IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02461–CMA–KMT

CLYDE HARRIS,

Plaintiff,

v. 

OFFICER MICHAEL LUMBARD, Denver Police Dept.,

OFFICER LAURA FRANKLIN, Denver Police Dept.,

OFFICER NOEL IKEDO, Denver Police Dept., and

OFFICER JOHN DOE, Denver Police Dept., 

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This case comes before the court on Defendants’ “Motion for Summary Judgment.” 

(Doc. No. 40, filed Nov. 2, 2013.) For the following reasons, the court respectfully recommends

that Defendants’ Motion be GRANTED. 

FACTUAL BACKGROUND

The following factual background is undisputed, unless otherwise noted. In his Amended

Complaint (Doc. No. 37, filed Oct. 18, 2012), Plaintiff alleges that Defendants used excessive

force to effectuate his arrest in June 2010. 

On June 26, 2010, at approximately 2:25 a.m., Defendant Lumbard, a police officer with

the Denver Police Department, observed Plaintiff in the 2300 block of Bruce Randolph Avenue,

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in Denver, Colorado, riding a bicycle without a light. (Mot., Ex. 1, Declaration of Officer

Michael Lumbard, ¶¶ 1-2 [Lumbard Decl.]).) Denver Revised Municipal Code provides that:

“Every bicycle . . . when in use at night time, shall be equipped with a lamp on the front which

shall emit a white light visible from a distance of at least five (500) feet to the front.” (Id., Ex.

2.) 

Defendant Lumbard exited his patrol car and contacted Mr. Harris. (Lumbard Decl. ¶ 3.) 

After informing Plaintiff that he was required to have a light on his bicycle, Defendant Lumbard

asked to see Plaintiff’s identification. (Id.) Plaintiff stated that he did not have identification,

but nevertheless provided Defendant Lumbard with his name and date of birth. (Id.) Defendant

Lumbard returned to his patrol vehicle to do a routine clearance check on Plaintiff. (Id.) 

While Defendant Lumbard was in his patrol car, Plaintiff began riding away on his

bicycle. (Id. ¶ 4.) Although Defendant Lumbard ordered him to stop, Plaintiff nevertheless

continued to flee. (Id.) 

Defendant Lumbard followed Plaintiff in his patrol car for several blocks. (Id. ¶ 5.) In

an alley in the 3400 block between Josephine and Columbine Streets, Defendant Lumbard saw

Plaintiff jump off his bicycle, fall to the ground, and then get up and run on foot. (Id.) At that

time, Defendant Lumbard exited his patrol car and chased Plaintiff on foot. (Id.) 

Plaintiff subsequently fell to the ground in the yard of a residence under construction at

3411 Columbine Street. (Id. ¶ 6.) After reaching Plaintiff, Defendant Lumbard called on his

radio for other officers to assist. (Id.) Defendant Franklin, also a Denver police officer, was on

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routine patrol when she heard Defendant Lumbard’s radio dispatch. (Mot., Ex. 3, Declaration of

Officer Laura Franklin, ¶¶ 1-2 [Franklin Decl.]).) 

Defendant Lumbard observed that Plaintiff was “agitated” and got on Plaintiff’s back and

tried to control his hands. (Lumbard Decl. ¶ 7.) Plaintiff stood up and threw Defendant

Lumbard off of him. (Id.) Plaintiff then turned toward Defendant Lumbard, bladed his stance,

balled his fists, and charged toward Defendant Lumbard. (Id. ¶ 8.) 

In response, Defendant Lumbard used his Taser on Plaintiff, which cycled one time for

five seconds. (Id. ¶ 9.) However, the Taser had no effect, as Plaintiff pulled the Taser probes

from his abdomen and threw them to the ground. (Id.) Plaintiff then struck Defendant Lumbard

with a closed fist on the right side of his head. (Id.¶ 10.) The blow caused Defendant Lumbard

to stumbled and suffer from blurred vision. (Id.) Plaintiff then ran away from Defendant

Lumbard, who chased Plaintiff on foot into the street of the 3400 block of Columbine Street. 

(Id. ¶ 11.) Plaintiff turned around several times toward Defendant Lumbard in a fighting stance. 

(Id.) Each time Plaintiff turned around in this manner, Defendant Lumbard contacted Plaintiff

with his Taser in stun mood; however, the Taser again had no effect on Plaintiff. (Id.) 

When Defendant Franklin arrived on the scene, Defendant Lumbard and Plaintiff were

standing on the sidewalk on the north side of the 2500 block of Bruce Randolph Avenue. 

