HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 136 - DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS
Defendant.
______________________________________________________________________________
DEFENDANT JASON SHUTTERS’ REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT PURSANT TO FED. R. CIV. P. 56
______________________________________________________________________________
Defendant, Jason Shutters, through his Attorneys, Hall & Evans, LLC, submits the
following as his Reply in Support of Motion for Summary Judgment pursuant to Fed. R. Civ. P.
56, as follows:
I. ARGUMENT
A. Any force used to arrest Plaintiff Anderson was objectively reasonable under the
Fourth Amendment
1. There is no evidence Detective Shutters used any greater force then necessary
to place the handcuffs on Plaintiff.
“The Fourth Amendment protects individuals from ‘unreasonable . . . seizures,’ [citation
omitted] and courts have long recognized that the reasonableness of a seizure depends not just on
why or when it is made, but also on how it is accomplished.” Fisher v. City of Las Cruces, 584
F.3d 888, 894 (10th Cir. 2009) citing Graham v. Connor, 490 U.S. 386, 395 (1989) and U.S.
Const. amend IV. In particular, “(t)he inquiry focuses not on the officers’ particular motivations,
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nor on the arrestee’s subjective perception of the intrusion, but on ‘whether the officers’ actions
are ‘objectively reasonable in light of the facts and circumstances confronting them’” Fisher, 584
F.3d at 894 citing Graham, 490 U.S. at 395.
Based on the circumstances in this matter respecting cooperation when arrested, Plaintiff
argues his non-combative presentation did not necessitate the use of an “inappropriate” (ECF No.
133 at 1) and “high-impact” handcuffing method by Detective Shutters (ECF No. 133 at 8).
Plaintiff characterizes the “technique” used by Detective Shutters in a manner intended to create a
question of fact with respect to the reasonableness of how he was handcuffed. There are no facts,
however, to support Plaintiff’s notion that the use of any particular method was necessarily more
intrusive under the Fourth Amendment than the one actually used by Detective Shutters, or that
any such technique caused an injury more than de minimis to Plaintiff’s wrists.
Plaintiff argues the “lowest level of impact is the twist-and-lock technique,” and infers any
other method is somehow excessive. But this argument mis-cites the testimony and is not
supported by the record. In particular, Detective Shutters’ supervisor, Sergeant Cochran, testified
there are “multiple schools of training, and each of those has its own forms. Within each of those
schools of training, there are a multitude of ways to do handcuffing.” (Movant’s Appx. pp. 43
and 44 - Deposition of Sergeant Kim Cochran, 11:16-19). “(T)here are at least three or four
methods for doing handcuffing.” (Movant’s Appx. Pp. 44 - Deposition of Sergeant Kim
Cochran, 11:20-22).
The “standing cuff” is one such method and was used by Detective Shutters when he
handcuffed the Plaintiff. The standing cuff technique consisted of Plaintiff placing his hands
behind his head, interlacing his fingers, and then subsequently placing each hand behind his back
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as he was searched by Detective Shutters (Movant’s Appx. pp. 45 and 46 - Deposition of
Detective Shutters, 43:15-21). There is nothing about this method or technique which is
considered excessive, nor is there is any testimony from an expert versed in arrest procedures who
supports Plaintiff’s conclusory argument that one technique is “higher impact” than the other.
Furthermore, from Detective Shutters’ perspective, the standing cuff and the twist and lock, are
interchangeable although the standing cuff technique is considered more secure (not more
aggressive) based on the circumstances (Movant’s Appx. pp. 47 - Deposition of Detective
Shutters, 44:3-10). It is from Detective Shutters’ perspective that we address the reasonableness
of a use of force. “A particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with 20/20 vision of hindsight.” Graham,490 U.S. at 396 citing
to Terry v. Ohio, 392 U.S. 1, 22-27 (1968).
There is also nothing presented by the Plaintiff, in the form of admissible evidence, to
support the notion Detective Shutters should have utilized a “less intrusive” method because of
Plaintiff’s presentation as non-combative. Furthermore, even if a different handcuffing method
were available, it was not incumbent on Detective Shutters to use any such method. “(W)e are
mindful that the Fourth Amendment ‘does not require [police] to use the least intrusive means in
the course of a detention, only reasonable ones.’” Fisher, 584 F.3d at 894 citing Marquez v. City
of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005) (brackets in original). The use of a
particular method of handcuffing should not be “second guessed.” “Not every push or shove, even
if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.’” Fisher, 584 F.3d at 894, citing Graham, 490 U.S. 396.
