McKenzie v. The City of Denver

Docket NumberCivil Action 21-cv-00833-PAB-STV
Decision Date21 July 2023
CourtU.S. District Court — District of Colorado
Scott T. Varholak United Stated Magistrate Judge

This matter is before the Court on the following motions: Dr. Ruth Foss' Motion to Dismiss [#187] (Defendant Foss's Motion”); Denver Health and Hospital Authority's Motion to Dismiss [#188] (“Denver Health's Motion”); Defendant Denver's Motion to Dismiss [#202] (“Denver's Motion”); Defendant Pazen's Motion to Dismiss [#203] (Defendant Pazen's Motion”); Defendant Campion's Motion to Dismiss [#204]; (Defendant Campion's Motion”); Defendant Christian's Motion to Dismiss Plaintiff's Amended Complaint in Part [#205] (Defendant Christian's Motion”); Defendant Jossi's Motion to Dismiss [#206] (Defendant Jossi's Motion”); Defendant Carmody's Motion To Dismiss [#207] (Defendant Carmody's Motion”); Motion to Dismiss Plaintiff's Amended Complaint in Part by Defendants Baughman and Bishop [#208] (Defendants Baughman and Bishop's Motion”) and Dr. Christopher Erley's Motion to Dismiss [#229] (Defendant Erley's Motion”) (Collectively the “Motions”). The Motions have been referred to this Court. [##189, 213, 230] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the reasons articulated below, the Court respectfully RECOMMENDS that:

Defendant Foss's Motion be GRANTED IN PART and DENIED IN PART as specified below;
• Denver Health's Motion be GRANTED;
• Denver's Motion be GRANTED;
Defendant Pazen's Motion be GRANTED;
Defendant Campion's Motion be GRANTED;
Defendant Christian's Motion be GRANTED IN PART and DENIED IN PART as specified below;
Defendant Jossi's Motion be GRANTED IN PART and DENIED IN PART as specified below;
Defendant Carmody's Motion be GRANTED IN PART and DENIED IN PART as specified below;
Defendants Baughman and Bishop's Motion be GRANTED IN PART and DENIED IN PART as specified below • Defendant Erley's Motion be GRANTED IN PART and DENIED IN PART as specified below; and
Plaintiff be granted leave to file an Amended Complaint within 21 days of any Order Adopting this Recommendation, subject to certain limitations specified below.


Plaintiff Trevion McKenzie (Plaintiff) was arrested in Denver on December 16, 2020, for reasons not articulated in the Complaint.[2][#186, ¶ 1] Unspecified officers restrained Plaintiff with his right arm behind his back in the “hog-tie” position. [Id., ¶ 2] Plaintiff was not resisting arrest, and was unarmed. [Id.] Despite this, Officer Jonathan Christian (Defendant Christian) repeatedly struck Plaintiff on the left side of his face with his knuckles and shoved Plaintiff's face into the gravel, injuring Plaintiff's left eye socket. [ Id., ¶¶ 3-4, 9-10] Officer Clyde Carmody (Defendant Carmody) also hit Plaintiff in the area of his left eye with his knuckles. [Id., ¶ 11] Detective Matthew Baughman (Defendant Baughman) pressed his knee into Plaintiff's upper back and neck area restricting Plaintiff's breathing, while holding Plaintiff's right hand behind his back. [Id., ¶ 12] As other officers were handcuffing Plaintiff, Defendant Baughman also struck Plaintiff in the back-left side of Plaintiff's head with his knee multiple times. [Id., ¶ 13] During this altercation, Defendant Carmody and another unidentified officer held Plaintiff's legs, and otherwise did not intervene. [Id., ¶ 14] Officer Blake Bishop (Defendant Bishop) pointed an “assault rifle” at Plaintiff while other officers struck him. [Id., ¶ 15] Plaintiff was “scared for his life” and believed that the officers would either beat him to death or shoot him while restrained. [Id., ¶ 16] Plaintiff was searched three times and officers found no drugs or weapons. [Id., ¶¶ 34-35, 37-39] Defendants Christian, Carmody, Bishop, and Baughman failed to report the excessive force used against Plaintiff. [Id., ¶¶ 137-40]

Plaintiff alleges that the City and County of Denver (Denver) has a policy, custom, practice, or procedure “of using unnecessary excessive force such as kneeing, punching, striking, hitting, dragging, choking, ta[s]ing [and] other unconstitutional techniques on arrestees” unnecessarily, and that Defendants Christian, Carmody, Baughman, and Bishop followed this policy. [Id., ¶¶ 19-20] Plaintiff also alleges that Denver has failed to appropriately discipline the officers involved for misconduct. [Id., ¶ 141]

