McKenzie v. The City of Denver

Full title: TREVION MCKENZIE, Plaintiff, v. THE CITY AND COUNTY OF DENVER; PAUL PAZEN…

Court: United States District Court, District of Colorado

Date published: Jul 21, 2023

Civil Action 21-cv-00833-PAB-STV (D. Colo. Jul. 21, 2023)

Opinion

Civil Action 21-cv-00833-PAB-STV

07-21-2023

TREVION MCKENZIE, Plaintiff, v. THE CITY AND COUNTY OF DENVER; PAUL PAZEN; JONATHAN CHRISTIAN; CLYDE CARMODY; MATTHEW BAUGHMAN; BLAKE BISHOP; HEATHER JOSSI; DENVER HEALTH AND HOSPITAL AUTHORITY; CHRISTOPHER ERLEY; RUTH FOSS; and JESSE CAMPION, Defendants.

Scott T. Varholak United Stated Magistrate Judge

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

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.

I. BACKGROUND ¹

1 The facts are drawn from the allegations in Plaintiff's Amended Prisoner Complaint (the “Complaint”) [#186], which the Court accepts as true at this stage of the proceedings. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). Facts are also drawn from Defendant Christian's body-worn camera (“BWC”) footage, which is cited extensively in Plaintiff's Complaint and submitted to the Court at Dkt. No. 205-1. See Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013) (“Courts are permitted to review ‘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.'” (quoting Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010))); see also Strepka v. Thompson, No. 18-cv-02557-RBJ-STV, 2019 WL 5790710, at *1 n.1 (D. Colo. July 24, 2019), report and recommendation adopted, 18-cv-02557-RBJ-STV, 2019 WL 4316523 (D. Colo. Sept. 12, 2019) (reviewing video evidence provided by defendants in ruling on a motion to dismiss where the footage was referenced in the complaint).

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]

2 Plaintiff alleges only that he “was not arrested for drugs, [nor] under investigation for any drug related offenses[.]” [#186 at ¶ 47 (emphasis in original)]

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 Denver and Denver Health. [Id., ¶¶ 111-31]

• Claim Five: Deliberate indifference to policy/customs and failure to intervene and report in violation of the Eighth and Fourteenth Amendments against Defendants Denver, Christian, Carmody, Jossi, Baughman, and Bishop. [Id., ¶¶ 132-42]

• Claim Six: Malicious misuse of force in violation of the Eighth Amendment against Defendants Denver, Christian, Carmody, Baughman, and Bishop. [Id., ¶¶ 143-45]

• Claim Seven: Retaliation in violation of the First Amendment against Defendants Denver, Pazen, Christian, Jossi, Denver Health, Foss, and Erley. [Id., ¶¶ 146-50]

• Claim Eight: Conspiracy in violation of 42 U.S.C. § 1985(2) & (3) against Defendants Denver, Pazen, Christian, Campion, Carmody, Baughman, Bishop, Jossi, Denver Health, Foss, and Erley. [Id., ¶¶ 151-54]

• Claim Nine: Assault and Battery against Defendants Christian, Carmody, Baughman, and Bishop. [Id., ¶¶ 155-57]

• Claim Ten: Technical Assault and Battery against Defendants Foss and Erley. [ Id., ¶¶ 158-60]

• Claim 11: Intentional Infliction of Emotional Distress against Defendants Christian, Carmody, Baughman, Bishop, Jossi, Foss, and Erley. [Id., ¶¶ 161-64]

• Claim 12: Negligence against Defendants Denver, Pazen, Christian, Carmody, Baughman, Bishop, Jossi, and Campion. [Id., ¶¶ 165-168]

• Claim 13: Medical Negligence against Defendants Denver Health, Foss, and Erley. [Id., ¶¶ 169-72]

The instant Motions can be usefully divided into two groups. Defendants Denver, Pazen, Campion, Christian, Carmody, Baughman, Bishop, and Jossi are collectively the “City Defendants.” On February 10, 2023, the City Defendants filed Motions to Dismiss, seeking complete or partial dismissal of the claims against them. [## 202, 203, 204, 205, 206, 207, 208]. Per the Court's Order [#220], Plaintiff filed a unified response to the City Defendants' Motions [#241], and the City Defendants filed a unified reply [#243].

Defendants Denver Health, Foss, and Erley are collectively the “Denver Health Defendants.” Defendants Denver Health and Foss filed Motions to Dismiss on January 18, 2023. [##187, 188], and Defendant Erley filed his Motion to Dismiss on March 1, 2023 [#229]. Per the Court's Order [#220], Plaintiff filed a unified response to the Denver Health Defendants' Motions [#227], and the Denver Health Defendants filed a unified reply [#235].³

3 As detailed herein, the Court is recommending that Plaintiff be granted leave to file an amended complaint. If this recommendation is adopted and any Defendants subsequently move to dismiss any claims against them, the City Defendants shall file a single motion to dismiss and the Denver Health Defendants shall file a single motion to dismiss. Given the similarity of the motions and counsel, there is no need for ten separate motions.

II. STANDARD OF REVIEW

A. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 909, 909 (10th Cir. 1973).

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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 not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). And “even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.” Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (citations omitted); see also Fournerat v. Wisconsin L. Rev., 420 Fed.Appx. 816, 819-20 (10th Cir. 2011) (finding that the district court erred in deeming defendants' motion to dismiss confessed because the plaintiff failed to respond).

“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).

B. Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted). Once the defense of qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

“To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent” such that it is “settled law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Id. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).

The Tenth Circuit has explained the “clearly established” prong of the qualified immunity analysis as follows:

A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense

without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established.... Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.

Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted).

The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted). “[T]he ‘specificity' of the rule is especially important in the Fourth Amendment context.” Id. (quotation omitted).

A plaintiff bears the burden of citing to clearly established law. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). This duty typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim- where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established- by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019). The Court has therefore conducted additional inquiry as appropriate to determine whether the relevant laws of Plaintiff's claims were clearly established as of the dates of these events.

Courts have “discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In Pearson, the Supreme Court recognized that “[w]hen qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify” and thus that the determination of the first prong of the qualified immunity analysis may be “an uncomfortable exercise,” because “the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed.” Id. at 238-39 (internal quotation omitted). The Supreme Court further acknowledged that, in certain cases, “a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. at 239.

C. Colorado Governmental Immunity Act

With limited exceptions, the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. § 24-10-101, et seq. bars claims against public entities and public employees that “lie in tort or could lie in tort.” Colo. Rev. Stat. §§ 24-10-106, -118. A public entity includes “the judicial department of the state, any county, city and county, municipality, . . . and every other kind of district, agency, instrumentality, or political subdivision thereof.” Id. § 24-10-103(5). A public employee includes any “officer, employee, servant, or authorized volunteer of the public entity,” and includes “[a]ny health-care practitioner employed by a public entity” subject to certain exceptions. Id. at § 24-10-103(4).

CGIA immunity impacts a court's subject matter jurisdiction. Glasser v. King, 721 Fed.Appx. 766, 770 (10th Cir. 2018). The Court must therefore raise CGIA compliance sua sponte. See Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 838 (10th Cir. 2003) (stating that “[t]he notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction” and considering sua sponte whether the Plaintiffs complied with the CGIA notice provisions); Weise v. Colorado Springs, 421 F.Supp.3d 1019, 1050 (D. Colo. 2019) (considering, sua sponte, compliance with the CGIA's notice provisions).

The CGIA includes a notice provision that requires any person claiming to have suffered an injury by a public entity-or any employee thereof while in the course of such employment-to file a written notice within 182 days after the date of the discovery of the injury as a prerequisite to filing suit. See Colo. Rev. Stat. § 24-10-109(1).⁴ “If the claim is against the state or any employee thereof,” the plaintiff must file notice with the attorney general. Colo. Rev. Stat. § 24-10-109(3)(a). If, on the other hand, “the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.” Id. The CGIA requires that notices contain the following information:

4 Section 24-10-109(1) states in full:

Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.

(1) the name and address of the claimant and the name and address of his attorney; (2) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (3) the name and address of any public employee involved; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the monetary damages being requested.

Neiberger v. Hawkins (Neiberger I), 70 F.Supp.2d 1177, 1194 (D. Colo. 1999) (citing Colo. Rev. Stat. § 24-10-109(2)), aff'd, 6 Fed.Appx. 683 (10th Cir. 2001). The notice must “substantially” comply with Section 24-10-109(2). Crandall v. City & Cnty. of Denver (“Crandall I”), 143 P.3d 1105, 1108 (Colo.App. 2006), rev'd on other grounds, City & Cnty. of Denver v. Crandall (“Crandall II”), 161 P.3d 627 (Colo. 2007); see also Sawyer v. Washington Cty. Nursing Home, No. 20-cv-1789-WJM-SKC, 2021 WL 87739, at *3 (Mar. 9, 2021) (recognizing substantial compliance standard); Vreeland v. Fisher, No. 13-cv-02422-PAB-KMT, 2014 WL 4854739, at *8 (D. Colo. Sept. 29, 2014) (same). “Substantial compliance means that the claimant must make a good faith effort to include within the written notice, to the extent reasonably possible, each item of information listed in § 24-10-109(2).” Id. (citing Dicke v. Mabin, 101 P.3d 1126, 1132 (Colo.App. 2004)).

“Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal.”⁵ Aspen Orthopaedics, 353 F.3d at 840 (collecting cases). Because CGIA coverage implicates this Court's subject matter jurisdiction, plaintiffs bear the burden of establishing that a defendant's actions fall outside the protections of the CGIA. Williams v. City of Arvada, 21-cv-02236-NYW, 2022 WL 1102532, at *14 (D. Colo. Apr. 13, 2022); L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo.App. 2018). “When a public entity claims before trial that timely notice was not given to it under the [CGIA], the trial court is the finder of fact.” Trinity Broad. of Denver, Inc. v. City of Westminster (“Trinity Broadcasting”), 848 P.2d 916, 924 (Colo. 1993). The trial court has “wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing in making appropriate factual findings on jurisdictional issues” like CGIA compliance. Neiberger v. Hawkins (Neiberger II), 208 F.R.D. 301, 308 (D. Colo. 2002) (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir. 1987)).

5 “Although Colorado considers the timeliness of notice under the CGIA to be a jurisdictional matter,” the Tenth Circuit has not yet determined whether federal courts are “bound by [the] state-court view that [the] issue is jurisdictional.” Scott v. Cary, 829 Fed.Appx. 334, 336 (10th Cir. 2020) (citing Univ. of Colo. v. Booth, 78 P.3d 1098, 1100 (Colo. 2003)); but see King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002) (employing de novo review because CGIA immunity implicates subject-matter jurisdiction). “[W]hen a state proscribes its own courts' jurisdiction over particular subject matter, it does not divest the authority of federal courts within its borders,” because “as an axiom of our federal system, Congress alone defines the lower federal courts' subject-matter jurisdiction.” Odom v. Penske Truck Leasing Co., L.P., 893 F.3d 739, 742 (10th Cir. 2018). The Court treats the CGIA as impacting its subject matter jurisdiction, though that does not impact the result of any of the recommendations herein.

The CGIA allows suit against public employees if their conduct is “willful and wanton.”⁶ Colo. Rev. Stat. § 24-10-118(1). Under Colorado law, conduct is not willful and wanton unless it is done in conscious or reckless disregard of the rights of others. Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994); See also McDonald v. Wise, 769 F.3d 1202, 1218 (10th Cir. 2014) (interpreting the CGIA as requiring that a plaintiff demonstrate that the defendant's actions were calculated to cause harm or done despite awareness that the actions would cause such harm). “A plaintiff must plead the ‘specific factual basis' of an allegation that an employee's act or omission was willful and wanton in order to avoid a dismissal for failure to state a claim.” McDonald, 769 F.3d at 1217-18 (citing Colo. Rev. Stat. § 24-10-110(5)(a)-(b)). “To do so, . . . a plaintiff must ‘set forth facts to support a reasonable inference that [the defendant] recklessly disregarded the consequences of her actions.'” Id. at 1218 (quoting Wilson v. Meyer, 126 P.3d 276, 282 (Colo.App. 2005) (alteration in McDonald)). And even if a public employee's conduct was willful and wanton, the CGIA's notice requirement still applies. King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002).

6 The CGIA does not, however, waive sovereign immunity and allow suit against the public entity itself based on willful and wanton conduct. King v. United States, 53 F.Supp.2d 1056, 1072 (D. Colo. 1999), rev'd in part, 301 F.3d 1270 (10th Cir. 2002) “§ 24-10-105 operates as a waiver of a public employee's immunity but does not operate as a waiver of a public entity's immunity” (emphasis in original)); see also Middleton v. Hartman, 45 P.3d 721, 728 (Colo. 2002), as modified on denial of reh'g (May 13, 2002) (“According to the express language of section 24-10-110(1)(b)(I), the state is not liable for its employees' willful and wanton conduct.”), cited with approval in Cisneros v. Elder, 505 P.3d 828, 834 (Colo. 2022).

D. Monell Liability

As a general rule, “municipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff.” Fofana v. Jefferson Cnty. Sheriff's, No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978) and Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, “they are responsible only for their own actions.” Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281, 1284 (10th Cir. 2007) (citing Monell, 436 U.S. at 691-95 and Pembaur v. City of Cincinnati, 475 U.S. 469, 478-80 (1986)). Nonetheless, an action may be attributed to a municipality or municipal entity when: (1) the action was taken in compliance with a longstanding policy or custom; or (2) the action was taken by the municipality's final policymakers. Id. at 1285 (“[A] municipality is responsible for both actions taken by subordinate employees in conformance with preexisting official policies or customs and actions taken by final policymakers, whose conduct can be no less described as the ‘official policy' of a municipality.”).

“A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). “[A]t the pleading stage, the existence of a Monell policy is a ‘conclusion' to be built up to, rather than a ‘fact' to be baldly asserted.” Erickson v. City of Lakewood, Colorado, 489 F.Supp.3d 1192, 1206 (D. Colo. 2020) (quotation omitted). When a plaintiff seeks to establish the existence of a well-settled custom or practice, he must plead facts sufficient to show repeated or regular implementation of the custom or practice. See Sexton v. City of Colorado Springs, 530 F.Supp.3d 1044, 1071 (D. Colo. 2021) (finding two incidents “insufficient to show a practice so permanent and well settled that it constitutes a custom or usage”); Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (noting that “isolated and sporadic acts” do not establish municipal liability for Section 1983); see also Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) (“Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident-or even three incidents-do not suffice”).

After identifying an official policy or custom, the plaintiff must demonstrate causation by showing that the policy or custom “is the moving force behind the injury alleged.” Cacioppo v. Town of Vail, 528 Fed.Appx. 929, 931 (10th Cir. 2013) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (same). Finally, the plaintiff must demonstrate “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Cacioppo, 528 Fed.Appx. at 931 (quoting Schneider, 717 F.3d at 769).

III. ANALYSIS

The Court analyzes each claim in turn, and then each Defendant named in that claim in approximate chronological order of the events giving rise to that claim. Because many of the facts and law are common between the claims against different defendants, the sections below necessarily refer to each other frequently.

A. Claim One: Excessive Force in Violation of the Fourth Amendment

Plaintiff seeks relief under Section 1983, arguing that Defendants Christian, Carmody, Baughman and Bishop unreasonably exercised excessive force. [#186, ¶¶ 1-32] Plaintiff also seeks relief against Defendant Denver, arguing that a municipal policy or custom directly caused his injury. [Id., ¶¶ 19-21]; see also Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978).

“[C]laims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “The reasonableness of the use of force is evaluated under an ‘objective' inquiry that pays ‘careful attention to the facts and circumstances of each particular case.'” Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017) (quoting Graham, 490 U.S. at 396). In particular, Graham identified the following factors the Court should consider: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The operative question in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Mendez, 581 U.S. 420, 427-28 (quotation omitted). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

With these principles in mind, the Court analyzes Plaintiff's excessive force claims against each Defendant in turn.

1. Defendant Christian

Defendant Christian repeatedly struck Plaintiff on the left side of his face with his knuckles multiple times, and shoved Plaintiff's face into the gravel, injuring Plaintiff's left eye socket. [#186, ¶¶ 3-4, 9-10] Plaintiff asserts that this was unnecessary and unreasonable, because Plaintiff was already subdued and “hog-tied” at the time, and because he was unarmed and posed no immediate threat to officers or any other person. [Id., ¶ 2] Plaintiff further alleges that Defendant Christian adjusted his body-worn camera (“BWC”) in an attempt to turn the BWC off to conceal his alleged misconduct. [Id., ¶¶ 7-8] Defendant Christian's Motion does not seek dismissal of Claim One against him. [See #205; see also #243 at 2 (“Defendants Christian, Baughman, and Bishop have not moved to dismiss the excessive force claims against them.”)] The Court therefore need not make any recommendation related to Claim One against Defendant Christian, and includes it here only in the interest of clarity and completeness.

