Case 1:16-cv-01763-WYD-MEH Document 33 Filed 09/28/17 USDC Colorado Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel

Civil Action No. 16-cv-01763-WYD-MEH

THE ESTATE OF PAUL CASTAWAY,

by and through LILLIAN CASTAWAY,
also known as LYNN EAGLE FEATHER,
as personal representative,

Plaintiff,

v.

CITY AND COUNTY OF DENVER,

MICHAEL TRAUDT, individually and in his official capacity,
JERRY LARA, individually and in his official capacity,
ROBERT C. WHITE, individually and in his official capacity,

Defendants.

ORDER ON MOTION TO DISMISS

I. INTRODUCTION

THIS MATTER is before the Court on Defendants Motion to Dismiss which is

fully briefed. The case arises from the death of Paul Castaway on July 12, 2015, as a

result of being shot by Denver police officers during an altercation. The motion seeks to

dismiss Plaintiffs claims for relief under 42 U.S.C. 1983, including an excessive force

claim against the individual Defendants and a municipal liability claim. Discovery has

been stayed pending resolution of this motion as it raises the defense of qualified

immunity. Plaintiff filed a motion for a hearing on the motion to dismiss. I deny that

motion as I find that a hearing is unnecessary.

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II. FACTS

The Complaint alleges that Paul Castaway was killed on July 12, 2015, as a

result of the grossly excessive deadly force employed by officers of the Denver Police

Department and by the deliberately indifferent supervision by the City and County of

Denver of its police officers. (Compl., 1.) Mr. Castaway was 35 years old when he

was killed, was homeless, and suffered from multiple mental illnesses. (Id., 2.)

As to the facts that led up to the use of deadly force against Mr. Castaway, it is

alleged that on July 12, 2015, Mr. Castaway went to the home of his mother, Lynn

Eagle Feather, where an altercation took place between them. (Compl., 16-17.)

Ms. Eagle Feather left her home and went to the Denver Indian Center to call the

Denver police, reporting that she had been involved in an altercation with her mentally ill

son whom she believed to be suicidal. (Id. 3, 17.) Ms. Eagle Feather reported to the

police that her son had poked her in the neck with a knife, but that she was not bleeding

and did not need medical care. (Id.) Officers Traudt and Lara were dispatched in

response to the call. (Id., 20.) While the Defendant officers assert that there are no

allegations that they knew of Mr. Castaways alleged mental illness, this is not accurate.

The Complaint alleges that Ms. Eagle Feather reported this to the police and that the

officers knew that Mr. Castaway was mentally ill and suicidal. (Id., 4.)

While at the Denver Indian Center, the officers saw Mr. Castaway nearby and

initiated contact with him by pulling their patrol car into a parking lot and announcing

their presence. (Compl., 20-22.) Mr. Castaway then began walking away and the

officers chased him. (Id., 23-24.) Mr. Castaway ran into the Capitol City Mobile

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Home Park. (Id., 23.) At some point Officers Traudt and Lara saw that he had a

kitchen knife, and that he had it held to his own throat. (Id., 24.) Defendant Officer

Traudt reports that Mr. Castaway said to him, kill me, you fucking pussy, and then

turned and continued to run further into the mobile home park. (Id. 25.)

The videowhich begins midway through the officers foot pursuit of

Mr. Castawaydepicts the following. A group of approximately 10 children and young

adults scatter as Mr. Castaway runs into an alley holding a knife towards his own throat.

(Ex. 1 at 0:23.) The officers follow 10-20 feet behind Mr. Castaway with their weapons

holstered. Mr. Castaway quickly turns to the right and crouches behind a fence. (Id. at

0:27-0:28.) At that point he is cornered in an enclosed parking cubby. (Compl., 26.)

The officers come around the corner and draw their guns. (Ex. 1 at 0:28-0:30.) Officer

Traudt reports that Mr. Castaway began approaching [him] at a fast walk, with the

knife still held at his own throat. (Compl., 26-27.)

