Moses v. Lamb
| Decision Date | 22 January 2021 |
| Docket Number | Civil Action No. 20-cv-01603-MEH |
| Parties | NICHOLAS MOSES, and JOHN MOSES, Plaintiffs, v. POLICE CORPORAL JOSEPH LAMB, in his individual capacity, and POLICE OFFICER BEN HIMES, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Colorado |
Following the filing of the Amended Complaint by Plaintiffs Nicholas Moses and John Moses (together, "Plaintiffs"), Defendant Ben Himes ("Himes") filed the pending motion to dismiss ("Motion"). ECF 40. As they did in their original Complaint, Plaintiffs assert claims against Defendants Joseph Lamb ("Lamb") and Himes pursuant to 42 U.S.C. § 1983 for alleged excessive force in violation of the Fourth Amendment. Am. Compl. at ¶¶ 82-139. Himes' Motion seeks dismissal of the sole claim against him and asserts qualified immunity. ECF 40. The Motion is fully briefed, and the Court finds that oral argument would not materially assist it. As set forth below, this Court grants Himes' Motion.
As an initial remark, the Court notes that the facts alleged in the original Complaint and the Amended Complaint are substantially the same. The Court reproduces the allegations from its prior order solely for the sake of coherency. With that in mind, the Court views the following facts as material to its analysis.
On June 7, 2018, Plaintiffs allege that they were in a truck parked in a public parking lot located near Mudrock's Tap and Tavern at 585 E. South Boulder Road, Louisville, Colorado 80027. Compl. at ¶ 14. A Mudrock's employee called the Louisville Police Department to report that Plaintiffs were using narcotic drugs. Id. at ¶ 15. Lamb responded to this call; Himes arrived shortly after Lamb. Id. at ¶ 17. When Lamb arrived, he pulled his vehicle in front of Plaintiffs' truck. Id. at ¶ 18. Lamb unholstered his gun, pointed it at Nicholas Moses ("Nicholas"), and ordered him to get out of the truck. Id. at ¶ 19. After arriving, Himes parked his patrol car perpendicular to Plaintiffs' truck, exited his vehicle, pulled out his gun, and pointed it at Plaintiffs. Id. at ¶ 24.
Responding to Lamb's commands, Nicholas exited his vehicle and walked backwards toward Lamb with his hands raised. Id. at ¶ 25. Lamb told Nicholas he would be taken into custody, at which point Nicholas ran back into his truck and attempted to drive away. Id. Continuing to point their guns, Defendants followed Nicholas and tried to pull him from the truck. Id. at ¶ 26. At this point, Defendants could see John Moses ("John") in the vehicle with Plaintiffs' puppy, Dozer. Id. Lamb then held his gun to Nicholas' neck. Id. at ¶ 27. In reaction, Himes "pushed" Lamb away from the truck and pulled out his taser. Id. at ¶ 28. Himes deployed the taser but did not directly strike Nicholas. Id. at ¶ 29. Himes then moved approximately fifteen feet away from the truck. Id. at ¶ 30.
Nicholas attempted to flee by turning the wheels away from the officers and putting the truck in drive. Id. at ¶ 33. In doing so, Nicholas caused his truck to hit Lamb's vehicle, remaining pinned against it for thirty seconds. Id. at ¶ 37. Unsuccessful in his escape driving forward,Nicholas put his truck in reverse and drove straight backward into a tree. Id. at ¶ 39. Then, again turning the wheels of the truck away from Defendants, Nicholas put the truck in drive and drove forward. Id. at ¶ 39. From Nicholas turning the wheels of the truck to driving forward, eight seconds elapsed. Id. at ¶ 40. As Nicholas drove forward, the truck began to pass Defendants. Id. at ¶ 41. Lamb fired his gun at the truck, striking Nicholas in the arm and killing the puppy, Dozer. Id. at ¶ 53.
After being shot, Nicholas stopped the truck about fifteen feet away from when he had put it in drive. Id. at ¶ 56. Lamb ordered Nicholas to exit the truck, but he "was in shock and crying with pain from the bullet wound." Id. at ¶ 57. Lamb tried to open the driver's door, but three bullets hit the door handle, making it inoperable from the outside. Id. Meanwhile, Himes instructed John to exit the truck and walk backward toward him with his hands up. Id. at ¶ 58. John replied that he could not get out of the truck, since he was holding Nicholas' arm to stop the bleeding. Id. At some point, John did exit the truck. Id. at ¶ 59. John cooperated with Defendants' commands, including getting down on his knees. Id. at ¶ 62. Before Himes attempted to place John in handcuffs, Nick told Himes to be careful when handcuffing John because "he was injured and handcuffing would exacerbate his injuries." Id. at ¶ 62. John also told Himes that "he could not place his hands on his head and interlock his fingers." Id. When placing the handcuffs, Himes "wrenched" John's arms behind his back. Id. at ¶ 63. This action caused him to scream out in pain. Id. "Eventually, after multiple efforts by Himes to force [John's] arms behind is back, and blood-curdling screams in response from [John], Himes asked what was wrong with [his] arms." Id. John responded that he had "severe arthritis in his shoulders[,]" and that "if he continued to try to force his arms behind his back . . . he would dislocate [John's] shoulders." Id.
Despite this warning, Himes continued to attempt to handcuff John. Id. He wrenched John's arms "approximately ten times" before he grabbed a second pair of handcuffs. Id. at ¶ 64. John continued to experience pain as Himes tried to handcuff him using both pairs of handcuffs. Id. Himes eventually succeeded in handcuffing John. Id. While in jail the next week, John's "shoulder were extremely sore." Id. at ¶ 67. He alleges that the handcuffing "had exacerbated the arthritis in his shoulders and left him with an injury that lasted at least one week." Id. Himes' actions also caused injury to John's back, forcing him "to use a wheelchair during part of his stay at the jail." Id.
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 680. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Plausibility refers "'to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have notnudged their claims across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1192. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).
As mentioned above, Plaintiffs' Amended Complaint asserts one claim against Himes for violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983. Himes argues for dismissal of the claim, asserting qualified immunity. Mot. at 8. In support, Himes attached body worn camera ("BWC") footage. ECF 21 (conventionally submitted material). Plaintiffs contend that the Courtmay not consider such evidence at the motion to dismiss stage. Resp. at 5-6. The Court will first address the BWC footage before proceeding to the merits of the Motion.
"Generally, the sufficiency of a complaint must rest on its contents alone." Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010). There are limited exceptions to this general rule by which a court may consider materials beyond the four corners of the complaint. Id. These three exceptions are: "(1) documents that the complaint incorporates by reference; (2) documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity; and (3) matters of which a court may take...
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