2. Defendant Carmody

Plaintiff alleges that “27 seconds into [Defendant Christian's BWC footage] Officer Carmody intentionally reaches around Officer Christian and maliciously hits [Plaintiff] in his left eye at least 1 time with Carmody's knuckles, intentionally causing serious bodily injury to [P]laintiff.” [#186, ¶ 11; see also #205-1 at 0:27-0:28] Plaintiff also alleges that Officer Carmody and an unidentified officer held Plaintiff's legs “during this assault.” [Id., ¶ 14] Defendant Carmody argues that the BWC footage, which serves as the only basis for Plaintiff's excessive force claim against Defendant Carmody, does not appear to show Defendant Carmody making any contact with Plaintiff's face, and that Claim One should therefore be dismissed against him. [#207 at 4] Defendant Carmody also asserts qualified immunity because “Plaintiff cannot point to any Supreme Court or Tenth Circuit opinions which show Defendant Carmody can be held liable for using excessive force against Plaintiff despite having never come into contact with Plaintiff as shown on the body-worn camera.” [Id. at 11-13]

a. Constitutional Violation

Plaintiff alleges that, at the time of Defendant Carmody's use of force, Plaintiff “was subdued with his right arm already behind his back, restrained in the ‘hog-tie' position by officers who knew that [Plaintiff] was not resisting arrest, defenseless, unarmed, [and] not posing an immediate threat to officers or others[.]” [#186, ¶ 2] This assertion that Plaintiff was effectively subdued is not blatantly contradicted by Defendant Christian's BWC footage. [#205-1 at 0:27-0:28]; see also Kennedy v. Taylor, No. 21-CV-0901-WJM-KMT, 2021 WL 6050279, at *3 (D. Colo. Dec. 21, 2021) (considering video evidence at the motion to dismiss stage only “to the extent that it ‘clearly contradicts' the allegations in the Complaint” (quoting Myers v. Brewer, 773 Fed.Appx. 1032, 1036 (10th Cir. 2019))); Harris v. Romero, No. 20-CV-01396-RM-NYW, 2021 WL 1169985, at *8 (D. Colo. Mar. 29, 2021) (noting that, in reviewing video on a motion to dismiss, “the Court views the video in the light most favorable to Plaintiff, except where the video ‘blatantly contradicts' Plaintiffs' version of events” (quoting Estate of Ronquillo v. City & Cnty. of Denver, No. 16-cv-01664-CMA-KMT, 2016 WL 10843787, at *2 (D. Colo. Nov. 17, 2016))).

Defendant Carmody's Motion focuses its argument on the assertion that the BWC footage, which serves as the only basis for Plaintiff's excessive force claim against him, does not appear to show Defendant Carmody making any contact with Plaintiff's face, and that Claim One should therefore be dismissed against him. [#207 at 4] In focusing on the BWC footage, however, Defendant Carmody appears to make arguments more appropriate for the disputed evidence standard under Federal Rule of Civil Procedure 56, as opposed to the plausibility pleading standard that governs Rule 12(b)(6) motions to dismiss. See Kennedy, 2021 WL 6050279, at *3. As explained above, the Court considers the BWC evidence in the light most favorable to Plaintiff, except only where it “blatantly contradicts” Plaintiff's version of events. Ronquillo, 2016 WL 10843787, at *2.

Defendant Christian's BWC footage shows plaintiff subdued on the ground, when a hand later identified as Defendant Carmody's [#179 at 2] enters the frame, moves quickly towards Plaintiff's head, and then withdraws. [#205-1 at 0:27-0:28] The nature of any interaction between Defendant Carmody's hand and Plaintiff's head is not immediately obvious from the Court's review of the video. [See id.] In reviewing the BWC footage in the light most favorable to Plaintiff, therefore, the Court cannot find that the video “clearly” or “blatantly” contradicts Plaintiff's allegation that Defendant Carmody struck him in the head while Plaintiff was effectively subdued. The Court therefore finds that Plaintiff has sufficiently pled a constitutional violation at the present stage of litigation.

b. Clearly Established

With respect to the clearly established prong of Plaintiff's excessive force claim, Defendant Carmody appears to again rely solely on the BWC footage and the argument that the footage does not show Defendant Carmody striking Plaintiff. [#207 at 11-13 (“Plaintiff cannot point to any Supreme Court or Tenth Circuit opinions which show Defendant Carmody can be held liable for using excessive force against Plaintiff despite having never come into contact with Plaintiff as shown on the body-worn camera.”)] For the reasons outlined above, the Court does not agree that the BWC footage “clearly” or “blatantly” contradicts Plaintiff's allegation that Defendant Carmody struck him in the head while Plaintiff was effectively subdued.

To the extent Defendant Carmody makes a broader argument that he is entitled to qualified immunity even assuming the truth of the allegation that Defendant Carmody struck Plaintiff in the head after Plaintiff was subdued, the Court disagrees. It is-and was at the time of Plaintiff's arrest-clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime⁷and who poses no threat to others constitutes excessive force. Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (“It is-and was [in 2011]-clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force.”); Fogarty v. Gallegos, 523 F.3d 1147, 1160-62 (10th Cir. 2008); Casey v. City of Fed. Heights, 509 F.3d 1278, 1281-85 (10th Cir. 2007) (use of force against a suspect who committed only a nonviolent misdemeanor, and who did not struggle against officers until the officers employed force, was unlawful). More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued. See, e.g., Perea, 817 F.3d at 1204 (“It is . . . . clearly established that officers may not continue to use force against a suspect who is effectively subdued.”); Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (continuing to strike detainee after he had been subdued was clearly unconstitutional).

7 The Court notes that Plaintiff has declined to identify in his Complaint what crime(s) he was suspected of committing. See [#186 at ¶ 47 (pleading only that he was not arrested for drug-related offenses)]

The Court therefore respectfully RECOMMENDS that Defendant Carmody's Motion be DENIED to the extent to which it seeks dismissal of Claim One against him.

3. Defendant Baughman

Plaintiff alleges that, during his arrest, 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. [#186, ¶ 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] Defendant Baughman does not seek dismissal of Claim One against him. [See #208; see also #243 at 2] The Court therefore need not make any recommendation related to Claim One against Defendant Baughman, and includes it here only in the interest of clarity and completeness.

4. Defendant Bishop

Plaintiff alleges that, during his arrest, Defendant Bishop pointed an “assault rifle” at Plaintiff while other officers struck him, causing Plaintiff to fear that he might be shot. [#186, ¶ 15-16] Defendant Bishop does not seek dismissal of Claim One against him. [See #208; see also #243 at 2] The Court therefore need not make any recommendation related to Claim One against Defendant Bishop, and includes it here only in the interest of clarity and completeness.

5. Defendant Denver

Plaintiff alleges that “[Defendant] Denver has a policy / custom / practice / procedure of using unnecessary excessive force such as kneeling, punching, striking, hitting, dragging, choking, [Tasing], [and] other unconstitutional techniques on arrestees who are subdued, restrained, not resisting arrest, nor posing an immediate threat to officers or others” and that Defendants Christian, Carmody, Baughman and Bishop followed this policy when they used excessive force against Plaintiff. [#186, ¶ 19-20] Defendant Denver argues that Plaintiff has failed to plead non-conclusory allegations that Denver has any formal policy or widespread custom of applying excessive force. [#202 at 7-9] The Court agrees.

As discussed in Section II.D, above, an action may be attributed to a municipal entity when, as relevant here, it was taken in compliance with a longstanding policy or custom. Simmons, 506 F.3d at 1285. “A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider, 717 F.3d at 770. A plaintiff alleging a well-settled custom or practice must plead sufficient instances of such a custom or practice to establish that they are more than isolated and sporadic acts. See Sexton, 530 F.Supp.3d at 1070-71.

Plaintiff's conclusory allegation that “Denver has a policy / custom / practice / procedure” [#186, ¶ 19] is precisely the sort of “formulaic recitation of the elements of a cause of action” that “will not do” to state a claim. Twombly, 550 U.S. at 555. Plaintiff has not identified any formally promulgated policy that “unnecessary excessive force such as kneeling, punching, striking, hitting, dragging, choking, [Tasing], [or] other unconstitutional techniques” [#186, ¶ 19] should be used on already-subdued arrestees. Nor has Plaintiff alleged any similar prior incidents of Defendant Denver's officers or employees using unconstitutional excessive force on subdued arrestees in accordance with any well-settled custom or practice. [See id., ¶¶ 1-32] Nor does Plaintiff's Claim One appear to rest on the final decision by any municipal policymaker or on deliberately indifferent training or supervision. The Court therefore cannot find that Plaintiff has plausibly alleged any official policy or custom that could give rise to Defendant Denver being liable for any use of excessive force by the City Defendants.

The Court therefore respectfully RECOMMENDS that Denver's Motion be GRANTED to the extent to which it seeks dismissal of Claim One against it.

B. Claim Two: Unauthorized Body-Cavity Search in Violation of the Fourth and Eighth Amendments, HIPAA, and 42 C.F.R. Part 2

Plaintiff seeks relief under Section 1983 for violations of the Fourth and Eighth Amendments, and under HIPAA, and 42 C.F.R. Part 2, for the pelvic x-ray performed without his consent. [#186, ¶¶ 33-83] Plaintiff brings Claim Two against Defendants Christian, Jossi, Erley, Foss, Denver, and Denver Health. [Id.]

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). As the Supreme Court has noted, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

Plaintiff's claims for relief under other statues are unavailing on their face. First, the Eighth Amendment is inapplicable because Plaintiff was not a prisoner undergoing “punishment,” for reasons more fully explained in Section III.F, below. Porro v. Barnes, 624 F.3d 1322, 1325-26 (10th Cir. 2010) (“[Prisoners already convicted of a crime who claim that their punishments involve excessive force must proceed under the more restrictive terms of the Eighth Amendment's ‘cruel and unusual punishments' clause.” (emphasis in original)). Second, “HIPAA does not create a private right of action.” Mayfield v. Presbyterian Hosp. Admin., 772 Fed.Appx. 680, 686 (10th Cir. 2019) (citing Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010)). Finally, “while 42 C.F.R. Part 2 does govern the confidentiality of drug and alcohol abuse patient records, these regulations apply to federally assisted alcohol and drug abuse programs” and Plaintiff has not alleged that any federally assisted alcohol and drug abuse program was implicated in his experiences. Harrison v. Univ. Of Colorado Health Scis. Ctr., 337 Fed.Appx. 750, 754 (10th Cir. 2009). The Court therefore considers Claim Two only under the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 771-72 (1966) (analyzing the constitutionality of medical procedures performed in a hospital after arrest under the Fourth Amendment); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1206-07 (10th Cir. 2003) (“the Supreme Court has held that medical examinations including a blood or urine test trigger, at a minimum, the Fourth Amendment balancing test” (collecting cases)); cf. United States v. Gaye, No. 21-cr-15-WJM, 2021 WL 5415871, at *9 (D. Colo. Nov. 12, 2021) (Fourth Amendment inapplicable when clinicians make an independent medical determination that a procedure is appropriate, without direction by law enforcement).

The Court thus considers Plaintiff's Fourth Amendment unauthorized body-cavity search against each Defendant in turn.

1. Defendants Christian and Jossi

Plaintiff makes identical claims against Defendants Christian and Jossi, so the Court addresses them together. [See #186, ¶¶ 43-45] After Plaintiff's arrest, he was taken to Denver Health. [Id., ¶¶ 37, 40] There, Defendants Jossi and Christian ordered unspecified medical staff to “‘search [Plaintiff's] asshole for drugs.'” [Id., ¶ 43] Plaintiff alleges that “[Defendants] Christian [and] Jossi ordered medical staff to perform a rectal exam to further embarrass, harass, molest, intimidate, [and] retaliate against [Plaintiff] for seeking medical attention after being assaulted by [Defendants] Christian, Carmody, Bishop [and] Baughman to further injure [Plaintiff] both physically [and] emotionally.” [Id., ¶ 45] Defendants Christian and Jossi then walked away. [Id., ¶ 44] Plaintiff was not arrested for drugs, under investigation for any drug-related offenses, or known to be in possession of any drugs or paraphernalia, and had already been searched three times. [ Id., ¶¶ 34-35, 39, 47, 51, 54]

During the intake process, Defendant Erley sought Plaintiff's consent to perform a rectal examination, which Plaintiff denied. [Id., ¶¶ 49, 55-56] No officer was present in the room with Plaintiff and Defendant Erley during the intake process. [Id., ¶ 52] Plaintiff does not allege that the rectal examination occurred. [See id.] Unbeknownst to Plaintiff at the time, Defendant Foss 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. at 62] Plaintiff alleges that “[Defendant] Foss ordered this x-ray in spite/retaliation for [Plaintiff] refusing the ‘rectal exam.'” [Id., ¶ 68]

Defendants Christian and Jossi argue that Plaintiff has failed to allege that Defendant Christian's remarks in the hallway led to Plaintiff's pelvic x-ray, and that Plaintiff's allegations that Defendant Christian directed medical staff to conduct a rectal exam in retaliation for Plaintiff seeking medical care is inconsistent with Plaintiff's allegation that Defendant Foss ordered the pelvic x-ray in retaliation for Plaintiff refusing the rectal examination. [##205 at 12, 206 at 11-13]. Defendants Christian and Jossi also argue that they are entitled to qualified immunity. [##205 at 14-16, 206 at 14-16] The Court disagrees.

a. Constitutional Violation

“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Gant, 556 U.S. at 338 (quoting Katz, 389 U.S. at 357). “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Id. Nonetheless, a court in this circuit has concluded that “[a] search incident to an arrest extends to a ‘full search of the person.' . . . The ‘full search of the person' authorized in Robinson, however, does not permit ‘a strip search or bodily intrusion.'” United States v. Bazy, No. 94-40018-01-SAC, 1994 WL 539300, at *5 (D. Kan. Aug. 29, 1994), aff'd, 82 F.3d 427 (10th Cir. 1996) (first quoting United States v. Robinson, 414 U.S. 218, 235 (1973), then quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991)). And the Tenth Circuit has recognized that there are “significant privacy interests in avoiding forced medical intrusions.” Eckert v. Dougherty, 658 Fed.Appx. 401, 406 (10th Cir. 2016) (declining to analyze the constitutionality of a digital rectal examination and an abdominal x-ray conducted pursuant to a warrant, but specifically noting that “[n]othing in this decision . . . should be read to condone any of the procedures” (citing Birchfield v. North Dakota, 579 U.S. 438, 461-64 (2016))). Indeed, the Supreme Court has described a body-cavity search or an involuntary x-ray search of the body as a “nonroutine” search, even at an international boarder where the government's authority to conduct warrantless searches is at its zenith. United States v. Montoya de Hernandez, 473 U.S. 531, 541 n.4 (1985); see also United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).

The Court need not decide, however, whether Defendants Christian or Jossi could have ordered a digital rectal examination or an x-ray as a search incident to arrest because Defendants Christian and Jossi do not raise this argument or otherwise contend that the pelvic x-ray was constitutional. [##205 at 11-12; 206 at 12-13] Rather, they argue that “Plaintiff has failed to plead how either Defendant Jossi or Defendant Christian actually caused the pelvic x-ray.” [#243 at 4; see also ##205 at 11-12; 206 at 12-13] They argue both that the chain of causation between Defendants Christian and Jossi ordering unspecified medical staff to “search [Plaintiff's] asshole for drugs” and the ultimate x-ray of Plaintiff's pelvis is too attenuated, and that Plaintiff's assertions of motive (that Defendants Christian and Jossi directed a rectal exam to retaliate against Plaintiff for seeking medical attention, and that Defendant Foss ordered Defendant Erley to perform the pelvic x-ray in retaliation for Plaintiff refusing the rectal exam) are contradictory. [Id.] The Court therefore presumes without deciding that the pelvic x-ray constituted a constitutional violation, and analyzes only whether Plaintiff has adequately pled that the violation is attributable to Defendants Christian and Jossi.

Section 1983 actions can be maintained against a person who “subjects, or causes to be subjected” any other person to a violation of rights secured by the Constitution. 42 U.S.C. § 1983. “To prevail on a claim brought pursuant to § 1983, a plaintiff must demonstrate the defendant was both the but-for and proximate cause of the plaintiff's injury.” Calvert v. Ediger, 415 Fed.Appx. 80, 83 (10th Cir. 2011) (citing Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). As explained by the District of New Mexico:

The Tenth Circuit's test for proximate causation in § 1983 cases has three elements. First, the state agent must have “set in motion” the series of events that resulted in a constitutional violation. Second, the state agent must have known, or reasonably should have known, that the events he or she set in motion would result in a constitutional deprivation. Finally, no unforeseeable intervening and superseding act could have occurred between the events that the state agent set into motion and the ultimate constitutional violation.

Eckert v. City of Deming, No. CIV 13-0727 JB/WPL, 2015 WL 10383783, at *49 (D.N.M. Oct. 31, 2015) (internal citations omitted), aff'd sub nom. Eckert v. Dougherty, 658 Fed.Appx. 401 (10th Cir. 2016).

Eckert provides an instructive parallel. There, defendant deputy district attorney wrote an affidavit for a search warrant, which was “to include but not limited to [the plaintiff's] anal cavity” but did not specify any particular medical procedure. Id. at *1. A state magistrate judge signed the warrant, and the plaintiff was taken to a hospital where he was ultimately subjected to two digital rectal examinations, an abdominal x-ray, a chest x-ray, a series of three enemas, and a colonoscopy. [Id. at *1-2] The court found that the deputy district attorney's actions had been the but-for cause of the police officers' violations of the plaintiff's Fourth Amendment rights; “[h]is actions ‘set in motion' the series of events that ‘cause[d] [the plaintiff] to be subjected' to invasive searches by police officers.” Id. at *50 (quoting Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)). The court also found that the defendant “could anticipate that physicians and police officers would subject [the plaintiff] to a digital rectal examination and an X-ray.” Id. at *51. However, the court found that the defendant could not have foreseen police officers' and doctors' subsequent decisions to conduct other medical procedures, including the chest x-ray, the series of three enemas, and the colonoscopy. Id. Rather, the police officers' and doctors' actions constituted “unforeseeable intervening and superseding events that occurred between [the deputy district attorney's] acts and the ultimate constitutional violations.” Id.

