HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 157 - DEFENDANT SHUTTERS RESPONSE IN OPPOSITION TO PLAINTIFF'S OBJECTIONS TO THE MAGISTRATES RECOMMENDATIONSIN 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’ RESPONSE IN OPPOSITION TO PLAINTIFF’S
OBJECTIONS TO THE MAGISTRATE’S RECOMMENDATIONS ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No.156)
______________________________________________________________________________
Defendant, Jason Shutters, through his Attorneys, Hall & Evans, LLC, submits the
following as his Response in Opposition to Plaintiff’s Objections to the Magistrate’s
Recommendations on Defendant’s Motion for Summary Judgment (ECF No. 156):
I. INTRODUCTION
Plaintiff provides objections to the Magistrate’s Amended Recommendations, based on the
notion Detective Shutters somehow knew the handcuffs applied to Mr. Anderson were too tight,
and therefore he is not entitled to qualified immunity. His objections, however, are conclusory as
there is no cited pertinent testimony or admissible evidence provided which supports any such
notion. Furthermore, Plaintiff’s objections do not address any of the cited, pertinent case law
discussed by the Magistrate Judge, and no argument is presented addressing the de minimis nature
of Plaintiff’s alleged injuries. Plaintiff’s objections should, therefore, be overruled.
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II. ARGUMENT
A. The Magistrate’s Recommendation correctly determined that Detective
Shutters is entitled to qualified immunity.
“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,
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.
1. There is no evidence supporting Plaintiff’s argument the
handcuffs were “squeezed excessively”.
Plaintiff argues Detective Shutters tightened the handcuffs “excessively”, after first asking
him if the handcuffs were too tight. Plaintiff infers the timing of the conversation creates some
sort of question respecting Detective Shutters’ conduct. The fatal point for Plaintiff’s argument,
however, 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. As acknowledged by the Magistrate Judge, “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 v. McCauley, 478 F.3d 1108,
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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 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. See also Magistrate’s Recommendation, ECF No. 152 at 9.
Here, the Magistrate’s Recommendation properly recognizes that the interaction between
Detective Shutters and Mr. Anderson was civil. Detective Shutters, “gave multiple verbal
commands to Plaintiff and Plaintiff complied” without incident (ECF No. 152 at 2, citing to ECF
Nos. 128-1 at 10; 133-4 at 7 (38:3-12); 133-7 at 3 (16:4-9), and referring to ECF No. 129, Audio
Recording at 3:12-6:17). The Court noted that after the handcuffs were placed on the Plaintiff, the
“(Defendant asked Plaintiff if the handcuffs were too tight, to which Plaintiff responded, “No,
that’s fine, completely fine.’” (ECF No. 152 at 2-3, citing ECF Nos. 128-1 at 10; 129, Audio
Recording at 4:30-32)). The Court properly analyzed the subsequent interaction between Mr.
Anderson and Detective Shutters:
In reviewing the Audio Recording, Defendant testified that he then
checked the cuffs for tightness, found one to be a little bit too loose,
‘so it sounded like there w[ere]…two more clicks’ to tighten the lose
cuff. [ECF No. 133-4 at 11 (47:1-15); and ECF No. 129, Audio
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Recording at 4:#1-39]. A few seconds later, Defendant asked
another officer if they had a double lock, and explained to Plaintiff
that Defendant was double locking the handcuffs so that they would
not get tighter. [ECF No. 129, Audio Recording at 4:37-50; and ECF
No. 128-1 at 10]. Defendant stated in his police report that after
double locking, he again checked for tightness ‘by inserting [his]
index finger between the side of [Plaintiff’s] wrist and the handcuff.’
[ECF No. 128-1 at 10]
ECF No. 152 at 3.
The importance of this interaction is the fact a relatively lengthy opportunity existed for
Plaintiff to complain about the handcuffs being too tight. A complaint, however, which never
materialized. The Court correctly notes that the interaction between the Plaintiff and Detective
Shutters “lasted between two and three more minutes after Defendant completed the handcuffing.”