(Franklin Decl. ¶ 3.) Defendant Franklin observed that Defendant Lumbard was unsteady on his

feet. (Id.) 

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Defendant Lumbard gave Plaintiff loud verbal commands to get on the ground. (Id. ¶ 4.) 

However, Plaintiff ignored these commands, stepped away from Defendant Lumbard, held a

lighter to his mouth, and smoked from what appeared to be a crack pipe. (Id.) 

Defendant Franklin then ordered Plaintiff to get on the ground while pointing her pistol at

him. (Id. ¶ 5.) Plaintiff backed up to a brick wall that was behind him, and slid to a seated

position, stating “Just shoot me.” (Id. ¶ 6.)

Defendants Franklin and Lumbard approached Plaintiff. (Id. ¶ 7.) Defendant Franklin

holstered her weapon, grabbed Plaintiff’s right hand and attempted to place him in a twist lock to

gain control of him. (Id.) Both officers attempted to gain control of Plaintiff’s hands. (Lumbard

Decl. ¶ 15.) However, Plaintiff balled his fists and tensed his muscles, which prevent the

officers from gaining control of him. (Lumbard Decl. ¶ 16; Franklin Decl. ¶ 8.) Plaintiff then

pulled Defendant Lumbard down, causing all of them to fall to the ground. (Id.) 

Plaintiff continued to fight with the officers by throwing his elbows and kicking while he

was on the ground. (Lumbard Decl. ¶ 17; Franklin Decl. ¶ 9.) Defendant Lumbard struck

Plaintiff several times using his fists and knee strikes to the torso. (Lumbard Decl. ¶ 18.) 

Plaintiff continued to struggle with the officers and repeatedly said “Just fucking kill me.” (Id.) 

During the struggle Plaintiff received a laceration over his eye. (Id.) Although Plaintiff

has alleged that this injury resulted from Defendant John Doe stomping his head into the

pavement (Am. Compl. at 8), both Defendant Lumbard and Defendant Franklin submit that

Plaintiff simply “hit his head on the ground.” (Lumbard Decl. ¶ 18; Franklin Decl. ¶10.) 

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 Although spelled “Ikedo” in the caption and body of Plaintiff’s Amended Complaint,

this defendant’s last name is correctly spelled “Ikeda.” (See Ikeda Decl.)

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Defendant Franklin attempted to gain control of Plaintiff by placing his left arm in a twist

lock; however Plaintiff continued to resist by tensing his muscles and pulling his arms

underneath his body. (Franklin Decl. ¶ 11.) Defendant Franklin then placed her arm in between

Plaintiff’s arm and rib cage in an attempt to pull Plaintiff’s arm from beneath his body. (Id.) 

Other officers arrived on the scene and assisted in taking Plaintiff into custody by

controlling his head, arms, and legs, and placing him in handcuffs. (Lumbard Decl. ¶ 19;

Franklin Decl. ¶ 12.) Defendant Lumbard called for an ambulance for Plaintiff. ( Lumbard

Decl. ¶ 20.) When it arrived, Plaintiff was placed in the ambulance and was transported to

Denver Health Medical Center (“Denver Health”). (See id.; Mot., Ex. 4.) 

The paramedic report states that Plaintiff had a laceration to his head/face with a marble

sized hematoma. (Mot., Ex. 4.) Other than that laceration on his head and the fact that the

officers used a Taser on him, Plaintiff did not make any other complaints to the paramedic. (See

id.) 

Later on the morning of June 26, 2010, Defendant Ikeda,1

 a Denver Police Detective, was

assigned as the lead investigator concerning Plaintiff’s arrest for assault on Defendant Lumbard. 

(Mot, Ex. 5, Declaration of Officer Noel Ikeda, ¶¶ 1-2 [Ikeda Decl.].) Defendant Ikeda was not

on the scene of Plaintiff’s arrest and thus did not use any force or have any role in taking

Plaintiff into custody. (Id. ¶ 9.) 

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After Defendant Ikeda was informed that Plaintiff was at Denver Health on a police hold,

he proceeded to Denver Health with Denver Police Detective Eric Gray and met with Plaintiff. 

(Id. ¶ 3.) Defendant Ikeda introduced himself to Mr. Harris and provided him with a written and

oral Miranda advisement. (Id. ¶ 4.) Plaintiff waived his Miranda rights and signed the written

advisement. (Id.) 