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2. There is no evidence supporting Plaintiff’s argument the handcuffs
were “squeezed excessively”.
Plaintiff also argues Detective Shutters tightened the handcuffs “excessively” after asking
the Plaintiff if the handcuffs were too tight. Plaintiff implies the timing of the conversation creates
some sort of question respecting Detective Shutters’ conduct, but the evidence establishes
otherwise:
Q: Do you know what that last set of cranking was - - or what that sound
was?
A: So that’s me checking the cuffs for tightness. And one was a little bit too
loose, so it sounded like there was, what two more clicks in there, as I was asking him if either one
of those were too tight.
(Movant’s Appx. pp. 48 - Deposition of Detective Shutters, 47:7-15).
The fatal point for Plaintiff’s argument is the undisputed fact that at no time during this
discussion, did he inform Detective Shutters about the handcuffs being “excessively tight”. In
other words, there is no evidence presented by the Plaintiff that Detective Shutters had any
knowledge Plaintiff believed the handcuffs had been tightened excessively. “In this circuit…(t)o
trigger liability for unduly tight handcuffs…the plaintiff must show…the officer’s knowledge that
the handcuffs were too tight.” Zartner v. Miller, 760 Fed. Appx. 558, 561 (10th Cir. 2019)
(unpublished) (footnotes omitted,) referring to Cortez, 478 F.3d at 1129 and ftnt. 24, and Scott v.
Hern, 216 F.3d 897, 911 (10th Cir. 2000). See also Fisher v. The City of Las Cruces, 584 F.3d
888, 896 (10th Cir. 2009) referring to Rodriguez v. Farrell, 290 F.3d 1341, 1352-53 (11th Cir.
2002) (concluding officer did not use excessive force when he handcuffed plaintiff’s arm behind
his back, despite the fact that handcuffing led to eventual amputation of one arm, because officer
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did not know of plaintiff’s preexisting injury). See also Silvan W. v. Briggs, 309 Fed. Appx. 216,
224 (10th Cir. 2009) citing Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208-09 (10th Cir.
2008) (“And because there is no evidence that Cory [Plaintiff]…notified the officers that his
handcuffs were painful, he cannot maintain an excessive force claim based on unduly tight
handcuffing.”). The failure to establish any knowledge on the part of Detective Shutters regarding
Plaintiff’s complaints, precludes an excessive force claim pursuant to the Fourth Amendment.
In addition, Plaintiff’s presentation to the Poudre Valley Hospital (“PVH”) emergency
department, refutes any notion the force needed to apply the handcuffs was somehow excessive.
(See Movant’s Appx. p. 13- UC Health Medical Records at Anderson 0016; Movant’s Appx.
pp. 33 & 35-Deposition of Erin Carnahan, 30:10-12; Movant’s Appx. pp. 35 to 36-Deposition
of Erin Carnahan, 30:13-25; 31:1-6; Movant’s Appx. pp. 36 & 37- Deposition of Erin
Carnahan, 31:22-25; 32:1-5, and; Movant’s Appx. p. 37-Deposition of Erin Carnahan, 32:6-
9). Plaintiff ignores the fact his final diagnosis was “disturbance of skin sensation,” or, in other
words, a scratch (Movant’s Appx. p. 36-Deposition of Erin Carnahan, 31:7-19). He also has no
explanation for the differential diagnosis of “malingering” (Movant’s Appx. p. 34-Deposition of
Erin Carnahan, 17:12-23). Despite Plaintiff’s contention he suffers from “intermittent wrist
pain’” he offers no medical testimony contravening Erin Carnahan’s testimony that Plaintiff did
not suffer any injury to his wrists (Movant’s Appx. pp. 38 & 39-Deposition of Erin Carnahan,
36:15-22; 37:2-7).
Plaintiff relies on Krause v. Ferrari, 2010 U.S. Dist LEXIS 89501 (D. Colo. August 30,
2010, 08-cv-02808), to argue medical testimony is not required to establish the existence of an
injury. In Krause, however, the Court noted there was evidence Plaintiff “immediately
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complained [to the arresting officer] that the handcuffs were too tight” (Krause, 2010 U.S. Dist
LEXIS at *17); there was a diagnosis of nerve compression syndrome (Krause, 2010 U.S. Dist.
