Driscoll v. City and County of Denver, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-02866-PAB-NRN
MICHAEL DRISCOLL,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER, a municipal entity,
PAUL PAZEN, Chief of Police, in his individual capacity,
PATRICK PHELAN, in his individual capacity,
RICK EBERHARTER, in his individual capacity,
TIMOTHY HYATT, in his individual capacity, and
CHRISTOPHER COCHRAN, in his individual capacity,
Defendants.
ORDER
This case arises out of protests against police brutality that occurred in the spring
of 2020 in Denver, Colorado in response to the murder of George Floyd (“the protests”).
Docket No. 94 at 4–6, 34, ¶¶ 14–21, 83. The matters before the Court are the Motion to
Dismiss Second Amended Complaint on Behalf of Denver, Chief Pazen, and
Commander Phelan [Docket No. 99], Motion to Dismiss Plaintiff’s Second Amended
Complaint [Docket No. 100], filed by defendants Rick Eberharter and Christopher
Cochran, and Defendant Timothy Hyatt’s Motion to Dismiss Plaintiff’s Second Amended
Complaint [Docket No. 102]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
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I. 	BACKGROUND
A. Factual Background1
On May 30, 2020, plaintiff Michael Driscoll drove from Pueblo, Colorado to
Denver to participate in the protests. Docket No. 94 at 34–35, ¶¶ 83, 93. At
approximately 7:30 p.m., Mr. Driscoll was standing on the sidewalk on the southwest
corner of Lincoln Street and Colfax Avenue at the Capitol Complex. Id. at 35, ¶ 103.
Mr. Driscoll was in a small crowd, chanting and objecting to the use of force against
peaceful demonstrators. Id. at 36, ¶ 104. Neither Mr. Driscoll nor any individual near
him was engaged in any crime, was a threat to any individual, or was engaged in any
property damage. Id., ¶ 105. At approximately 7:33 p.m., defendant Rick Eberharter, a
corporal from the Denver SWAT team, threw a tear gas canister at Mr. Driscoll. Id.,
¶ 109. The tear gas canister landed at Mr. Driscoll’s feet. Id. at 37, ¶ 110. Officer
Eberharter had no reason to believe Mr. Driscoll had committed any crime. Id. at 38,
¶ 111. The tear gas caused Mr. Driscoll severe pain and forced him to stop his
protesting momentarily. Id., ¶ 113. Officer Eberharter never engaged his body-worn
camera and did not complete a use-of-force report or any after-action report for throwing
a tear gas canister at Mr. Driscoll. Id., ¶¶ 116, 119. Under Officer Eberharter’s
leadership, no body-worn camera videos for the Denver SWAT team were created, and
no reports were created, in spite of their many uses of force. Id. at 39, ¶ 129. These
actions were taken to conceal the identities of the officers engaging in unconstitutional
conduct. Id., ¶ 131.
1 The facts below are taken from plaintiff’s second amended complaint, Docket
No. 94, and are presumed to be true, unless otherwise noted, for purposes of ruling on
the motions to dismiss.
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On May 31, 2020, at around 9:09 p.m., Mr. Driscoll was standing on Colfax
Avenue between Washington Street and Clarkson Street. Id. at 44, 53, ¶¶ 139, 166.
Denver Police had formed a line to confront several protesters. Id. at 53, ¶ 167.
Defendant Timothy Hyatt, a Denver Police Officer, threw a rubber sting-ball grenade at
Mr. Driscoll because of a sign Mr. Driscoll was carrying. Id., ¶ 168. The grenade
exploded on Mr. Driscoll’s sign, which he was using as a shield. Id., ¶ 169. Officer
Hyatt later produced a use-of-force report on this incident. Id. at 55, ¶ 173. In his
report, Officer Hyatt stated that he deployed pepper balls at an individual with a large
piece of plywood. Id., ¶ 175. Officer Hyatt stated that the individual with the plywood
threw rocks at officers. Id., ¶ 176. At that time, Mr. Driscoll was the only individual with
a plywood sign and did not throw rocks at officers. Id., ¶ 177.
