Sanchez v. City and County of Denver et al

Filing 54

ORDER adopting Report and Recommendations re 50 Report and Recommendations granting 32 Motion to Dismiss for Failure to State a Claim. The effect of the dismissal is STAYED as set forth in the Court's Order, entered by Chief Judge Marcia S. Krieger on 8/25/15.(pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 14-cv-02804-MSK-KLM
ARTHUR SANCHEZ,
Plaintiff,
v.
JOHN H. BAUER, Detective, 97032;
JOHN G. ROBLEDO, Detective, 05122; and
NICHOLAS E. ROGERS, Detective, 86037,
Defendants.

OPINION AND ORDER ADOPTING RECOMMENDATION
AND GRANTING MOTION TO DISMISS

THIS MATTER comes before the Court pursuant to the Defendants’, Det. Bauer, Det.
Robledo, and Det. Rogers (collectively, “the Detectives”), Motion to Dismiss (#32), which the
Magistrate Judge determined should be granted in a June 29, 2015 Recommendation (#50).
Plaintiff, Mr. Sanchez, timely filed Objections (#51) to the Recommendation, and Defendants
responded (#52).
I. ISSUES AND JURISDICTION
Mr. Sanchez appears pro se. He has filed three complaints in this matter; the most recent
is the Second Amended Complaint (#12) (hereinafter, “the Complaint”). It asserts 42 U.S.C. §
1983 claims against the Detectives for unreasonable searches and seizures and use of excessive
force and in violation of Mr. Sanchez’s constitutional rights. Because the Complaint alleges that
the Detectives violated Mr. Sanchez’s civil rights “under the Constitution or laws of the United
States” the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
1

II. BACKGROUND
The Complaint alleges the following facts. In October 2013, while staking out an
unrelated vehicle in a Burger King parking lot, the Detectives stopped Mr. Sanchez’s car. They
“surround[ed] it with their vehicles, blocking [his] car in,” with “no probable cause to pull [him]
over.” The Detectives approached Mr. Sanchez’s car with “weapons in hand and pointed at
[him].”
According to the Complaint, Det. Rogers pulled Mr. Sanchez out of the car “by his shirt
and to the ground with excessive force,” though Mr. Sanchez was offering no resistance. Mr.
Sanchez was placed under arrest. The Detectives proceeded to “search and handcuff” him, but
“nothing was found.” The Detectives also “search[ed] the vehicle, but nothing was found.”
Finally, the Detectives “took [his] cell phone out of [his] car and went through its contents
[without his] consent . . . then answered the phone without a warrant or probable cause to do
[so].” Mr. Sanchez was pulled “up from the ground forcefully by handcuffs from his backside
causing excruciating pain,” told to remove “some clothing in public, again nothing was found.”
The Complaint states that Mr. Sanchez was taken to the police station where there was
“another full body search and again nothing was found.” It alleges that Mr. Sanchez was
detained with restraints on “for about 25 minutes,” then taken into the hallway and told to
“remove his clothing.” It also alleges that Mr. Sanchez was taken into a holding room where his
handcuffs were moved to the front of his body and he was “forced over a chair and held there
with [his] face pressed firmly against a desk causing unnecessary and excruciating pain.”
“[A]rmed with protective gloves,” Det. Rogers “pull[ed] down [Mr. Sanchez’s] underwear and
pants and put his hand and fingers into [Mr. Sanchez’s] anus” and removed contraband. This