Here, Plaintiff has plausibly pled that Defendants Christian and Jossi, by instructing medical personal to “search [Plaintiff's] asshole for drugs,” set in motion the series of events that caused Plaintiff's pelvic x-ray. And, just as in Eckert, the Court concludes that Defendants Christian and Jossi could reasonably have anticipated that Plaintiff would be subjected to a digital rectal examination and/or an x-ray. Defendants Christian and Jossi did not specify how they wanted the search conducted-either through digital rectal examination or x-ray-and either manner would have revealed whether Plaintiff had hidden narcotics in his anal cavity. The fact that medical personnel ultimately performed one of the foreseeable medical procedures and not another, even if motivated in part by frustration at Plaintiff's refusal of the first procedure, does not break the causal chain. And, unlike in Eckert, medical staff did not then go on to unforeseeably conduct other medical procedures, breaking the chain of causation. Plaintiff has therefore sufficiently pled that Defendants Christian and Jossi caused a violation of his Fourth Amendment rights.

b. Clearly Established

It is well-established-and was at the time Defendants Christian and Jossi ordered medical staff to “search [Plaintiff's] asshole for drugs” [#186 at ¶ 43]-that, absent some exception, probable cause is required for a search and that probable cause is not established by “simply . . . piling hunch upon hunch.” Poolaw v. Marcantel, 565 F.3d 721, 733-34 (10th Cir. 2009). It is also well-established that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Gant, 556 U.S. at 338. Defendants Christian and Jossi do not argue a specific exception to the probable cause and warrant requirement; indeed, they do not argue that either a digital rectal examination or the x-ray were constitutional. [##205 at 11-12; 206 at 12-13] And while they both assert qualified immunity, their passing reference to the clearly established prong focuses entirely on whether their order to search Plaintiff caused the x-ray. [##205 at 16; 206 at 16] Without some argument that the x-ray search was arguably conducted pursuant to an exception to the probable cause and warrant requirement, the Court concludes that Plaintiff's right to be free from an x-ray without probable cause to believe that his body contained contraband and without a warrant was clearly established at the time of the order given by Defendants Christian and Jossi to search Plaintiff. They are thus not entitled to qualified immunity on Plaintiff's Fourth Amendment search claim.

The Court therefore respectfully RECOMMENDS that Defendant Christian's Motion and Defendant Jossi's Motion be GRANTED IN PART to the extent to which they seek to dismiss Plaintiff's Claim Two as it is pled against them under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2, and that they be DENIED IN PART to the extent to which they seek to dismiss Plaintiff's Claim Two as it is pled against them under the Fourth Amendment.

2. Defendant Denver

Plaintiff alleges that:

[Defendant] Denver . . . has an indiscriminate policy / procedure / regulation / custom / practice that gives the Denver Police [Department] and other law enforcement agencies the authority to compel Denver Health medical staff to perform unlawful and unconstitutional medical procedures on arrestees[,] such as injecting arrestees with lethal doses of ketamine, performing rectal exams [and] body cavity x-rays in search of drugs without probable cause and in bad faith, with reckless disregard for an arrestee's serious need of

medical treatment for injuries sustained during his/her arrest by officers' actions [and] without the patient's knowledge or consent.

[#186, ¶ 70] Plaintiff alleges further that Defendants Christian and Jossi ordered Denver Health medical staff “to perform a rectal exam to further embarrass, harass, molest, intimidate, retaliate against [Plaintiff] for seeking medical attention after being assaulted by [Defendants] Christian, Carmody, Bishop [and] Baughman to further injure [Plaintiff] both physically [and] emotionally. [Id., ¶ 45] Plaintiff also alleges that “[i]t is a practice of [Defendant] Denver to never subject arrestees to body cavity searches at hospitals . . . when they are being treated for their injuries; but then do subject arrestees to body cavity searches after the arrestee has complained about his or her injuries being the result of excessive force by police during arrest.” [Id., ¶ 80 (emphasis in original)]

Regarding both of these purported policies, Plaintiff has not made any non-conclusory allegations of the existence of any formal policy. Nor has Plaintiff alleged any facts about other instances of such actions that could credibly allege any widespread custom. The Court therefore respectfully RECOMMENDS that Denver's Motion be GRANTED to the extent to which it seeks dismissal of Claim Two against it.

3. Defendants Erley and Foss

During the intake process, Defendant Erley sought Plaintiff's consent to perform a rectal examination, which Plaintiff denied. [#186, ¶¶ 49, 55-56] Plaintiff does not allege that the rectal examination occurred. [See id.] Unbeknownst to Plaintiff at the time, Defendant Foss 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. at 62] Plaintiff alleges that “[Defendant] Foss ordered this x-ray in spite/retaliation for [Plaintiff] refusing the ‘rectal exam.'” [Id., ¶ 68]

Defendants Erley and Foss make substantially identical arguments regarding Claim Two, so the Court addresses them together. [Compare #187 at 4-7 with #229 at 4-7] Defendants Erley and Foss argue that they are entitled to qualified immunity [##187 at 4-5; 229 at 4-5], and that Plaintiff has failed to plead that Defendants Erley and Foss were deliberately indifferent towards Plaintiff's serious medical needs.⁸ [##187 at 5-7; 229 at 5-7] Neither Defendant Erley nor Foss address Plaintiff's claim of unreasonable search under the Fourth Amendment. [See ##187; 229; see also #235]

8 In his response to the Denver Health Defendants' motions to dismiss, Plaintiff argues that he has established the elements of a claim that the Denver Health Defendants were deliberately indifferent towards his serious medical needs. [#227 at 11-12] The Court interprets this as Plaintiff pro se responding to Defendants' interpretation of his claim, without the power to recast Claim Two as it is articulated in the Complaint. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (holding that a court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint) (citation omitted); Commw. of Pa. v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (holding that legal theories set forth in a response brief cannot serve to amend a complaint in response to a motion to dismiss); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (holding that “it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss”).

It is well-established-and was at the time Defendant Foss ordered Defendant Erley to perform a pelvic x-ray to search for drugs-that, absent some exception, probable cause is required for a search and that probable cause is not established by “simply . . . piling hunch upon hunch.” Poolaw, 565 F.3d at 733-34. It is also well-established that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Gant, 556 U.S. at 338. Defendants Foss and Erley do not argue a specific exception to the probable cause and warrant requirement; indeed, they do not provide any argument in support of dismissing Plaintiff's search claim. [##187 at 4-7; 229 at 4-7] And while they both assert qualified immunity, they do not provide any analysis as to the clearly established prong. [Id.] Without some argument that the x-ray search was arguably conducted pursuant to an exception to the probable cause and warrant requirement, the Court concludes that Plaintiff's right to be free from an x-ray without probable cause to believe that his body contained contraband and without a warrant was clearly established at the time of the actions of Defendants Erley and Foss.⁹ They are thus not entitled to qualified immunity on Plaintiff's Fourth Amendment search claim.

9 As set forth below, the Court is recommending that Plaintiff be given leave to file an amended complaint, with certain limitations. See supra Section III.O. If that recommendation is adopted, Defendants Erley and Foss will be permitted to file a renewed motion to dismiss that addresses Plaintiff's actual claims against them, whether those claims state a plausible constitutional violation, and whether the constitutional right allegedly violated was clearly established.

The Court therefore respectfully RECOMMENDS that Defendants Erley's Motion and Defendant Foss's Motion be GRANTED IN PART to the extent to which they seek to dismiss Plaintiff's Claim Two as it is pled against them under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2, and that they be DENIED IN PART to the extent to which they seek to dismiss Plaintiff's Claim Two as it is pled against them under the Fourth Amendment.

4. Defendant Denver Health

As a preliminary matter, the Court notes that Defendant Denver Health was created by Colorado statute and is a political subdivision of the State of Colorado.¹⁰ Colo. Rev. Stat. § 25-29-103(1). Courts have routinely analyzed Defendant Denver Health's potential liability for violations of plaintiffs' rights under the Monell framework. See, e.g., Moore v. Diggins, 633 Fed.Appx. 672, 677 (10th Cir. 2015) (assuming without deciding that Denver Health is a state actor based on its contract with the Denver Sheriff's Department); Weitzman v. City & Cnty. of Denver, No. 17-CV-02703-KLM, 2019 WL 1438072, at *13-15 (D. Colo. Mar. 31, 2019) (analyzing Denver Health's Monell liability without discussion of whether it is properly subject to such claims); Harris v. Denver Health Med. Ctr., No. 11-CV-01868-REB-MEH, 2012 WL 1676590, at *8-9 (D. Colo. May 10, 2012), report and recommendation adopted, 2012 WL 3705084 (D. Colo. Aug. 27, 2012) (same). Furthermore, Defendant Denver Health does not dispute its appropriateness as a Monell defendant. [See #188]. The Court therefore does likewise, and assumes without deciding that Defendant Denver Health is properly subject to Monell liability.

10 “There is some disagreement in this District regarding whether Denver Health . . . is entitled to raise Eleventh Amendment immunity.” Bradley v. Denver Health & Hosp. Auth., 734 F.Supp.2d 1186, 1188 (D. Colo. 2010) (citing Darris v. Pugliese, No. 08-cv-02624-PAB-KMT, 2009 WL 3162630 (D. Colo. Sept. 30, 2009) (Denver Health is not entitled to immunity under the Eleventh Amendment), Langmade v. Denver Police Dep't, No. 07-cv-02287-BNB, 2007 WL 4178475, at *1 (D. Colo. Nov. 26, 2007) (Denver Health is entitled to immunity under the Eleventh Amendment)). Because Eleventh Amendment immunity may be waived in certain circumstances, see, e.g., Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007), the Court will not consider the applicability of the defense sua sponte. See Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (“Unless the State raises the matter [of Eleventh Amendment immunity], a court can ignore it.”).

Plaintiff alleges:

Denver Health Medical Center has an indiscriminate policy / procedure / regulation / custom / practice that gives the Denver Police [Department] and

other law enforcement agencies the authority to compel Denver Health medical staff to perform unlawful and unconstitutional medical procedures on arrestees[,] such as injecting arrestees with lethal doses of ketamine, performing rectal exams [and] body cavity x-rays in search of drugs without probable cause and in bad faith, with reckless disregard for an arrestee's serious need of medical treatment for injuries sustained during his/her arrest by officers' actions [and] without the patient's knowledge or consent.

[#186, ¶ 70; see also id., ¶ 78] Plaintiff alleges further that Defendants Erley and Foss were following such a policy when they performed the pelvic x-ray on Plaintiff without his knowledge or consent.¹¹[Id., ¶ 71] Defendant Denver Health argues that Plaintiff has failed to state a plausible claim that his rights were violated by Denver Health employees at all, or that Defendant Denver Health may be held liable for any violations. [#188 at 5-6]

11 In his articulation of Claim Two, Plaintiff also alleges that “Denver Health Medical Center has a policy / custom / practice / procedure / regulation of sharing patients' confidential “Intake” information regarding medical history [and] drug habits with law enforcement agencies without patients' knowledge or consent” and that Defendants Foss and Erley acted pursuant to such policy in disclosing Plaintiff's medical history and drug habits with law enforcement. [#186 at ¶¶ 73-74] It is unclear, however, what relationship this allegation has to Plaintiff's claim for violations of his Fourth Amendment right to be free from unreasonable search and seizure. To the extent to which Plaintiff seeks to articulate a claim under HIPAA for improper disclosure of his medical information, that statute does not create a private cause of action. Mayfield, 772 Fed.Appx. at 686. To the extent to which Plaintiff may seek to construe the intake questions and subsequent disclosure of his responses to law enforcement as an interrogation conducted without informing Plaintiff of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court has recently held in the Fifth Amendment context that “a violation of Miranda is not itself a violation of the [constitution]” and therefore does not “confer a right to sue under § 1983.” Vega v. Tekoh, 142 S.Ct. 2095, 2108 (2022). Absent any articulated or apparent connection of this allegation to a colorable claim, the Court does not consider it further.

Plaintiff's conclusory allegation that “Denver Health Medical Center has an indiscriminate policy / procedure / regulation / custom / practice” [#186, ¶ 70] is precisely the sort of “formulaic recitation of the elements of a cause of action” that “will not do” to state a claim. Twombly, 550 U.S. at 555. Plaintiff has not identified any formally promulgated policy “that gives the Denver Police [Department] and other law enforcement agencies the authority to compel Denver Health medical staff to perform unlawful and unconstitutional medical procedures on arrestees.” [#186, ¶ 70] Nor has Plaintiff alleged any similar prior incidents of Denver Health staff performing unlawful and unconstitutional medical procedures on arrestees in accordance with any well-settled custom or practice. [See id., ¶¶ 33-83] Nor does Plaintiff's Claim Two appear to rest on the final decision by any municipal policymaker or on deliberately indifferent training or supervision. The Court therefore cannot find that Plaintiff has plausibly alleged any official policy or custom that could give rise to Defendant Denver Health being liable for his pelvic x-ray.

The Court therefore respectfully RECOMMENDS that Denver Health's Motion be GRANTED to the extent to which it seeks dismissal of Claim Two against it.

C. Claim Three

Plaintiff brings Claim Three for “Deliberate Indifference to Policy / Customs / Procedures / Practices: Failure to Act-Monell claim-in violation of the 8^th [and] 14^thAmendments (Against Defendants: City [and] County of Denver, Jessi Campion, Paul Pazen).” [#186 at 24] The exact nature of this claim is difficult to discern. [See id., ¶¶ 84-110] Given the deference appropriate to a pro se plaintiff's allegations, the Court construes Claim Three as potentially stating two distinct claims. First, Plaintiff alleges irregularities in the Internal Affairs investigation into Plaintiff's claims of wrongdoing conducted by Defendant Campion. [Id., ¶¶ 84-96] Second, Plaintiff alleges impropriety in Defendants Denver and Pazen's identification of the officers appearing in the BWC footage during discovery. [Id., ¶¶ 97-110] The Court addresses each constructive claim in turn.

1. Formal Disposition of Internal Affairs Investigation

On January 7, 2021, Plaintiff sent a complaint to the Denver Police Department and to Defendant Denver, complaining of excessive force in his arrest and an unreasonable search of his body cavity.¹² [#186, ¶ 84] On March 4, 2021 and again on March 11, 2021, Defendant Campion visited Plaintiff in conjunction with an internal affairs investigation into Plaintiff's complaint. [Id., ¶¶ 87-92] To date, Plaintiff has not received a “Formal Disposition” of his complaint. [Id., ¶¶ 93-96] Plaintiff brings Claim Three in part because “Defendants Campion [and] the City and County of Denver's failure to provide a ‘Formal Disposition' to [Plaintiff] in response to Plaintiff's formal grievance as required by federal [and] state law constituted deliberate indifference to [Plaintiff]'s right to access the government for redress of grievances therefore violating [Plaintiff]'s 1^st Amendment right[s].” [Id., ¶ 96]

12 It is unclear how this complaint, submitted on January 7, 2021, might have included allegations related to an “unauthorized body cavity search,” when Plaintiff also alleges that he first learned of the pelvic x-ray on February 18, 2022. [#186 at ¶¶ 60-61, 65]

Plaintiff does not identify under which “federal and state law” he is entitled to a “Formal Disposition” of his complaint. [See id., ¶¶ 84-96] Nor has the Court's independent research identified any.¹³ The Court cannot identify any right secured by the Eighth or Fourteenth Amendments that would bear on Plaintiff's allegations related to Defendant Campion's internal affairs investigation.

13 The Court notes that the Colorado Criminal Justice Records Act (“CCJRA”) provides that “[u]pon completion of an internal investigation . . . that examines the in-uniform or on-duty conduct of a peace officer . . . related to an incident of alleged misconduct involving a member of the public, the entire investigation file, including . . . final departmental decision is open for public inspection upon request” subject to statutory redactions and procedural requirements. Colo. Rev. Stat. § 24-72-303(4)(a). That statute provides that “[a]ny person who has been denied access to any information in a completed internal affairs investigation file may file an application in the [state] district court in the county where the records are located for an order directing the custodian thereof to show cause why the withheld or redacted information should not be made available to the applicant.” Id. at § 24-72-303(4)(f). But Plaintiff asserts Claim Three for violation of his rights under the First, Eighth, and Fourteenth Amendments of the United States Constitution, not under the CCJRA. [#186 at 24, ¶ 96] Nor does Plaintiff allege that any internal affairs investigation has been completed (as opposed to merely begun), that he has complied with any rules and regulations with reference to the inspection of such records as may have been established by their official custodian, or that he has been denied access to any information in a completed internal affairs investigation file. Finally, it is not clear that this Court, rather than the state district court in the county where the records are located, is a proper venue for redress of any such denial.

This portion of Claim Three also asserts a violation of Plaintiff's First Amendment right to petition the government for a redress of grievances. [#186, ¶ 96] “The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011). To further this goal, the right to petition “extends to all departments of the Government” and includes the “right of access to the courts.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). But “the text of the First Amendment [does not] speak in terms of successful petitioning-it speaks simply of ‘the right of the people . . . to petition the Government for a redress of grievances.'” BE & K Const. Co. v. NLRB, 536 U.S. 516, 532 (2002) (omission in original) (quoting U.S. Const. amend. I).