Plaintiff requested medical attention and an ambulance was called. [Id., ¶ 37] Plaintiff was taken to Denver Health for injuries he sustained during his arrest. [Id., ¶¶ 22, 41] In a hospital room, Dr. Christopher Erley (Defendant Erley) performed an “intake” that involved asking Plaintiff questions. [Id., ¶ 49] Plaintiff acknowledged to Defendant Erley that his drugs of choice were cocaine and alcohol, and that he had used cocaine earlier that day. [Id., ¶ 53] Dr. Ruth Foss (Defendant Foss) and Defendant Erley ultimately disclosed Plaintiff's medical history and drug habits to law enforcement, pursuant to Denver Health policy. [Id., ¶¶ 73-74]

At the hospital, Defendant Officers Heather Jossi (Defendant Jossi) and Christian ordered Denver Health staff to search Plaintiff's anal cavity for drugs. [Id., ¶¶ 42-45] Plaintiff alleges that this was in retaliation for Plaintiff seeking medical attention for his injuries. [Id., ¶ 147] Defendant Erley subsequently asked Plaintiff for permission to perform the rectal exam and Plaintiff refused. [Id., ¶¶ 55-56] Plaintiff does not allege that he was ever given a rectal exam. [See id., ¶¶ 56-57]

Plaintiff was taken to the x-ray room, where his chest, face and right wrist were x-rayed. [Id., ¶ 57] X-rays confirmed that Plaintiff had suffered an “orbital floor (blow-out) open fracture” to his left eye socket. [Id., ¶¶ 23-25, 58-59] Unbeknownst to Plaintiff at the time, Defendant Foss also ordered Defendant Erley to perform a pelvic x-ray on Plaintiff for “Clinical Indication: Question of insertion of Drugs in Rectum.” [Id., ¶¶ 61, 65] No drugs were found in Plaintiff's body as a result of the x-ray. [Id., ¶ 62] Plaintiff alleges the pelvic x-ray was unnecessary and done in bad faith. [Id., ¶¶ 63-64] Plaintiff never consented to the pelvic x-ray. [Id., ¶ 66] Plaintiff did not learn that the pelvic x-ray had been performed until February 18, 2022, when Plaintiff received his medical records from Limon Correctional Facility staff. [Id., ¶¶ 60, 65]

Plaintiff alleges that both Denver and Denver Health have a policy, procedure, regulation, custom, or practice that gives law enforcement agencies the authority to compel Denver Health medical staff to perform unlawful medical procedures on arrestees, and that Defendants Erley, Foss, Jossi, and Christian acted pursuant to this policy. [Id., ¶¶ 70-71] Plaintiff also alleges that Defendant Denver's practice is to “subject arrestees to body cavity searches at hospitals” only when “the arrestee has complained about his or her injuries being the result of excessive force by police during arrest.” [Id., ¶ 80]

On December 22, 2020, Plaintiff underwent emergency surgery to repair injuries that had occurred during his arrest. [Id., ¶ 59] On January 7, 2021, Plaintiff sent a formal complaint of unnecessary force and unauthorized body cavity search to the Denver Police Department. [Id., ¶ 84] Sergeant Jesse Campion (Defendant Campion) contacted Plaintiff several times in relation to an investigation of his complaint. [Id., ¶¶ 87-92] To date, Plaintiff has not received a formal disposition of his complaint. [Id., ¶ 94]

Plaintiff initiated the present action on March 22, 2021 by filing a Prisoner Complaint. [#3] In the course of litigation, Plaintiff sought and obtained an order of the Court seeking Denver's assistance in identifying the officers involved on December 16, 2020. [##62, 71] Plaintiff alleges that Denver has a policy, custom, practice or procedure of concealing information from plaintiffs in officer misconduct cases, and that Denver and Denver Police Chief Paul Pazen (Defendant Pazen) acted pursuant to this policy in not identifying one of the officers. [#186, ¶¶ 107-110, 149, 153] All officers have now been identified. [Id., ¶¶ 100, 153; see also ##179 at 2; 102-1 at 2]

On January 13, 2023, Plaintiff filed the operative Amended Complaint (the “Complaint”). [#186] In the Complaint, Plaintiff asserts thirteen claims as a result of the two incidents on December 16, 2020. Plaintiff brings the following claims:

Claim One: Excessive force in violation of the Fourth Amendment against Defendants Denver Christian, Carmody, Bishop, and Baughman. [Id., ¶¶ 1-32]Claim Two: Unauthorized body cavity search in violation of the Fourth Amendment, the Eighth Amendment, the Health Insurance Portability and Accountability Act of 1996, 29 U.S.C. 42 U.S.C. § 1320d-6 (HIPAA), and 42 C.F.R. Part 2 against Defendants Denver, Denver Health, Christian, Jossi, Erley, and Foss. [ Id., ¶¶ 33-83]
Claim Three: Deliberate indifference to policy/customs and failure to act in violation of the Eighth and Fourteenth Amendments against Defendants Denver, Campion, and Pazen. [Id., ¶¶ 84-110]
Claim Four: Deliberate indifference to policy/customs and failure to train and supervise in violation of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments against Defendants

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