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“inappropriate touching [and] physical violence” caused Mr. Sanchez “pain and suffering,
physical injury[,] humiliation and emotional distress violating [his] rights.”
The Complaint asserts two primary types of violations of constitutional rights under 42
U.S.C. § 1983: unreasonable search and seizure and use of excessive force. The unreasonable
search and seizure claims challenge the constitutionality of the initial stop of Mr. Sanchez’s car,
search of the car, physical searches performed at the stop, search of his cell phone, a first search
at the police station, and the final strip or body cavity search.1 The Complaint contends that these
actions were performed without probable cause, a warrant or the existence of exigent
circumstances. It further pleads that the strip or cavity search was warrantless, conducted in an
unsanitary manner, and in violation of internal police department policies.
The Complaint alleges that the force used throughout the stop, arrest, and strip/cavity
search at the police station was excessive. It describes all three events as being unnecessarily
rough. Particularly, it states that Mr. Sanchez was dragged out of his car, handcuffed, and forced
to lie on the ground. According to the Complaint, during the strip/cavity search at the police
station, Mr. Sanchez was forcibly held down with his face pressed against a table and the anal
cavity search was performed in an unsanitary and painful manner.
The Detectives move to dismiss Mr. Sanchez’s claims for unreasonable search and
seizure and for use of excessive force on the grounds that: (1) Mr. Sanchez has failed to state a
claim for relief under 12(b)(6); (2) the Detectives, in their individual capacities, are entitled to
qualified immunity because there was no clearly established violation of constitutional law; and
(3) any claims against the Detectives in their official capacity are barred because Mr. Sanchez
1

Mr. Sanchez does not argue that because there was no probable cause for the initial stop, all
subsequent searches and seizures were unconstitutional, and anything found was fruit of the
poisonous tree. To the extent the Complaint could be construed as raising such an argument, in
light of the Court’s resolution, the Court does not address this.
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does not contend that the Detectives acted pursuant to a policy or custom. In addition, the
Detectives contend that Mr. Sanchez’s unreasonable search and seizure claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994), because finding for Mr. Sanchez on these claims would
render his conviction invalid.
The Motion to Dismiss was referred to the Magistrate Judge for a Report and
Recommendation. The Recommendation concludes that the motion should be granted as to all
of Mr. Sanchez’s claims.2 Mr. Sanchez’s Objections consist primarily of generalized statements
of law objecting to the Recommendation rather than specific objections.3 Consistent with the
liberal interpretation standard required for pro se pleadings, the Court will consider the Motion
to Dismiss de novo. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Morales-

2

The Recommendation makes several determinations. It first found, sua sponte, that the Court
lacked subject matter jurisdiction over Mr. Sanchez’s request for a declaratory judgment that
“the acts and omissions described herein violated Plaintiff’s rights,” because such relief would
not alter the positions of the parties. Next, it concluded that Heck v. Humphrey bars Mr.
Sanchez’s claims that his constitutional rights to be free from unreasonable searches and seizures
were violated by (1) the initial stop of the car; and (2) the physical searches at the scene. Third,
the Recommendation found that the Defendants are entitled to qualified immunity on Mr.
Sanchez’s claims that his Fourth Amendment rights were violated by (1) the search of the car;
(2) the search of his cell phone; (3) the search in the hallway of the police station; and (4) the
strip/cavity search. Fourth, as to the use of excessive force claims, the Recommendation
concluded that dismissal was warranted pursuant to Fed. R. Civ. P. 12(b)(6). Finally, the
Recommendation determined that, to the extent Mr. Sanchez brings an action against the
Detectives in their official capacities, any such claims must be dismissed because he has not pled
that the Detectives acted pursuant to any state policy or custom, or that such a policy or practice
resulted in the constitutional violation.
3
Construed in his favor, the only specific objections to the Recommendation he raises are: (1)
the Magistrate Judge’s sua sponte consideration of subject-matter jurisdiction over the requests
for declaratory judgment was improper; (2) he sufficiently pled a claim for an unreasonable
search when the Detectives “forcibly held the plaintiff down and performed a cavity search of
the anus without a search warrant,” an act that caused him to suffer “lacerations, skin tear, loss of
appetite, and continuous anal bleeding,” that could not be considered “de minimis”; (3) the
Magistrate Judge erred by considering documents outside the four corners of the Complaint
without converting the Detectives’ motion into one for summary judgment.
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Fernandez v. INS, 418 F.3d 1116, 1119-20 (10th Cir. 2005); accord Bagwell v. Safeway Milk
Plant, 437 Fed. App’x 689, 691 (10th Cir., Aug. 25, 2011).
III. STANDARD OF REVIEW
In reviewing a motion to dismiss, the Court views the allegations in a complaint in the
light most favorable to the nonmoving party, and all well-plead allegations are accepted as true.
Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001). The
Court’s analysis is limited to the four corners of the complaint, and, in limited instances, any
attached exhibits or documents referenced therein whose accuracy is not disputed. Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). When the Complaint is drafted by a pro se
litigant, the Court is particularly lenient in determining whether the party has pled sufficient facts
to state a claim for relief. See Haines, 404 U.S. at 520-21.
The Court dismisses a claim that facially fails to state plausible grounds for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court compares the well-pleaded facts to the
elements of the claim asserted to determine whether there is a “plausible” ground for relief. This
requires the Court to conduct a context-specific examination of the allegations, drawing on
common sense and judicial experience. Id. at 679. In doing so, the Court discards any
allegations that merely assert legal conclusions or recite the elements of a cause of action. Id.
That is, while detailed factual allegations are unnecessary, “naked assertion[s]” devoid of any
factual enhancement will not suffice. Twombly, 550 U.S. at 555-56.
IV. ANALYSIS
A. Unreasonable Search and Seizure Claims4

