Brown v. Whitman

• Decision Date: 03 August 2009
• Docket Number: Civil Action No. 07-cv-01474-PAB-BNB.
• Citation: 651 F.Supp.2d 1216
• Parties: Ticoa BROWN, Plaintiff, v. Gerald WHITMAN, Chief, in his official capacity, City and County of Denver, a municipality, and Officer John Doe, in his official and personal capacity, Defendants.
• Court: U.S. District Court — District of Colorado

651 F.Supp.2d 1216

Ticoa BROWN, Plaintiff, v. Gerald WHITMAN, Chief, in his official capacity, City and County of Denver, a municipality, and Officer John Doe, in his official and personal capacity, Defendants.

Civil Action No. 07-cv-01474-PAB-BNB.

United States District Court, D. Colorado.

August 3, 2009.

COPYRIGHT MATERIAL OMITTED

Brian Debauche, Brian Debauche & Associates, LLC, for Plaintiff.

Thomas G. Bigler, Denver City Attorney's Office, Denver, CO, for Defendants.

ORDER GRANTING SUMMARY JUDGMENT

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Motion for Summary Judgment [Docket No. 33] of defendants the City and County of Denver, Colorado ("City") and Gerald Whitman, the chief of police of Denver ("Chief Whitman"). The motion is fully briefed and ripe for disposition. For the reasons detailed below, the Court grants the motion for summary judgment.

I. FACTUAL BACKGROUND

This case arises from a dog bite incident. Between 2:00 and 3:00 a.m. on July 14, 2005, a Denver Police Department officer who had his police dog off leash, was searching for two suspected carjackers in a residential neighborhood. The police dog located plaintiff Ticoa Brown, who had the misfortune of being in her backyard at the time of the search, and bit her, causing injuries.

The facts, which are undisputed unless otherwise noted, are as follows. The Denver Police Department commenced the search near Ms. Brown's home at approximately 2:00 a.m. on July 14, 2005. Defs.' Mot. for Summ. J. ("Defs.' Br.") [Docket No. 33], Statement of Undisputed Material Facts ("UF") ¶ 1; Pl.'s Resp. to Mot. for Summ. J. ("Pl.'s Br.") [Docket No. 45], Resp. to Undisputed Material Facts ("RUF") ¶ 1. The search area encompassed a few city blocks, including Ms. Brown's backyard. Defs.' Br., UF ¶¶ 2-4; Pl.'s Br., RUF ¶¶ 2, 3-5. Officer Brett Titus, a canine handler employed by the Denver Police Department, and his dog Stinger were dispatched to the scene at approximately 2:35 a.m. Defs.' Br., UF ¶ 1; Pl.'s Br., RUF ¶ 1. Officer Titus testified during discovery in this matter that he was informed via police radio that he was needed to assist in a search for two "armed carjackers" and that this information was confirmed upon his arrival at the site of the search. Defs.' Br., Ex. A at 79-80. Ms. Brown disputes this fact. Without offering factual support, Ms. Brown suggests that any carjacking occurred two days before July 14, 2005 and that Officer Titus was responding to individuals who fled from a stolen vehicle after crashing on a street near her home. Pl.'s Br., RUF ¶ 2.

Upon arrival, Officer Titus searched an area that included Ms. Brown's backyard. Defs.' Br., UF ¶¶ 2-5 & Ex. A at 84; Pl.'s Br., RUF ¶¶ 2-5. During the time that Officer Titus was searching, Ms. Brown was in her backyard. She claims to have been seated in her car, parked in her backyard, until she saw Officer Titus shine a flashlight, at which time she recalls standing up on the edge of her car's doorframe. Defs.' Br., Ex. B at 111. Officer Titus' police dog, who was not on a leash, encountered Ms. Brown and bit Ms. Brown in the thigh. Defs.' Br., UF ¶¶ 5-6, 8; Pl.'s Br., RUF ¶¶ 5-8. Ms. Brown claims that, once she was bitten, the dog dragged her across her yard and would not release her until Officer Titus physically removed it. Pl.'s Br., RUF ¶¶ 6-7. Defendants contest this description but do not cite evidence to the contrary in their summary judgment briefing. Following the incident, Ms. Brown was taken to the emergency room and treated for injuries resulting from the dog bite. Defs.' Br., UF ¶ 9; Pl.'s Br., RUF ¶ 9. Ms. Brown's injuries included puncture wounds to her right thigh. Defs.' Br., UF ¶ 8; Pl.'s Br., RUF ¶ 8.