(ECF No. 152 at 3). This interaction included: Detective Shutters asking that Mr. Anderson
observe him locking Anderson’s vehicle (ECF No. 152 at 3, citing ECF Nos. 128-1 at 10, and;
129, Audio Recording at 5:19-48); Detective Shutters asking Mr. Anderson if he had any
questions, and Mr. Anderson responding he did not (ECF No. 152 at 3, citing ECF No. 129, Audio
Recording at 6:15-6:17), and; Detective Shutters asking Mr. Anderson if there was a passcode for
his phone, and Mr. Anderson confirming there was, but he would not provide it (ECF No. 152 at
3, citing ECF No. 129, Audio Recording at 6:43-53). At no point during these exchanges did Mr.
Anderson complain about the handcuffs being too tight, nor is there any indication he was
precluded from doing so. Plaintiff does not address this undisputed fact acknowledged by the
Court in rendering its Recommendations: “Nor is there any indication that Plaintiff was somehow
precluded from telling Defendant about the tightness of the handcuffing” (ECF No. 152 at 12).
“Indeed, moments before the extra tightening, Defendant had asked Plaintiff about the tightness
of the handcuffs, clearly evidencing a willingness to adjust them if plaintiff experienced
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discomfort.” (ECF No. 152 at 12). Furthermore, another approximately three minutes existed after
the additional tightening of the handcuffs, where an unidentified officer could be heard making
another statement to the Plaintiff, to which the Plaintiff responds, “Of course.” (ECF No. 152 at 3,
citing ECF No. 129, Audio Recording at 7:30-7:32). Based on this undisputed evidence, the Court
correctly concludes the Plaintiff, “failed to establish either prong of his qualified immunity
analysis” (ECF No. 152 at 8).
In rendering its Recommendations, the Court also correctly relied on Vondrak, supra. And
noted that “a plaintiff cannot prevail on an excessive force handcuffing claim unless either (1) the
plaintiff timely informs the officer that the handcuffs are too tight, or (2) the officer is otherwise
made aware that the handcuffs are too tight.” ECF No. 152 at 9, citing Vondrak, 535 F.3d at 1208-
09, and referring to Lewis v. Sandoval, 428 F. App’x 808, 811-12 (10th Cir. 2012) (finding
defendant officer was entitled to qualified immunity where the plaintiff did not complain of any
discomfort from the handcuffs until he arrived at the police station…) In his objections, Plaintiff
offers no analysis or refutation of the holding in Vondrak. Furthermore, Plaintiff infers the mere
knowledge of his complaints, such as when he was at the police station, is enough to overcome his
burden. But, such an analysis is incorrect as there is no evidence presented that Detective Shutters
ignored Plaintiff’s complaints. See ECF No. 152 at 10 citing Osei v. Brooks, No. 11-cv-01135-
PAB-KMT, 2013 WL 1151619, at *9 (D. Colo. Mar. 19, 2013) (“[B]ecause [plaintiff] did not alert
the police officers that his handcuffs were too tight, the police officers cannot be liable for ignoring
his complaints.”)
Additionally, Plaintiff’s objections do not address the Court’s findings that, “during the
several minute interactions between Defendant and Plaintiff, Plaintiff never once complained
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about tight handcuffs or wrist pain.” (ECF No. 152 at 12). Mr. Anderson provides no evidence
to refute the fact that he “never informed Defendant of any discomfort from the additional
tightening, nor is there any other evidence suggesting that the Defendant might have been aware
that the handcuffs were too tight.” ECF No. 152 at 12, citing Nauman v. Utah Highway Patrol,
No. 2:14 -cv-00560-CW-DBP, 2016 WL 11188474 at *4 (D. Utah Aug. 31, 2016).