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Though Mr. Sanchez characterizes his use of excessive force claims as Fifth and Fourteenth
Amendment violations, the Court examines them under the Fourth Amendment, because they
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The Fourth Amendment protects individuals from unreasonable searches and seizures.
U.S. CONST. amend. IV; Maryland v. King, 133 S.Ct. 1958, 1969 (2013). The reasonableness of
a search or seizure depends upon whether, objectively, the challenged action was justified under
the circumstances. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011). When a search is conducted
without a warrant, police officers must have probable cause to believe a crime was or is being
committed, or otherwise show that the search was conducted pursuant to some recognized
exception to the warrant rule. Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010). A
police officer has probable cause to conduct a search when “the facts available to [him] would
warrant a [person] of reasonable caution in the belief” that a crime was or is being committed.
Florida v. Harris, 133 S.Ct. 1050, 1055 (2013) (quoting Texas v. Brown, 460 U.S. 730, 742
(1983)); see Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014).
To allege sufficient facts to support a Fourth Amendment claim for an unlawful search or
seizure under § 1983, the Complaint must identify the search and seizure and state facts which, if
true, would establish that there was no warrant, probable cause, or other exigent circumstances
rendering the search permissible. See generally Missouri v. McNeely, 133 S.Ct. 1552, 1569-70
(2013). The Court is aware that this requirement necessarily requires pleading not only what
occurred, but what did not occur, such as the failure to obtain a warrant or lack of probable
cause. The Tenth Circuit addressed this concern in Erickson v. Pawnee Cnty. Bd. of Com’rs.,
263 F.3d 1151, 1154 (10th Cir. 2001). In Erickson, the Tenth Circuit concluded that a conclusory
statement that “there was no probable cause” is insufficient. Id. Instead, a complaint must allege
facts tending to show an absence of probable cause. Id. Because the “plaintiff has not alleged
any specific facts showing there was a lack of probable cause” the Circuit affirmed dismissal of a

