Mwangi v. Norman et al

Filing 12

ORDER TO DISMISS IN PART AND TO DRAW CASE by Judge Lewis T. Babcock on 4/4/16. Perry Speelman, Justin Kennedy, and Anthony Norman terminated. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00002-GPG
CARNE M. MWANGI,
Plaintiff,
v.
ANTHONY NORMAN, Denver Police Deputy, in His Individual and Official Capacity,
JUSTIN KENNEDY, Denver Policy Deputy, in His Individual and Official Capacity,
PERRY SPEELMAN, Denver Police Officer, in His Individual and Official Capacity,
DEPUTY X, in His Individual and Official Capacity, and
ALL ARRESTING OFFICERS, in His Individual and Official Capacity,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Carne M. Mwangi, is detained at the Denver County Jail. He initiated
this action by filing, pro se, a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42
U.S.C. § 1983. He filed an Amended Complaint (ECF No. 6) on January 4, 2016. Mr.
Mwangi has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915.
On January 13, 2016, the Amended Complaint was reviewed and a
determination was made that it was deficient because it was not filed on the courtapproved Prisoner Complaint form, failed to comply with the pleading requirements of
Fed. R. Civ. P. 8, and failed to state a claim against the Defendants in their official
capacities. (ECF No. 7). Consequently, Plaintiff was ordered to file a [Second]
Amended Complaint within 30 days of the January 13, 2016 Order. (Id.). In a February
18, 2016 Minute Order, Magistrate Judge Gallagher granted Mr. Mwangi an additional
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30 days to comply with the January 13 Order. (ECF No. 11). Plaintiff was warned that
failure to comply may result in dismissal of this action without further notice. (Id.).
Plaintiff failed to file a [Second] Amended Complaint by the court-ordered
deadline. Notwithstanding, the Court will now review the allegations of the Amended
Complaint (ECF No. 6) to determine whether he has stated an arguable claim for relief
against any of the Defendants. Although the Amended Complaint is not filed on the
court-approved form, as required by Local Rules 1.2 and 5.1(c), the original Complaint
was filed on the court-approved Prisoner Complaint form. When construed together,
the information provided in the original Prisoner Complaint and the Amended Complaint
is sufficient to comply with the Local Rules.
The Court must review the Amended Complaint liberally because Mr. Mwangi is
a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se
litigant’s advocate. Hall, 935 F.2d at 1110.
The Court has granted Mr. Mwangi leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Mwangi’s
claims are frivolous, malicious, or fail to state a claim on which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B). A legally frivolous claim is one in which the plaintiff
asserts the violation of a legal interest that clearly does not exist or asserts facts that do
not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
For the reasons stated below, the Court will dismiss this action, in part, as legally
frivolous, and order that the remaining claims be drawn to a presiding judge.
I.

The Amended Complaint

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The Amended Complaint (ECF No. 6) contains a significant amount of irrelevant
factual allegations. Ignoring the superfluous facts, the Court finds that Mr. Mwangi has
complied with the intent of Rule 8 by alleging specific facts to support a claim for relief
under § 1983.
Mr. Mwangi states that on the evening of January 6, 2014, he had an encounter with
a Walgreen’s employee who ordered him to leave the store because the employee
believed that Plaintiff was harassing a female customer, and then confronted Plaintiff
out on the sidewalk, shoving him backward. Shortly thereafter, Plaintiff was waiting for
a train at a light rail station in downtown Denver (near the Walgreen’s) when he was
suddenly knocked down from behind by one or more of the Defendants, who
commanded him to “stop resisting.” (Id. at 9). According to Plaintiff, he was not
resisting. Mr. Mwangi states that:
the officers pulled right, another pushed left, and yet another twisted the
same hand. Another buried their knees and/or elbow on the Plaintiff’s
back, causing excruciating pain. Another slammed and painfully pinned
his head, face planting him hard, on the concrete pavement, with his knee
or foot. It felt like the rest were stomping, kicking and punching his torso,
for absolutely no reason whatsoever.
(Id. at 9). Mr. Mwangi was then handcuffed and led down the street, where Defendant
Deputy X leaned him against the back of the police cruiser, while telling Plaintiff
repeatedly that that “we don’t like you” and that Plaintiff “needed to go back to Africa.”
(Id. at 10). Defendant Deputy X then proceeded to squeeze Plaintiff’s genitals with
significant force, causing him to experience excruciating pain, and slammed Plaintiff
head first into the pavement. Subsequently, Defendant Deputy X “straddled the Plaintiff
and commenced to sexually assault him over his clothes,” while continuing to verbally
assault the Plaintiff. (Id. at 11). Plaintiff states that the other Defendants “shielded
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[Defendant Deputy X] from the public with their bodies, while chanting him on.” (Id. at
16). Plaintiff suffered “excruciating physical, mental and psychological pain and injury”
as a result of the incident, including a “severe facial injury.” (Id.). He asserts that all of
the named Defendants are liable for violating his Fourth Amendment right to be free
from excessive force, and that he was assaulted because of his race, in violation of his
Fourteenth Amendment equal protection rights. Mr. Mwangi further claims that his due
process rights were violated when Defendants “failed to adequately investigate the
incident, view and/or retrieve the related CCTC surveillance camera footage, an
indispensable exculpatory material evidence to Plaintiff.” (Id. at 15). Plaintiff requests
monetary relief.
II.