The Magistrate’s Recommendation ultimately concludes, “(i)n short, during the two to
three minutes of interaction and conversing between Plaintiff and Defendant after the additional
tightening, Plaintiff never raised any complaints with Defendant.” (ECF No. 152 at 14). “Plaintiff
failed to notify defendant that the handcuffs were too tight and failed to present evidence that
Defendant otherwise knew that the handcuffs were too tight. Plaintiff has not identified a case that
clearly establishes a violation of Plaintiff’s rights under such circumstances.” ECF No. 152, ftnt.
6, referring to District of Columbia v. Westby, 138 S. Ct. 577, 590 (2018) (“We have repeatedly
stressed that courts must not define clearly established law to 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.”). “(t)here is no evidence that Plaintiff made a contemporaneous complaint
to Defendant, which Defendant ignored, as required for an excessive force claim” (ECF No. 152
at 17 referring to Nauman, 2016 WL 11188474 at *4. The Court was, therefore, correct in
recommending that the Detective Shutters is entitled to summary judgment (ECF No. 152 at 17).
B. Plaintiff offers no argument refuting any notion he suffered a de minimis
injury.
The Magistrate’s Recommendation does not expressly address the de minimis nature of
Plaintiff’s alleged injury. The Recommendation, however, still acknowledges Plaintiff’s burden
to establish “some actual injury caused by the unreasonable seizure that is not de minimis” (ECF
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No. 152 at 16) (emphasis in original). Plaintiff’s objections do not venture into refuting any of the
cited facts by the Magistrate. Specifically, that Plaintiff was transported to Poudre Valley Hospital
by EMS. Despite complaints of wrist numbness and pain “no trauma [was] visualized.” (ECF No.
152 at 4). In addition, the Plaintiff had “equal grip strength” E(CF No. 152 at 4, citing ECF No.
133-10 at 18). Once he arrived at Poudre Valley Hospital, he was examined by Physician Assistant
Erin Carnahan (ECF No. 152 at 4). Mr. Carnahan noted that “Plaintiff’s wrists had no visual
evidence of trauma, and that there as ‘no swelling[,] no erythema, no laceration, [and] no
abrasion.’” (ECF No. 152 at 5, citing ECF No. 128-1 at 15, 38). Full range of motion of the distal
appendages was noted (ECF No. 152 at 5, citing ECF No. 133-10 at 5). Mr. Carnahan’s differential
diagnosis included “malingering’ (ECF No. 152 at 5, citing ECF No. 133-10 at 2). The final
diagnosis was “disturbance of skin sensation.” (ECF no. 152 at 5, citing ECF No. 133-10 at 2).
“Mr. Carnahan testified that in his training and experience, ‘disturbance of skin sensation’ means
‘an excoriation,’ or ‘scratch’ – in other words, ‘[a]nything that disturbs the epidermis.’” (ECF no.
142 at 5, citing ECF No. 133-9 at 4 (13:22-25). The conclusion by PA Carnahan, was that the
Plaintiff “did not suffer any injury to his wrists.” (ECF No. 152 at 5, citing ECF No. 128-1 at 40-
41 (36:20-22, 37:2-7).
To the extent the Magistrate’s Recommendation addresses a de minimis injury, the Plaintiff
does not refute any such findings.
III. CONCLUSION
WHEREFORE, Detective Shutters respectfully requests the Court overrule Plaintiff’s
objections, and grant his Motion for Summary Judgment, dismiss the remaining claim against him,
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enter an order finding Detective Shutters is entitled to qualified immunity, and for any other relief
deemed just.
Dated this 17th
day of December 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 17th
day of December 2019, I electronically filed the
foregoing DEFENDANT JASON SHUTTERS’ RESPONSE IN OPPOSITION TO
PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE’S RECOMMENDATIONS ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 156) 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/Annah Hillary, 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
ATTORNEY FOR DEFENDANT
JASON SHUTTERS
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