Pearce v. Lucero et al

Filing 21

ORDER granting in part and denying in part 12 Defendants' Motion to Dismiss. By Judge Philip A. Brimmer on 6/5/12.(pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01514-PAB-BNB
CORDELL PEARCE,
Plaintiff,
v.
OFFICER JOE LUCERO, Denver Police Department, and
OFFICER RYAN TUGGLE, Denver Police Department,
Defendants.

ORDER

This matter is before the Court on defendants’ motion to dismiss [Docket No. 12].
The motion is fully briefed and ripe for disposition.
I. BACKGROUND1
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

1

The following facts are drawn from plaintiff’s complaint [Docket No. 1] and, as
explained below, are assumed to be true for purposes of resolving defendants’ motion
to dismiss. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

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.2 Plaintiff refused to provide Officer Lucero his name
and told him that the officer was trespassing.
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.3 Plaintiff did not comply
with Officer Lucero’s order to get on the ground and instead walked back toward his
friends. In response, Officer Lucero “sprinted across the roof, str[uck] the Plaintiff in the
left eye, [and] then tackled Plaintiff to the roof with a great deal of force, handcuffed him
and drove his knee into Plaintiff’s back.” Docket No. 1 at 4, ¶ 9.
Another Denver police officer, defendant Ryan Tuggle, then arrived on the roof
of the warehouse. Plaintiff alleges that defendants “continued to assault the Plaintiff

2

The Court assumes that, by “walk over,” plaintiff means walk toward Officer
Lucero.
3

Plaintiff does not allege that he informed Officer Lucero that there were multiple
units in the building, each with a separate owner.
2

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.
II. STANDARD OF REVIEW
“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,
3

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:

4

Although we apply “the same standard in evaluating dismissals in qualified
immunity cases as to dismissals generally,” complaints in § 1983 cases
against individual government actors pose a greater likelihood of failures
in notice and plausibility because they typically include complex claims
against multiple defendants. The Twombly standard may have greater
bite in such contexts, appropriately reflecting the special interest in
resolving the affirmative defense of qualified immunity “at the earliest
possible stage of a litigation.” Without allegations sufficient to make clear
the “grounds” on which the plaintiff is entitled to relief, it would be
impossible for the court to perform its function of determining, at an early
stage in the litigation, whether the asserted claim is clearly established.
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

5

v. Britton, 523 U.S. 574, 591-93 & 593 n.14 (1998)).
III. DISCUSSION
Plaintiff’s sole claim against defendants is for excessive force. See Docket No.
19 at 4.4 In response to that claim, defendants assert the qualified immunity defense.
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,
4

In his response to defendant’s motion to dismiss, plaintiff clarifies that he “is not
claiming that the arrest was illegal as a warrantless arrest, or that the Defendants
violated his constitutional rights by trespassing on his property, or that the Defendants’
violated his constitutional rights by asking for his identification.” Docket No. 19 at 4.
Plaintiff also makes clear that he does not contend that “the Defendants unlawfully
stopped or seized the Plaintiff,” id., except insofar as they used excessive force to
effectuate the seizure. Therefore, to the extent plaintiff’s complaint could be construed
as asserting any claim other than one for excessive force, it is dismissed. Cf. Docket
No. 1 at 6 (alleging that defendants violated “a) the right to be free from unreasonable
searches and seizures; b) the right not to be deprived of liberty without due process of
law; and c) the right to be free from excessive use of force by persons acting under
color of state law).
6

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.5 A “seizure” for the purposes of the Fourth Amendment occurs when
a government actor terminates one’s freedom of movement through means intentionally
applied. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989); Scott v. Harris,
550 U.S. 372, 381 (2007). Plaintiff clearly alleges that defendants seized him. The
question then becomes whether plaintiff has alleged facts sufficient to show that the
seizure was unreasonable.