Claims for denial of access to the courts can be “forward-looking” or “backwardlooking.” Walker v. Hickenlooper, 627 Fed.Appx. 710, 719 (10th Cir. 2015). In forward-looking claims, plaintiffs seek to remove obstacles that prevent litigation. Id. (citing Christopher v. Harbury, 536 U.S. 403, 413 (2002)). In backward-looking claims, a plaintiff alleges that their suit ended poorly or was ultimately precluded because of a state actor's past misconduct. Id. (citing Christopher, 536 U.S. at 413-14). In either case, a plaintiff alleging impairment of his right to access the courts must allege an “actual injury” arising out of such denial. Lewis v. Casey, 518 U.S. 343, 348-49 (1996).

Plaintiff's claim is neither forward-looking, nor backward-looking. The claim is not forward-looking, because Plaintiff does not allege an existing barrier to court access. Indeed, Plaintiff is currently prosecuting his claims in the instant suit. Plaintiff's claim might be considered backward-looking, except that he does not allege that his suit is less likely to succeed because of any information that might be included in the “Formal Disposition” of his complaint that he is unable to put before this Court. In Walker, the court faced a similar allegation of denial of access that was neither forward- nor backward-looking, because the plaintiff sued without alleging that his suit was less likely to succeed because of the defendants' alleged concealment of evidence, and found dismissal to be proper. 627 Fed.Appx. at 719.

Here, as in Walker, Plaintiff has petitioned the government for a redress of his grievances, both by filing his complaint with the Denver Police Department [#186, ¶ 84] and by filing the instant suit. Plaintiff has not alleged that he faced obstacles that might have prevented his internal affairs complaint or the instant litigation, or that the internal affairs investigation ended poorly or was ultimately precluded because of a state actor's past misconduct. Because Plaintiff alleges only that Defendants Campion and Denver failed to provide him with a “formal disposition” of his grievance, and not that he suffered any actual injury to his ability to bring or prevail in either that grievance or the instant suit, the Court cannot find any constitutional violation articulated in this portion of Claim Three.

The Court therefore respectfully RECOMMENDS that Defendant Campion's Motion be GRANTED to the extent to which it seeks dismissal of Claim Three against him.

2. Delayed Identification of Officers on BWC Footage

During the course of discovery in this case, Plaintiff sought the identities of the officers appearing in the BWC footage. [#186, ¶¶ 97-98] Initial disclosures by Defendants left two officers still unidentified. [Id., ¶ 97] Unknown Officer #1 was ultimately identified as Defendant Carmody. [##179 at 2, 186, ¶ 153]. Unknown Officer #2 was ultimately identified as Defendant Baughman. [##102-1 at 2, 186, ¶ 100] Plaintiff alleges that Defendants Pazen and Denver violated his right to access the courts through their delayed identification of Defendant Carmody, causing Plaintiff to be “delayed in filing his non-frivolous claim against the proper individual defendants in this action.” [#186, ¶¶ 104-106]. Plaintiff alleges that this delay was pursuant to Defendant Denver's alleged “policy / custom / practice / procedure of concealing information form plaintiffs / citizens that is important to government redress, and outright denying officer misconduct despite clear [and] convincing evidence of police misconduct [and] court order to act.” [Id., ¶¶ 107-09]

Here, as with Plaintiff's allegations related to the Internal Affairs investigation, Plaintiff fails to plead either that currently existent obstacles must be removed to allow him to pursue his claim, or that past misconduct by a state actor prejudices him in the instant case. He pleads only that he “suffered unnecessary delay.” [#186, ¶ 110] However, “[d]elay alone is not enough, for [a plaintiff] asserting a backward-looking claim must identify a remedy that is no longer available in a ‘suit that may yet be brought.'” Walker, 627 Fed.Appx. at 719 (quoting Christopher, 536 U.S. at 415). And because Plaintiff has failed to allege a violation of his rights by Defendants Campion or Pazen, he has likewise failed to allege any violation by Defendant Denver. Trigalet v. City of Tulsa, Oklahoma, 239 F.3d 1150, 1155-56 (10th Cir. 2001) (“[T]he City cannot be held liable where, as here, the officers did not commit a constitutional violation.” (citation omitted)).

Accordingly, the Court respectfully RECOMMENDS that the Motions be GRANTED to the extent to which they seek dismissal of Claim Three against all Defendants.

D. Claim Four: Failure to Train and Supervise

Plaintiff seeks relief under Section 1983 for violations of his constitutional rights, alleging that Defendants Denver and Denver Health failed to train and supervise their employees. [#186, ¶¶ 111-31] Defendant Denver Health argues that Plaintiff has failed to allege that its employees committed a constitutional violation. [#188 at 7] Defendant Denver argues that Plaintiff failed to plead how the training received by the officers who allegedly violated his rights was insufficient, and that he failed to plead factual allegations showing Denver was deliberately indifferent to the allegedly inadequate training or supervision. [#202 at 9-13] The Court agrees that Plaintiff has failed to state a claim for municipal liability against either Defendant Denver or Denver Health.

“To state a Monell claim based on the failure to train or supervise, a plaintiff must sufficiently allege that the failure ‘amounts to deliberate indifference to the rights of persons with whom the police come into contact.'” Sexton, 530 F.Supp.3d at 1072 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). “If a [training] program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for.” Bd. of Cnty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997). Decisionmakers' “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action-the ‘deliberate indifference'-necessary to trigger municipal liability.” Id. “[T]he existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the moving force behind the plaintiff's injury.” Id. at 407-08 (quotation omitted). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (quotation omitted). “Deliberate indifference ‘may be found absent a pattern of unconstitutional behavior' only in ‘a narrow range of circumstances' where ‘a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality's action or inaction.'” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quoting Barney, 143 F.3d at 1307-08).

“A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61. “[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact,” because “[o]nly where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom.'” Harris, 489 U.S. at 388-89. Deliberate indifference is a “stringent standard,” requiring the plaintiff to demonstrate that “the City had ‘actual or constructive notice that its action or failure to act [was] substantially certain to result in a constitutional violation' and ‘consciously or deliberately [chose] to disregard the risk of harm.'” Murphy v. City of Tulsa, 950 F.3d 641, 651 (10th Cir. 2019) (quoting Barney, 143 F.3d at 1307).

With these principles in mind, the Court considers Plaintiff's failure to train claims against each Defendant in turn.

1. Defendant Denver

Plaintiff alleges:

[T]he training / supervision deficiency or lack of training and supervision is when Denver Police [Department] officers punch, choke, hit, strike, knee, [Tase], and or drug arrestees repeatedly while the arrestee is known to be restrained [and] subdued, defenseless, and not posing an immediate threat to officers or others and not resisting arrest.

Another training supervision deficiency or lack of training [and] supervision is where Denver Police [Department] officers abuse their discretion by ordering medical staff to perform unjustified [and] unwarranted body cavity x-rays / exams without probable cause [and] for no legitimate penological reason especially in situations where the arrestee was not even arrested for, or under investigation for, or found in possession of any drug related offenses.

[#186, ¶¶ 119-20; see also id., ¶¶ 112, 126]¹⁴

14 Plaintiff also alleges that Defendant Denver breached a duty of reasonable care to train and supervise its employees “by failing to act when Plaintiff informed the defendant of police misconduct resulting in SBI [serious (or substantial) bodily injury] to [Plaintiff] and after court order to identify the unknown defendants, which the city and county failed to do in an effort to cover-up police misconduct by its subordinates.” [#186, ¶ 113] But this appears to be nothing more than a restatement of the allegations brought in Plaintiff's Claim Three, without any articulated connection to a failure to train or supervise. The Court therefore does not analyze this arguable claim for failure to train or supervise. See Section III.C, above.

These conclusory statements and “formulaic recitation[s]” of the elements of a municipal liability claim are insufficient to state a claim for relief. See Twombly, 550 U.S. at 555; see also Garcia v. Adams Cnty., No. 16-cv-01977-PAB-NYW, 2017 WL 4251931, at *3-4 (D. Colo. Sept. 25, 2017) (dismissing complaint where plaintiff failed to identify specific policies or failures to train and supervise); Baumann v. O'Neil, No. 14-cv-02751-CMA-NYW, 2015 WL 5121800, at *5 (D. Colo. Aug. 10, 2015) (finding “Plaintiff['s] attempts to pursue his municipal liability claim based on nothing more than naked assertions that some unidentified aspects of the City's training, supervision, and/or discipline regimes were deficient and a moving force behind the alleged wrongful arrest,” were insufficient to state a municipal liability claim); White v. City & Cnty. of Denver, 13-cv-01761-CMA-MJW, 2014 WL 3953135, at *7 (D. Colo. Aug. 12, 2014) (“Plaintiff has not alleged specifics regarding why [defendants'] supervision was inadequate or explained how the incident described in the Second Amended Complaint could have been avoided by better supervision or training.”); Bark v. Chacon, No. 10-cv-01570-WYD-MJW, 2011 WL 1884691, at *4 (D. Colo. May 18, 2011) (dismissing municipal liability claims where the failure to train or supervise allegations were “conclusory in nature and devoid of any supporting factual allegations that would demonstrate that the City or County were deliberate[ly] indifferent to the need for more or better training and supervision”).

Nor does Plaintiff make any non-conclusory allegations of a pattern of unconstitutional conduct by inadequately trained employees that might allow the Court to conclude that this case falls within the narrow range of circumstances where a violation of federal rights is highly predictable or a plainly obvious consequence of a failure to train or supervise. Indeed, the Complaint does not identify any past instances of unconstitutional conduct by Defendants, nor does it identify any form of training- inadequate or otherwise. The closest Plaintiff comes to identifying any form of training is to reference a “state-wide police training overhaul” announced by the Colorado Attorney General on August 29, 2022, that he alleges will focus on “use of force scenarios” and train officers to “control their emotions.” [#186, ¶ 121]; see also Justin Reutter, Colorado AG Weiser Announces ‘Redesign' of State Police Training During Stop in Pueblo, The Pueblo Chieftain, Aug. 29, 2022, available at https://www.chieftain.com/story/news/crime /2022/08/29/colorado-ag-phil-weiser-announces-redesign-of-police-academy-training /65458381007/ (last accessed July 21, 2023).

A change in police training procedures, however, may not even be admissible, and certainly cannot by itself support a conclusion that the previous procedures constituted deliberate indifference to the rights of persons with whom the police come into contact. See Luera v. Snyder, 599 F.Supp. 1459, 1463 (D. Colo. 1984) (testimony about changes made in police department policies after an incident giving rise to a civil rights lawsuit ruled inadmissible “because of the public policy of encouraging subsequent remedial measures”). Even if a change in policy could imply a deficiency in the previous training, the broad and general changes to police training Plaintiff cites are not closely related to his injury in particular. See Brown v. Gray, 227 F.3d 1278, 1290 (10th Cir. 2000) (noting that “the identified deficiency in a city's training program must be closely related to the ultimate injury, so that it actually caused the constitutional violation” (quotations and citations omitted)).

Because Plaintiff has failed to allege any pattern of similar constitutional violations by inadequately trained or supervised employees sufficient to put municipal decisionmakers on notice that continued adherence to an approach that they know or should know has failed to prevent tortious conduct, the Court cannot find that he has adequately stated a claim against Defendant Denver for failure to train or supervise. The Court therefore respectfully RECOMMENDS that Defendant Denver's Motion be GRANTED to the extent to which it seeks dismissal of Claim Four against the City and County.

2. Defendant Denver Health

Plaintiff alleges:

Denver Health [ ] has a training / supervision deficiency and or lack of training / supervision in regards to medical staff performing medical procedures without patients' knowledge or consent especially in situations where the unjustified medical procedure is not necessary for the treatment of that patient's injuries (i.e. performing a pelvic x-ray in search of drugs instead of performing a leg x-ray for a broken bone).

[#186, ¶ 129] Plaintiff also pleads that this alleged failure of training or supervision amounts to deliberate indifference to the rights of persons with whom Denver Health employees come into contact. [Id., ¶ 130]

Plaintiff has again failed to allege facts sufficient to plead the kind of pattern of similar constitutional violations by untrained employees that is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train, or given any reason why such a pattern need not be pleaded in this case. See Connick, 563 U.S. at 62. Plaintiff has therefore also failed to allege the deliberate indifference necessary to trigger municipal liability against Defendant Denver Health. See Brown, 520 U.S. at 407. For the reasons already stated above in Section III.D.1, therefore, the Court respectfully RECOMMENDS that Denver Health's Motion be GRANTED to the extent to which it seeks dismissal of Claim Four.

E. Claim Five: Failure to Intervene and Report

In Claim Five, Plaintiff seeks relief under Section 1983 for violations of his Fourth Amendment rights,¹⁵ alleging that Defendants Christian, Carmody, Baughman, Bishop, Jossi, and Denver failed to prevent others from using excessive force, and failed to report others' use of excessive force. [#186, ¶¶ 132-42]

15 Plaintiff also asserts his Eighth Amendment rights in Claim Five. But for the reasons explained in Section III.F, below, only the Fourth Amendment is applicable.

To the extent to which Claim Five is grounded on a failure to report, the City Defendants argue that there is no federal constitutional duty to report the use of excessive force, and failure to report such force is not a cognizable constitutional claim. [##205 at 7-8; 206 at 8; 207 at 8; 208 at 8] The Court agrees. Although Colo. Rev. Stat. § 18-8-802 creates a duty for Colorado officers who witness excessive force to report such use of force to their immediate supervisors, it does not create a private cause of action-much less a private right enforceable through Section 1983. See Lehman v. McKinnon, No. 18-CV-00952-PAB-NRN, 2020 WL 6119537, at *11 (D. Colo. July 7, 2020) (“For purposes of qualified immunity, a failure to report a use of excessive force is not a recognized violation of the constitution.”), report and recommendation adopted, 2020 WL 4726993 (D. Colo. Aug. 14, 2020), aff'd, No. 20-1312, 2021 WL 4129229 (10th Cir. Sept. 10, 2021); Fresquez v. Minks, No. 11-CV-02712-REB-KMT, 2013 WL 452292, at *13 (D. Colo. Feb. 6, 2013) (“Construing Plaintiff's claims to be one of failure to report excessive force, Defendant [ ] had no independent constitutional duty to report such force.”), report and recommendation adopted, 2013 WL 1137121 (D. Colo. Mar. 19, 2013), rev'd on other grounds, 567 Fed.Appx. 662 (10th Cir. 2014). The Court therefore considers Claim Five only to the extent to which it states a claim for failure to intervene.

The Tenth Circuit has made clear that, while personal involvement is necessary for Section 1983 liability, “[p]ersonal involvement is not limited solely to situations where a defendant violates a plaintiff's rights by physically placing hands on him.” Fogarty, 523 F.3d at 1162. “An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know . . . that any constitutional violation has been committed by a law enforcement official.” Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quotation omitted); see also Booker, 745 F.3d at 421 (“[W]e have . . . denied qualified immunity when an officer failed to prevent others from using excessive force even though the officer himself did not engage in excessive force”). But “[i]n order to be liable for failure to intervene, [an] officer[ ] must have observe[d] or ha[d] reason to know of a constitutional violation and have had a realistic opportunity to intervene.” Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (quotation omitted). “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Vondrak, 535 F.3d at 1210 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994))

The Court analyzes Plaintiff's failure to intervene claims against each Defendant, beginning with the officers who were at the scene of Plaintiff's arrest.

1. Defendants Christian, Carmody, Baughman, and Bishop

Defendants Christian, Carmody, Baughman, and Bishop were all at the scene of Plaintiff's arrest. [#186, ¶¶ 1-32] Plaintiff brings Claim Five against each of them for failure to intervene in the others' allegedly excessive force. [Id., ¶¶ 132-33, 135] Each of them argues that, to the extent Plaintiff has stated a claim that the others committed excessive force, Plaintiff has failed to plead facts sufficient to show that each officer was aware of and had a realistic opportunity to intervene. [##205 at 4-7; 207 at 4-8; 208 at 4-8; see also #243 at 3] All four also allege that they are entitled to qualified immunity. [##205 at 14-16; 207 at 11-13; 208 at 11-13]

“Tenth Circuit precedent clearly established before June 18, 1992 that a law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983.” Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (citations omitted). Whether a constitutional violation occurred is therefore the only question at issue. As noted in Section III.A above, Defendants Christian, Baughman, and Bishop do not dispute that Plaintiff has stated a claim against them for excessive force, and the Court recommends a finding that Plaintiff has stated a plausible claim against Defendant Carmody. Claim Five therefore turns on an whether the officer defendants observed or had reason to know of the excessive force and had a realistic opportunity to intervene. See Jones, 809 F.3d at 576.

Plaintiff's Complaint does not explicitly allege that each of the arresting officers was aware of the others' uses of excessive force. [#186, ¶¶ 1-32, 132-33] But the Complaint does allege that all of the arresting officers were present at the scene, and the BWC footage shows that they were in close proximity to each other. [##186, ¶¶ 1-32; 205-1 at 0:11-0:53] Thus, the Court draws the reasonable inference from pro se Plaintiff's Complaint that, whether or not each of the arresting officers actually knew of the others' excessive force, they had reason to know of it. See Mohamed v. Jones, No. 20-CV-02516-RBJ-NYW, 2022 WL 523440, at *21 (D. Colo. Feb. 22, 2022) (collecting cases in support of the proposition that, even when a complaint does not allege that defendants conclusively saw excessive force being applied, it is reasonable to infer that the defendants had reason to know a constitutional violation was occurring when they were present and could see and hear).