Ms. Brown asserts claims under 42 U.S.C. § 1983 against the City, Chief Whitman, and "Officer John Doe" for violation of her rights under the Fourth Amendment of the United States Constitution. The City and Chief Whitman move for summary judgment on all of Ms. Brown's claims.

II. ANALYSIS

A. Standard of Review

Summary judgment is warranted under Federal Rule of Civil Procedure 56(c) when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Concrete Works of Colorado, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). A disputed 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). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" 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). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

B. Untimely Amendment of Pleadings

Defendants first take issue with Ms. Brown's first, second, and third claims, which they assert are pled only against an individual law enforcement official defendant, named in the complaint as "Officer John Doe." Defendants argue that these claims must be dismissed because Ms. Brown failed to add Officer Brett Titus— who undisputedly was the canine handler responsible for the police dog that bit Ms. Brown—as a party to the litigation before the applicable statute of limitations expired or within the time period for amendment of pleadings. Ms. Brown responds that the statute of limitations should be equitably tolled due to the City withholding information about Officer Titus' identity. Ms. Brown requests that she be allowed to substitute Officer Titus in place of the "Officer John Doe" named in Ms. Brown's Complaint.

"Limitations periods in § 1983 suits are to be determined by reference to the appropriate state statute of limitations and the coordinate tolling rules...." Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989) (internal quotation marks omitted). The Tenth Circuit has made clear that the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued. Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006). "A § 1983 action `accrues when facts that would support a cause of action are or should be apparent.'" Id. (quoting Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995)).

In this case, Ms. Brown's cause of action accrued on July 14, 2005, the date on which the police dog bit her. It cannot be contested that the basis for Ms. Brown's cause of action was apparent upon the occurrence of that incident. Applying Colorado's general two-year statute of limitations, Ms. Brown had until July 14, 2007 to file claims against any person or entity allegedly responsible for her injuries. Ms. Brown's Complaint was filed on July 12, 2007, two days before the expiration of the limitations period. It is undisputed that Ms. Brown did not add Officer Titus as a party before the statute of limitations lapsed. As Ms. Brown recognizes in her response brief, her proposed addition of Officer Titus does not relate back under Federal Rule of Civil Procedure 15(c)(1)(C) to the date of her original Complaint due to her naming a John Doe party. See Garrett v. Fleming, 362 F.3d 692, 697 (10th Cir.2004) ("A plaintiff's designation of an unknown defendant as `John Doe' in the original complaint is not a formal defect of the type Rule [15(c)(1)(C)] was meant to address."). Thus, the question is whether the statute of limitations should be equitably tolled so as to allow Ms. Brown to add Officer Titus as a party at this stage in this litigation.

In a § 1983 action, "[s]tate law governs any tolling of [the statute of limitations] period, except that federal law might also allow additional equitable tolling in rare circumstances." Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (citations omitted). Ms. Brown has the burden to show grounds for equitable tolling. Garrett v. Arrowhead Improvement Ass'n, 826 P.2d 850, 855 (Colo.1992). I look exclusively to state law as a basis for tolling in this case because Ms. Brown has not identified any unique grounds under federal law for tolling the limitations period. Under Colorado law, a statute of limitations may be equitably tolled where a plaintiff did not timely file her claims because a defendant's wrongful conduct prevented the plaintiff from doing so or because of "extraordinary circumstances." Brodeur v. American Home Assur. Co., 169 P.3d 139, 149 (Colo.2007). Ms. Brown does not contend that extraordinary circumstances are present in this case so as to toll the statute of limitations on that basis. Moreover, the Court has not located any Colorado case where the "exceptional circumstances" tolling exception was applied. Cf. Brodeur, 169 P.3d at 150 ("since stating in Dean Witter Reynolds [Inc. v. Hartman, 911 P.2d 1094 (Colo. 1996) ] that extraordinary circumstances may toll the statute of limitations, this court has never found such circumstances to exist"). Instead, Ms. Brown asserts that the City's wrongful conduct—failing to earlier disclose Officer Titus' identity as the canine handler involved in her dog bite incident—justifies tolling the statute of limitations in this case.

Ms. Brown claims that she first contacted the City regarding the July 14, 2005 dog bite incident in July 2005 and requested information again at a later date. As evidence of this correspondence, Ms. Brown submits a notification dated October 31, 2005 from the Denver Police Department, Civil Liability Bureau advising Ms. Brown that she...