Berry v. Sluder et al

Filing 51

ORDER granting in part and denying in part 37 Defendants' Motion for Summary Judgment. Summary judgment is granted in favor of Defendants on Berry's claim that Defendants should have intervened to stop her allegedly unlawful seizure. Su mmary judgment is denied on Berry's claim that Defendants should have intervened to stop the alleged excessive force applied by Jesik. This matter REMAINS SET for a five-day jury trial beginning 9/21/2015, with a Final Trial Preparation Conference at 10:00 AM on 9/4/2015. By Judge William J. Martinez on 3/30/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2647-WJM-CBS
THERESA BERRY,
Plaintiff,
v.
BRANDON BEAUVAIS,
CHAD GARCIA, and
JOHN DOES 1-3,
Defendants.

ORDER GRANTING DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT
IN PART AND DENYING IN PART

Theresa Berry (“Berry”) sues two Pueblo police officers, Brandon Beauvais
(“Beauvais”) and Chad Garcia (“Garcia”) (together, “Defendants”), under 42 U.S.C.
§ 1983, claiming that Beauvais and Garcia had a duty to intervene to prevent a third
officer (not a defendant here) from committing an illegal seizure of Berry, and from
applying excessive force during that seizure. (ECF No. 1.)
Before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 37.)
For the reasons stated below, the Court grants summary judgment as to whether
Defendants could have intervened in the allegedly illegal seizure, but denies summary
judgment on the question of whether Defendants had a realistic opportunity to intervene
in the alleged excessive force.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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 also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A 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). An issue is “g enuine” 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).
In analyzing a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In
addition, the Court must resolve factual ambiguities against the moving party, thus
favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th
Cir. 1987).
II. FACTS
The parties do not dispute the following facts unless otherwise noted.
A.

Berry’s Initial Encounter with the Police
On October 4, 2011, Berry and her son, Anthony Porco, purchased brake fluid

from a convenience store in Pueblo. (Defendants’ Statement of Undisputed Material
Facts (“Defendants’ Facts”) (ECF No. 37 at 2–5) ¶ 4; Plaintiff’s Response to Movant’s
Material Facts (“Plaintiff’s Response”) (ECF No. 42 at 1–5) ¶ 4.) Following this
purchase, Berry and Porco went outside and were standing near Berry’s car when

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Garcia approached Porco. (Id.) Garcia believed that Porco matched the description of
an armed robbery suspect. (Id.)
Soon after Garcia made contact with Porco, Beauvais arrived to back up Garcia.
(Defendants’ Facts ¶ 5; Plaintiff’s Response ¶ 5.) Beauvais stood next to Garcia while
Garcia questioned Porco. (Id.)
As Beauvais was arriving and walking up to Garcia, a third Pueblo police officer
arrived, Detective Stephen Jesik (“Jesik”). (Defendants’ Facts ¶¶ 6–7; Plaintiff’s
Response ¶¶ 6–7.) Jesik intended to provide additional backup to Garcia by ensuring
that the surroundings were safe. (Id.)
The parties agree that Berry was “in the same area” as Porco, Garcia, Beauvais,
and Jesik. (Defendants’ Facts ¶ 8; Plaintiff’s Response ¶ 8.) Berry testified that she
was leaning up against the driver’s side of her car, about ten feet away from Garcia and
Porco. (ECF No. 42-1 at 109:21–23.) Beauvais testified that Berry’s car was 10–20
feet away from Garcia and Porco. (ECF No. 37-2 at 40:25–41:2.) Porco believed that
the car was “5, 10 feet” away. (ECF No. 37-5 at 44:23–24.)
Regardless, Defendants claim that, as Garcia questioned Porco, Berry “was
becoming highly agitated and verbally belligerent, which led to Officer Garcia being
distracted in his contact with Mr. Porco.” (Defendants’ Facts ¶ 8.) Berry disputes that
she “was becoming highly agitated and verbally belligerent” at this time. (Plaintiff’s
Response ¶ 8.) In either event, the parties agree that Jesik at some point asked for
Berry’s name but she refused to give it. (Defendants’ Facts ¶ 9; Plaintiff’s Response
¶ 9a.)

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B.