“Whether an officer had a realistic opportunity to intervene often turns on whether the officer had time to intervene.” Berry v. Beauvais, No. 13-CV-2647-WJM-CBS, 2015 WL 1509725, at *5 (D. Colo. Mar. 30, 2015) (citations omitted). Courts have found officers liable for failing to prevent attacks lasting 40-45 seconds when the defendant allegedly “stood within arm's reach, watched, but did not say or do anything to stop the assault.” United States v. Serrata, 425 F.3d 886, 890 (10th Cir. 2005); see also Martin v. United States, No. 21-CV-02107-NYW, 2022 WL 2274706, at *12 (D. Colo. June 23, 2022) (collecting cases analyzing various timeframes as being sufficient or insufficient for intervention). Ultimately, however, “[t]he determination of whether a defendant had a realistic opportunity to intervene [ ] is typically an issue of fact, which cannot be resolved on a motion to dismiss. Id. (first citing Rustgi v. Reams, 536 F.Supp.3d 802, 816 (D. Colo. 2021), then citing Hogan v. Okla. Dep't of Corr., 24 Fed.Appx. 984, 985 (10th Cir. 2002). Here, Plaintiff's Complaint and the BWC footage do not compel the conclusion that “a reasonable jury could not possibly conclude” that the arresting officers did not have sufficient time to intercede or were incapable of preventing the harm being caused by the other officers. Vondrak, 535 F.3d at 1210.

The Court therefore respectfully RECOMMENDS that Defendant Christian's Motion, Defendant Carmody's Motion, and Defendants Baughman and Bishop's Motion be DENIED to the extent to which they seek dismissal of Claim Five.

2. Defendant Jossi

Plaintiff does not make any allegation that Defendant Jossi observed any other officer's allegedly excessive use of force, let alone that she had any realistic opportunity to intervene. [See #186] The Complaint does not even contain an allegation that Defendant Jossi was even at the scene of Plaintiff's arrest-the first time the Complaint mentions her is when she and Officer Christian instructed Denver Health staff to perform a rectal examination on Plaintiff. [Id., ¶ 42] Because the Complaint does not contain an allegation that Defendant Jossi observed any other officer's allegedly excessive use of force or that she had any realistic opportunity to intervene, the Court respectfully RECOMMENDS that Defendant Jossi's Motion be GRANTED to the extent to which it seeks dismissal of Claim Five against her.

3. Defendant Denver

Plaintiff alleges that Defendant Denver has a “practice” of not punishing officers who violate Colo. Rev. Stat. §§ 18-1-707, 18-1-802 and 18-1-803. [#186, ¶ 134; see also id., ¶ 141-42] Plaintiff also alleges that Defendant Denver “deliberately permit[ed] a pattern of excessive force to develop[] and persist throughout the Denver Police Department.” [Id., ¶ 136] Defendant Denver argues that Plaintiff has failed to provide any factual support for the conclusion that a widespread, longstanding practice existed at the time Plaintiff was injured. [#202 at 8] The Court agrees.

As discussed in Section II.D, above, when a plaintiff seeks to establish the existence of a well-settled custom or practice, he must plead facts sufficient to show repeated or regular implementation of the custom or practice. Sexton, 530 F.Supp.3d at 1071; see also Lankford, 73 F.3d at 287 (noting that “isolated and sporadic acts” do not establish municipal liability for Section 1983); Wilson, 742 F.3d at 780 (“Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident-or even three incidents-do not suffice”). Here, Plaintiff has not offered any other instances beyond his own that might show any pattern-the Complaint contains nothing but the conclusory allegation that a practice of condoning officers' excessive force and failure to report exists. This is insufficient to support municipal liability.

The Court therefore respectfully RECOMMENDS that Defendant Denver's Motion be GRANTED to the extent to which it seeks dismissal of Claim Five against it.

F. Claim Six: Malicious Misuse of Force in Violation of the Eighth Amendment

Plaintiff seeks relief under Section 1983, arguing that Defendants Denver, Christian, Carmody, Baughman, and Bishop committed malicious misuse of force in violation of the Eighth Amendment. [#186, ¶¶ 143-45] This claim is not well developed [see id.], but given the liberal construction appropriate to a pro se plaintiff's complaint, the Court construes it as being brought on the same basis as Plaintiff's claims under the Fourth Amendment. Defendants argue that these actions-which took place during and before Plaintiff's arrest-are actionable, if at all, only under the Fourth Amendment. [##202 at 3-5; 205 at 2-4; 207 at 2-3; 208 at 2-3] The Court agrees.

“Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment, depending on where the plaintiff finds himself in the criminal justice system at the time of the challenged use of force.” Adkins v. Colorado Springs, No. 20-cv-01022-KMT, 2021 WL 810107, * 4 (D. Colo. Mar. 3, 2021) (quoting Bond v. Tehlequah, 981 F.3d 808, 815 (10th Cir. 2020), rev'd on other grounds, 142 S.Ct. 9 (2021)). “Any force used leading up to and including arrest may be actionable under the Fourth Amendment's prohibition against unreasonable seizures.” Id. (quoting Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014)). “The Eighth Amendment, by contrast, applies to ‘prisoners already convicted of a crime who claim that their punishments involve excessive force[.]” Id. It is not simply being convicted which allows the Eighth Amendment to apply to claims of excessive force; rather a plaintiff must be a prisoner at the time his or her rights were violated. See Porro, 624 F.3d at 1325-26.

Here, all of the Defendants' alleged violations of Plaintiff's constitutional rights occurred during his arrest. [See #186, ¶¶ 1-83] The Fourth Amendment is therefore the proper vehicle to bring these claims. Booker, 745 F.3d at 419. Indeed, Plaintiff acknowledges as much: “[b]y contrast, claims of excessive force involving convicted prisoners arise under the 8^th Amendment.” [#241 at 7 (citing Porro, 624 F.3d at 1326)] The Court therefore respectfully RECOMMENDS that the Motions be GRANTED to the extent to which they seek dismissal of Claim Six against all Defendants.

G. Claim Seven: First Amendment Retaliation

Plaintiff seeks relief under Section 1983 for retaliation in violation of his rights under the First Amendment. [#186, ¶¶ 146-50] Plaintiff brings Claim Seven against Defendants Pazen, Christian, Jossi, Foss, Erley, Denver, and Denver Health. [Id. at 37]

The First Amendment prohibits officials from retaliating against individuals for exercising their constitutional rights. Poole v. Cnty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (“Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” (quotation omitted)), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). To state a First Amendment retaliation claim against a government official, a plaintiff must plausibly allege three elements:

(1) That the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

Plaintiff alleges three distinct acts of retaliation. [ See #186, ¶¶ 146-50] The Court addresses each allegation in turn.

1. Defendants Christian and Jossi

Plaintiff alleges that Defendants Christian and Jossi ordered Denver Health medical staff to perform a rectal examination on Plaintiff in retaliation for his constitutionally protected activity of seeking medical care, and for petitioning the government for redress of grievances. [#186, ¶ 147] Defendants Christian and Jossi argue that they did not cause the pelvic x-ray, and that Plaintiff has failed to plead that any adverse action was substantially motivated as a response to Plaintiff seeking medical care, because Defendants sought medical care for Plaintiff even before being aware of his request for it. [##205 at 12-13; 206 at 13-14]. Defendants Christian and Jossi also assert qualified immunity. [##205 at 14-16; 206 at 14-16] The Court agrees that Plaintiff has failed to state a First Amendment retaliation claim against Defendants Christian and Jossi.

Plaintiff does not plead that Defendants Christian or Jossi were aware of his request for medical aid. [See #186, ¶¶ 37, 147] Indeed, in his response to the City Defendants' Motions, Plaintiff represents that “[Defendant Christian's BWC footage] shows [Plaintiff] requesting medical attention/ambulance during his conversation with Officer Lombardi as [Plaintiff] struggles to catch his breath[]. This was done outside of the presence of [Defendant] Christian and without knowledge that [Defendant] Christian told his comrad[e] ‘we need to get him checked out.'” [#241 at 15; see also #205-1 at 1:21-1:25] That is, Plaintiff acknowledges that Defendant Christian sought medical aid for Plaintiff independent of Plaintiff's own requests for medical aid.

Plaintiff has therefore failed to plausibly allege that Defendants Christian or Jossi took adverse action substantially motivated by Plaintiff seeking medical care, when Plaintiff acknowledges that Defendant Christian also independently sought medical care for Plaintiff. The Court therefore respectfully RECOMMENDS that Defendant Christian's Motion and Defendant Jossi's Motion be GRANTED to the extent to which they seek dismissal of Claim Seven against them.

2. Defendants Foss, Erley, and Denver Health

Plaintiff alleges that Defendants Foss, Erley, and Denver Health performed the pelvic x-ray on him in retaliation for his constitutionally protected activity of refusing consent for a rectal examination. [#186, ¶ 148] Defendants Foss, Erley, and Denver Health argue that Plaintiff has failed to allege that he was engaged in any constitutionally protected “speech” sufficient to sustain a claim for retaliation under the First Amendment. [##187 at 8; 188 at 8; 229 at 8]. Defendants Foss and Erley also argue that they are entitled to qualified immunity [##187 at 4-5; 229 at 4-5].

Courts have recognized constitutionally protected activities for purposes of First Amendment retaliation claims that extend well beyond the narrow bounds of pure speech. See, e.g., Irizarry v. Yehia, 38 F.4th 1282, 1289-92 (10th Cir. 2022) (there is a First Amendment right to film the police performing their duties in public); McBeth v. Himes, 598 F.3d 708, 716-17 (10th Cir. 2010) (the right to retain and consult with an attorney implicates clearly established First Amendment rights of association and free speech) (citing DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)). But Plaintiff has not identified any Supreme Court decision, Tenth Circuit decision, or clearly established weight of authority from other courts holding that there is a First Amendment right to refuse medical care, nor has the Court found any. Indeed, Plaintiff brings his claims related to the involuntary pelvic x-ray under the Fourth Amendment (Claim Two) and state tort law (Claim Nine), not under the First Amendment. [#186, ¶¶ 33-83, 155-57]; see also Washington v. Harper, 494 U.S. 210, 221-22 (1990) (the Due Process Clause limits the medical procedures that can be performed on an unwilling individual); Franklin v. United States, 992 F.2d 1492, 1496 (10th Cir. 1993) (“In the general area of unauthorized medical treatment, the traditionally recognized theory of recovery has been that of battery” (citations omitted)); Bloskas v. Murray, 646 P.2d 907, 914 (Colo. 1982) (a physician who operates on a patient's body without the patient's consent is liable for battery under Colorado tort law). Plaintiff has therefore failed to allege that he had a clearly-established First Amendment right to refuse medical care.

Having determined that Plaintiff has failed to plead a clearly established right, the Court need not analyze whether that purported right was violated when considering whether Defendants Foss and Erley are entitled to qualified immunity. See Pearson, 555 U.S. at 236. The Court notes, however, that Plaintiff has not pled any facts that would support an inference that the imposition of an x-ray examination (which Plaintiff represents that he did not even know about until he received his medical records years later [#186, ¶¶ 60, 65]) would chill a person of ordinary firmness from continuing to refuse consent for a digital rectal examination-presumably a more invasive procedure. Even if a First Amendment right to refuse medical care were clearly established, therefore, Plaintiff would have failed to allege that such right was violated.

For the reasons already explained in Section III.B.4 above, Plaintiff has also failed to plausibly allege that Defendants Foss and Erley were acting pursuant to any formal policy or well-established custom of Defendant Denver Health when they decided to perform the pelvic x-ray. Plaintiff has therefore failed to state a claim for municipal liability against Denver Health on the basis of any alleged retaliation against him.

For these reasons, the Court respectfully RECOMMENDS that Defendant Foss's Motion, Defendant Erley's Motion, and Denver Health's Motion be GRANTED to the extent to which they seek dismissal of Claim Seven.

3. Defendants Pazen and Denver

Plaintiff alleges that Defendants Pazen and Denver delayed in identifying Unknown Officer #1 in retaliation for Plaintiff's constitutionally protected activity of filing the instant suit and for petitioning the government for redress of grievances. [#186, ¶ 149] Defendant Pazen argues that Plaintiff has not suffered an injury that would chill a person of ordinary firmness from continuing to engage in a protected activity because Unknown Officer #1 was ultimately identified, and that Plaintiff has failed to plead that any delay in identifying Unknown Officer #1 was substantially motivated as a response to Plaintiff's lawsuit. [#203 at 6-7; see also #179 at 2 (identifying Unknown Officer #1 as Defendant Carmody)] Defendant Pazen also asserts qualified immunity. [Id. at 7-9] Defendant Denver argues that Plaintiff has failed to plead any allegations suggesting the existence of a municipal policy that caused the alleged First Amendment violations. [#202 at 16] The Court agrees that Plaintiff has failed to state a First Amendment retaliation claim against Defendants Pazen and Denver.

Unknown Officer #1 has now been identified as Defendant Carmody. [##179 at 2, 186, ¶ 153] Plaintiff has now named Officer Carmody as a defendant in the instant suit. [#186 at 2, 4] Although Plaintiff alleges that Defendant Carmody's delayed identification impaired his right to access the courts [id., ¶¶ 103-106], he has not pled any facts with any tendency to show that this alleged delay would chill a person of ordinary firmness from continuing to pursue a lawsuit. See Green v. Snyder, 525 Fed.Appx. 726, 730 (10th Cir. 2013) (“In run-of-the-mill cases bureaucratic bungling and delay, even if intentional, would not amount to retaliation.”); Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (upholding dismissal of First Amendment retaliation claim in part because plaintiff persisted in engaging in the protected activity despite the defendants' alleged retaliatory acts); see also Johnson v. Soucie, No. 17-CV-03093-GPG, 2018 WL 10230984, at *4 (D. Colo. Mar. 19, 2018) (collecting cases that demonstrate injuries sufficient to chill a person of ordinary firmness from continuing a protected activity). Furthermore, Plaintiff has not made any non-conclusory allegations that any defendant's adverse action was substantially motivated as a response to his lawsuit. [See #186, ¶ 149]

Because Plaintiff has failed to allege that his rights were violated, the Court declines to analyze whether any such violation would have been clearly established. See Pearson, 555 U.S. at 236. And, because Plaintiff has failed to allege any municipal actor has committed a constitutional violation, he has failed to allege municipal liability against Defendant Denver. See Burke v. Regalado, 935 F.3d 960, 998 (10th Cir. 2019) (“[A] municipality may be liable only if a municipal actor committed a constitutional violation.”) (citing Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009)).

The Court therefore respectfully RECOMMENDS that Defendant Pazen's Motion and Denver's Motion be GRANTED to the extent to which they seek dismissal of Claim Seven.

H. Claim Eight: Conspiracy

In Claim Eight, Plaintiff alleges “Conspiracy-Procedural & Constitutional Violations Pursuant to 42 U.S.C. § 1985(2)(3)”¹⁶ against all Defendants. [#186 at 38] Defendants argue that Plaintiff's Complaint does not allege facts sufficient to state a claim for Section 1985 conspiracy. [##187 at 8-9; 188 at 8-9; 202 at 13-16; 203 at 4-6; 204 at 6-8; 205 at 8-11; 206 at 9-11; 207 at 9-11; 208 at 9-11; 229 at 8-9]. The individual defendants also assert that they are entitled to Qualified Immunity [##187 at 4-5; 203 at 7-9; 204 at 8-10; 205 at 14-16; 206 at 14-16; 207 at 11-13; 208 at 11-13; 229 at 4-5]. The Court agrees that Plaintiff has failed to state a claim for conspiracy.

16 In context, the Court construes the Complaint as asserting a claim under Section 1985(3) for “depriving persons of rights or privileges,” and not under Section 1985(2) for “obstructing justice; intimidating party, witness, or juror.” 42 U.S.C. § 1985; see also [#186, ¶¶ 151-54].

To state a claim under Section 1985(3), a plaintiff must allege that defendants: “(1) conspired, (2) to deprive [Plaintiff] of equal protection or equal privileges and immunities under the law, (3) acted in furtherance of this objective, and (4) injured [Plaintiff] or deprived him of any right or privilege as a result.” Wolfson v. Bruno, 265 Fed.Appx. 697, 698 (10th Cir. 2008) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). “The intent behind the [Section 1985(3)] conspiracy must be based on some invidious discriminatory animus, such as racial or otherwise class-based animus.” Id. To satisfy the conspiracy element of Section 1985(3), a plaintiff must allege that defendants acted based on “a meeting of the minds” or agreement. Hinsdale v. City of Liberal, 19 Fed.Appx. 749, 770 (10th Cir. 2010). Conclusory allegations that Defendants conspired do not satisfy this requirement. Gowadia v. Stearns, 596 Fed.Appx. 667, 671 (10th Cir. 2014). And “[p]arallel action . . . or inaction . . . does not necessarily indicate an agreement to act in concert.” Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (citing Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1361 (10th Cir. 1989)).

Here, Plaintiff does not allege any facts to support any of the elements of a Section 1985(3) claim. [#18, ¶¶ 151-54] Rather, he offers only a “formulaic recitation of the elements of a cause of action [that] will not do” to state a claim. Twombly, 550 U.S. at 555. Plaintiff does not make any allegation that any Defendants had any “meeting of the minds” or agreement to conspire amongst each other.¹⁷ [See #186, ¶¶ 151-54] Plaintiff does not identify what privilege or immunity Defendants allegedly sought to infringe. [See id.] Nor does Plaintiff makes any allegations that any Defendant's actions were based on some invidious discriminatory animus, such as racial or otherwise class-based animus. [See id.] To the contrary, Plaintiff alleges that Defendants Christian and Jossi acted in retaliation either for Plaintiff “seeking medical attention” [#186, ¶ 45] or for “blaming his injuries on police brutality” [#241 at 18], not for any class-based discriminatory animus. Plaintiff has therefore failed to state a claim for conspiracy.

