Jackson v. Gatto

• Decision Date: 17 June 2014
• Docket Number: Civil Action No. 13-cv-02516-CBS
• Parties: TERRY JACKSON, Plaintiff, v. BENJAMIN ANDREW GATTO, a Federal Agent of the United States, and UNKNOWN FEDERAL LAW ENFORCEMENT AGENTS of the Fort Carson Military Police, Defendants.
• Court: U.S. District Court — District of Colorado

TERRY JACKSON, Plaintiff, v. BENJAMIN ANDREW GATTO, a Federal Agent of the United States,and UNKNOWN FEDERAL LAW ENFORCEMENT AGENTSof the Fort Carson Military Police, Defendants.

Civil Action No. 13-cv-02516-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: June 17, 2014

ORDER ON DEFENDANT GATTO'S MOTION TO DISMISS

Magistrate Judge Shaffer

This matter comes before the court on Defendant Andrew Gatto's Motion to Dismiss (doc. # 29), filed on February 28, 2014. Plaintiff Terry Jackson filed her Response to Defendant's Motion to Dismiss (doc. #32) on March 18, 2014, which was followed by Defendant Gatto's Reply in Support of Motion to Dismiss (doc. #35) on April 1, 2014.

Ms. Jackson commenced this litigation on September 16, 2013. Her original Complaint (doc. #1) named as defendants the United States of America and Benjamin Gatto, and asserted six claims for relief under the Fourth Amendment and common law tort theories. Defendants moved to dismiss the original Complaint on January 30, 2014, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). More specifically, Defendant Gatto argued that the claims brought against him in his individual capacity failed to properly allege a Fourth Amendment violation and/or were barred by the doctrine of qualified immunity. The United States moved to dismiss for lack of subject matter jurisdiction, arguing that Plaintiff's negligence claims were barred by sovereign immunity or the discretionary function exception incorporated in the Federal TortClaims Act. See 28 U.S.C. § 2680(a).

Rather than responding to that motion, Ms. Jackson filed an Amended Complaint (doc. # 28) on February 28, 2014, in which she asserted "Constitutional and Civil Rights" claims against Defendant Gatto and "Unknown Federal Law Enforcement Agents of the Fort Carson Military Police" pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Ms. Jackson's First Claim for Relief alleges that "[o]n or about September 22, 2011, in the absence of offensive physical force, the threat of force, attempted flight or threatened flight," Defendant Gatto used excessive force in violation of the Fourth Amendment by "pulling [Ms. Jackson] from her vehicle, forcing her against her vehicle, twisting her head, and intentionally shooting her with a Taser gun." See Amended Civil Complaint, at ¶ 70. Plaintiff's Second Claim for Relief alleges, as a separate Fourth Amendment violation, that on the same day, Defendant Gatto "and/or other agents of the Fort Carson Provost Marshall's office,

unreasonably detained Plaintiff by incapacitating her by shooting her with a Taser gun and, following her release from emergency treatment at the Evans Army Community Hospital, by handcuffing her, taking her to a military police station and handcuffing her to a metal bench for a prolonged period of time."

Id. at ¶ 73. In her prayer for relief, Ms. Jackson "requests judgment against the United States of America, against Benjamin Gatto, or against both of them."¹

Defendant Gatto has moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6), contending that Plaintiff has failed to allege facts that would "clearly establish" that his use of force on September 22, 2011 was excessive or that Ms. Jackson's subsequent detention violated the Fourth Amendment. Defendant Gatto further argues that neither his "use of force, including use of a Taser, against Plaintiff, who was noncompliant and resisting her apprehension, nor Plaintiff's subsequent arrest and detention violate clearly establish law or constitutional rights of which a reasonable person would have known." Not surprisingly, Ms. Jackson insists that Officer Gatto's actions, as alleged in the Amended Complaint and depicted on a contemporaneously created audio/video recording, were "'unreasonable' under established Fourth Amendment standards," thus precluding his reliance on the doctrine of qualified immunity.

