Bibby v. City and County of Denver, The et al

Filing 33

ORDER granting 12 Motion to Dismiss by Judge R. Brooke Jackson on 10/28/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-01016-RBJ
CHRISTOPHER BIBBY,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER,
Defendant.

ORDER

This matter is before the Court on the City and County of Denver‘s (hereinafter
―Denver‖) motion to dismiss [ECF No. 12]. For the reasons stated below, the motion is granted.
FACTS
On May 13, 2013, Mr. Bibby was booked into Denver County Jail for a violation of
probation. ECF No. 12 at ¶¶ 8–9. While he was being booked, Mr. Bibby observed another
individual who was ―unruly‖ and ―needed many deputies to detain the person and calm them
down.‖ Id. at ¶ 10. Mr. Bibby was then assigned to a cell with this same person. Id. at ¶ 13.
That same day, Mr. Bibby left his cell to go visit the nurse. Id. at ¶ 14. Before he
returned to his cell, Mr. Bibby asked a deputy if he could move to a different cell because he
―feared for his safety‖ due to his previous observations of his cellmate‘s demeanor. Id. at ¶ 15.
The deputy denied his request. Id. at ¶ 16.

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The deputy called for another deputy to join him. Id. at ¶ 17. The second deputy
reiterated that Mr. Bibby needed to return to his original cell, and Mr. Bibby again requested a
new cell assignment because of his concerns for his safety. Id. at ¶ 18. One of the deputies then
―took [Mr. Bibby‘s] arm, spun him around where [Mr. Bibby] hit his head on the column and
then fell to the ground.‖ Id. at ¶ 19. Additional deputies arrived to ―assist in restraining [Mr.
Bibby] by pinning him down and shoving a knee in [Mr. Bibby‘s] head. Id. at ¶ 20.
Mr. Bibby‘s face was bleeding, and the deputies escorted him to the same nurse for
evaluation. Id. at ¶ 22. The nurse asked Mr. Bibby what had occurred, and he explained that ―he
requested a new cell as he feared for his safety and was denied.‖ Id. at ¶ 23. The nurse
responded by telling the attending deputy that ―[y]ou have got to stop doing this to people.‖ Id.
at ¶ 24.
Mr. Bibby alleges ―general and special damages, including . . . a cracked ribs [sic], cut on
his head, medical expenses, loss of wages, pain, suffering, and severe emotional distress.‖ Id. at
¶ 25. On May 13, 2015, Mr. Bibby filed this complaint alleging a violation of 42 U.S.C. § 1983
because the deputies‘ use of force deprived him of his right to be free from cruel and unusual
punishment under the Eighth Amendment. Id. at 3. Specifically, he alleges that Denver
established customs for the use of force against individuals and failed to train its deputies on the
proper use of force. Id. at ¶¶ 27–28. He claims that Denver acted with deliberate indifference to
his rights. Id. at ¶ 30. In response, Denver filed this motion to dismiss on the grounds that Mr.
Bibby fails to state a claim upon which relief can be granted. ECF No. 12 at 2.

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DISCUSSION
I.

Standard of Review
To survive a 12(b)(6) motion to dismiss, the complaint must contain ―enough facts to

state a claim to relief that is plausible on its face.‖ Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008).
II.

Municipal Liability Claim Against Denver
In general, a municipality cannot be held liable under § 1983 for its employees‘ actions

on a respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978). ―Rather, to establish municipal liability, a plaintiff must show (1) the existence
of a municipal policy or custom, and (2) that there is a direct causal link between the policy or
custom and the injury alleged.‖ Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir.
1993). A plaintiff may show the existence of a municipal policy or custom in the form of (1) an
officially promulgated policy, (2) an informal custom amounting to a widespread practice, (3)
the decisions of employees with final policymaking authority, (4) the ratification by final