17 In his response to the City Defendants' Motions, Plaintiff asserts that the Complaint and his medical records “support the inference that [Defendants] Christian [and] Jossi met up before or at the hospital where [Plaintiff] was taken [ ] for the treatment of his injuries and agreed that they would order [Denver Health] medical staff to ‘search [P]laintiff's asshole for drugs' in order to molest, humiliate, retaliate [against Plaintiff] for blaming his injuries on police brutality.” [#241 at 18] But a plaintiff “may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.” In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004). And even if the Court were to consider the additional allegations in Plaintiff's response, Plaintiff has still made nothing more than conclusory allegations that Defendants conspired.

The Court therefore respectfully RECOMMENDS that the Motions be GRANTED to the extent to which they seek dismissal of Claim Eight.

I. Claim Nine: Assault and Battery

Plaintiff brings Claim Nine for the torts of assault and battery against Defendants Christian, Carmody, Baughman, and Bishop.¹⁸ [#186 at 39] Under Colorado law, the tort of assault requires that:

18 Plaintiff represents that he has satisfied the CGIA notice requirement [#186 at 9], which Defendants Christian, Carmody, Baughman, and Bishop do not dispute. [See ##205 at 17, 207 at 14; 208 at 14-15]

(1) the defendant acted either with the intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact; (2) the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the defendant; and (3) such contact was or appeared to be harmful or offensive.

Fine v. Tumpkin, No. 17-CV-2140-WJM-MEH, 2020 WL 1076122, at *2 (D. Colo. Mar. 6, 2020) (quoting Adams v. Corr. Corp. of Am., 187 P.3d 1190, 1198 (Colo.App. 2008)). “‘The elements of battery are similar, except that the contact must have actually resulted.'” Sandoval v. Martinez-Barnish, No. 09-CV-02434-WJM-MJW, 2012 WL 2871667, at *4 (D. Colo. July 12, 2012) (quoting Adams, 187 P.3d at 1198).

The Court addresses Plaintiff's assault and battery claims against each Defendant in turn.

1. Defendant Christian

Plaintiff alleges that Defendant Christian committed the torts of assault and battery against him in the course of his arrest. [#186, ¶¶ 156-57; see also id., ¶¶ 3-4, 9-10] Defendant Christian admits that “Plaintiff pleads the elements of battery,” and argues only that the claim for assault should be dismissed. [#205 at 17] The Court therefore analyzes only whether Plaintiff has stated a claim for assault against Defendant Christian.

Defendant Christian argues that “Plaintiff's Amended Complaint is completely devoid of any allegations that Defendant Christian took any action with the intent of putting Plaintiff in apprehension of imminent contact with Plaintiff's person.” [Id.] This mischaracterizes the first element of the tort of assault, which is satisfied if “the defendant acted either with the intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact.” Fine, 2020 WL 1076122, at *2 (emphasis added). Because Plaintiff has adequately pled that Defendant Christian acted with the intent of making a contact with him [see #186, ¶¶ 3, 9], he need not plead that Defendant Christian acted with the intent of putting Plaintiff in apprehension of such contact.

Defendant Christian also argues that “Plaintiff's Amended Complaint is completely devoid of any allegations that . . . Plaintiff was actually placed in apprehension of imminent harmful or offensive contact by Defendant's conduct.” [#205 at 17] The Court disagrees. Plaintiff alleges that he “was scared for his life during the assault and believed officers [might] beat him to death.” [#186, ¶ 16] Plaintiff also alleges that he was “unable to defend himself from [Defendant] Christian” suggesting clearly that Plaintiff apprehended subsequent strikes against which he wished to defend himself. [Id., ¶ 6] The Court thus concludes that Plaintiff has had adequately stated a claim for assault against Defendant Christian.

The Court therefore respectfully RECOMMENDS that Defendant Christian's Motion be DENIED to the extent to which it seeks dismissal of Plaintiff's Claim Nine against him in his individual capacity.

2. Defendant Carmody

Plaintiff alleges that Defendant Carmody committed the torts of assault and battery against him in the course of his arrest. [#186, ¶¶ 156-57; see also id., ¶¶ 11, 14] Regarding assault, Defendant Carmody argues that Plaintiff fails to allege that Defendant Carmody took any action with the intent of making contact with Plaintiff or the intent of putting Plaintiff in apprehension of such contact, or that Plaintiff was actually placed in apprehension of imminent harmful or offensive contact by Defendant's conduct. [#207 at 14] Regarding battery, Defendant Carmody argues that the body-worn camera recording shows he did not make physical contact with Plaintiff. [Id.] The Court disagrees.

As to assault, Plaintiff alleges that Defendant Carmody “intentionally reach[ed] around [Defendant] Christian and maliciously hit [Plaintiff].” [#186, ¶ 11] The Court finds this to be a sufficient allegation that Defendant Carmody acted with the intent of making a contact with the person of the plaintiff, thereby satisfying the first element of Plaintiff's assault claim.¹⁹ While it is less clear that Plaintiff has alleged that he was placed in apprehension of imminent contact by Defendant Carmody in particular, Plaintiff does allege that he “was scared for his life during the assault and believed officers [might] beat him to death.” [Id., ¶ 16] While it is possible that Defendant Carmody was not among the “officers” from whom Plaintiff apprehended imminent contact, given the liberal construction appropriate to a pro se plaintiff's claims, the Court concludes that Plaintiff has plausibly alleged that he was placed in apprehension of imminent contact by Defendant Carmody, and has therefore plausibly alleged all of the elements of his assault claim against Defendant Carmody.

19 Once again, this element is satisfied if “the defendant acted either with the intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact.” Fine, 2020 WL 1076122, at *2 (emphasis added).

As to battery, Plaintiff alleges that Defendant Carmody intentionally struck him. [Id., ¶ 11] Although Defendant Carmody asserts that the BWC recording shows he did not make physical contact with Plaintiff [#207 at 14], for the reasons explained in Section III.A.2 above, the Court cannot find that the video “clearly” or “blatantly” contradicts Plaintiff's allegation that Defendant Carmody struck him in the head. See Harris, 2021 WL 1169985, at *8. The Court therefore finds that Plaintiff has stated a claim for battery that is sufficient, at this stage, to suggest that he is entitled to relief.

The Court therefore respectfully RECOMMENDS that Defendant Carmody's Motion be DENIED to the extent to which it seeks to dismiss Claim Nine against him in his individual capacity.

3. Defendant Baughman

Plaintiff alleges that Defendant Baughman committed the torts of assault and battery against him in the course of his arrest. [#186, ¶¶ 156-57; see also id., ¶¶ 12-13] Defendant Baughman seeks dismissal only of Plaintiff's claim for assault, not for battery. [See #208 at 15] Defendant Baughman argues that Plaintiff has failed to plead “that Defendant Baughman took any action with the intent of putting Plaintiff in apprehension of imminent contact with Plaintiff's person or that Plaintiff was actually placed in apprehension of imminent harmful or offensive contact by Defendant's conduct.” [Id.] The Court disagrees.

The argument that Plaintiff failed to plead that Defendant Baughman intended to put Plaintiff in apprehension of imminent contact is substantially identical to Defendant Christian's, and is an incomplete statement of the first element of assault, as explained in Section III.I.1 above. Because Plaintiff alleges that Defendant Baughman pressed his knee into Plaintiff's back and then kneed Plaintiff in the back-left side of Plaintiff's head multiple times [#186, ¶¶ 12-13], he has sufficiently alleged that Defendant Baughman acted with the intent of making a contact with the person of Plaintiff. Thus, Plaintiff has sufficiently pled the first element of assault regardless of whether or not Defendant Baughman acted with the intent of putting Plaintiff in apprehension of such a contact.

The argument that Plaintiff failed to plead that he was actually placed in apprehension of imminent harmful or offensive contact by Defendant Baughman's conduct is substantially identical to Defendant Carmody's. While it is again not obvious that Plaintiff has alleged that he was placed in apprehension of imminent contact by Defendant Baughman in particular, Plaintiff does allege that he “was scared for his life during the assault and believed officers [might] beat him to death.” [Id., ¶ 16] While it is possible that Defendant Baughman was not among the “officers” from whom Plaintiff apprehended imminent contact, the Court is disinclined to dismiss Plaintiff's assault claim against Defendant Baughman on this ground, given the liberal construction appropriate to a pro se plaintiff's claims. Furthermore, Plaintiff pleads that Defendant “Baughman maliciously knee[d] [Plaintiff] in the back left side of [Plaintiff's] head [and] neck multiple times before standing up and storming off.” [Id., ¶ 13] The Court finds it entirely plausible to infer that after the first time Defendant Baughman kneed Plaintiff in the head or neck, Plaintiff might very reasonably have apprehended that the strike might be repeated.

For these reasons, the Court respectfully RECOMMENDS that Defendants Baughman and Bishop's Motion be DENIED to the extent to which it seeks dismissal of Claim Nine for Assault against Defendant Baughman in his individual capacity.

4. Defendant Bishop

Plaintiff alleges that Defendant Bishop committed the torts of assault and battery against him in the course of his arrest. [#186, ¶¶ 156-57; see also id., ¶¶ 15-16] Defendant Bishop seeks dismissal only of Plaintiff's claim for battery, not for assault. [#208 at 15] Defendant Bishop argues that Plaintiff has failed to plead any allegations that Defendant Bishop made physical contact with Plaintiff. [Id.] The Court agrees.

Plaintiff pleads that Defendant Bishop pointed an “assault rifle” at Plaintiff while other officers struck him, causing Plaintiff to fear that he might be shot. [#186, ¶ 15-16] A necessary element of the tort of battery is that “the contact must have actually resulted.” Sandoval, 2012 WL 2871667, at *4. Plaintiff does not allege that Defendant Bishop physically contacted him at any time. [See #186, ¶¶ 15, 155-60] Plaintiff has therefore failed to state a plausible claim for battery against Defendant Bishop.²⁰ As a result, the Court respectfully RECOMMENDS that Defendants Baughman and Bishop's Motion be GRANTED to the extent to which it seeks dismissal of Claim Nine for battery against Defendant Bishop.

20 It is possible that Defendant Bishop aided and abetted the other officers in their battery. But this is neither clear from the Complaint nor argued by Plaintiff in his response, and it is not the role of the Court to fashion arguments for the parties. Indeed, in his response, Plaintiff appears to concede that Defendant Bishop did not commit the tort of battery. [#241 at 27]

5. Defendants in their Official Capacities

Plaintiff brings all of his claims against all Defendants in both their individual and official capacities. [#186 at 3-7] A claim brought against a defendant in their official capacity is identical to a claim asserting the same violations directly against the defendant's employer. See Martinez, 563 F.3d at 1091 (“To the extent [the plaintiff] brings a claim against [the defendant] in his official capacity, it is the same as bringing a suit against the county.”) Claim Nine against Defendants Christian, Carmody, Baughman, and Bishop in their official capacities is therefore equivalent to a suit against Denver. But the CGIA does not waive public entities' sovereign immunity for their employees' willful and wanton acts. Middleton, 45 P.3d at 728. Denver is therefore immune from suit for any assault and battery committed by Defendants Christian, Carmody, Baughman, and Bishop. The Court therefore respectfully RECOMMENDS that the City Defendants' Motions be GRANTED to the extent to which they seek dismissal of Claim Nine as it is pled against them in their official capacities.

J. Claim Ten: “Technical” Assault and Battery

In Claim Ten, Plaintiff alleges that Defendants Foss and Erley committed the tort of “technical assault and battery” under Colorado law when Dr. Foss ordered, and Dr. Erley performed, an x-ray of Plaintiff's pelvis without his consent.²¹[#186, ¶¶ 158-160] Defendants Foss and Erley argue that Claim Ten is barred by the CGIA. [##187 at 9-12; 229 at 10-12] Defendants Foss and Erley also argue that Plaintiff has failed to allege that either of them performed the x-ray in question, and that Plaintiff failed to allege the elements of assault or battery under Colo. Rev. Stat. §§ 18-3-202, 18-3-206. [##187 at 13; 229 at 13] The Court addresses each argument in turn.

21 “Technical assault and battery” is a specific tort recognized in some jurisdictions. See, e.g., Washburn v. Klara, 561 S.E.2d 682, 685 (2002) (“[A]n operation without consent or the extension of an operation beyond the scope of the patient's consent constitutes what is sometimes referred to as a ‘technical' assault and battery.” (quotation omitted)); Gindraw v. Dendler, 967 F.Supp. 833, 840 (E.D. Pa. 1997) (“Performing a medical procedure without informed consent is a technical assault and battery” under Pennsylvania law.); Lane v. United States, 225 F.Supp. 850, 852 (E.D. Va. 1964) (surgeon's operating on wrong knee held actionable though a “‘technical' assault and battery” under Virginia law). Colorado courts do not use the term “technical assault and battery” but rather treat unauthorized medical treatment as a battery. People v. Marquardt, 364 P.3d 499, 503 (Colo. 2016) (Under Colorado law, “[a] physician who treats a patient without the patient's consent commits a battery and is liable for damages, ‘notwithstanding the exercise of reasonable care in performing' the treatment.” (quoting People v. Medina, 705 P.2d 961, 968 (Colo. 1985))); Bloskas, 646 P.2d at 914 (“A physician who operates on a patient's body without the patient's consent, or who performs an operation different from that to which the patient consented, commits a battery and is liable for damages resulting therefrom, notwithstanding the exercise of reasonable care in performing the operative procedure”); Townsend v. Kiracoff, 545 F.Supp. 465, 469 (D. Colo. 1982) (“It is well settled that medical treatment not authorized by the patient may amount to a battery.”). Given the liberal construction appropriate to the pleadings of a pro se plaintiff, the Court interprets Claim Ten as being for medical battery, on the basis of Defendants Foss and Erley performing a pelvic x-ray on Plaintiff without his consent.

1. Colorado Governmental Immunity Act

Battery is a tort claim and thus subject to the CGIA's notice prerequisite. Loma v. City & Cnty. of Denver, No. 21-CV-02214-NYW-KLM, 2023 WL 2574377, at *7 (D. Colo. Mar. 20, 2023). Plaintiff alleges that he satisfied the CGIA notice requirement when he sent a “Notice of Intent” letter to the Denver Health Patients' Advocate Office on June 9, 2022 (the “Denver Health Notice”). [#186 at 9] Defendants Foss and Erley argue that this purported notice was both untimely and insufficient.²² [##187 at 9-12; 229 at 10-12]

22 Defendants Foss and Erley do not argue that the “Denver Health Patients' Advocate Office” was an improper recipient of the Denver Health Notice, or whether the Notice was properly transmitted, so the Court presumes without deciding that the Denver Health Notice was properly transmitted to an appropriate recipient for purpose of the instant Motions.

a. Timeliness of Notice

A CGIA notice must be sent “within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury.” Colo. Rev. Stat. § 24-10-109(1). “[T]he Act's use of the term ‘discovery' in the context of tortious injury implicates the ‘discovery rule' of tort law which provides that a statute of limitations does not start to run until the time when the plaintiff knew or, through the exercise of reasonable diligence, should have known (or, alternatively, discovered or should have discovered), the wrongful act.” Trinity Broadcasting, 848 P.2d at 923; see also Grossman v. City & County of Denver, 878 P.2d 125, 126-27 (Colo.App. 1994) (proper inquiry under the CGIA is whether sufficient evidence exists to cause a reasonable person to know that he or she has been injured by the tortious conduct of another). Absent compliance with the timely notice requirement, “governmental immunity bars suit against the public entity because a trial court lacks subject matter jurisdiction over the complaint seeking relief.” Crandall II, 161 P.3d at 632 (footnote omitted).

Because the CGIA implicates the Court's jurisdiction, it is analyzed under Federal Rule of Procedure 12(b)(1). Neiberger II, 208 F.R.D. at 307. A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Id. (quoting Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)). The trial court has “wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing in making appropriate factual findings on” CGIA compliance. Id. at 308 (citing Wheeler, 825 F.2d at 259 n. 5).

Plaintiff was subjected to the pelvic x-ray on December 16, 2020. [#186, ¶ 1, 57] Plaintiff pleads, however, that the pelvic x-ray was performed without his knowledge, and that he first learned of it on February 18, 2022 when he received his medical records. [Id., ¶¶ 61, 65] That is, the x-ray occurred 540 days before Plaintiff filed the Denver Health Notice on June 16, 2022, but Plaintiff alleges that he only learned of the x-ray (and therefore his injury²³) 111 days before filing notice.

23 Defendants Foss and Erley also argue that Plaintiff's delay in learning of the x-ray “further bolsters the fact that the pelvic x-ray did not cause him any injury whatsoever.” [##187 at 11; 229 at 11] But “‘a battery may be committed . . . even by resort to some intangible substance,' such as a laser beam.” United States v. Castleman, 572 U.S. 157, 170 (2014) (quoting 2 W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003)). Furthermore, “[i]f treatment is completely unauthorized and performed without any consent at all, there has been a battery.” Franklin, 992 F.2d at 1496 (applying Oklahoma law, and contrasting medical battery with the negligence theory of informed consent, which has injury as a required element); see also Dubbs v. Head Start, Inc., 336 F.3d 1194, 1219 (10th Cir. 2003) (“Presumably, what makes such contact ‘offensive' for purposes of liability for technical battery is the fact that the procedure is performed without consent.”); Townsend, 545 F.Supp. at 469 (“It is well settled that medical treatment not authorized by the patient may amount to a battery”). Plaintiff's ignorance of the x-ray is therefore not inconsistent with an assertion that he was legally injured by it.