Plaintiff then gave an audio-recorded statement to Defendant Ikeda. (Id.) Plaintiff said

that an officer stopped him, and because he knew he had a warrant for violating his parole, he

fled on his bicycle. (Id. ¶ 5.) Plaintiff admitted to Defendant Ikeda that he resisted arrest and

that the police officer used his Taser on him without effect. (Id. ¶ 6.) Plaintiff bragged that he

stood up when the police officer was on his back and that the officer could not hit him. (Id. ¶ 7.)

Plaintiff further admitted that he had a crack pipe in his hand and that he had smoked crack

before his arrest. (Id. ¶ 8.) 

On June 28, 2010, Defendant Ikeda met with a Denver Deputy District Attorney, who

accepted the case against Plaintiff for filing. (Id. ¶ 11.) Plaintiff was ultimately charged with

two felony counts of assault on a peace officer, in violation of Colo. Rev. Stat. § 18-3-203(1)(c)

and (1)(f), and one misdemeanor count of resisting arrest, in violation of Colo. Rev. St. § 18-8-

103. (Mot., Ex. 6 at 4, 34-36, 50-51.) On January 6, 2011, pursuant to a plea agreement,

Plaintiff pled guilty to an added felony count of attempted second degree assault on a peace

officer, in violation of Colo. Rev. Stat. § 18-3-203(1)(c). (Id. at 14.) On February 18, 2011,

Plaintiff was sentenced to four years in the Colorado Department of Corrections with two years

mandatory parole. (Id.) 

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PROCEDURAL HISTORY

Plaintiff’s Amended Prisoner Complaint, filed on October 10, 2012, asserts four claims

for relief pursuant to 42 U.S.C. § 1983. (See Am. Compl.). Plaintiff’s first claim alleges, in

pertinent part, that Defendant Lumbard “ordered the Plaintiff to get on the ground and after

doing so . . . began pulling Plaintiff’s arm in [an] upward position for over Thirty (30) minutes

causing the Plaintiff severe pain in [his] lower back.” (Id. at 5.) Plaintiff’s second claim alleges

that Defendant Franklin “held her service weapon on the Plaintiff and refused to intervene in the

actions which caused Plaintiff’s injuries.” (Id. at 6.) Plaintiff’s third claim alleges that

Defendant Ikeda “had Plaintiff’s right leg in shackles and was pulling Plaintiff’s leg upward

causing nerve damage in Plaintiff’s foot.” (Id. at 7.) Finally, Plaintiff fourth claim alleges that

Defendant John Doe “stomped on the Plaintiff’s head severly [sic] into the pavement causing the

skin to separate from Plaintiff’s head and causing injury to Plaintiff’s eye, requiring the Plaintiff

to receive stiches [sic] to the eye area.” (Id. at 8.) 

Defendant’s Motion for Summary Judgment was filed on November 2, 2012. (See Mot.) 

Pursuant to D.C.COLO.LCivR 7.1C and Fed. R. Civ. P. 6(d), Plaintiff had until November 26,

2013 to file a response. No response was by or at any time after that date. Accordingly, this

matter is ripe for the court’s review and recommendation.

LEGAL STANDARDS

A. Summary Judgment Standard

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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The moving party bears the initial burden of showing an absence of evidence to support the

nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving

party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for

trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518

(10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the

allegations in the pleadings, but must instead designate “specific facts showing that there is a

genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact

is “material” if “under the substantive law it is essential to the proper disposition of the claim.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a

reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co.,

631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible

evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The

factual record and reasonable inferences therefrom are viewed in the light most favorable to the

party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff

is proceeding pro se, the court, “review[s] his pleadings and other papers liberally and hold[s] them

to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d

1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings

drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff’s version of the facts

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must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).

“When opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007); Thomson, 584 F.3d at 1312.

B. Qualified Immunity

The doctrine of qualified immunity shields government officials from individual 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.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Qualified immunity is “an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 121 (2001). 

 Because of the underlying purposes of qualified immunity, courts address qualified

immunity questions differently from other summary judgment decisions. Medina v. Cram, 252

F.3d 1124, 1128 (10th Cir. 2001). After a defendant asserts a qualified immunity defense, the

burden shifts to the plaintiff, who must meet a “heavy two-part burden.” Id. Plaintiff first must

establish that the facts, taken in the light most favorable to him, show that the officer’s conduct

violated a constitutional right. Saucier, 533 U.S. at 201. If Plaintiff establishes a violation of a

constitutional or statutory right, “the next, sequential step is to ask whether the right was clearly

established.” Id. This determination must be made “in light of the specific context of the case,

not as a broad general proposition.” Id. “[T]he relevant, dispositive inquiry . . . is whether it

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would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. at 202. If the plaintiff fails to satisfy either part of this “heavy two-part

burden,” the court must grant the defendant qualified immunity and dismiss the deficient claims.