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policymakers of the decisions of their subordinates, or (5) the failure to adequately train or
supervise employees. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).
A municipality‘s failure to train its employees adequately can constitute a municipal
policy or custom for purposes of § 1983 under very narrow circumstances. Connick v.
Thompson, 131 S.Ct. 1350, 1359 (2011) (―A municipality's culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.‖). A municipality‘s failure to train
must amount to deliberate indifference to the rights of the citizens with whom the police officers
come into contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). Ordinarily, the plaintiff
must show a ―pattern of similar constitutional violations by untrained employees‖ in order to
―demonstrate deliberate indifference for purposes of failure to train.‖ Connick, 131 S.Ct. at 1360
(internal quotation marks omitted). A pattern of similar violations demonstrates that the
municipality‘s policymakers were on notice that a deficiency in their training program caused
employees to violate citizens‘ rights, and the municipality continued to adhere to the inadequate
training program anyways. Id. In exceptional circumstances, ―deliberate indifference may be
found absent a pattern of unconstitutional behavior if a violation of federal rights is a ‗highly
predictable‘ or ‗plainly obvious‘ consequence of a municipality's action or inaction, such as
when a municipality fails to train an employee in specific skills needed to handle recurring
situations[.]‖ Barney v. Pulsipher, 143 F.3d 1299, 1307–308 (10th Cir. 1998) (internal citation
omitted).
Mr. Bibby advances two theories for why Denver faces municipal liability: (1) that a
municipal policy or custom was in place and (2) that Denver failed to train its deputies in the use
of force. ECF No. 1 at ¶¶ 27–28. On both theories, the Court finds that Mr. Bibby has failed to
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offer sufficient facts to plausibly establish that a municipal policy or custom caused the alleged
constitutional deprivation.
Mr. Bibby provides facts and details in his description of the deputies‘ response to his
request to be transferred to another cell. Id. at ¶¶ 15–21. Those facts are sufficient to prove that
he suffered an injury at the hands of the deputies. However, his description of the events does
not establish that the injury occurred because of an existing municipal custom or because Denver
failed to adequately train its deputies.
Mr. Bibby relies on the nurse‘s statement as his primary proof that Denver maintains a
policy or custom that causes deputies to violate inmates‘ constitutional rights. Id. at ¶ 24. This
is insufficient even under the liberal motion to dismiss standard. At best, the nurse‘s statement to
the deputy that ―[y]ou have to stop doing this to people‖ is evidence that the nurse has previously
treated other inmates for injuries sustained at the hands of the deputy. It would be unreasonable
to conclude from that one comment that a jail-wide custom or policy exists that causes deputies
to violate individuals‘ constitutional rights.
In order to prevail on a failure to train theory, Mr. Bibby must offer sufficient evidence of
an actual deficiency in the training program. See Brown v. Gray, 227 F.3d 1278, 1286 (10th
Cir.2000) (stating that ―a plaintiff must first prove that the training was in fact inadequate.‖).
Here, Mr. Bibby‘s allegations regarding Denver‘s failure to train are conclusory. He merely
alleges that Denver ―failed to sufficiently train and supervise deputies on the proper use of force
against individuals.‖ ECF No. 1 at ¶ 28. He fails to include well-pled facts supporting his
assertion that the training was inadequate.

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Moreover, Mr. Bibby does not offer sufficient evidence to demonstrate a pattern of
harms. His complaint only describes his own incident. He appears to offer the nurse‘s statement
as evidence that the deputies frequently hurt inmates. However, the law requires the pattern of
constitutional violations to be sufficiently ―similar‖ to the violation in the case at hand in order to
demonstrate that Denver‘s officials were on notice that their training program was inadequate.
Connick, 131 S.Ct. at 1360. Here, the nurse‘s statement is vague, as it does not elaborate on the
deputies‘ conduct, the specific acts the nurse urges them to cease doing, or the other injuries the
nurse has witnessed. The nurse‘s comment to the deputy, taken as true for this purpose, is
inadequate to plausibly establish that Denver‘s failure to train its deputies has resulted in a
pattern of similar harms.
Additionally, Mr. Bibby fails to show that this case falls into the narrow subset of cases
where deliberate indifference may be found absent a preexisting pattern of violations. Mr. Bibby
does not offer evidence that it was ―plainly obvious‖ or ―highly predictable‖ that constitutional
violations would result from the alleged inadequate training—in large part because he never
identifies specific deficiencies in the training program. Even if the Court were to assume that
Denver failed to train its employees in any way regarding the use of force, it is not ―plainly
obvious‖ that constitutional violations would result.
ORDER
For the reasons described above, the motion to dismiss [ECF No. 12] is GRANTED.
Final judgment will enter in favor of the City and County of Denver dismissing plaintiff‘s claims
without prejudice. Defendant is awarded costs pursuant to Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1.
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DATED this 28th day of October, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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