arose in the context of an arrest. See Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014); Graham, 490
U.S. at 394.
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Fourth Amendment claim. Id.5 Other circuits considering the issue likewise found that “mere
unfounded and unsupported allegations” that a warrant or arrest was “not based on probable
cause . . . are not sufficient.” Fullman v. Graddick, 739 F.2d 553, 562 (11th Cir. 1984); see
Huffer v. Bogen, 503 Fed. App’x 455, 462 (6th Cir. 2012).
Pro se parties are not exempt from this requirement to plead more than bare assertions.
Even the “broad reading” of pro se pleadings “does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
The facts that are sufficient to support a contention that there was no probable cause vary
with the situation. For example, allegations that a plaintiff was not driving erratically and that
she failed a roadside sobriety test because an officer shined a flashlight in the her eyes not
because she was intoxicated, were sufficient to create a genuine dispute of material fact as to
whether there was probable cause to arrest her. See Cottrell v. Kaysville City, Utah, 994 F.2d
730, 733 (10th Cir. 1993). Similarly, a complaint pointing to specific portions of an arrest
warrant or police report that are knowingly false and “necessary to a finding of probable cause,”
is sufficient. See Franks v. Delaware, 438 U.S. 154, 163-64 (1978). These are facts that a lay
person can recount without having legal training. See Hall, 935 F.2d at 1110.
1. Initial Stop of the Car

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See also Shimomura v. Carlson, 17 F.Supp.3d 1120, 1127 (D. Colo. 2014) (blanket allegation
that arresting officers lacked probable cause is insufficient to survive a motion to dismiss);
Masad v. Nanney, No. 14-cv-00577-MJW, 2014 WL 4265848, *4 (D. Colo., Aug. 27, 2014)
(where plaintiff made no allegations in support of his contention that there was no probable
cause for his arrest, claim cannot survive a motion to dismiss); Lee v. City of Topeka, No. 2011
WL 4005377, *2 (September 8, 2011, D.Kan.) (plaintiff must allege facts that, if assumed true,
plausibly show lack of probable cause).
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The Complaint first challenges the stop of Mr. Sanchez’s car. Generally, an officer may
stop a car if there is probable cause to believe a traffic violation or other crime is being
committed. See United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999). In support of the
claim that the stop was unreasonable, the Complaint offers a blanket statement that the
Detectives did not have a warrant or “probable cause to pull [him] over.” There are no
allegations as to why “no reasonably competent official would have found indicia of probable
cause.” Coburn v. Nordeen, 72 Fed. App’x 744, 747 (10th Cir. 2003). For example, the
Complaint does not allege that Mr. Sanchez was traveling through the parking lot in a safe
manner, complying with applicable traffic laws, or that was legally parked with the vehicle’s
engine off. The Complaint’s bare recitation of law without factual support is insufficient to state
a claim regarding the stop of Mr. Sanchez’s car under Rule 12(b)(6). See Iqbal, 556 U.S. at 679.
2. Search of the Car
The Complaint contends that the search of Mr. Sanchez’s car was unlawful because it
was conducted without a warrant, consent, or probable cause. Probable cause exists where there
is a “fair probability that the car contains contraband or evidence” of a past or present crime.
United States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008); United States v. Callarman, 273
F.3d 1284, 1287 (10th Cir. 2001).6 Viewed independently, the Complaint again makes only a
conclusory statement in support of the allegation that there was no probable cause. There are no
supplementary facts explaining why the Detectives lacked probable cause, such as that there was
no contraband in the car. The allegation that “nothing was found” does not cure this deficiency
because the constitutionality of the search of a car incident to a traffic stop (or any search, for
6

During the stop of a car, the detaining officer may engage in further investigation if the officer
has a reason able suspicion of other criminal activity. See Ozbirn, 189 F.3d at 1199. To the
extent that this claim is premised upon a lack of probable cause for the original seizure, the
deficiency in the pleading of that claim also constitutes a deficiency here.
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that matter) does not rest upon whether contraband or evidence of illegal activity is actually
discovered. The Court therefore finds the allegations insufficient to state a claim regarding the
search of Mr. Sanchez’s car.
3. Search of Mr. Sanchez’s Cell Phone
The Complaint charges that Mr. Sanchez’s constitutional rights were violated when the
Detectives “went through the contents” of his cell phone and answered a phone call without a
warrant, probable cause, or consent. At the time the search was performed, law enforcement was
arguably permitted to search a suspect’s cell phone incident to a lawful arrest.7 See, e.g., United
States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (upholding warrantless search of a cell
phone incident to an arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)
(upholding warrantless retrieval of call records and text messages from a cell phone as a search
incident to arrest); accord United States v. Mercado-Nava, 486 F.Supp.2d 1271, 1277 (D. Kan.
2007). The Complaint does not allege that Mr. Sanchez’s arrest was unlawful.8 Accordingly,
there are insufficient facts to sustain a claim for a constitutional violation from the search of Mr.
Sanchez’s cell phone.
4. Physical Searches
The Complaint identifies three physical searches. First, it states that Det. Rogers placed
Mr. Sanchez in handcuffs, pulled him to the ground and conducted a “fully body search” in
which “not[h]ing was found.” Second, it alleges that Det. Robledo pulled Mr. Sanchez up from
the ground and searched him, forcing him to “remove some clothing,” and “still found nothing.”