The United States Supreme Court has altered somewhat the analytical process outlined in

Saucier, holding that the sequence of the analysis is no longer mandatory. Pearson v. Callahan,

555 U.S. 223 (2009). The judges of the district courts and the courts of appeals are now

permitted to exercise their sound 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. Id. at 236. The Supreme Court noted, however, that the sequence set forth in Saucier

often is the appropriate analytical sequence. Id.

ANALYSIS

As a threshold matter, although Plaintiff’s Amended Complaint invokes the Fourth, Fifth,

Eighth, and Fourteenth Amendments in support of each of his claims (Am. Compl. 5-8), the

court does not and cannot construe Plaintiff’s Amended Complaint to assert claims under either

the Fifth or Eighth Amendment. First, the Eighth Amendment does not apply because Plaintiff’s

claims relate solely to the circumstances surrounding his arrest, and the Eighth Amendment is

implicated only after conviction and sentencing. Graham v. Connor, 490 U.S. 386, 392 n.6

(1989) (citing Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)). Second, the Fifth

Amendment does not and cannot apply because Plaintiff’s claims relate solely to the actions of

local police officers. See Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 748 n.2 (10th

Cir. 2013) (The Due Process Clause of the Fifth Amendment applies only to actions by the

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federal government and, moreover, there can be no Fifth Amendment claim under § 1983

because the statute imposes liability only for actions taken under state law). 

Ultimately, the court construes Plaintiff’s Complaint to assert claims for excessive force

in violation of the Fourth Amendment, which is incorporated against the states by the Fourteenth

Amendment, and a claim for failure to intervene to prevent the use of excessive force. Graham,

490 U.S. at 395 (where an excessive force claim arises in the context of an arrest, it is properly

treated as one invoking the protections of the Fourth Amendment); United States v. RodriguezRodriguez, 550 F.3d 1223, 1225 n.1 (10th Cir. 2008) (citing Mapp v. Ohio, 367 U.S. 643 (1961))

(“[T]he Fourth Amendment applies against state law enforcement officials as incorporated

through the Due Process Clause of the Fourteenth Amendment.”). To the extent that Plaintiff

sought to assert any other claims, he has failed to comply with the pleading requirements of

Federal Rule of Civil Procedure 8. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each

defendant did to him or her; when the defendant did it; how the defendant’s action harmed him

or her; and, what specific legal right the plaintiff believes the defendant violated.”).

A. Excessive Force

Defendants argue that they are entitled to qualified immunity and therefore summary

judgment from Plaintiff’s claims for excessive force. The court agrees. 

In the context of an arrest, “to establish a constitutional violation, the plaintiff must

demonstrate the force used was objectively unreasonable.” Estate of Larsen ex rel. Sturdivan v.

Murr, 511 F. 3d 1255, 1259 (10th Cir. 2008). “In determining whether a use of force is

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unreasonable under the Fourth Amendment, [the court] balance[s] the nature and quality of the

encroachment on the individual’s Fourth Amendment interests against the government’s

countervailing interests.” Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010). 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; see also Sturidivan, 511 F.3d at 1259. “Moreover, because ‘police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessarily in a particular situation, the

reasonableness of the officer’s belief as to the appropriate level of force should be judged from

that on-scene perspective.’ ” Sturdivan, 511 F.3d at 1259-60 (quoting Saucier, 533 U.S. at 205). 

The court “consult[s] three non-exclusive factors to determine whether an officer’s use of force

is reasonable: (1) the severity of the crime, (2) whether the suspect poses an immediate threat to

the safety of officers or others, and (3) whether the suspect is actively resisting arrest or evading

arrest by flight. Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir. 2011) (citing Lundstrom, 616

F.3d at 1126). 

The court finds that Plaintiff has failed to established that the facts, taken in a light most

favorable to him, show that Defendants’ violated his Fourth Amendment rights. Saucier, 533

U.S. at 201. As to Plaintiff’s claim against Defendant Ikeda, contrary to Plaintiff’s allegations,

there is no evidence in the record to suggest Defendant Ikeda used any, let alone excessive, force

on Plaintiff. Rather, according to the undisputed facts, Defendant Ikeda only contacted Plaintiff

after he had been detained and transported to Denver Health, and did not subject Plaintiff to any

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force whatsoever. (Ikeda Decl. ¶¶ 3-9.) Thus, Plaintiff’s excessive force claim against

Defendant Ikeda fails.