Moments after Officer Hyatt threw the rubber sting-ball grenade at Mr. Driscoll,
defendant Christopher Cochran, a Denver Police Officer, aimed and fired a 40mm
kinetic impact projectile (“KIP”), which hit and broke Mr. Driscoll’s plywood sign. Id. at
55–56, ¶¶ 181–82. The officers cheered at Officer Cochran’s actions, and Officer
Cochran stated, “that was awesome.” Id. at 56, ¶¶ 182–83. During the protests, Officer
Cochran never turned on his body-worn camera and never completed a use-of-force
report. Id., ¶¶ 186–88. Throughout this interaction with police, Mr. Driscoll committed
no crime, was never subject to arrest, was a threat to no person, and was a threat to no
property. Id. at 55–56, ¶¶ 171, 184.
At around 10:00 p.m., Mr. Driscoll marched with a group of approximately one
hundred protesters to the intersection of Cherokee Street and 13th Avenue. Id. at 57,
¶ 194. The protesters stood peacefully one hundred yards away from a group of police
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officers and chanted “I can’t breathe.” Id. at 58, ¶ 200. Denver Police fired tear gas
canisters, rubber bullets, and pepper balls into the crowd of peaceful protesters. Id. at
59–60, ¶¶ 202, 209. At that time, no member of the group of protesters, including Mr.
Driscoll, was committing a crime, destroying property, or threatening or harming an
individual. Id. at 59, ¶¶ 203–05. Mr. Driscoll raised his plywood sign to use as a shield.
Id. at 60, ¶ 210. Mr. Driscoll’s sign, which displayed the acronym “ACAB,”2 faced the
police. Id., ¶¶ 212, 214. Within seconds of raising his sign, Mr. Driscoll was hit in the
face with a rubber bullet by a Denver police officer. Id., ¶ 215.
Mr. Driscoll was taken to the hospital, id. at 61, ¶ 229, where he was diagnosed
as having a frontal sinus anterior table fracture and a left superior medial orbital
fracture. Id., ¶ 231. Mr. Driscoll’s skull had collapsed between his eyes, destroying his
sinus cavity. Id., ¶ 232. Mr. Driscoll underwent reconstructive surgery for his skull,
which included a bone graft from the top of his skull. Id. at 62, ¶ 234.
During all times pertinent to this litigation, defendant Paul Pazen was the Denver
Chief of Police. Id. at 2–3, ¶ 5. Chief Pazen was responsible for supervising
defendants Hyatt, Eberharter, and Cochran, as well as all Denver police officers and
mutual aid partner officers responding to the George Floyd protests. Id. He was
responsible for directing their actions during the protests in response to the murder of
George Floyd and, specifically, their actions during the protest on May 31, 2020. Id.
During all times pertinent to this litigation, defendant Patrick Phelan was the
Commander of Special Operations for the Denver Police Department. Id. at 3, ¶ 6. In
2 “ACAB” is an acronym for the phrase “all cops are bastards.” Docket No. 94 at
60, ¶ 213.
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this role, Commander Phelan was in direct command of the officers responding to the
George Floyd protests. Id. He was responsible for supervising defendants Hyatt,
Eberharter, and Cochran, as well as all Denver police officers and mutual aid partner
officers responding to the George Floyd Protests. Id. He was responsible for directing
their actions during the protests in response to the murder of George Floyd and,
specifically, their actions during the protest on May 31, 2020. Id. Throughout the days
of protests, Commander Phelan and Chief Pazen were made aware of the gratuitous
use of force by their officers. Id. at 14, ¶ 43. Complaints were made by protesters,
along with calls from elected officials, asking that the Denver Police Department and its
officers stop using such force against the protesters. Id. The Denver Police
Department had body cameras and overhead videos, called HALO cameras, that
captured much of the police use of force, which was shown to Commander Phelan and
Chief Pazen and circulated online. Id., ¶ 44. Commander Phelan and Chief Pazen took
no action to change the force used by their officers. Id., ¶ 45. Commander Phelan and
Chief Pazen were made aware of the injuries to the heads and eyes of protesters.3 Id.
at 18, 60, ¶¶ 65, 211.