During this time, Officer Traudt reports that he told Mr. Castaway to drop the

knife and that Mr. Castaway began to move the knife towards Officer Traudt.

(Compl., 29.) The Complaint also alleges, however, that [s]urveillance video clearly

shows that Mr. Castaway began walking towards the Defendant Officers while holding

the knife to his own neck. (Id., 33.) He clearly holds the knife to his own neck when

he runs into the parking cubby and then holds it straight up with both hands, pointing its

tip straight into his own throat. (Id., 42.) It is alleged that [a]lthough his back is

turned towards the camera that captured the shooting, it appears that Mr. Castaway still

has the knife pointed at his own throat, and that he is not posing a threat to anybody

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other than himself. (Id., see also 46.) He is not pointing the knife at Defendant

Officer Traudt, because Mr. Castaway is seen holding the knife with both hands, with

his elbows at an unusually high angle. (Id.) The position of Mr. Castaways elbows

did not change before he was shot by Defendant Officer Traudt. (Id.)

Officer Traudt reported, and the surveillance video showed, that he then began to

retreat from Mr. Castaway, with his gun in his hand covering Mr. Castaway. (Compl.,

2.) Officer Traudt bumped into a trash can but does not stumble, instead continuing to

back up. Two groups of children and other people can be seen behind Officer Traudt.

Officer Lara, who is not directly in Mr. Castaways path, also stepped backwards,

holstering his gun and reaching for his TASER. (Ex. 1 at 0:30-0:34; Compl., 32.)

Once Mr. Castaway advanced to within approximately 10 feet of Officer Traudt,

Officer Traudt then fired three shots from his weapon, two of which made contact with

Mr. Castaway. (Compl., 31.) Defendants estimate that Mr. Castaway was 7 to 10 feet

away from Officer Traudt when he was shot. Plaintiff alleges that Officer Traudt could

have drawn his taser initially instead of relying on his service pistol and deadly force to

resolve this encounter with a mentally ill, homeless person, and that [i]t was

constitutionally unreasonable for Defendant Officer Traudt to use deadly force under the

totality of the circumstances. (Id., 45.) Plaintiff further alleges that Officer Traudt

reported that he had been Crisis Intervention Team trained and certified and that he

did not attempt to employ the training he received regarding citizens who suffer from

mental illness. (Id., 43.) Moreover, he does not try to resolve his encounter with

Mr. Castaway in a non-lethal manner. (Id.) Mr. Castaway died from his injuries.

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III. ANALYSIS

A. Standard of Review

Defendants move to dismiss the 1983 claims under Rule 12(b)(6). Under that

rule, the court must accept all well-pleaded facts as true and view them in the light

most favorable to the plaintiff. Jordan-Arapahoe, LLP v. Board of Cnty. Comrs of Cnty.

of Arapahoe, 633 F.3d 1022, 1025 (10th Cir. 2011). Plaintiff must allege that enough

factual matter, taken as true, [makes] his claim for relief ... plausible on its face. Id.

(quotation and internal quotation marks omitted). A claim has facial plausibility when

the [pleaded] factual content [ ] allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged. Id. (quoting Ashcroft v. Iqbal, ___

U.S. ___, 129 S. Ct. 1937, 1940 (2009)).

Plaintiff must include enough facts to nudge[] [his] claims across the line from

conceivable to plausible. Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir.

2011) (quotation omitted). Conclusory allegations are not sufficient to survive a motion

to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).