Similarly, there is no evidence in the record to support Plaintiff’s allegations that, after

ordering him “to get on the ground,” Defendant Lumbard “pull[ed] Plaintiff’s arm in an upward

position for over thirty (30) minutes.” (Am. Compl. at 5.) Likewise, in light of the fact that

Plaintiff was an adult suspected of committing a crime, the sole fact that Defendant Franklin

“held her service weapon on the plaintiff” (Am. Comp. at 6) is insufficient to establish a claim

for excessive force. See Henry, 658 F.3d at 1240-41.

Further, even assuming Plaintiff seeks to challenges the totality of Defendants Lumbard’s

and Franklin’s conduct, the court finds on the undisputed facts that their actions were objectively

reasonable. With respect to the first factor, although the original crime allegedly committed by

Plaintiff—riding a bicycle without a light—was relatively minor and certainly non-violent,

Plaintiff subsequently committed two considerably more severe crimes by fleeing on his bicycle

and striking Defendant Lumbard in the head—the latter, of course, being a violent crime. Colo.

Rev. Stat. §§ 18-3-203(1)(c), 18-8-103. Indeed, Plaintiff ultimately pled guilty to second degree

assault on a peace officer. (Mot., Ex. 6 at 14.)

With respect to the remaining factors, the court finds that each and every time that

Defendants Lumbard and Franklin employed force against Plaintiff, he presented either an

immediate risk to officer safety or was actively resisting or evading arrest. First, Defendant

Lumbard jumped on Plaintiff’s back and attempted to restrain Plaintiff’s hands only after

Plaintiff had fled the scene of the initial contact and had been ordered to stop. (Lumbard Decl.

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¶¶ 4-7.) Second, Defendant Lumbard only deployed his Taser when that initial attempt to

restrain Plaintiff was unsuccessful—i.e., after Plaintiff stood up and threw Defendant Lumbard

from his back—and after Plaintiff had turned toward him, assumed a bladed stance, balled his

fists, and then charged. (Id. ¶¶ 7-9.) See Hinton v. City of Elwood, 997 F.2d 774, 777 (10th Cir.

1993) (holding that it is not excessive force for officers to use an “electrical stun gun” on a man

resisting arrest).

However, because Defendant Lumbard’s attempt to stun Plaintiff with his Taser was

unsuccessful, Plaintiff was able to strike Defendant Lumbard with a closed first and run away. 

(Lumbard Decl. ¶¶ 9-11.) In light of this attack, it was reasonable for Defendant Lumbard to

again deploy his Taser when Plaintiff turned around several times towards him in a fighting

stance. (Id. ¶ 11.)

Ultimately, Defendant Franklin was able to order Plaintiff to the ground by displaying

her pistol. (Franklin Decl. ¶¶ 5-6.) However, Plaintiff continued to resist efforts to restrain him

by balling his fists and tensing his muscles, and imposed a physical threat to the officers’ safety

by throwing his elbows and kicking while he was on the ground. (Id. ¶¶ 8-9.) Accordingly, in

order to restrain Plaintiff, the court finds that it was reasonable for (1) Defendant Lumbard to

strike Plaintiff several times using his fists and knee strikes to the torso, and (2) Defendant

Franklin to place Plaintiff’s arm in a twist lock and to attempt to pull Plaintiff’s arm from

beneath his body. (Id. ¶ 8; Lumbard Decl. ¶ 18.) 

Even considering the facts in a light most favorable to Plaintiff, the court finds that each

display of force resorted to by Defendants Lumbard and Franklin was reasonable and

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 Because it finds on the merits that Defendants are entitled to qualified immunity from

Plaintiff’s excessive force claims, the court does not consider Defendants’ alternative argument

that Plaintiff’s excessive force claims are barred under Heck v. Humphrey, 51 U.S. 477, 487

(1994). See Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004) (noting Heck is

not jurisdictional and proceeding to evaluate the merits of the plaintiff’s claims). 

15

proportionate to either Plaintiff’s (1) threatened or actual use of force against them, or (2)

attempts to flee. Accordingly, because Defendant Lumbard’s and Franklin’s respective uses of

force were not objectively unreasonable under the circumstances, Plaintiff has failed to establish

a violation of his Fourth Amendment rights.2 Therefore, the court finds that Defendants are

entitled to qualified immunity, and that Defendants’ Motion for Summary Judgment is properly

granted, on Plaintiff’s excessive force claims. 