7

True, recent Supreme Court precedent establishes that the warrantless search of cell phones
without exigent circumstances violates the Fourth Amendment. Riley v. California, 134 S. Ct.
2473, 2485 (2014).
8
To the extent that one reads the challenge of Mr. Sanchez’s seizure to include his arrest, the
Complaint fails to sufficiently plead lack of probable cause for the seizure.
9

Third, it states that Det. Robledo took Mr. Sanchez to a police car and performed another “full
body search and again nothing was found.” The Complaint states in a conclusory fashion that
these searches were “illegal,” without consent or probable cause, and thus “violated [his]
[Fourth] Amendment rights against unreasonable searches and seizures.”
A warrantless search of a person or place is permissible when contemporaneous to a
lawful arrest. United States v. Robinson, 414 U.S. 218, 225 (1973). Particularly, a protective
search of a suspect incident to an arrest or valid traffic stop, or performed because an officer
entertained a reasonable belief that the suspect was armed, is constitutional. United States v.
Chavez, 812 F.2d 1295, 1301 (10th Cir. 1987); Callarman, 273 F.3d at 1287. As noted, the
Complaint provides no details from which the Court could infer that the stop or arrest were
unlawful, or grounds on which the Court might be otherwise able to find theses searches invalid.
The Complaint asserts only that the physical searches were without probable cause; such a
conclusory statement is an unsupported legal conclusion that the Court disregards. This claims
as to all three physical searches are therefore properly dismissed under Rule 12(b)(6).
5. Strip Search at the Police Station
Finally, the Complaint challenges a search that occurred in the hallway of the police
station, when Mr. Sanchez was “video recorded,” forced into a small room where he was over a
chair while Det. Rogers pulled down his pants and searched his anus. The Complaint alleges that
this search was done without a warrant or consent.
Although a strip/cavity search requires special scrutiny, a Fourth Amendment violation
occurs only if the strip search is objectively unreasonable in light of the circumstances. To
determine whether a strip search is reasonable a court must consider the scope of the intrusion,
the manner and place in which the search is conducted and the justification for the search.

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Cottrell v. Kaysville City, Utah, 994 F.2d 730, 734 (10th Cir. 1993). When examining a strip
search relative to Fourth Amendment guarantees, a Court may consider whether a detainee will
be placed in the prison population and if there is reasonable suspicion that the detainee possesses
concealed contraband. Archuleta v. Wagner, 523 F.3d 1278, 1284 (10th Cir. 2008); see King,
133 S.Ct. at 1971; see also Cottrell, 944 F.2d at 734.
As with the other searches, the Complaint does not contain any factual allegations from
which the Court could infer that the search was unconstitutional. As described in the Complaint,
the scope of the intrusion was limited to that which typically occurs during a strip/cavity search,
and there are no allegations suggesting that it was otherwise unjustified. The Court relies on Mr.
Sanchez’s admission that he was being placed in jail, which itself could justify the intrusion.9
The argument presented in Mr. Sanchez’s Response to the Motion to Dismiss (#48) —
that the search was conducted contrary to police department policy — does not change the
sufficiency of the claim. Violation of a state police department policy does not necessarily
demonstrate infringement upon a constitutional right. See Cole v. Bone, 993 F.2d 1328, 1334