The Tenth Circuit has stated that if matters outside the pleading are presented

to and not excluded by the court, [a Rule 12(b)(6) motion] shall be treated as one for

summary judgment and disposed of as provided in Rule 56. . . . David v. City & Cnty.

of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). Defendants attached a video to their

motion which they assert should be viewed by the court in deciding whether Plaintiffs

claims should be dismissed. Defendants correctly point out that this video was

referenced throughout and appears central to the Complaint. Moreover, its authenticity

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has not been challenged, and I find that the video does not require that the motion to

dismiss be converted into a motion for summary judgment. Jackson v. Gatto, No. 13-

cv-02516-CBS, 2014 WL 2743130, at *3 (D. Colo. June 17, 2014) (court could consider

audio/video recording on motion to dismiss as it was central to complaint and neither

party objected to its authenticity) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.

2010) (court may consider on Rule 12(b)(6) motion documents referred to in the

complaint and central to the plaintiffs claims when no party disputes their authenticity)).

I have reviewed the video recording of the events that occurred on July 12, 2015,

and will consider it in deciding the pending motion. I need not accept as true allegations

of fact that are inconsistent with the authenticated video that is referenced in the

complaint. See Jackson v. Alexander, 465 F.2d 1389, 1390 (10th Cir. 1972); Scott v.

Harris, 550 U.S. 372, 380 (2007).

B. The Merits of the Motion to Dismiss

1. The Individual Defendants

a. Official Capacity Claims

I first find that the official capacity claims against the individual Defendants

should be dismissed. An official capacity suit is simply an alternative method of suing a

governmental entity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The City and

County of Denver is a named Defendant in this case and [a] suit against a municipality

and a suit against a municipal official acting in his or her official capacity are the same.

Watson v. City of Kansas City, Kan., 857 F.2d 690, 695 (10th Cir. 1988). Thus, the

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official capacity claims against the individual Defendants are merely duplicative of the

municipal liability claim against Denver. Graham, 473 U.S. at 167 n.14.

b. Excessive Force Claim Against the Individual Officers

The individual Defendant officers assert that they are entitled to qualified

immunity on the excessive force claim asserted again them in their individual capacity.

The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), held that

government officials performing discretionary functions are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person should have known. Harlow places a

presumption in favor of immunity of public officials acting in their individual capacities.

Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990).

In order to determine whether qualified immunity applies, a court must ordinarily

conduct a two-part inquiry. Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005).

First, the court must determine whether the facts alleged, viewed in the light most

favorable to the party asserting injury, show the officials conduct violated a

constitutional right. Id. Second, the court must determine whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation he confronted. Id.

at 1101 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion in

deciding the order in which to engage in these two prongs. Pearson v. Callahan, 555

U.S. 223, 236 (2009).

[O]rdinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

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authority from other courts must have found the law to be as the plaintiff maintains.

Medina v. City and Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). The

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. Douglas, 419 F.3d at 1101

(quotation omitted).

When a plaintiff alleges excessive force during an investigation or arrest, the

federal right at issue is the Fourth Amendment right against unreasonable seizures.

Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861, 1865 (2014). The inquiry into whether

this right was violated requires a balancing of the nature and quality of the intrusion on

the individual's Fourth Amendment interests against the importance of the governmental

interests alleged to justify the intrusion. Id. (quotation and internal quotation marks

omitted). Thus, to state an excessive force claim under the Fourth Amendment, Plaintiff

must show both that a seizure occurred and that the seizure was unreasonable.

Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010) (emphasis in original)

(quotation and internal quotation marks omitted). Here, neither party disputes that Mr.

Castaway was seized when he was shot. See Clark v. Bowcutt, No. 14-4163, 2017 WL

56283, at *5 (10th Cir. Jan. 5, 2017). Thus, I must determine whether the seizure was

reasonable.

In analyzing the reasonableness of an alleged seizure, the key inquiry is

whether it would be clear to a reasonable officer [in the defendant's position] that his

conduct was unlawful in the situation he confronted. Thomas, 607 F.3d at 663

(quotation omitted). To establish a constitutional violation, the plaintiff must

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demonstrate the force used was objectively unreasonable. Estate of Larsen v. Murr,

511 F.3d 1255, 1259 (10th Cir. 2008). 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. Id. (quotation and internal quotation marks omitted).