Berry’s Account of Her Detention and Treatment
At this point, the parties’ stories diverge significantly. According to Berry, Jesik

“started peeking and reaching . . . into [her] car[],” and “she told him, in a raised but not
aggressive voice, ‘That’s illegal. You can’t do that. I am not involved in this. Don’t do
that.’” (Plaintiff’s Response ¶ 8.) Jesik then “‘snickered. And he reached back in [to
Berry’s car].’” (Id.) Berry again told Jesik to stop reaching into her car. (Id.) Berry
“was angry with Jesik now but she did not raise her voice.” (Id.)
Porco agreed that his mother “was not yelling when Jesik was looking in her car.”
(Id.) Porco further stated that Berry told Jesik that “he [Jesik] needed a warrant” to
search Berry’s car. (Plaintiff’s Statement of Additional Disputed Facts (“Plaintiff’s
Additional Facts”) (ECF No. 42 at 5–6) ¶ 1.)
Jesik then allegedly “got upset” with Berry’s verbal resistance to his attempt to
search Berry’s car. (Plaintiff’s Additional Facts ¶ 2.) In an “instant,” Jesik came around
the car, spun Berry around to push her up against the car, bent her fingers backwards
(causing her to exclaim, “Jesus Christ, that hurts”), hit her head against the car three or
four times, and put his knee or hip into her lower back, all as part of his efforts to
handcuff Berry. (Id. ¶¶ 2, 4; ECF No. 37-4 at 131:20–132:22; ECF No. 42-1 at 117:25.)
Beauvais assisted in the handcuffing by twisting one of Berry’s arms backwards.
(Plaintiff’s Additional Facts ¶ 4.)
Porco stated that he “watched one [of the officers present] shake his head” in a
display of astonishment or disgust with this turn of events. (ECF No. 42-2 at 53:7–13.)
Porco does not specify which officer this was, although it likely could only have been

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Garcia, given that Jesik and Beauvais were struggling with Berry at the time and there
is no evidence of any other police officers at the scene.
At this point, Porco spoke directly to Beauvais, stating, “Listen, man, that is
uncool, you are hurting her, her arms don’t bend like that.” (Id. ¶ 5.) In response,
Beauvais “backed four or five steps away,” leaving only Jesik in physical contact with
Berry. (Id.) Jesik then brought Berry to a nearby sidewalk by grabbing the handcuffs
chain and lifting Berry off the ground, carrying her to the sidewalk, setting her on her
feet, and yanking on the handcuffs chain such that Berry’s feet came out from under
her and she landed on her buttocks. (Plaintif f’s Additional Facts ¶ 2; ECF No. 37-4 at
123:15–21; ECF No. 37-5 at 54:3–17.)
Garcia remained next to Porco throughout these events. (ECF No. 37-4 at
122:12–13.)
C.

Defendants’ Account of Berry’s Detention and Treatment
Not surprisingly, Defendants tell a much less violent story. According to

Defendants, Jesik never began peeking or reaching into Berry’s car. Rather, Berry
“advised the officers [that] she was attempting to get something from her car; they
would not let her do that, they told her not to do that, and she reached in any way.”
(Defendants’ Facts ¶ 9.) Jesik and Beauvais then handcuffed Berry, with Beauvais
assisting Jesik. (Defendants’ Facts ¶ 10; Plaintiff’s Response ¶ 10a.) Jesik and
Beauvais say they did this because Berry’s agitated comments were interfering with
Garcia’s questioning of Porco, and because Berry’s alleged attempt to reach into her
car created a safety issue. (Defendants’ Facts ¶ 10.) Jesik and Beauvais deny Berry’s
details about the physical force applied to Berry, claiming instead that they never
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employed any sort of “joint lock or wrist lock, or any type of . . . formal control hold.”
(Defendants’ Response Concerning Additional Disputed Facts (“Defendants’
Response”) (ECF No. 43 at 2–3) ¶ 2 (internal quotation marks omitted).)
Beauvais “stepped away from” Berry “[a]fter assisting Detective Jesik in
handcuffing [Berry].” (Defendants’ Facts ¶ 10.) Defendants say that Berry then “walked
under her own power” to the sidewalk and that Jesik “did not forcefully place [Berry] on
the ground.” (Defendants’ Response ¶ 2.)
D.