3 The second amended complaint contains allegations of actions taken by police
officers Michael Erickson, Docket No. 94 at 45, 48, ¶¶ 150, 156; Kyle Janosko, id. at 47,
¶¶ 153–55; Matthew Domenico, id. at 50, ¶ 158; and David Adams, id. at 51, ¶ 159. Mr.
Driscoll has settled his claims against these defendants. Docket No. 157.
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B. Procedural History
Mr. Driscoll filed his original complaint on October 25, 2021. Docket No. 1. In
the original complaint, Mr. Driscoll brought five claims of relief against the City and
County of Denver (“Denver”), Chief Pazen, Commander Phelan, and ten John Doe
defendants. Id. at 39–51, ¶¶ 151–260. These claims include a Fourth Amendment
claim for excessive force, a Fourteenth Amendment claim for excessive force, a First
Amendment claim for violating Mr. Driscoll’s rights of free speech and assembly, a First
Amendment retaliation claim, and a Fourteenth Amendment due process claim. Id.
These claims were premised on the 10:00 p.m. incident on March 31, 2020, where Mr.
Driscoll was shot in the forehead with a rubber bullet. See id. at 32–38, ¶¶ 98–139.
On January 6, 2023, Mr. Driscoll filed a motion to amend his complaint to add
eight individual defendants and to add various other allegations, including those
allegations relating to Officers Hyatt, Eberharter, and Cochran. Docket No. 29; see also
Docket No. 29-1. Defendants Pazen, Phelan, and Denver opposed Mr. Driscoll’s
motion to amend his complaint on the grounds that (1) Mr. Driscoll failed to demonstrate
good cause to amend his complaint, (2) the new allegations in Mr. Driscoll’s amended
complaint do not relate back to his original complaint, and (3) Mr. Driscoll’s proposed
amendments were futile because the additional claims he sought to add are barred by
the applicable statute of limitations. Docket No. 34 at 8–15. The Court referred the
motion to Magistrate Judge Reid Neureiter. Docket No. 30. Judge Neureiter issued an
order granting Mr. Driscoll’s motion to amend the complaint on February 28, 2023.
Docket No. 39.
That same day, Mr. Driscoll filed his first amended complaint. Docket No. 40.
The amended complaint brings the same five claims for relief as the initial complaint.
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See id. at 68–79, ¶¶ 283–378. However, Mr. Driscoll’s amended complaint substitutes
the ten John Doe defendants for various officers, including Officers Hyatt, Eberharter,
and Cochran. Id. at 1. Additionally, the complaint adds factual allegations regarding
Mr. Driscoll’s interactions with police, including the interaction on March 30, 2020 and
the 9:00 p.m. interaction on March 31, 2020. See id. at 34–58, ¶¶ 84–199. The
amended complaint adds a sixth claim for relief, namely, a Fourth Amendment failure to
train or supervise claim against Denver, Chief Pazen, and Commander Phelan. Id. at
79–81, ¶¶ 379–92.
On March 14, 2023, defendants objected to Judge Neureiter’s order granting Mr.
Driscoll leave to amend his complaint on the grounds that (1) “Plaintiff lacked good
cause to amend the scheduling order out of time under Fed. R. Civ. P. 16(b)(4),” (2) “the
two-year statute of limitations bars Plaintiff from amending the Initial Complaint to add
the New Defendants, particularly in the absence of any notice upon them, or mistake,”
and (3) “[e]quitable tolling also does not cure the futility of this amendment, given
Plaintiff has been aware of these alleged harms for well over two and a half years and
had ample opportunity to conduct discovery but did not do so.” Docket No. 42 at 2.
On October 23, 2023, Mr. Driscoll filed his second amended complaint, which is
virtually identical to the first amended complaint. Docket No. 94. The filing of the
second amended complaint mooted defendants’ then-pending motions to dismiss.
Docket No. 93 at 2. Officers Hyatt, Eberharter, and Cochran filed motions to dismiss
Mr. Driscoll’s second amended complaint on November 6, 2023, Docket No. 100, and
November 13, 2023. Docket No. 102.
