438 F.3d 1036 (10th Cir. 2006), 04-1435, Moore v. Guthrie

Docket Nº:04-1435.
Citation:438 F.3d 1036
Party Name:Tracy MOORE, Plaintiff-Appellant, v. Michael GUTHRIE, individually and in his official capacity as Chief of Police of the City of Evans, Colorado; City of Evans, Colorado, a municipal corporation, Defendants-Appellees.
Case Date:February 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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438 F.3d 1036 (10th Cir. 2006)

Tracy MOORE, Plaintiff-Appellant,

v.

Michael GUTHRIE, individually and in his official capacity as Chief of Police of the City of Evans, Colorado; City of Evans, Colorado, a municipal corporation, Defendants-Appellees.

No. 04-1435.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2006.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 03-M-2558 (OES))

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[Copyrighted Material Omitted]

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Michael T. Lowe (Marc F. Colin with him on the briefs) of Bruno, Bruno & Colin, P.C., Denver Colorado, for Plaintiff-Appellant.

David R. DeMuro (Lana L. Steven with him on the brief) of Vaughan & DeMuro, Denver, Colorado, for Defendants-Appellees.

Before BRISCOE, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff was injured when a bullet flew up beneath his police officer's "riot helmet" during an intense "live fire" training exercise with other police officers, causing him to lose fifty-seven percent of his vision in one eye. The injured officer is a member of the City of Evans, Colorado, police department. The exercise is part of the department's firearms training program, and it simulates various "live fire" scenarios, where officers switch off playing the roles of perpetrators and policemen. The training exercise is meant to replicate combat scenarios that a police officer might encounter on the street. What makes the exercise so realistic is the use of "Simunition," a highly-specialized live ammunition specifically designed to replace the standard live ammunition in police officers' personal service weapons. Simunition is available for both .38 calibers and nine-millimeters, utilizes smokeless gunpowder as a propellant, and fires a plastic, liquid-filled, bullet-shaped projectile which shatters on impact, marking the target with brightly-colored liquid. Because Simunition is intended as a combat training tool, Simunition cartridges are specifically designed to be painful to a person on impact; the Simunition manufacturer refers to this characteristic as "impact penalty." A Simunition projectile striking unprotected skin will leave bruises, welts, and abrasions.

Simunition's manufacturer has also developed a line of protective equipment to be worn when training with Simunition rounds. This protective equipment includes a face mask which provides 360-degree head coverage and fits closely around the neck and chin without gaps; a throat collar; groin, torso, leg, and arm covers; and gloves. Three different firearms instructors, on three separate occasions, told Chief Guthrie that the manufacturer required its own face masks to be worn during exercises with Simunition rounds. Chief Guthrie did not authorize purchasing any of the protective equipment from Simunition's manufacturer. Instead, he authorized using "riot helmets" during the firearms training. Riot helmets cover the head above the neck, and incorporate a clear plastic shield which extends from the front of the helmet straight down in front of the wearer's face. But, riot helmets do not protect the neck or throat, and are positioned such that a gap of approximately three inches exists between the wearer's face and the plastic shield.

During an exercise which took place in a vacant lot, Plaintiff, wearing a riot helmet, was injured when a Simunition bullet flew

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up beneath his plastic shield and hit him in his right eye. He pursued two claims for relief in the district court: (1) a 42 U.S.C. § 1983 claim against the City of Evans for violation of his Fourteenth Amendment right to bodily integrity; and (2) a 42 U.S.C. § 1983 claim against Chief Guthrie individually for violation of this right. The district court dismissed Plaintiff's complaint for failure to state a claim for relief, specifically that the facts he pleaded were insufficient to defeat a qualified immunity defense.

To survive a motion to dismiss for failure to state a claim, Plaintiff must allege facts sufficient to overcome qualified immunity. The first prong of an assertion to defeat a qualified immunity defense requires there to have been a violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231 (1991). The second is the requirement that the violated right was "clearly established" at the time of the alleged conduct. Id. at 232. The district court dismissed Plaintiff's complaint because the stated facts did not rise to the conscience-shocking level necessary to plead a constitutional violation and because Plaintiff had not demonstrated that the alleged constitutional violation was contrary to clearly established law. Plaintiff appeals this order of dismissal of his complaint.

Because the sufficiency of a complaint is a question of law, we review de novo the district court's grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), applying the same standards as the district court. Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). "That is, all well-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Id. It is true that dismissal under Rule 12(b)(6) "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir. 2001) (quotation and citation omitted). It is also well established that dismissal of a complaint is proper only if "it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Gas-A-Car, Inc. v. Am. Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir. 1973); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Pleading his case that his constitutional rights were violated, Plaintiff claims "[i]t is beyond cavil that the Due Process Clause protects an individual's right to 'bodily integrity.' " Aplt. Br. at 13. But the Supreme Court has recognized a liberty interest in bodily integrity in only very limited circumstances involving such things as abortions, Roe v. Wade, 410 U.S. 113 (1973), end-of-life decisions, Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261 (1990), birth control decisions, Griswold v. Connecticut, 381 U.S. 479 (1965), and instances where individuals are subject to dangerous or invasive procedures where their personal liberty is being restrained, see, e.g., Rochin v. California, 342 U.S. 165 (1952) (determining that a detainee's bodily integrity was violated when police ordered doctors to pump his stomach to obtain evidence of drugs); Screws v. United States, 325 U.S. 91 (1945) (holding that an individual's bodily integrity was violated where a citizen was beaten to death while in police custody). Plaintiff argues that he has a cognizable claim for a violation of

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bodily integrity, based on his alleged right to work in a safe environment.

The Supreme Court, however, has declined to extend due process protection to safe working conditions. In Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992), the Court held that substantive due process was not a guarantor of workplace safety: "Neither the text nor the history of the Due Process Clause supports petitioner's claim that the governmental...

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