On January 30, 2014, this matter was referred for disposition to this Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court has reviewed the pending motion and related briefing and exhibits, the entire case file, and the applicable law, and is sufficiently advised in the premises. The court does not believe that oral argument would assist its evaluation of the arguments raised in the parties' briefs. For the following reasons, I am granting in part and denying in part Defendant Gatto's motion.

ANALYSIS

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." "The burden is on the plaintiff to frame 'a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id. "Nevertheless, the standard remains a liberal one, and 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of these facts is improbable and that a recovery is very remote and unlikely.'" Jordan v. Cooley, No. 13-cv-01650-REB-MJW, 2014 WL 923279, at 1(D. Colo. March 10, 2014) (quoting Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10^th Cir. 2009)).

Generally, a court considers only the contents of the complaint when ruling on a Rule 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10^th Cir. 2010). Exceptions to this general rule include: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes their authenticity; and "matters ofwhich a court may take judicial notice." Id., quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Cf. Gilbert v. Bank of America Corporation, No. 11-cv-00272-BLW, 2012 WL 4470897, at *2 (D. Idaho Sept. 26, 2012) (noting that a court may take judicial notice "of the records of state agencies and other undisputed matters of public record" without transforming a motion to dismiss into a motion for summary judgment). If a plaintiff does not incorporate by reference or attach a document to its complaint, a defendant may submit an undisputably authentic copy which the court may consider in ruling on a motion to dismiss. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1281, 1384 (10^th Cir. 1997).

In the Amended Complaint, Ms. Jackson alleges that on September 22, 2011, "Officer Gatto activated the audio/video device in his vehicle and recorded the majority of the events that are the subject of this complaint." See Amended Complaint, at ¶ 33. Defendant Gatto offered a copy of this audio/video recording as Exhibit A to his first Motion to Dismiss (see doc. # 25) and cites that same audio/video recording (hereinafter "Defendant's Exhibit A") in the current Motion to Dismiss, reasoning that the recording is "central to [Ms.Jackson's] claims" and therefore can be considered in deciding the pending motion "without transforming it into a motion for summary judgment." See Defendant's Motion to Dismiss (doc. #29), at 2 n. 1. In his Response to Defendant's Motion to Dismiss (doc. # 32), Plaintiff's counsel "agrees with Defendant's position with respect to the Court considering the audio/video tape that was referenced in Plaintiff's Complaint." Neither side appears to challenge the authenticity of the audio/video recording. Cf. Scott v. Harris, 550 U.S. 372, 379 (2007) (in a case involving allegations of excessive force in connection with a high-speed chase, the Supreme Court considered the contents of a videotape "capturing the events in question" for which there wereno allegations or indications of doctoring or tampering in any way). Plaintiff further asks me to consider, on the same basis, "the verbatim transcript of the audio/video that is attached" to her Response and previously provided to defense counsel.²

At the parties' request, I have reviewed the time-stamped audio/video recording of the events on September 22, 2011 and will consider this exhibit in deciding the pending motion.³ Cf. Hyung Seok Koh v. Graf, No. 11-cv-02605, 2013 WL 5348326, at *10 (N.D. Ill. Sept. 24, 2013) (in deciding a motion to dismiss, the court considered an "interrogation video in conjunction with [the plaintiff's] complaint," but noted that "it still views the video in the light most favorable to the Kohs, who are the nonmovants"). My review of that recording does not require that I analyze or decide Defendant's motion under a Rule 56 standard. See, e.g., Chamberlain v. City of White Plains, No. 12-CV-5142 (CS), _ F. Supp.2d _, 2013 WL 6477334, at *7 (S.D.N.Y. Dec. 10, 2013) (holding that the court would consider audio-video recordings captured by the camera mounted on the defendant's taser without converting the motion to dismiss to a motion...