The End of the Encounter
No evidence submitted to the Court establishes how long it took for Berry to be

handcuffed and brought to the sidewalk. Based on his experience with similar
situations, Beauvais estimated, “Seconds. Under a minute or so,” but he had no
specific memory as to this event. (ECF No. 37-2 at 55:18–56:2.)
Regardless, the parties agree that the incident ended when the officers learned
from dispatch that neither Berry nor Porco had any outstanding enforceable warrants,
at which point Berry and Porco were released. (Defendants’ Facts ¶ 11; Plaintiff’s
Response ¶ 11.) Jesik says that the time between placing Berry on the sidewalk and
receiving clearance from dispatch was “a few minutes.” (ECF 37-3 at 36:8–19.) Berry
says she was on the sidewalk for at least “two or three minutes.” (ECF No. 37-4 at
126:16–127:8.) As for the length of the entire incident, Berry said “[i]t felt like forever.
I would say start to finish maybe 10, 15 minutes.” (ECF No. 37-4 at 128:22–24.)
III. ANALYSIS
Asserting a single cause of action under 42 U.S.C. § 1983, Berry alleges that

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being handcuffed was an unreasonable seizure in violation of the Fourth Amendment.
(ECF No. 1 ¶ 62.) Berry further alleges that the force used against her was excessive
under the circumstances, also in violation of the Fourth Amendment. (Id. ¶ 66.)
Notably, although Jesik is the officer accused of effecting the seizure and
applying excessive force, Jesik is not a defendant here. Berry did not name Jesik as a
defendant in her complaint (see ECF No. 1), and when she later attempted to add him,
the Court determined that she had not done so in time (ECF No. 29).
Berry thus proceeds against Garcia and Beauvais alone. Against Garcia, Berry
asserts that he did not directly seize her or apply force to her, but he had a duty to
intervene to stop Jesik. (ECF No. 42 at 6.) See, e.g., Vondrak v. City of Las Cruces,
535 F.3d 1198, 1210 (10th Cir. 2008) (“all law enforcement officials have an affirmative
duty to intervene to protect the constitutional rights of citizens from infringement by
other law enforcement officers in their presence” (internal quotation marks omitted)).
Against Beauvais, Berry likewise asserts that he had a duty to intervene, which was all
the more acute since Beauvais was right next to Jesik, assisting his efforts to handcuff
Berry. (ECF No. 42 at 12–13.) 1
In their summary judgment motion, Garcia and Beauvais do not argue that
Jesik’s actions were reasonable even under Berry’s version of events. The Court
therefore treats the unreasonableness of Jesik’s alleged conduct as conceded for
summary judgment purposes. See Fed. R. Civ. P. 56(c)(1)(A) (permitting “stipulations
. . . made for purposes of the [summary judgment] motion only”). The question, then, is

1

Berry does not argue that Beauvais’s physical contact with her during the handcuffing
process amounted to excessive force.

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whether Garcia or Beauvais (or both) had a duty to intervene to stop Jesik, either in his
seizure of Berry (i.e., handcuffing her) or in his use of force.
Garcia and Beauvais argue that they had no realistic opportunity to intervene.
(ECF No. 37 at 8–9, 15–16.) This is a recognized part of any duty-to-intervene
analysis: “In order for liability to attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring.” Vondrak, 535 F.3d at 1210. Because
each officer faced different circumstances during Berry’s encounter with Jesik, the
Court will analyze each officer’s opportunity to intervene separately.
A.

Intervening in Berry’s Detention
1.

Garcia’s Opportunity to Intervene

Berry argues that Garcia should have intervened to prevent her seizure (i.e., her
placement in handcuffs). Berry’s theory in this regard is not specifically that Garcia
should have done something to stop Jesik from handcuffing her, but that Garcia should
have stopped Jesik from reaching into Berry’s car, which would supposedly have
defused the situation and prevented the entire sequence of events. (ECF No. 42 at
9–10.)
The Court finds that Berry has not presented evidence from which a reasonable
jury could conclude that Garcia had a realistic opportunity to intervene to stop Jesik’s
alleged reaching into Berry’s car. Although Berry says that Garcia had “ample
opportunity to intervene,” she only cites deposition testimony from Porco stating that
“any one of those cops could have stopped that.” (Id. at 10 & n.5 (citing Plaintiff’s
Response ¶ 12d).) This testimony receives detailed treatment below. See Section

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III.B.1.b. As discussed there, it is evident that “could have stopped that” refers to the
violence Jesik allegedly inflicted on Berry, not to Jesik’s allegedly unlawful reach into
Berry’s car. Further, Berry says that Jesik was on the passenger side of her car at that
time, which was the opposite side of the car from where Garcia was standing. (ECF
No. 42-1 at 112:18–24.) In other words, Garcia was standing approximately ten feet
away from the car itself and Jesik was further away still, on the far side of the car.
Thus, Berry offers no evidence supporting her claim that Garcia had time or ability to
intervene in Jesik’s alleged reaching. Summary judgment will be granted to Garcia on
this theory.
2.