Analysis
A. Official Capacity Claims

Mr. Mwangi sues the Defendants in both their official and individual capacities. The
official capacity claims are construed as claims against the City and County of Denver.
See Hafer v. Melo, 502 U.S. 21, 25 (1991). Mr. Mwangi was warned in the January 13
Order that to hold the City and County of Denver liable under 42 U.S.C. § 1983, he must
allege facts to show that an unconstitutional policy or custom exists and that there is a
direct causal link between the policy or custom and the injury alleged. City of Canton,
Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma County Bd. of County
Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Municipalities are not liable under
42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff. Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of
Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Furthermore, Plaintiff does not state

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a claim for relief under § 1983 merely by pointing to isolated incidents. See Monell, 436
U.S. at 694. Because Mr. Mwangi did not file a [Second] Amended Complaint to cure
the deficiencies in his official capacity claims, those claims will be dismissed as legally
frivolous.
B. Equal Protection Claim
Mr. Mwangi asserts that he was subjected to unlawful excessive force because
of his race. In order to state a race-based equal protection claim, a plaintiff must
sufficiently allege that the defendant was motivated by racial animus. Phelps v. Wichita
Eagle–Beacon, 886 F.2d 1262, 1269 (10th Cir.1989) (citing Village of Arlington Heights
v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). However, a conclusory
allegation of racial motivation is insufficient to state a claim upon which relief can be
granted. See Green v. Corrections Corp. of America, No. 10-3217, 401 Fed. Appx. 371,
376 (10th Cir. Nov. 8, 2010) (unpublished) (citing Hall, 935 F.2d at 1110) (holding that
courts need not accept as true a pro se litigant's conclusory allegations). Moreover,
mere differences in race do not, by themselves, support an inference of racial animus.
Id.; see also Ford v. Wilson, 90 F.3d 245, 248 (7th Cir.1996) (holding that an arbitrary
traffic stop coupled with a difference in race between the person stopped and the officer
does not establish a case of racial discrimination).
Mr. Mwangi does not allege any specific facts to show that the conduct of
Defendants Norman, Kennedy and Speelman, of any of the John Doe arresting officers,
other than Defendant Deputy X, was motivated by racial animus. Accordingly, the equal
protection claims will be dismissed against all Defendants, except for Defendant Deputy
X.

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C. Due Process Claim
Finally, Mr. Mwangi claims that his due process rights were violated when
Defendants “failed to adequately investigate the incident, view and/or retrieve the
related CCTC surveillance camera footage, an indispensable exculpatory material
evidence to Plaintiff.” (ECF No. 6 at 15). These allegations are vague. However, to the
extent Mr. Mwangi is challenging the constitutionality of an ongoing state criminal
prosecution, he may not pursue a § 1983 claim for damages until the conclusion of the
state criminal proceeding. See Younger v. Harris, 401 U.S. 37 (1971); D.L. v. Unified
Sch. Dist. No. 497, 392 F.3d at 1228 (“The rationale for Younger abstention can be
satisfied . . . by just staying proceedings on the federal damages claim until the state
proceeding is final”) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996)
(“we have permitted federal courts applying abstention principles in damages actions to
enter a stay, but we have not permitted them to dismiss the action altogether”));
Deakins v. Monaghan, 484 U.S. 193, 202 (1988) (a district court finding that Younger
abstention is required nevertheless “has no discretion to dismiss rather than to stay
claims for monetary relief that cannot be redressed in the state proceeding.”).
At this time, the Court is unable to determine from the face of the Amended
Complaint whether the doctrine of Younger abstention applies to Mr. Mwangi’s due
process claim, such that the claim for damages should be stayed against one or more of
the Defendants pending resolution of a state criminal proceeding. Mr. Mwangi is
reminded that if he is convicted of a state criminal offense and seeks to challenge the
validity of that conviction based on a failure to investigate and disclose exculpatory
evidence, he cannot pursue a claim for damages under § 1983 unless his conviction is

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first over-turned in a habeas corpus proceeding pursuant to 28 U.S.C. § 2254. See
Heck v. Humphrey, 512 U.S. 477, 487 (1994).
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
Mr. Mwangi’s § 1983 Fourth Amendment excessive force claim against the Defendants,
sued in their individual capacities, the Fourteenth Amendment equal protection claim
against Defendant Deputy X, sued in his individual capacity, and the Fourteenth
Amendment due process claim asserted against the Defendants in their individual
capacities, do not appear to be appropriate for summary dismissal. Consequently, the
case will be drawn to a presiding judge and, if applicable, to a magistrate judge. See
D.C.COLO.LCivR 8.1(c) and 40.1(a). Accordingly, it is
ORDERED that the claims against the individual Defendants, sued in their official
capacities, are DISMISSED as legally frivolous. It is
FURTHER ORDERED that the Fourteenth Amendment equal protection claim
asserted against Defendants Norman, Kennedy, Speelman, and the Defendant John
Doe arresting officers, other than Defendant Deputy X, are dismissed as legally
frivolous. It is
FURTHER ORDERED that the Fourth Amendment excessive force claims
asserts against the Defendants in their individual capacities, the Fourteenth Amendment
equal protection claim against Defendant Deputy X, sued in his individual capacity, and
the Fourteenth Amendment due process claim asserted against the Defendants in their

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individual capacities, shall be drawn to a presiding judge and, if applicable, to a
magistrate judge.
DATED April 4, 201616, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock_________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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