Deadly force is justified under the Fourth Amendment if a reasonable officer in

Defendants position would have had probable cause to believe that there was a threat

of serious physical harm to themselves or others. Estate of Larsen, 511 F.3d at 1260

(emphasis in original and quotation omitted). I must consider whether the individual

Defendant officers could have reasonably perceived [they] were in danger at the

precise moment that force was used and whether their own reckless or deliberate

conduct (as opposed to mere negligence) unreasonably created the need to use force.

Thomas, 607 F.3d at 663. The calculus of reasonableness must embody some

allowance for the fact that police officers are often forced to make split-second

judgmentsin circumstances that are tense, uncertain, and rapidly evolvingabout the

amount of force that is necessary. Graham v. Connor, 490 U.S. 386, 396-97 (1989).

i. Claim Against Officer Traudt

Officer Traudt argues that his use of deadly force was justified because he

reasonably perceived that Mr. Castaway posed a threat of serious physical harm to him.

When evaluating the reasonableness of force employed in seizure, [the court]

consider[s] the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether the suspect is actively resisting

arrest or attempting to evade arrest by flight. Thomas, 607 F.3d at 664 (quoting

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Graham, 490 U.S. at 396). Courts also consider (1) whether the officers ordered the

suspect to drop his weapon, and the suspect's compliance with police commands; (2)

whether any hostile motions were made with the weapon towards the officers; (3) the

distance separating the officers and the suspect; and (4) the manifest intentions of the

suspect. Estate of Larsen, 511 F.3d at 1260.

Here, I find that the crime the Defendant officers was investigating was moderate

in its severitya domestic altercation between a mother and son where the son is

alleged to have held a knife to his mothers throat but did not actually appear to injure

her. The suspect, Mr. Castaway, actively attempted to evade arrest by flight, while

holding a knife to his throat. Accepting the allegations of the Complaint as true, the

Defendant Officers knew that Mr. Castaway was mentally ill and suicidal. Officer Traudt

ordered Mr. Castaway to drop his weapon and he did not comply, reportedly telling

Officer Traudt, kill me, you fucking pussy. Mr. Castaway then fled into a mobile home

park that had numerous people present, and became cornered in a parking cubby.

When he is again confronted by the Defendant officers, with Officer Traudt holding a

gun on him, he began approaching the officers with the knife. The video confirms that

Mr. Castaway advanced steadily and rapidly towards Officer Traudt while holding the

knife. (Ex. 1 at 0:30-0:34.) It appears that Mr. Castaway is seven to ten feet away from

Officer Traudt when he is shot. These factors support the heightened immediacy of

the threat [the Defendant officers] faced and the objective reasonableness of the use of

deadly force. Estate of Larsen, 511 F.3d at 1260.

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However, as in the Estate of Larsen case, the claim of excessive force centers

on whether [Mr. Castaway] posed an immediate threat to the officers or the safety of

others. 511 F.3d at 1260. When Mr. Castaway is first confronted in the parking cubby,

he holds the knife up to his own throat. It is not clear from the video as to whether, once

Mr. Castaway begins approaching the Defendant officers, he continued to hold the knife

against his own throat or whether he began to move the knife in front of him, making

what Officer Traudt characterizes as a hostile action towards him. Indeed, once

Mr. Castaway starts advancing towards the officers his back is to the camera. The

evidence is disputed on this issue. Plaintiff asserts, and I agree, that it is a reasonable

inference that Mr. Castaway was still holding the knife against his own throat and did

not point it at Officer Traudt because of the position of his elbows Mr. Castaway is

holding the knife with both hands with his elbows at an unusually high angle, and the

position of Mr. Castaways elbows did not change before he was shot by Defendant

Traudt.