Beauvais’s Opportunity to Intervene

Berry’s response to Defendants’ summary judgment motion does not argue that
Beauvais had an opportunity to intervene in Jesik’s alleged reaching into Berry’s car.
To the extent Berry unintentionally omitted such an argument, the Court would reject it
for the reasons just explained with respect to Garcia. The parties agree that Beauvais
was standing next to Garcia at that time (Defendants’ Facts ¶ 5; Plaintiff’s Response
¶ 5), meaning Beauvais was in substantially the same situation as Garcia at the time
Jesik allegedly reached into Berry’s car. Beauvais is therefore entitled to summary
judgment on the question of whether he should have intervened to stop Jesik at that
point.2

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Berry does not argue that Garcia’s or Beauvais’s duty to intervene in her allegedly
unlawful seizure extended to the time period when Berry was sitting handcuffed on the
sidewalk, i.e., that Garcia or Beauvais should have insisted on Berry’s release from handcuffs
during the time that the officers were checking for outstanding warrants against her.

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B.

Intervening in Jesik’s Use of Force
1.

Garcia’s Opportunity to Intervene

As described above, Berry alleges that Jesik applied excessive force when he
quickly came around her car, pinned her body against it, twisted her fingers, hit her
head against the car, picked her up by the handcuff chains, and set her down on the
sidewalk in a manner that caused her to strike the sidewalk with her buttocks. The
parties dispute whether Garcia had a realistic opportunity to intervene in any of this, and
their dispute turns on (a) whether Garcia was aware of Jesik’s actions and (b) whether
Garcia had sufficient time to intervene.3 The Court will discuss both questions in turn.
a.

Awareness

Garcia says that his back was turned to Jesik and Berry, that his attention was
solely on Porco, and that he did not see Jesik’s alleged attack on Berry. (ECF No. 37-1
at 17:14–16, 21:16–22:13.) Porco, by contrast, testified that he “watched one [of the
officers present] shake his head” at what Jesik did to Berry, likely referring to Garcia.
(ECF No. 42-2 at 53:7–13.) Further, after seeing Jesik take Berry to the sidewalk,
Porco says that he “was looking at this young guy [Garcia], like, ‘Dude, I have been
really cool with you. I haven’t given you any trouble. And you are going to allow that,
really?’ I said, ‘You people are paid to protect us. W ho protects us from you?’ [¶] And
that’s when [Garcia] said, ‘Shut your mouth.’” (ECF No. 42-2 at 52:8–13.) Porco’s
testimony, if believed by a jury, suggests that Garcia indeed observed Jesik’s actions.

3

Defendants do not argue that intervention itself might have posed an officer safety
concern, e.g., that Garcia feared turning his back on Porco (an armed robbery suspect at the
time) while attempting to intervene with Jesik.

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A dispute of material fact therefore exists about whether Garcia observed what
Jesik was doing. Summary judgment may not be granted on this point.
b.

Time to Intervene

Whether an officer had a realistic opportunity to intervene often turns on whether
the officer had time to intervene. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1164
(10th Cir. 2008) (an incident “lasting between three and five minutes” was long enough
to establish opportunity to intervene); Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir.
1994) (“Officer Noble did not have an opportunity to [intervene] . . . because Officer
Boggs’ restraining and controlling of Thompson was accomplished before Officer Noble
even had an opportunity to get out of his squad car”); Gaudreault v. Municipality of
Salem, 923 F.2d 203, 207 (1st Cir. 1990) (no realistic opportunity where “attack came
quickly and was over in a matter of seconds”). “Whether an officer had sufficient time
to intercede or was capable of preventing the harm being caused by another officer is
an issue of fact for the jury unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise.” Vondrak, 535 F.3d at 1210.
The parties have pointed the Court to no clear evidence of how quickly the
alleged excessive force unfolded. In response to Defendants’ argument that Garcia
had insufficient time, Berry points only to a portion of Porco’s deposition testimony
where he states that Garcia “could have stopped it. He seemed like the only one,
regardless of what he was doing with me, he—any one of those cops could have
stopped that.” (ECF No. 42-2 at 52:20–22.) In contex t, however, it is not clear that
Porco was testifying about elapsed time:

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Q.