The Court accepts, at this stage, Plaintiff's factual allegation that he did not know of the pelvic x-ray until receiving his medical records on February 18, 2022. [#186, ¶¶ 61, 65] This allegation is not conclusionary, and it is uncontradicted by the record before the Court.²⁴ [ See ##31 at 1-7, ¶¶ 11-16 (Plaintiff's October 14, 2021 Amended Complaint, not naming the Denver Health Defendants or including the pelvic x-ray in his allegations); 89 at 2, 9-10, ¶ 18 (Plaintiff's June 27, 2022 Amended Complaint, naming the Denver Health Defendants for the first time and alleging that the pelvic x-ray was performed)] The question therefore becomes whether, through the exercise of reasonable diligence, Plaintiff should have discovered the x-ray earlier. See Trinity Broadcasting, 848 P.2d at 923.

24 Of course, if Defendants Foss and Erley subsequently learn through the discovery process that Plaintiff knew of the x-ray at an earlier date, they are free to bring a renewed challenge to this Court's subject matter jurisdiction.

Defendants Foss and Erley argue that Plaintiff knew or should have known of the x-ray on the date it was performed. [##187 at 11; 229 at 11] The CGIA “does not permit an injured party to ignore evidence which would cause a reasonable person to know that he or she has been injured by the tortious conduct of another.” Trinity Broadcasting, 848 P.2d at 926-27. Defendants Foss and Erley argue that “Plaintiff, who was an adult on December 20, 2020, should have been able to appreciate the fact that he was in the hospital and x-rays were being performed on him.” [##187 at 11; 229 at 11] But this argument misses the point. Certainly, Plaintiff was aware that he had been “taken to the x-ray room so his chest, face [and] right wrist could be x-rayed [and] further examined.” [#186, ¶ 57] He was being treated for his injuries from the alleged assault and would have anticipated x-rays related to his injuries.²⁵ But a reasonable person receiving x-rays related to injuries from an alleged assault would not have anticipated that the medical providers would have conducted a separate x-ray unrelated to the injuries, conducted solely to search for drugs. Nor have Defendants Foss and Erley pointed the Court to anything that should have suggested to Plaintiff or any other reasonable person that the pelvic x-ray was conducted for law enforcement purposes, as opposed to searching for injuries to the pelvic region. The Court is therefore satisfied, at this stage, that Plaintiff did not ignore evidence that would have caused a reasonable person to know that he was injured by the tortious conduct of Defendants Foss and Erley, and he was therefore under no duty to investigate an injury of which he alleges he was completely unaware. The Court therefore cannot conclude that the Denver Health Notice was untimely filed under the CGIA.

25 Indeed, these x-rays revealed an “orbital floor (blow-out) open fracture in [Plaintiff's] left eye socket.” [Id., ¶ 58]

b. Contents of Notice

Written notice under the CGIA must contain:

(1) the name and address of the claimant and the name and address of his attorney; (2) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (3) the name and address of any public employee involved; (4) a concise statement of the nature and the extent of the injury claimed to

have been suffered; and (5) a statement of the monetary damages being requested.

Neiberger 1, 70 F.Supp. at 1194 (citing Colo. Rev. Stat. § 24-10-109(2)). The notice must “substantially” comply with § 24-10-109(2).²⁶ Crandall 1, 143 P.3d at 1108; accord Crandall II, 161 P.3d at 632 n.5. “Substantial compliance means that the claimant must make a good faith effort to include within the written notice, to the extent reasonably possible, each item of information listed in § 24-10-109(2).” Id. (citing Dicke, 101 P.3d at 1132). The purpose of the CGIA notice requirement is “to allow a public entity to promptly investigate and remedy dangerous conditions, to foster prompt settlement of meritorious claims, to make necessary fiscal arrangements to cover potential liability, and to prepare for defense of claims.” Jefferson Cnty. Health Servs. Ass'n, Inc. v. Feeney, 974 P.2d 1001, 1003 (Colo. 1998). Defendants Foss and Erley argue that the Denver Health Notice does not comply with the CGIA notice requirements, and attach a copy to their Motions. [##187 at 11-12; 187-1; 229 at 12; 229-1]

26 Regarding the contents of the notice, Defendants Foss and Erley argue that “[e]ven if Plaintiff argues that his ‘formal complaint' substantially complies with the CGIA . . . substantial compliance is not the appropriate standard.” [##187 at 11; 229 at 12 (both citing Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1258 (Colo. 2003) and Crandall II, 161 P.3d at 632)] But Finnie held that “the standard we explain today is best described as substantial compliance, and to the extent that Brock [v. Nyland, 955 P.2d 1037 (Colo. 1998)] suggests a different standard for section 24-10-109(3), we overrule.” 79 P.3d 1253, 1258 (Colo. 2003). Section 24-10-109(3) relates to the proper recipient and method for transmitting CGIA notices, which Defendants Foss and Erley do not otherwise put at issue. Crandall II, meanwhile, observes that “[i]n contrast to the jurisdictional 180-day filing requirement, the adequacy of the notice's contents is subject to a substantial compliance standard under section 24-10-109(2).” 161 P.3d at 632 n.5 (citation omitted). Neither case supports Defendants' assertion that “substantial compliance is not the appropriate standard” for evaluating compliance with the notice contents requirements of Colo. Rev. Stat. § 24-10-109(2).

At the motion to dismiss stage, a court may “consider documents attached to or referenced in the complaint if they ‘are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.'” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). Plaintiff references the Denver Health Notice in his Complaint. [#186 at 9] The Denver Health Notice is central to Plaintiff's claim, because the Court is barred from considering certain claims if Plaintiff has not satisfied the CGIA notice requirement. Aspen Orthopaedics, 353 F.3d at 840. And Plaintiff does not dispute the authenticity of the Denver Health Notice as submitted by Defendants Foss and Erley. [See #227] Finally, trial courts have “wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing in making appropriate factual findings on jurisdictional issues” like CGIA compliance. Neiberger II, 208 F.R.D. at 308. The Court therefore considers the Denver Health Notice submitted by Defendants' Foss and Erley [##187-1; 229-1] in evaluating whether Plaintiff has satisfied the CGIA's notice requirement.

The Denver Health Notice contains:

(1) The name and address of the claimant, but not the name and address of his attorney;²⁷

(2) A concise statement of the factual basis of the claim, including the date, place, and circumstances of the act complained of, but not the time;

(3) The names of the public employees involved, but not their addresses;

(4) A concise statement of the nature and the extent of the injury claimed to have been suffered; and

(5) No statement of the monetary damages being requested.

[##187-1; 227-1]; see also Neiberger I, 70 F.Supp.2d at 1194 (articulating the Colo. Rev. Stat. § 24-10-109(2) notice contents requirements).

27 The Court presumes that Plaintiff was proceeding pro se then, as now.

That is, the Denver Health Notice omits the time of the factual basis of the claim, the addresses of the public employees involved, and a statement of the monetary damages being requested. The Court must determine whether this constitutes “substantial compliance” with the CGIA's requirements. Trinity, 848 P.2d at 924 (“When a public entity claims before trial that timely notice was not given to it under the Governmental Immunity Act, the trial court is the finder of fact”). Substantial compliance is “a degree of compliance that [is] considerably more than minimal but less than absolute.” Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 68 (Colo. 1990); see also Great N. Ins. Co. v. Denver Water, No. 20-CV-01130-MEH, 2020 WL 6680360, at *2-3 (D. Colo. Nov. 12, 2020) (collecting and analyzing CGIA notices found to substantially comply).

“The statement of the factual basis of the claim ‘must put the public entity on notice of the theory on which a forthcoming lawsuit will rest.' However, ‘[t]he CGIA does not require the notice of legal grounds or claims for relief.'” Torres v. Colorado Dep't of Hum. Servs., Div. of Youth Corr., No. 17-CV-00771-KMT, 2018 WL 1311497, at *4 (D. Colo. Mar. 13, 2018) (first quoting Miller v. Mountain Valley Ambulance Serv., Inc., 694 P.2d 362, 364 (Colo.App. 1984), then quoting Neiberger I, 70 F.Supp.2d at 1195). Although Plaintiff's statement of the factual basis of the claim omits the time of the x-ray, the Court finds his statement entirely sufficient to put the public entity on notice of the theory on which a forthcoming lawsuit will rest.

Regarding the addresses of the public employees involved, the CGIA only requires that this element be included “if known.” Colo. Rev. Stat. § 24-10-109(2)(a). The Court finds it both plausible and reasonable that, at the time he sent the Denver Health Notice, Plaintiff did not know the addresses of Defendants Foss and Erley.

The most significant omission from the Denver Health Notice is a statement of the monetary damages being requested. The Colorado Supreme Court has stated:

We view the claimant's request or demand for payment of monetary damages to be the very essence of the written notice required by section 24-10-109(1). In other words, the request for payment of monetary damages is what shows that a document is a notice of a claim under section 24-10-109(1). Accordingly, we must apply the standard of strict compliance required by section 24-10-109(1), and not the standards of compliance applicable to other subsections of the notice-of-claim statute.

Mesa Cnty. Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1205 (Colo. 2000) (citations omitted). Despite this strict compliance standard, Colorado courts have recognized that “a claimant need not recite particular words or talismanic language to strictly comply with the written notice requirement. Rather, a document constitutes written notice of a claim under section 24-10-109(1) when it reasonably and objectively can be inferred from the document as a whole that the claimant is in fact claiming monetary damages.” Bradley v. Sch. Dist. No. 1 in City & Cnty. of Denver, 504 P.3d 979, 980 (Colo.App. 2021).

In Bradley, the Plaintiff sent the government entity a letter titled “Notice pursuant to C.R.S. section 24-10-109 on behalf of [Claimant].” Id. at 981. This letter provided the claimant's name and address; referred to her as “Claimant”; identified the date, time, and location of the accident; and described the factual and legal bases of the claim. Id. The letter did not contain an explicit request for payment of monetary damages, but because it described the claimant's injury, attributed that injury to the public entity's negligence, and requested the preservation of evidence, the court concluded “it could ‘objectively . . . be inferred' from the letter that [the claimant] ‘in fact was making a claim for damages against' the [public entity].” Id. at 982-83 (quoting Kelsey, 8 P.3d at 1205).

In the Denver Health Notice, Plaintiff provided his name and address; identified the date and location of the incident; and described the factual and legal bases of the claim. [##187-1; 229-1] Plaintiff ended the statement with: “This practice is illegal and medical staff should be held liable for violating my rights. This may result in a civil action. I respectfully request that my complaint be addressed immediately.” [Id.] In stating that Denver Health employees “should be held liable” Plaintiff was asserting that they were: “1. Responsible or answerable in law; legally obligated” or “2. Subject to or likely to incur a fine, penalty, etc.” Liable, BLACK'S LAW DICTIONARY (11th ed. 2019). In advising that he might file a civil action, Plaintiff articulated his intention to seek either legal or equitable relief. See Fed.R.Civ.P. Rule 2; Colo. R. Civ. P. Rule 2. Because it is unclear what equitable remedy Plaintiff might have sought, Plaintiff's intention was clearly to pursue legal (i.e. monetary) relief. The Court notes further that Defendants do not argue that they failed to understand the Denver Health Notice to make a claim for monetary damages, nor do they argue that they suffered any prejudice from the lack of an explicit request. [See ##187; 229; 235]; see also Bradley, 504 P.3d at 983 (considering a public entity's failure to argue misunderstanding or prejudice in construing a purported CGIA notice). The Court therefore finds that it could reasonably and objectively be inferred from the Denver Health Notice as a whole that Plaintiff in fact was making a claim for damages against Denver Health.

c. Official Capacity Claims

Plaintiff brings all of his claims against all Defendants in both their individual and official capacities. [#186 at 3-7] A claim brought against a defendant in their official capacity is identical to a claim asserting the same violations directly against the defendant's employer. See Martinez, 563 F.3d at 1091 (“To the extent [the plaintiff] brings a claim against [the defendant] in his official capacity, it is the same as bringing a suit against the county.”) Claim Ten against Defendants Foss and Erley in their official capacities is therefore equivalent to a suit against Denver Health. But the CGIA does not waive public entities' sovereign immunity for their employes' willful and wanton acts. Middleton, 45 P.3d at 728. Denver Health is therefore immune from suit for any medical battery committed by Defendants Foss and Erley. The Court therefore respectfully RECOMMENDS that the Denver Health Defendants' Motions be GRANTED to the extent to which they seek dismissal of Claim Ten as it is pled against them in their official capacities.

2. Sufficiency of the Pleading

Defendants Foss and Erley assert that the Amended Complaint does not contain any allegations that either Dr. Foss or Dr. Erley performed the pelvic x-ray. [##229 at 13; 187 at 13] The Court disagrees. Plaintiff has pled that “[Defendant] Foss ordered [Defendant] Erley [ ] to do a pelvic x-ray on [Plaintiff] for ‘clinical indication: question of insertion of drugs in rectum.'” [#186, ¶ 61; see also id., ¶ 68 (alleging that Defendant Foss ordered the x-ray)] Plaintiff also alleges that “[t]he pelvic x-ray was done” [id., ¶ 64] and that Defendants “Erley and Foss perform[ed] the pelvic x-ray without [Plaintiff's] knowledge or consent” [id., ¶ 71]. Given the liberal construction appropriate to a pro se Plaintiff's complaint, the Court finds that this is a sufficient allegation that Defendant Erley personally performed the pelvic x-ray. It is also a sufficient allegation that Defendant Foss ordered Defendant Erley to perform the x-ray, and therefore set into motion a natural and probable sequence resulting in Plaintiff's x-ray, and without which the x-ray would not have been performed. See Sumpter v. Ahlbrecht, No. 10-CV-00580-WYD-MJW, 2012 WL 252980, at *17 (D. Colo. Jan. 26, 2012) (“[B]attery can occur through direct or indirect contact so long as the force applied is the proximate cause.” (citations omitted)). Plaintiff has therefore pled that both Defendants caused the x-ray.

Defendants Erley and Foss also argue that Plaintiff has not alleged the elements of the crimes of assault in the first degree or menacing, Colo. Rev. Stat. §§ 18-3-202, 18-3-206. [##187 at 13; 229 at 13] While this may be true, neither Defendant disputes Plaintiff's allegation that the x-ray was performed without his consent. [See id.] They therefore do not dispute that Plaintiff has sufficiently pled his claim for medical battery. The Court therefore respectfully RECOMMENDS that Dr. Foss's Motion and Dr. Erley's Motion be DENIED to the extent to which they seek dismissal of Claim Ten against them in their individual capacities.

K. Claim 11: Intentional Infliction of Emotional Distress (“IIED”)

Plaintiff brings Claim Eleven for IIED against Defendants Christian, Carmody, Baughman, Bishop, Jossi, Foss and Erley. [#186, ¶¶ 161-64] In Colorado, “[t]he elements of the tort of intentional infliction of emotional distress, otherwise known as ‘outrageous conduct,' are (1) the defendant engaged in extreme and outrageous conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional distress; (3) causing the plaintiff to suffer severe emotional distress.” Lee v. Colo. Times, Inc., 222 P.3d 957, 966-67 (Colo.App. 2009) (Dailey, J., concurring in part and dissenting in part); Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999). The first element, outrageous conduct, is conduct:

[S]o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and him to exclaim, “Outrageous!”

Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (quoting Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)). “Although the question of whether conduct is outrageous is generally one of fact to be determined by a jury, it is first the responsibility of a court to determine whether reasonable persons could differ on the question.” Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994) (citations omitted). Regarding the second element, “[a] person acts with intent to cause severe emotional distress when he engages in conduct with the purpose of causing severe emotional distress to another person, or he knows his conduct is certain or substantially certain to have that result.” Id. at 882. “A person acts recklessly in causing severe emotional distress in another if, at the time of the conduct, he knew or reasonably should have known that there was a substantial probability that his conduct would cause severe emotional distress to the other person.” Id. at 882-83. Finally, emotional distress is “severe” when “no reasonable man could be expected to endure it.” Coomer v. Make Your Life Epic LLC, No. 21-CV-3440-WJM-KLM, 2023 WL 2390711, at *10 (D. Colo. Mar. 7, 2023) (quoting Restatement (Second) Torts § 46, cmt. j).

The Court address Plaintiff's IIED claim against each Defendant in turn.

1. Defendants Christian and Jossi

In Claim Eleven, Plaintiff alleges that Defendants Christian and Jossi ordered medical staff to perform a body cavity search on Plaintiff for no reason other than to “molest, harass, intimidate, [and] embarrass” him, and that Defendant Christian's strikes against Plaintiff during his arrest left Plaintiff with emotional injuries. [#186, ¶ 162] Plaintiff alleges that, as a result of these, he has suffered anxiety, nightmares, humiliation, and loss of sleep. [Id.; see also id., ¶¶ 30-32, 46, 67, 77] Plaintiff represents that he has satisfied the CGIA notice requirement. [#186 at 9] Defendants Christian and Jossi do not dispute that Plaintiff met the CGIA notice requirement, or that Plaintiff sufficiently pled that Defendant Christian's actions were willful and wanton. [ See ##205 at 17-18; 206 at 18] Defendant Christian does not apparently seek dismissal of the claim to the extent that it is grounded in the events of Plaintiff's arrest, and only argues that “Plaintiff has failed to plead allegations sufficient [to] show Defendant Christian caused Plaintiff to undergo a pelvic x-ray.” [#205 at 18] Defendant Jossi also argues only that “Plaintiff has failed to plead allegations sufficient [to] show Defendant Jossi caused Plaintiff to undergo a pelvic x-ray.” [#206 at 18]

As explained in Section III.B.1.b, Plaintiff has sufficiently alleged that Defendants Christian and Jossi proximately caused his pelvic x-ray.²⁸ See Eckert, 2015 WL 10383783, at *49 (laying out the Tenth Circuit test for causation in Section 1983 cases). The Court therefore respectfully RECOMMENDS that Defendant Christian's Motion and Defendant Jossi's Motion be DENIED to the extent to which they seek dismissal of Claim Eleven against them in their individual capacities.