Moreover, the fact that Mr. Castaway was known to be suicidal would also be

consistent with Plaintiffs argument that Mr. Castaway continued to hold the knife

against his own throat. If the jury accepts these facts, then it could find that

Mr. Castaway did not actually make any aggressive moves towards the officers with the

knife and that there was no direct threat to them, particularly as Mr. Castaway may not

have yet been within striking distance when he was shot. See Tenorio v. Pitzer, 802

F.3d 1160, 1165 (10th Cir. 2015). As to the intentions of Mr. Castaway, while I

acknowledge that Mr. Castaway is moving towards the officers, his intentions too are

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unclear and could be deemed to turn on whether he was holding the knife against his

neck or was making threatening gestures with the knife to the officers.

In a similar situation in Tenorio, the Tenth Circuit affirmed the denial of qualified

immunity where the officers were responding to an emergency call for police assistance

to protect against danger from a man who had been violent in the past and was waving

a knife around in his home. 802 F.3d at 1164. The man was walking toward [the

officer] in a moderate-sized room while still carrying the knife despite repeated orders to

drop it. Id. While the Tenth Circuit found that this could arguably justify the use of

lethal force, it noted that the district court had made findings that would establish

Tenorios claim of excessive force, including that Tenorio made no hostile motions

toward the officers but was merely holding a kitchen knife by his thigh, that Tenorio was

shot before he was striking distance of [the officer]; and that, for all [the officer] knew,

Tenorio had threatened only himself and was not acting or speaking hostilely at the time

of the shooting. Id.

Indeed, the Tenth Circuit in Tenorio held that its precedents compelled the

affirmance of the district courts findings, citing Zuchel v. City and Cnty. of Denver, 997

F.2d 730, 735-37 (10th Cir. 1993), as construed in Walker v. City of Orem, 451 F.3d

1139, 1160 (10th Cir. 2006). See Tenorio, 802 F.3d at 1165. Thus, the Tenth Circuit

held that Zuchel had specifically established that where an officer had reason to

believe that a suspect was only holding a knife, not a gun, and the suspect was not

charging the officer and had made no slicing or stabbing motions toward him, that it was

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unreasonable for the officer to use deadly force against the suspect. Id. at 1165-66

(quoting Walker, 451 F.3d at 1160). This is clearly established law. Id.

The Tenth Circuit in Tenorio distinguished the Estate of Larsen case relied on by

the Defendant officers in this case, where officers who had used legal force against a

man with a knife were granted qualified immunity. According to the Tenorio court, the

distinction we made in that case was that the victim had made hostile actions toward

the officer. 802 F.3d at 1166 (quoting Estate of Larsen, 511 F.3d at 1263). We said

that [t]he undisputed facts ... show that [the victim] ignored at least four police

commands to drop his weapon and then turned and stepped toward the officer with a

large knife raised in a provocative motion. Id. (quoting id.) In contrast, the Tenth

Circuit found that the evidence in the Tenorio case would support a finding that Tenorio

took no hostile or provocative action toward the officers. A jury could also find that to be

true in this case.

In short, while I recognize that Mr. Castaway was advancing towards the officers,

the facts construed in the light most favorable to Plaintiff at this stage of the litigation

show that Mr. Castaway may not have been making threatening gestures to the officers,

was suicidal, and may not have yet been within striking distance off the officers when he

was shot and killed. Thus, I find that the evidence is sufficient for a jury to find that an

objectively reasonable officer in Officer Traudts position would not have believed that

Mr. Castaway posed an immediate threat.

Moreover, I note that Officer Lara had holstered his gun and was holding a

TASER at the time Mr. Castaway was shot. The Complaint alleges that Officer Traudt

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could also have drawn his TASER instead of relying on his service pistol. And it is

alleged that Officer Traudt, who had been Crisis Intervention Team trained and certified,

did not attempt to employ the training he received regarding citizens who suffer from

mental illness. Thus, I find the evidence is disputed about whether Officer Traudts

own reckless or deliberate conduct (as opposed to mere negligence) unreasonably

created the need to use force. Thomas, 607 F.3d at 663.