LEXIS at *8); and there was eye witness testimony that Plaintiff’s injury interfered with his job
(Krause, 2010 U.S. Dist LEXIS at *17. See eg. Krause, 2010 U.S. Dist. LEXIS at *8 (“The owner
of the Grease Monkey…observed that Plaintiff wore a sling on his wrist for a few weeks and that
he had trouble performing certain tasks…”)). None of these factual circumstances are presented
in this matter in the form of testimony or medical records.1, 2
In addition, it is the lack of any evidentiary support, plus the affirmative conclusions from
the only medical care provider in this matter, which support the notion Detective Shutters’ actions
1 As set forth in the Motion to Dismiss, Counsel for Detective Shutters acknowledges
the Court’s Practice Standards requiring identification of the evidentiary record, supporting this
factual statement. In this instance, however, the support is the omission of any facts necessary to
support Plaintiff’s claims. It is, therefore, not possible to provide a pin-point citation. Detective
Shutters also suggest it is the Plaintiff’s burden to affirmatively establish he received medical
treatment for his injury, other than treatment for a de minimis concern identified as a scratch.
Plaintiff has not met his burden.
2 Plaintiff also attempts to create a question of fact by presenting a declaration
wherein he states it would be difficult to operate heavy equipment (ECF No. 133-11 at 5, para.
30). This statement, however, is conclusory and speculative and should not be given any weight
as Plaintiff has been incarcerated since his arrest and has no personal knowledge with respect to
the operation of heavy equipment since his alleged injury.
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were objectively reasonable (See Movant’s Appx. pp. 35 to 36-Deposition of Erin Carnahan,
30:13-25; 31:1-6; pp. 36 & 37- Deposition of Erin Carnahan, 31:22-25;32:1-5; p. 37-
Deposition of Erin Carnahan, 32:6-9; p. 36-Deposition of Erin Carnahan, 31:7-19; p. 34-
Deposition of Erin Carnahan, 17:12-23; pp. 38 & 39-Deposition of Erin Carnahan, 36:15-22;
37:2-7; p. 40-Deposition of Erin Carnahan, 40:12-16; and see generally, pp. 22 to 32-UC
Health Medical Records, Anderson 013-0035).
Accordingly, the evidence in this matter shows Detective Shutters’ actions were reasonable
given the circumstances and, therefore, no constitutional violation exists.3
B. It is Plaintiff’s burden to establish any injuries were more than de minimis.
Plaintiff posits two arguments in order to overcome the argument he suffered something
more than a de minimis injury. First, Plaintiff argues he suffered “nerve damage” (ECF No. 133
at 8). Plaintiff, however, fails to provide any evidence of nerve damage, other than his own self-
3 Plaintiff also addresses the “other two Graham factors” and argues this Court’s
previous recommendations somehow preclude consideration of this Motion for Summary
Judgment. This argument is incorrect, as the Court previously addressed these issues within the
context of a motion to dismiss pursuant to Fed R. Civ. P. 12(b) addressing whether Plaintiff
properly pled an excessive force claim (“Balancing these three factors, the Court concludes that
Plaintiff has plausibly pled that Defendant Shutters used greater force than reasonably
necessary…”) (ECF No. 85 at 9) (emphasis added), and not whether a question of fact existed to
overcome summary judgment pursuant to Rule 56.
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serving declaration which contradicts the medical testimony and evidentiary materials.4 The only
expert disclosed is a medical professional who made a diagnosis there was no nerve damage and,
in fact, that Plaintiff suffered nothing more than a scratch. (See Movant’s Appx. pp. 35 to 36-
Deposition of Erin Carnahan, 30:13-25; 31:1-6; pp. 36 & 37- Deposition of Erin Carnahan,
31:22-25;32:1-5; p. 37-Deposition of Erin Carnahan, 32:6-9; p. 36-Deposition of Erin
Carnahan, 31:7-19; p. 34-Deposition of Erin Carnahan, 17:12-23; pp. 38 & 39-Deposition of
Erin Carnahan, 36:15-22; 37:2-7; p. 40-Deposition of Erin Carnahan, 40:12-16; and see
generally, pp. 22 to 32-UC Health Medical Records, Anderson 013-0035).