5

The Fourth Amendment applies to state actors by way of incorporation into the
due process clause of the Fourteenth Amendment. See United States v.
Rodriguez-Rodriguez, 550 F.3d 1223, 1225 n.1 (10th Cir. 2008) (citing Mapp v. Ohio,
367 U.S. 643, 655 (1961)). For ease of reference, the Court refers herein only to the
Fourth Amendment.
7

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

8

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.6 Under such circumstances, the Court cannot conclude that Officer Lucero
acted unreasonably in his efforts to forcefully and quickly restrain a suspected burglar.
See Graham, 490 U.S. at 396-97 (“The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments — in circumstances that are tense, uncertain, and rapidly evolving — about
the amount of force that is necessary in a particular situation.”).
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
6

Plaintiff alleges that the police “did not know that there were three separate
owners of the three units” because the police did not do a property records search.
Docket No. 1 at 3, ¶ 6. This fact, it would seem, would only further support the
reasonableness of Officer Lucero’s conduct in this case, where he was responding to
an alleged ongoing burglary to find a group of individuals who gained access to the roof
of the building by a ladder.
9

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).7
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.8 The seizure had already been
effectuated. The severity of the alleged crime does not provide a continuing justification
to apply force regardless of the changed circumstances. There is no readily apparent
reason for the application of such force upon a restrained and compliant suspect. See
Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984) (“The plaintiffs
presented ample evidence that Wertz struck Alvin on the face without cause while he
was handcuffed outside the Lawton police station and then shoved Alvin head first into
a wall on the way into the station. From this evidence the jury could have concluded

7

Although plaintiff’s allegations do not specifically implicate the manner in which
the handcuffs were applied, cases addressing such conduct are informative. See
Cortez, 478 F.3d at 1129 (concluding in a case regarding the use of handcuffs that “a
claim of excessive force requires some actual injury that is not de minimis, be it physical
or emotional”); see also Fisher, 584 F.3d at 900 (“fleeting discomfort from handcuffing”
insufficient to support excessive force claim).
8

Plaintiff also alleges that, after he was tackled and handcuffed, the officers
“continued to assault the Plaintiff” and that, after he was forced to the roof a second
time, the “scuffle . . . ensu[ed].” Docket 1 at 4-5, ¶¶ 10-11. Such generalized
allegations are insufficient to state a claim for violation of the Fourth Amendment.
10

that Wertz used excessive force against Alvin.”), judgment vacated on other grounds by
474 U.S. 805 (1985); cf. Lyles v. Burke, No. 06-cv-01604-WDM-MJW, 2008 WL
140466, at *4 (D. Colo. Jan. 10, 2008) (“Although it may have been objectively
reasonable for Burke to use force to handcuff Plaintiff and place him under arrest, the
amount of force used after Plaintiff was already in handcuffs was objectively
disproportionate to the need in the situation. Plaintiff alleges that the majority of the
force was applied after he was handcuffed and either kneeling on the floor or laying flat
on his stomach on the floor. At this point in time, none of the Graham factors weigh in
favor of a finding of reasonableness – the severity of the crime was minimal at most,
Plaintiff no longer presented a danger to himself or others, and he was no longer
resisting arrest or attempting to leave.”).
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

11

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).9 However, “contrary authority from other circuits does not preclude a finding
that the law in this circuit was clearly established, if the contrary authority can be
distinguished.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001).
And, as the Tenth Circuit has pointed out, the “difficult part of this inquiry is

9

In Prison Legal News, Inc. v. Simmons, 401 F. Supp. 2d 1181, 1189-90 (D. Kan.
2005), the court noted that the quoted language “from other circuits” appears to be a
misquote of the Tenth Circuit’s decision in Medina v. City and County of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992), where the court used the language “from other
courts.” That misquote first appeared in Murrell v. School District No. 1, Denver, Colo.,
186 F.3d 1238, 1251 (10th Cir. 1999) and has since appeared repeatedly in Tenth
Circuit cases. The Prison Legal News court, though concluding that the “misquote was
merely a scrivener’s error” and was not meant as a substantive change to the legal
standard, added that “the fact that this error has not been discussed in a reported case
from the Tenth Circuit suggests the error may not be very significant.” 401 F. Supp. 2d
at 1191. “In other words, although the circuit may be willing to consider cases from
courts beyond the federal appellate courts, the focus should normally be on cases
decided by other circuits.” Id.
12