9

In Florence v. Bd. of Chosen Freeholders of Burlington, 132 S.Ct. 1510 (2012), the Supreme
Court rejected a plaintiff’s § 1983 claim for unreasonable search and seizure based on a search
plaintiff underwent before entering the jail population. In the search, plaintiff was required to
strip naked and shower. Id. at 1514. An officer inspected plaintiff’s body for markings, wounds,
and contraband. Id. Plaintiff was required to turn with his backside facing the officer, squat, and
lift his genitals. Id. This process is standard procedure for individuals entering the particular
correctional facility, regardless of whether there is reasonable suspicion that the individual
possesses contraband. Id. At 1514-15. The Supreme Court ultimately determined that, though
the search is intrusive, it is warranted in light of the government’s compelling interest in
maintaining the security of its correctional facilities and ensuring that contraband is kept out. Id.
at 1516-20; see also Fiselman v. Lewis, No. 14-cv-00030-RM-CBS, 2015 WL 170551, *8 n.5
(D. Colo., Jan. 13, 2015). Moreover, the Supreme Court upheld these searches as universal
procedures – that is, it did not require officers to have reasonable suspicion that contraband was
concealed, nor does the legality of the search depend on the seriousness of the crime for which
the individual is charged. Id. at 1516-21.
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(8th Cir. 1993). Accordingly, the Complaint fails to sufficiently plead that the strip/cavity search
was unconstitutional.
The Court finds that Mr. Sanchez has failed to plead sufficient facts, which if true,
demonstrate any unreasonable search or seizure claims. The Defendants’ argument based on
Heck v. Humphrey and their assertion of qualified immunity are therefore moot.
B. Use of Excessive Force
The Fourth Amendment also protects individuals against the use of excessive force. To
properly plead an excessive force claim under § 1983, a plaintiff must show that the defendant
used a level of force that was unreasonable under the circumstances. Henry v. Storey, 658 F.3d
1235, 1242 (10th Cir. 2011). To determine whether use of force was reasonable, a court
balances the nature and quality of the force employed against the need to use such force.
Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010). Reasonableness is judged from the
perspective of the officer on the scene with the recognition 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. Graham v. Connor, 490 U.S. 386, 396 (1989);
Studivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008).
When determining reasonableness in the use of excessive force context a court considers,
among other factors: (1) the severity of the suspected crime; (2) whether the suspect posed an
immediate threat to the safety of officers; and (3) the suspect’s degree of resistance. Lundstrom,
616 F.3d at 1126; Fobarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008). A court may also
consider the extent of any injuries suffered by the plaintiff, the officers’ efforts to minimize the
amount of force, and the legitimate government interests furthered by the use of force such as the
need to maintain security at a detention facility. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473-

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74 (2015). Subjective motivations of individual officers, however, do not factor into the
analysis. Id. at 2472; Graham, 490 U.S. at 397.
1. Force used During the Initial Stop and Arrest
The Complaint pleads that, upon stopping his car, the Detectives (at least one of whom
had his gun drawn) grabbed Mr. Sanchez, pulled him out of the car and forced him to the ground.
Afterward, Det. Robledo pulled him up from the ground by the handcuffs using “excessive
force.” The Complaint alleges that Mr. Sanchez showed “no resistance” and was not “acting
disruptively.”
Even assuming, as the Court must, that Mr. Sanchez was not resisting the Detectives, the
allegations are insufficient to state a claim for excessive force. Mr. Sanchez’s lack of resistance
addresses only one side of the equation. That is, there are no allegations that quantify the force
used in comparison to that which was necessary. For example, there are no facts provided as to
whether Mr. Sanchez was first directed to present his hands to the Detectives to be cuffed or
otherwise comply with orders, what offense Mr. Sanchez was stopped for, or whether he
attempted to evade contact with police.
The actions stated in the Complaint reflect the sort of force that is typical during an
arrest. See Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2001). As particularly relevant
here, it is not categorically unreasonable for officers to display weapons during an arrest. See
Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1192 (10th Cir. 2001). Nor are
allegations that handcuffing caused de minimis injuries sufficient to state an excessive force
claim. See Fisher v. City of Las Cruces, 584 F.3d 888, 897 (10th Cir. 2009); Cortez, 478 F.3d at
1129-30. And finally, the conclusory assertion that the Detectives acted with “malicious and