B. Failure to Intervene

Plaintiff’s second claim also asserts that Defendant Franklin “refused to intervene in the

actions which caused Plaintiff’s injuries.” (Am. Compl. at 6.) An officer may be held liable

under § 1983 if she failed to intervene to prevent a fellow officer’s use of excessive force. Mick

v. Brewers, 76 F.3d 1127, 1136 (10th Cir. 1996). However, “establishing a constitutional

violation [for excessive force] is a necessary predicate to any claim that an officer failed to

intervene.” Mata v. City of Farmington, 791 F. Supp. 2d 1118, 1156 (D.N.M. 2011) (citing Hall

v. Burke 12 F. App’x 856, 861 (10th Cir. 2001)). Because Plaintiff has failed to establish a claim

for excessive force, he cannot establish a claim for failure to intervene against Defendant

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 Defendants have also construed Plaintiff’s Amended Complaint to assert claims against

them in their official capacities. The court disagrees with this construction. “Where the

complaint fails to specify the capacity in which the government official is sued, [the court]

look[s] to the substance of the pleadings and the course of the proceedings in order to determine

whether the suit is for individual or official liability.” Pride v. Does, 997 F.2d 712, 715 (10th

Cir. 1993). Here, any official capacity claims would be tantamount to claims against the City

and County of Denver (“Denver”), see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55

(1978), which may be held liable under § 1983 only for its own unconstitutional or illegal

policies and not for the allegedly tortious acts of its employees, Barney v. Pulsipher, 143 F.3d

1299, 1307 (10th Cir. 1998). Plaintiff’s Amended Complaint is devoid of any allegations

suggesting that Defendants’ actions were taken pursuant to an official municipal policy or

custom. In any event, even gratuitously assuming Plaintiff did intend to name Defendants in

their official capacities, any such claim would necessarily fail because Plaintiff has failed to

establish a predicate constitutional violation by a Denver police officer. Olsen v. Layton Hills

Mall, 312 F.3d 1304, 1317-18 (10th Cir. 2002). 

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Franklin. Accordingly, Defendants’ Motion for Summary Judgment is properly granted as to

this claim.3

 

C. Defendant John Doe 

Plaintiff’s only remaining claim alleges that Defendant John Doe used excessive force by

stomping Plaintiff’s head into the pavement. (Am. Comp. at 8.) However, despite the fact that

deadlines to amend the pleadings and conduct discovery have long since passed (see Courtroom

Minutes Re: Prelim. Sched. Conf., Doc. No. 25), Plaintiff has not moved to amend his complaint

to identify this defendant. Furthermore, § 1983 claims are governed by a two-year statute of

limitations codified at Colo. Rev. Stat. § 13-80-102. Workman v. Jordan, 32 F.3d 475, 482 (10th

Cir. 1994). More than two years have passed since Defendant Doe’s alleged conduct during

Plaintiff’s arrest on June 26, 2010. Therefore, the statute of limitations has run with respect to

Plaintiff’s claim against Defendant Doe. Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004)

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(substitution of named defendants for previously unknown John Doe defendants did not relate

back under Fed. R. Civ. P. 15(c), and was therefore time-barred, because a lack of knowledge of

the intended defendant’s identity is not a “mistake concerning the identity of the proper party”

under Rule 15(c)(3)(B)); see also Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999). 

Accordingly, the court recommends that Plaintiff’s claim against Defendant Doe be dismissed

sua sponte. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“A complaint may be

dismissed sua sponte under § 1915 based on an affirmative defense – such as statute of

limitations – only when the defense is obvious from the face of the complaint and no further

factual record is required to be developed.”);

WHEREFORE, for the foregoing reasons, I respectfully 

RECOMMEND that Defendants’ “Motion for Summary Judgment” (Doc. No. 40) be

GRANTED, that summary judgment be entered in favor of Defendants Lumbard, Franklin, and

Ikeda, and that Plaintiff’s claims against Defendant John Doe be dismissed sua sponte. 

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings 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); 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

Case 1:11-cv-02461-CMA-KMT Document 45 Filed 08/22/13 USDC Colorado Page 17 of 18
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review by the district court or for appellate review.” United States v. One Parcel of Real Prop.

Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal

the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

Dated this 22nd day of August, 2013.

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