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 20102). “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)).10 The Tenth Circuit employs a “sliding scale” in identifying clearly established
10

See Buck, 549 F.3d at 1290 (“The law is clearly established either if courts
have previously ruled that materially similar conduct was unconstitutional, or if a general
13

law: “[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.” Casey, 509 F.3d at 1284 (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298
(10th Cir. 2004)).
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).11 There would be no reasonable
basis for officers to believe that the law permitted them to tell a complying suspect in
handcuffs that he may stand up, only to throw the suspect back to the ground with
sufficient force to break a rib, without any facts indicating resistance, an attempt to flee,
or other such common justifications for the use of force. See Grass v. Johnson, 322 F.
App’x 586, 590 (10th Cir. 2009) (“If we accept his version of the facts as true, Johnson’s
use of force came after Grass was subdued and not posing a threat to anyone. At least
one circuit has held that any force used under those circumstances is excessive as a
matter of law. We have not yet issued such a pronouncement. But we have
consistently factored into the totality-of-the-circumstances analysis the level of the

constitutional rule already identified in the decisional law applies with obvious clarity to
the specific conduct at issue.” (internal quotation marks and alteration marks omitted)).
11

Defendants’ arguments for dismissal highlight this fact. Defendants exclusively
rely upon the circumstances and plaintiff’s conduct prior to the initial application of force
by Officer Lucero. As the Court discussed above, those allegations do not constitute a
Fourth Amendment violation. Defendants, however, do not address or discuss the
circumstances surrounding the use of force against plaintiff once he was handcuffed
and on the ground.
14

plaintiff’s resistance or cooperation during the course of the arrest.”) (citing, inter alia,
Cortez, 478 F.3d at 1128; Buck, 549 F.3d at 1289-90); see also Mercer v. Peterson, No.
09-cv-00654-WYD-KMT, 2011 WL 2581515, at *9 (D. Colo. Apr. 6, 2011) (Mag. J.
Rec.) (“The court need not find a case exactly on point to determine that no reasonable
officer could believe that slamming a restrained and no-longer-combative suspect’s
head into a vehicle is a reasonable use of force, again at this stage affording an
inference to Plaintiff that he could prove his allegations.”), adopted by 2011 WL
2581512 (D. Colo. June 30, 2011); see also Warren v. City of Cortez, No.
06-cv-00023-REB-CBS, 2007 WL 128808, at *4 (D. Colo. Jan. 12, 2007) (“[I]t would
have been pellucid to a reasonable officer that pepper spraying a restrained suspect
was excessive.”).12
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendants’ motion to dismiss [Docket No. 12] is GRANTED in
part and DENIED in part.

12

Cf. Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (“Even though Ferraro
undoubtedly possessed the lawful power to effect a custodial arrest and secure Lee
with handcuffs, a reasonable officer could not possibly have believed that he then had
the lawful authority to take her to the back of her car and slam her head against the
trunk after she was arrested, handcuffed, and completely secured, and after any danger
to the arresting officer as well as any risk of flight had passed. Once an arrestee has
been fully secured, such force is wholly unnecessary to any legitimate law enforcement
purpose.”) (emphasis in original); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.
1988) (“Everyone agrees that Mr. McDowell was handcuffed and that he was not trying
to escape or to hurt anyone. The ‘need for the application of force’ was thus
nonexistent . . . .”).
15

DATED June 5, 2012.
BY THE COURT:

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

16