28 Because Defendants Christian and Jossi do not challenge any of the elements of IIED except to dispute that they caused the pelvic x-ray, the Court declines to pass on the sufficiency of Plaintiff's pleading.

2. Defendant Carmody

Plaintiff brings Claim Eleven against Defendant Carmody for IIED. [#186, ¶¶ 161-64] He alleges that Defendant Carmody “acted negligently by using unnecessary [and] unreasonable physical force on [ ] Plaintiff.”²⁹ [Id., ¶ 162] Plaintiff alleges that he “suffered anxiety, nightmares, humiliation, loss of sleep, and physical pain and suffering” as a result. [Id., ¶ 164] Plaintiff represents that he has satisfied the CGIA notice requirement. [Id. at 9] Defendant Carmody does not dispute that Plaintiff met the CGIA notice requirement and he does not argue that the CGIA otherwise bars this claim. [See #207 at 14-15] Instead, Defendant Carmody argues that Plaintiff has failed to plead facts sufficient to establish a plausible claim of IIED against him. [Id.] The Court agrees.

29 Plaintiff continues to plead that Defendants “Christian, Carmody, Baughman, Bishop, Jossi, Foss and Erley acted negligently . . . by ordering medical staff to perform an unauthorized body cavity search on [P]laintiff with no legitimate penological reason other than to molest, harass, intimidate, [and] embarrass [P]laintiff.” [#186 at ¶ 162] But Plaintiff does not plead facts supporting a conclusion that Defendant Carmody was involved in any way with the events surrounding his pelvic x-ray. [See id. at ¶¶ 33-83] The Court therefore does not consider these events as a possible basis for Claim Eleven against Defendant Carmody.

“[A]lleged law violations, even physical violations such as assault and battery, do not automatically trigger liability for IIED.” Pebsworth v. Spirit Aerosystems, Inc., No. 16-cv-644-TCK-FHM, 2018 WL 1569496, at *4 (N.D. Okla. Mar. 30, 2018) (citing Starr v. Pearle Vision, 54 F.3d 1548, 1559 (10th Cir. 1995) (“Absent [state law] authority espousing a per se correlation . . . we cannot accept that every assault or battery is necessarily an intentional infliction of emotional distress”); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1218 (10th Cir. 2003) (reversing a grant of summary judgment on a Fourth Amendment unreasonable search claim, but upholding the grant of summary judgment as to the same conduct on an IIED claim). “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Coors Brewing Co., 978 P.2d at 666 (quotation omitted).

Apart from including him in the list of Defendants against whom Claim Eleven is brought, Plaintiff does not develop his IIED claim against Defendant Carmody. [See #186, ¶¶ 161-64]. Liberally interpreting the pleadings of Plaintiff pro se, as the Court must, any claim for IIED against Defendant Comedy must be grounded in an assertion that the “extreme and outrageous conduct” was his alleged strike to Plaintiff's head and holding of Plaintiff's legs [#186, ¶¶ 11, 14], because Plaintiff does not allege any other overt acts by Defendant Carmody [see id.]. Plaintiff likewise does not make any non-conclusory factual allegations with any tendency to show that Defendant Carmody acted recklessly or with the intent of causing Plaintiff severe emotional distress. [See id., ¶¶ 161-64]

Because Plaintiff fails to allege that Defendant Carmody committed any extreme and outrageous conduct beyond that underlying Plaintiff's claims for assault and battery, and because Plaintiff does not make any non-conclusory allegations that Defendant Carmody acted recklessly or with the intent of causing Plaintiff severe emotional distress, Plaintiff has failed to state a plausible claim for IIED. The Court therefore respectfully RECOMMENDS that Defendant Carmody's Motion be GRANTED to the extent to which it seeks dismissal of Claim Eleven against him.

3. Defendants Baughman and Bishop

Plaintiff brings Claim Eleven against Defendants Baughman and Bishop for using unnecessary and unreasonable physical force on Plaintiff. [#168, ¶ 162] While this claim is not well-developed [see id., ¶¶ 161-64], Defendants Baughman and Bishop do not apparently move to dismiss it. [See #208 at 2 (listing IIED as one of the claims brought against Defendants Baughman and Bishop), 13-15 (not seeking dismissal of Claim Eleven)] The Court therefore does not need to make any recommendation regarding Plaintiff's Claim Eleven against Defendants Baughman and Bishop, and includes it here only in the interest of clarity and completeness.

4. Defendants Foss and Erley

Plaintiff does not clearly articulate on what basis he brings Claim Eleven for IIED against Defendants Foss and Erley. [ See #186, ¶¶ 161-64] Construing the pro se complaint liberally, as the Court must at this stage, the Court infers that Plaintiff grounds this claim in the actions of Defendants Foss and Erley surrounding his nonconsensual pelvic ultrasound. [Id., ¶¶ 51-68] Defendants Foss and Erley argue that Plaintiff has failed to state a claim for IIED. [##187 at 13-14; 229 at 13-14] The Court agrees.

Plaintiff has pled that, while taking other x-ray images that he did consent to, Defendants Foss and Erley also took a pelvic x-ray to which Plaintiff did not consent. [#186 ¶¶ 51-68] Plaintiff does not make any argument as to why this constitutes behavior so outrageous and extreme “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,” Churchey, 759 P.2d at 1350, nor has the Court's research revealed any comparable situation that a court in the Tenth Circuit has found to be outrageous. Plaintiff has also not explained how Defendants Foss and Erley acted recklessly or with the intent of causing the plaintiff severe emotional distress, particularly when he did not know of their actions to be distraught by them until years later. Finally, while the Court does not question Plaintiff's assertion that the events of December 16, 2020 have left him with lingering “anxiety, nightmares, humiliation, loss of sleep, and physical pain [and] suffering” [#186, ¶ 164], it is far from clear that a pelvic x-ray-even if not consented to-can inflict emotional distress so severe that “no reasonable man could be expected to endure it.” Coomer, 2023 WL 2390711, at *10.

The Court therefore respectfully RECOMMENDS that Defendant Foss's Motion and Defendant Erley's Motion be GRANTED to the extent to which they seek dismissal of Claim Eleven.

5. Defendants in their Official Capacities

Plaintiff brings all of his claims against all Defendants in both their individual and official capacities. [#186 at 3-7] A claim brought against a defendant in their official capacity is identical to a claim asserting the same violations directly against the defendant's employer. See Martinez, 563 F.3d at 1091 (“To the extent [the plaintiff] brings a claim against [the defendant] in his official capacity, it is the same as bringing a suit against the county.”) Claim 11 against Defendants in their official capacities is therefore equivalent to a suit against Denver or Denver Health. But the CGIA does not waive public entities' sovereign immunity for their employes' willful and wanton acts. Middleton, 45 P.3d at 728. Denver and Denver Health are therefore immune from suit for any assault and battery committed by their employees. The Court therefore respectfully RECOMMENDS that the Defendants' Motions be GRANTED to the extent to which they seek dismissal of Claim Eleven as it is pled against them in their official capacities.

L. Claim 12: Negligent Training and Supervision

Plaintiff brings Claim Twelve against Defendants Christian, Carmody, Baughman, Bishop, Jossi, Campion, Pazen, and Denver for negligence, alleging that they all breached a duty of reasonable care to protect Plaintiff from unreasonable searches and seizures “by failing to provide protection, intervention, training [and] supervision.” [#186, ¶¶ 165-68] Defendants argue that Claim Twelve is barred by the CGIA. [##202 at 16-17; 203 at 9-10; 204 at 10-11; 205 at 16; 206 at 17; 207 at 15-16; 208 at 14] The Court agrees.

The CGIA does not waive immunity for negligent supervision claims. Petekeiwicz v. Stembel, No. 13-CV-01865-RM-KLM, 2015 WL 1740386, at *7 n.5 (D. Colo. Apr. 14, 2015) (citing Colo. Rev. Stat. § 24-10-106(1)(a)-(h)). Nor does Plaintiff plead any specific factual basis that would allow the Court to conclude that a failure to train by any Defendant was willful and wonton (i.e., done in conscious or reckless disregard of the rights of others). [See #186, ¶¶ 165-68]; see also McDonald, 769 F.3d at 1217-18. Furthermore, Plaintiff has not pled that any of the individual Defendants besides Defendant Pazen had any supervisory responsibilities over any other officer that might give rise to any duty of supervision and training. [See id.]

The Court therefore respectfully RECOMMENDS that Defendants' Motions be GRANTED to the extent to which they seek dismissal of Claim Twelve.

M. Claim 13: Medical Negligence

In his final claim for relief, Plaintiff alleges that Defendants Foss, Erley, and Denver Health violated “a duty of reasonable care to inform [Plaintiff] of any and all medical procedures they will be doing on [Plaintiff] and get his informed consent to perform those treatments [and] procedures.” [#186, ¶ 169] The Denver Health Defendants argue that Claim Thirteen should be dismissed because Plaintiff has failed to obtain the certificate of review required by Colo. Rev. Stat. § 13-20-602. [##187 at 12; 188 at 10; 229 at 12-13] In response, Plaintiff argues that his claim for performance of the pelvic x-ray without consent lies within the ambit of common knowledge or experience of ordinary persons, and therefore does not require expert testimony to establish the standards of acceptable professional conduct, and is thus exempt from the certificate of review process.³⁰ [#227 at 13-14]; see also Coleman v. United States, 803 Fed.Appx. 209, 212 (10th Cir. 2020) (“Colorado courts have long held that Colo. Rev. Stat. § 13-20-602 requires a plaintiff to file a certificate of review only ‘for any claim based on allegations of professional negligence that requires expert testimony to establish a prima facie case.'” (quoting Martinez v. Badis, 842 P.2d 245, 250 (Colo. 1992) (emphasis omitted))).

30 Plaintiff also argues that a certificate of review is not required in Section 1983 cases. [#227 at 13-14] Claim Thirteen, however, is brought under Colorado tort law [see #186 at 40], not under Section 1983.

As discussed previously, the traditionally recognized theory of recovery when a physician performs medical procedures without the patient's consent is battery. See Section J, above. As the Colorado Court of Appeals has explained:

The law in Colorado distinguishes between an action based on no consent (battery) and one based on lack of informed consent. Blades v. DaFoe, 666 P.2d 1126 (Colo.App. 1983), rev'd on other grounds, 704 P.2d 317 (Colo. 1985).

A physician who operates on a patient without the patient's consent, or who performs an operation different from that to which the patient consented, commits a battery and is liable for damages resulting therefrom, notwithstanding the exercise of reasonable care in performing the operation. However, if the patient consents to a surgical procedure but is uninformed about the risks of the surgery, the physician nevertheless may be liable in damages resulting from the patient's lack of informed consent. Bloskas v. Murray, 646 P.2d 907 (Colo. 1982); see also Van Leeuwan v. Nuzzi, 810 F.Supp. 1120 (D. Colo. 1993) (making the same distinction). In informed consent cases, the physician's duty to warn has evolved as a variant of medical malpractice. Bloskas v. Murray, supra.

Espander v. Cramer, 903 P.2d 1171, 1172-73 (Colo.App. 1995). In a claim for medical battery based on the absence of a patient's consent, a Colo. Rev. Stat. § 13-20-602 certificate of review is not required; in a claim for negligence based on insufficient informed consent, the certificate is required. Id. at 1172-74.

Here, Plaintiff has alleged that he “did not give consent to the pelvis x-ray at all on 12/16/2020 or any time after.” [#186, ¶ 66; see also id., ¶¶ 69, 159] Plaintiff's allegations therefore support a claim for battery (see Section J, above), but not one for medical negligence based on insufficiency of informed consent. The Court therefore respectfully RECOMMENDS that the Denver Health Defendants' Motions be GRANTED to the extent to which they seek dismissal of Claim Thirteen.

O. Leave to Amend

Finally, in the context of deciding whether Plaintiff's claims should be dismissed with or without prejudice, the Court considers whether Plaintiff should be granted further leave to amend his complaint. Federal Rule of Civil Procedure “15(a) declares that leave to amend ‘shall be freely given when justice so requires'; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). When a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (quotation omitted); see also Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).

By the Court's count, the operative Complaint is the eighth that Plaintiff has filed. [See ##4, 6, 11, 24, 31, 89, 107, 186] The operative Complaint is, however, the first to have faced motions to dismiss that were fully briefed and evaluated by the Court. [See ##131 (finding previous motions to dismiss to be moot), 178 (denying previous motions to dismiss without written recommendation or order)] Additionally, the Court recently granted Plaintiff's Motion for Appointment of Counsel. [#248] With regards to some of Plaintiff's claims, the Court therefore cannot conclude that it is obvious that Plaintiff cannot prevail on the facts he has alleged and that it would be futile to give him an opportunity to amend, particularly with the assistance of counsel. With others, however, it is obvious that Plaintiff cannot prevail on the facts he has alleged and that it would be futile to give him an opportunity to amend certain of his claims. The Court therefore respectfully RECOMMENDS that Plaintiff's claims under the Eighth Amendment, HIPAA, and 42 C.F.R. Part 2, as well as his claims for failure to report (as explained in Section III.E) and for medical negligence, be DISMISSED WITH PREJUDICE. Because the Court is not yet convinced that further leave to amend would be futile with respect to the other claims, the Court respectfully RECOMMENDS that, if this Recommendation is adopted, Plaintiff be GRANTED LEAVE to file an Amended Complaint which may not revive Plaintiff's claims under the Eighth Amendment, HIPAA, and 42 C.F.R. Part 2, or his claims for failure to report and for medical negligence.

V. CONCLUSION

For the foregoing reasons, this Court respectfully RECOMMENDS that:

1. Dr. Ruth Foss' Motion to Dismiss [#187] be GRANTED IN PART and DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2), Seven, Eight, Ten (as it is brought against her in her official capacity), Eleven, and Thirteen against her; and

b. DENIED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Fourth Amendment) and Ten (as it is brought against her in her individual capacity).

2. Denver Health and Hospital Authority's Motion to Dismiss [#188] be GRANTED in full;

3. Defendant Denver's Motion to Dismiss [#202] be GRANTED in full;

4. Defendant Pazen's Motion to Dismiss [#203] be GRANTED in full;

5. Defendant Campion's Motion to Dismiss [#204] be GRANTED in full;

6. Defendant Christian's Motion to Dismiss Plaintiff's Amended Complaint in Part [#205] be GRANTED IN PART AND DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2), Six, Seven, Eight, Nine (as it is brought against him in his official capacity), Eleven (as it is brought against him in is official capacity), and Twelve against him; and

b. DENIED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Fourth Amendment), Five, Nine (as it is brought against him in his individual capacity), and Eleven (as it is brought against him in his individual capacity).

7. Defendant Jossi's Motion to Dismiss [#206] be GRANTED IN PART AND DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2),

Five, Seven, Eight, Eleven (as it is brought against her in her official capacity), and Twelve against her; and

b. DENIED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Fourth Amendment) and Eleven (as it is brought against her in her individual capacity).

8. Defendant Carmody's Motion to Dismiss [#207] be GRANTED IN PART AND DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Six, Eight, Nine (as it is brought against him in is official capacity), Eleven, and Twelve against him; and

b. DENIED to the extent to which it seeks dismissal of Claims One, Five, and Nine (as it is brought against him in his individual capacity).

9. Motion to Dismiss Plaintiff's Amended Complaint in Part by Defendants Baughman and Bishop [#208] be GRANTED IN PART AND DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Six, Eight, Nine (as it is brought against both defendants in their official capacities, and as it is brought against Defendant Bishop for battery), Eleven (as it is brought against both defendants in their official capacities), and Twelve against them;

b. DENIED to the extent to which it seeks dismissal of Claims Five and Nine (as it is brought against Defendant Baughman for assault in his individual capacity).

10. Dr. Christopher Erley's Motion to Dismiss [#229] be GRANTED IN PART AND DENIED IN PART as follows:

a. GRANTED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Eighth Amendment, HIPAA, or 42 C.F.R. Part 2), Seven, Eight, Ten (as it is brought against him in his official capacity), Eleven, and Thirteen against him; and

b. DENIED to the extent to which it seeks dismissal of Claims Two (as it is pled under the Fourth Amendment) and Ten (as it is brought against him in his individual capacity).

If this Recommendation is adopted, the Court further RECOMMENDS that Plaintiff be granted leave to file an Amended Complaint within 21 days of the Order Adopting this Recommendation and that Plaintiff be instructed that his failure to do so will result in the dismissal of certain claims and certain defendants as outlined herein. Any Ninth Amended Complaint shall not seek to revive Plaintiff's claims under the Eighth Amendment, HIPAA, and 42 C.F.R. Part 2, or his claims for failure to report and for medical negligence³¹

31 Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).