And when [Jesik] put [Berry] over there by the
sidewalk, was that on the opposite side of her car?

A.

Yes, ma’am.

Q.

The passenger side?

A.

Yes. And the last thing that I saw violent-wise was
when [Jesik] slammed [Berry to the sidewalk], her feet
came up, and I couldn’t see my mother anymore, and
that’s when I was looking at this young guy [Garcia],
like, “Dude, I have been really cool with you. I haven’t
given you any trouble. And you are going to allow
that, really?" I said, “You people are paid to protect
us. Who protects us from you?”
And that’s when [Garcia] said, “Shut your mouth.”
I said, “Take the cuffs off. All you guys are looking to
do is beat somebody. You won’t beat my mother. I
will give you a run for your money.” And that’s when
that dude [Garcia] stepped in my way and was trying
to calm me down.

Q.

The first officer that had approached you?

A.

Yeah. He was still just trying to be cool, but he could
have stopped it. He seemed like the only one,
regardless of what he was doing with me, he—any
one of those cops could have stopped that.

(ECF No. 42-2 at 52:2–22.)
In light of the questions leading up to “he could have stopped it,” it appears
Porco was giving an opinion about the situation generally, not about elapsed time in
particular. Nonetheless, the Court must resolve factual ambiguities in Berry’s favor.
Houston, 817 F.2d at 85. This statement can reasonably be interpreted as implying
that sufficient time existed to allow Garcia to intervene. Accordingly, a material dispute
of fact exists about whether Garcia had a realistic opportunity to intervene. Summary
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judgment as to Garcia must be denied on this issue.
2.

Beauvais’s Opportunity to Intervene

The analysis with respect to Beauvais is simpler. “[I]t is conceded that [Berry]
has submitted facts to indicate that Officer Beauvais was in proximity of [Berry] at the
time of the handcuffing” (ECF No. 43 at 9), and Beauvais admits that he assisted Jesik
in handcuffing Berry (Defendants’ Facts ¶ 10). Thus, there is sufficient evidence from
which a jury could conclude that Beauvais was aware of Jesik’s actions and had time to
intervene, at least in part. It is possible, for example, that Beauvais had time to
intervene in Jesik’s alleged rough treatment of Berry while she was pinned against her
car, but that Jesik’s alleged carrying of Berry by the handcuffs chain took place so
quickly and unexpectedly that Beauvais could not have realistically done anything
before it was over. But that is a jury question, and summary judgment as to Beauvais
on this issue must be denied.
C.

Qualified Immunity
Lastly, Garcia (although not Beauvais) asserts that he deserves qualified

immunity. “The doctrine of qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). “When a
defendant pleads qualified immunity, the plaintiff has the heavy burden of establishing:
(1) that the defendant’s actions violated a federal constitutional or statutory right; and
(2) that the right violated was clearly established at the time of the defendant’s actions.”

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PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1196 (10th Cir. 2010) (interna l quotation
marks omitted).
The right to be free from excessive force, and to have a police officer intervene
in another’s use of excessive force, is clearly established. Vondrak, 535 F.3d at 1210.
Garcia does not argue otherwise. Rather, Garcia’s qualified immunity argument is
identical to his argument that he had no realistic opportunity to intervene. (ECF No. 37
at 10–11.) For the reasons already explained in that context, if a jury credits Berry’s
story over Garcia’s, a reasonable jury could conclude that Garcia had a realistic
opportunity to intervene. See Section III.B.1, supra. Thus, Garcia would not be entitled
to qualified immunity. Cf. Vondrak, 535 F.3d at 1210 (“given [the defendant’s] close
proximity to the initial handcuffing, and his presence immediately thereafter, the district
court was correct in denying qualified immunity to [the defendant] on the excessive
force claim”).
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion for Summary Judgment (ECF No. 37) is GRANTED IN PART
and DENIED IN PART;

2.

Summary judgment is granted in favor of Defendants on Berry’s claim that
Defendants should have intervened to stop her allegedly unlawful seizure;

3.

Summary judgment is denied on Berry’s claim that Defendants should have
intervened to stop the alleged excessive force applied by Jesik; and

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4.

This matter REMAINS SET for a five-day jury trial beginning on September 21,
2015, with a Final Trial Preparation Conference at 10:00 a.m. on September 4,
2015.
Dated this 30th day of March, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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