteenth
Amendments. Docket No. 254 at 21. In count two of claim three, plaintiff alleges that
Mr. Watts “recklessly, knowingly, intentionally, willfully, and wantonly used an excessive
and unreasonable amount of force that was grossly disproportional to the norm and
warranted amount of force.” Id. at 21, ¶ 109.
Mr. Watts responds to plaintiff’s invocation of the Fourteenth Amendment by
stating that Graham v. Connor, 490 U.S. 386 (1989), holds that “all claims that law
enforcement officers used excessive force in the course of an arrest, investigatory stop
or other seizure should be analyzed under the Fourth Amendment.” Docket No 836 at
1
Plaintiff also argues that Mr. Watts’ motion is “deceptive” and has been
brought in “bad faith.” Docket No. 832 at 2. Plaintiff’s allegation of bad faith is difficult
to reconcile with his concession that the case law cited by defendant bars relief for
plaintiff under the Fourth Amendment. There is no basis to find that the motion for
reconsideration was filed in bad faith.
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3. The argument, however, begs the question of whether there was a seizure here.
Moreover, the Supreme Court has noted:
[Graham] does not hold that all constitutional claims relating to physically
abusive government conduct must arise under either the Fourth or Eighth
Amendments; rather, Graham requires that if a constitutional claim is
covered by a specific constitutional provision, such as the Fourth or Eighth
Amendment, the claim must be analyzed under the standard appropriate
to that specific provision, not under the rubric of substantive due process.
United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham, 490 U.S. at 394).
Applying the criteria used in Beamon to determine whether there was a seizure, the
Court does not perceive a momentary submission by plaintiff even under the conceded
factual dispute regarding the cause of the bicycle crash. Therefore, both Mr. Watts and
plaintiff are correct that the rationale of Beamon precludes plaintiff’s Fourth Amendment
claim of excessive force.
The Court next turns to plaintiff’s excessive force claim under the Fourteenth
Amendment. In order to succeed on his Fourteenth Am endment claim, plaintiff must
show that Mr. Watts’ actions violated his due process rights. Under the due process
standard, the factors relevant to whether the use of force is excessive are: “(1) the
relationship between the amount of force used and the need presented; (2) the extent
of the injury inflicted; and (3) the motives of the . . . officer.” Ellis v. City of Lindsay,
1998 WL 879818, at *5 (10th Cir. Dec. 17, 1998) (unpublished) ( quoting Latta v. Keryte,
118 F.3d 693, 702 (10th Cir. 1997)). “Force inspired by malice or by unwise, excessive
zeal amounting to an abuse of official power that shocks the conscience may be
redressed by [the Fourteenth Amendment].” Id. While the extent of the injury inflicted
is relevant to the Fourteenth Amendment inquiry, there is no de minimis injury
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requirement to succeed on an excessive force claim under the Fourteenth Amendment.
See Sawyer v. Asbury, 537 F. App’x 283, 290 n.10 (4th Cir. 2013) (unpublished) (citing
Wilkins v. Gaddy, 559 U.S. 34, 38-39 (2010)).
Mr. Watts’ motion for summary judgment did not discuss plaintiff’s claims under
the Fourteenth Amendment. Docket No. 697. Moreover, Mr. Watts’ sole argument in
favor of summary judgment on plaintiff’s excessive force claim related to plaintiff’s de
minimis injury. Id. at 10-11. As noted above, there is no de minimis injury requirement
when bringing an excessive force claim under the Fourteenth Amendment. Thus, Mr.
Watts has not provided any basis to dismiss plaintiff’s Fourteenth Amendment claim.
While Mr. Watts has presented case law showing that the Court clearly erred by
not granting him summary judgment on plaintiff’s claim for excessive force under the
Fourth Amendment, he has not demonstrated that the Court clearly erred in not
granting summary judgment on plaintiff’s claim for excessive force under the Fourteenth
Amendment.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant Jeffrey Watts’ Motion for Reconsideration of this
Court’s Order Dated March 29, 2016 from Defendant Watts [Docket No. 809] is granted
in part and denied in part. It is further
ORDERED that defendant Jeffrey Watts is granted summary judgment on
plaintiff’s Fourth Amendment claim of excessive force.
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DATED December 13, 2016.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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