Based on the foregoing, I find that the motion to dismiss should be denied as to

the excessive force claim against Officer Traudt in his individual capacity. I find that

Plaintiff has established for purposes of the motion to dismiss a violation of a

constitutional right in connection with the excessive force claim and that the right was

clearly established.

ii. Claim Against Officer Lara

Defendants correctly assert in their motion that Plaintiff makes few allegations

regarding Officer Laras conduct, and argue that the allegations defeat any claim

against this Defendant. I note that Plaintiff did not address Defendants arguments as to

Officer Lara in her response. I find that the motion to dismiss should be granted as to

Officer Lara as Plaintiff has failed to make any allegations or argument from which it

could be reasonably inferred that Officer Laras conduct was objectively unreasonable

at any time, or that he violated Mr. Castaways Fourth Amendment rights.

Thus, the video shows that Officer Lara did not use constitutionally excessive

force against Mr. Castaway. Indeed, it shows that while he initially drew his gun he then

holstered it, and did not use any force during the incident. (See Ex. 1.) This is

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corroborated by the Complaint, alleging that Officer Lara initially had his service pistol

drawn, but holstered it after seeing that Mr. Castaway had become cornered and

reported that he was going to draw his taser when Defendant Officer Traudt shot

Mr. Castaway. (Compl., 32, see also 54.) Indeed, the Complaint appears to hold

out Officer Laras conduct as the standard by which to judge Officer Traudts conduct,

from which it can be inferred that his conduct was objectively reasonable. Thus, it

alleges that Defendant Officer Traudt should have made the same decision as that

made by Officer Lara, and drawn his department issued taser rather than his service

pistol. (Id., 56) (emphasis added). Accordingly, the motion to dismiss is granted as

to the excessive force claim against Officer Lara in his individual capacity, and he is

entitled to qualified immunity.

iii. Claims Against Chief White and City and County of

Denver

The Complaint also purports to assert a claim against Chief Robert C. White in

both his individual and official capacities and the City and County of Denver.

Defendants argue in the motion to dismiss that the Complaint alleges no facts to

demonstrate a Fourth Amendment violation by Chief White and that Plaintiffs fail to

state a cognizable municipal liability claim. Plaintiff did not respond to these

arguments in her response to the motion to dismiss. I find that these claims should be

dismissed.

To the extent Plaintiff pursues an individual claim against Chief White, dismissal

is appropriate because Plaintiff does not allege that Chief White was present during the

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events that led to the death of Mr. Castaway, that he had knowledge of such events, or

that he is liable in a supervisory capacity. Personal participation is an essential

allegation in a civil rights action, Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir.

1976), and Plaintiff has not alleged such personal participation. Moreover, Chief White

may not be held liable on a theory of respondeat superior merely because of his

supervisory position. See Pembaur v. City of Cincinnati, 4756 U.S. 469, 479 (1986).

Plaintiff has also not shown a causal connection through any actions taken by Chief

White in a supervisory capacity or that Chief White had a sufficiently culpable state of

mind. See Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013); Dodds v.

Richardson, 614 F.3d 1185, 1198 n. 6, 1204 (10th Cir. 2010).

To the extent that Plaintiff asserts a a claim against Chief White in his official

capacity as final policymaker for the Denver Police Department (see Compl. 10), this

is a claim against the municipality. Pembaur, 475 U.S. at 481. To assert a plausible

municipal liability claim against Denver, a plaintiff must allege facts showing that (1) a

municipal employee committed a constitutional violation, and (2) a municipal policy or

custom was the moving force behind the constitutional deprivation. Becker v. Bateman,

709 F.3d 1019, 1025 (10th Cir. 2013); see also Anaya v. Crossroads Managed Care

Sys., Inc., 195 F.3d 584, 592 (10th Cir. 1999). An official policy or custom may be

shown by the existence of 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 Dept., 717 F.3d 760, 770

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(10th Cir. 2013). The Complaint in this case is devoid of facts sufficient to demonstrate

that any municipal policy or custom was the moving force behind Mr. Castaways death.