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sadistic intent” is irrelevant to the analysis. Kingsley, 135 S.Ct. at 2472; Graham, 490 U.S. at
397.
The Court therefore concludes that the allegations of use of excessive force during Mr.
Sanchez’s initial stop and arrest are insufficient to state a claim under Rule 12(b)(6).
2. Force used at the Police Station
The Complaint next contests the Detectives’ conduct at the police station. It alleges that
Mr. Sanchez was forced into a small room for a strip search, during which the Detectives used
“unnecessary force” by bending him over a chair with his “face pressed firmly against a desk
causing unnecessary and excruciating pain.” It additionally alleges that the anal cavity search
that purportedly ensued was performed in an unsanitary and painful manner, causing ongoing
injury. Putting aside the issue of whether the search was constitutional, the only facts pertinent
to the use of excessive force claim are that the search was painful. But though pain is a factor to
be considered, it alone is not enough. Some degree of force must necessarily be employed in any
body cavity search and presumably, such a search causes embarrassment and discomfort. A
plaintiff must thus allege something more than simply that a cavity search caused pain or was
conducted in an overly rough manner. See Harvey v. Segura, 2014 WL 4057043, *4 (D. Colo.,
Aug. 14, 2014). Here, there are no allegations that the cavity search was, for instance,
unnecessarily prolonged, entailed gratuitous physical contact, or was accomplished through
means suggesting it was performed for a sadistic, rather than functional, purpose.
Accordingly, the Court finds that the Complaint fails to plead sufficient facts to state a
use of excessive force claim.
C. Remaining Objections

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Mr. Sanchez’s Objections to the Recommendation raise two additional issues. The first
is the Magistrate Judge’s sua sponte finding that the Court lacked subject matter jurisdiction to
hear Mr. Sanchez’s request for declaratory relief. Because the Court determines that the factual
allegations are insufficient to state any cognizable claim under Rule 12(b)(6), whether for
monetary or declaratory relief, the Court need not address this argument.
The second is that the Motion to Dismiss should have been converted into one for
Summary Judgment because the Recommendation relied on documents other than the
Complaint.10 The Court’s review has been de novo and does not consider materials outside the
Complaint. Because Mr. Sanchez’s claims are dismissed pursuant to Rule 12(b)(6) based solely
on the facts alleged in the Complaint, the issue is moot.
IV. CONCLUSION
For the foregoing reasons, the Court OVERRULES Mr. Sanchez’s Objections (# 51) and
ADOPTS the Recommendation (#50). The Motion to Dismiss (#32) is GRANTED as to all
claims. The effect of this dismissal, however, is stayed, as set forth below.
Within fourteen days, Mr. Sanchez may request leave to further amend his Complaint to
allege facts sufficient to support a claim. Such motion shall be accompanied by a proposed

10

In limited circumstances, a court may consider documents referenced in a complaint in
reviewing a motion to dismiss. See Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008).
When a plaintiff, such as Mr. Sanchez, has attached the documents to his Complaint, he rarely
can complain that consideration of such documents was improper. Cf. GFF Corp. v. Assc.
Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997) (where a plaintiff references a
document in a complaint, the veracity of which is not disputed, the defendant may request that
the court consider it in ruling on a motion to dismiss).
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amended complaint that highlights the additional factual information. If no such motion is filed,
or if it is denied, this order shall become effective and the Clerk shall close this case.
Dated this 25th day of August, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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