Plaintiff’s second argument - that superficial scratches are more than de minimis - relies on
Vondrak v. Las Cruces, 535 F.3d 1198 (10th Cir. 2008) (ECF No. 133 at 8). The Plaintiff’s
reliance is incorrect, as the Court in Vondrak held there was a question of fact with respect to (1)
his complaints to the police officers who handcuffed him; and (2) evidence the Plaintiff suffered
an actual injury, based on a diagnosis by a physician. Vondrak, 535 F.3d at 1209. In this matter,
neither of those factual distinctions are present. Furthermore, nowhere does Vondrak stand for
the proposition a scratch is more than a de minimis injury.
Plaintiff also cites to Koch v. City of Del City, 660 F.3d 1228 (ECF No. 133 at 8). But,
Koch supports the Defendant’s position. In Koch, the Court noted the only evidence submitted by
the Plaintiff were hospital reports noting her alleged injuries were “superficial abrasions.” Koch,
660 F.3d at 1248. No other injuries or concerns were reported, other than subjective “complaints
4 There is also no indication Plaintiff is qualified to provide an opinion he suffered
nerve damage.
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of numbness in her wrist and forearm.” Koch, 660 F.3d at 1248. The Court held Ms. Koch’s
injuries were de minimis and she could not make out a claim for excessive force. Koch, 660 F.3d
at 1248. Here, consistent with Koch, the evidence shows Plaintiff’s only “injury” was a scratch
(Movant’s Appx. p. 36-Deposition of Erin Carnahan, 31:7-19). No evidence of trauma,
swelling, redness, lacerations, or abrasions were noted, and therefore any such injury is de
minimis.
C. It is Plaintiff’s burden to establish that Detective Shutters is not entitled to
qualified immunity for any actions pertaining to Plaintiff.
To overcome his burden, Plaintiff argues Detective Shutters “opted to use greater force
than reasonably necessary when he used a high-impact method of handcuffing…” (ECF No. 133
at 10). As argued above, Plaintiff provides no support for this proposition, or any evidence refuting
Detective Shutters or Sergeant Cochran’s testimony respecting different handcuffing techniques.
Furthermore, Plaintiff inferentially concedes he never complained to Detective Shutters about the
handcuffs and, when asked by Detective Shutters, Plaintiff expressly acknowledged the handcuffs
were not too tight. Plaintiff cannot overcome either element of his two-part burden. As argued
above, the evidence in this matter establishes Detective Shutters’ actions were objectively
reasonable given the circumstances of the investigation and arrest, the lack of any trauma to
Plaintiff’s wrists, and Plaintiff’s failure to tell Detective Shutters the handcuffs were purportedly
too tight. Therefore, the Plaintiff cannot establish the existence of a constitutional violation.
III. CONCLUSION
WHEREFORE, Detective Shutters respectfully requests the Court grant his Motion for
Summary Judgment, dismiss the remaining claim against him, enter an order finding Detective
Shutters is entitled to qualified immunity, and for any other relief deemed just.
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Dated this 7th day of August 2019.
HALL & EVANS, L.L.C.
s/Mark S. Ratner____________
Mark S. Ratner
1001 17th Street, Suite 300
Denver, CO 80202
Telephone: (303) 628-3300
Facsimile: (303) 382-4325
Email: ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 7th day of August 2019, I electronically filed the
foregoing DEFENDANT JASON SHUTTERS’ REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT PURSANT TO FED. R. CIV. P. 56 with the Clerk of Court using
the CM/ECF system which will send notification of such filing to the following e-mail addresses:
Attorneys for Plaintiff:
Alexandra L. Lakshmanan
Christopher J. Casolaro
FAEGRE BAKER DANIELS LLP-DENVER
allie.lakshmanan@faegrebd.com
christopher.casolaro@faegrebd.com
Heather C. Burgess
FAEGRE BAKER DANIELS LLP-CHICAGO
heather.burgess@faegrebd.com
s/Mary McNichols Legal Assistant to
Mark S. Ratner
of HALL & EVANS, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Telephone: (303) 628-3300
Facsimile: (303) 382-4325
Email: ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
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