While Plaintiffs municipal liability claim purports to be based on deliberately

indifferent policies, practices, customs, supervision and ratification, the allegations

within the Complaint relate solely to claims of inadequate training and supervision. (See

Compl., 67-78.) Specifically, Plaintiff alleges Denvers failure to train or

supervise police officers with respect to interacting with persons suffering from mental

illness. (Id., 74.)

As Defendants note, a municipalitys culpability for a deprivation of rights is at its

most tenuous where a claim turns on a failure to train. Connick v. Thompson, 563 U.S.

51, 61 (2011). To prevail on such a claim, Plaintiff must show that the need for more

or different training [was] so obvious, and the inadequacy so likely to result in [a

violation of constitutional rights], that the policymakers of the [city] can reasonably be

said to have been deliberately indifferent to the need for additional training. Porro v.

Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (quotation omitted). Allegations of

general deficiencies in a training program will not suffice; the plaintiff must identify a

specific deficiency that was obvious and closely related to his injury. . . so that it might

fairly be said that the official policy or custom was both deliberately indifferent to his

constitutional rights and the moving force behind his injury. Id. (quotation omitted).

Here, the Complaint does not identify any specific deficiency in Denvers training

or supervision of officers, as required to state a claim. See Porro, 624 F.3d at 1328

(10th Cir. 2010). Nor does the Complaint contain allegations demonstrating a causal

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connection between Plaintiffs injuries and any specific deficiency in Denvers training or

supervision. Additionally, the Complaint does not allege the existence of similar

incidents such that Denver could be said to have been on notice as to any supposed

deficiencies in its training or supervision. See Connick, 563 U.S. at 62 (A pattern of

similar constitutional violations by untrained employees is ordinarily necessary to

demonstrate deliberate indifference for purposes of failure to train.).

Moreover, the Complaints sole factual allegation with respect to training

acknowledges that Defendant Officer Traudt was specially trained in interacting with

the mentally ill, but goes on to allege that rather than relying on his training, he

persisted in the use of excessive deadly force. (Compl., 43, 74.) This appears to

allege that Officer Traudt was adequately trained but failed to utilize his training. This

also would not support a claim against the municipality based on failure to train.

Finally, the Complaint offers only conclusory allegations of municipal liability in

regard to failure to supervise. For instance, the Complaint alleges that Denver has

engaged in the persistent practice of failing to supervise its law enforcement officers

and failing to correct their misconduct regarding homeless and mentally ill citizens.

(Compl., 47, 74-75.) Such generic, conclusory allegations of municipal liability are

insufficient to state a claim. See Iqbal, 556 U.S. at 678 (Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.); see also Archuleta v. Corr. Healthcare Mgmt., Inc., No. 08-cv-02477-REB,

2009 WL 1292838, at *3 (D. Colo. May 8, 2009).

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Case 1:16-cv-01763-WYD-MEH Document 33 Filed 09/28/17 USDC Colorado Page 19 of 19

Accordingly, I find that Defendants Motion to Dismiss must also be granted as to

the claims against Chief White in his individual and official capacities.

IV. CONCLUSION

In conclusion, it is

ORDERED that Defendants Motion to Dismiss (ECF No. 19) is GRANTED IN

PART AND DENIED IN PART. It is GRANTED as to the claims against Defendant

Jerry Lara and Robert C. White in their individual and official capacities, the claim

against Michael Traudt in his official capacity, and the municipal claim against the City

and County of Denver. Defendants Jerry Lara and Robert C. White are dismissed from

the case and shall hereafter be removed from the caption. The Motion to Dismiss is

DENIED as to the excessive force claims against Defendant Michael Traudt in his

individual capacity.

Dated: September 28, 2017

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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