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Although Officers Hyatt, Eberharter, and Cochran bring motions to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), see Docket No. 100 at 2; Docket
No. 102 at 2, the motions to dismiss include defendants’ arguments regarding their
objections to Judge Neureiter’s order granting Mr. Driscoll leave to file the first amended
complaint, which Docket No. 93 authorized defendants to do. Thus, the Court will
consider de novo the statute of limitation issues, regardless of the fact that Judge
Neureiter ruled on some or all of these issues in Docket No. 39. This review will
consider whether it was proper to allow Mr. Driscoll to amend the complaint to add
claims against Officers Hyatt, Eberharter, and Cochran. However, as to issues other
than the statute of limitations and amendment of the complaint, the Court will apply a
Rule 12(b)(6) analysis.
II. 	LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
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Cir. 1994) (“[W]e are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. 	ANALYSIS
A. Motions to Dismiss by Defendants Hyatt, Eberharter, and Cochran
As discussed above, the motions to dismiss filed by Officers Hyatt, Eberharter,
and Cochran argue that Mr. Driscoll should not have been permitted to amend his
complaint to add claims against these officers. See Docket No. 100 at 7; Docket No.
102 at 3–4, ¶¶ 6–10. Officers Hyatt, Eberharter, and Cochran focus primarily on the
impropriety of allowing Mr. Driscoll to amend his complaint because the amendment
was futile, given that the claims are barred by the applicable statute of limitations.
Docket No. 100 at 8; Docket No. 102 at 3, ¶¶ 6–9. In considering whether Mr. Driscoll
should have been permitted to amend his complaint, the Court will first consider
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whether the second amended complaint relates back to the original complaint such that
the claims are deemed to have been filed when Mr. Driscoll filed his original complaint.
a. 	Relation Back
The parties agree that Mr. Driscoll’s claims are governed by a two-year statute of
limitations. Docket No. 100 at 8 (“Claims brought under 42 U.S.C. § 1983 are subject to
the state statute of limitations for personal injury actions, which in Colorado, is two
years.” (citing Escobar v. Reid, 668 F. Supp. 2d 1260, 1286 (D. Colo. 2009) (citing Hunt
v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994)))); Docket No. 102 at 3, ¶ 7; Docket No.
108 at 5 (“Plaintiff agrees with Defendants that the applicable statute of limitations for 42
U.S.C. 1983 claims in the state of Colorado are two years.”). The parties further agree
that Mr. Driscoll’s first amended complaint was filed after the limitations period. See id.
(“Plaintiff agrees with Defendants that . . . Plaintiff’s claims against Defendant[s] would
have been barred by the statute of limitations on May 31, 2022, absent other
considerations.”). Nevertheless, Mr. Driscoll argues his claims against Officers Hyatt,
Eberharter, and Cochran should be deemed to have been filed on October 25, 2021,
which is before the applicable statute of limitations had run, because the allegations in
his second amended complaint regarding Officers Hyatt, Eberharter, and Cochran relate
back to the allegations in his original complaint under Federal Rule of Civil Procedure
15(c). Docket No. 108 at 6–12. Allegations in an amended complaint can relate back to
the original complaint pursuant to Rule 15(c)(1)(B) or Rule 15(c)(1)(C). Fed. R. Civ. P.
15(c)(1)(B)–(C). The Court will first consider whether Mr. Driscoll should have been
permitted to amend his complaint because his claims relate back to the original
complaint under Rule 15(c)(1)(B).
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b. Federal Rule of Civil Procedure 15(c)(1)(B)
“In limited circumstances, Rule 15(c) saves an otherwise untimely amendment by
deeming it to ‘relate back’ to the conduct alleged in the timely original complaint.”
Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 961 (10th Cir. 2012). Rule
15(c)(1)(B) provides that “[a]n amendment to a pleading relates back to the date of the
original pleading when: . . . the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out – or attempted to be set out – in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
Whether an amendment arises out of the same conduct, transaction, or
occurrence set out in the original pleading “depends on the existence of a common core
of operative facts uniting the original and newly asserted claims.” May v. Segovia, 929
F.3d 1223, 1237 (10th Cir. 2019) (citation omitted) (Briscoe, J., concurring). “For a
newly added action to relate back, the basic claim must have arisen out of the conduct
set forth in the original pleading.” Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir.
2006) (citation and quotations omitted). Amendments will generally relate back if they
“amplify the facts previously alleged, correct a technical defect in the prior complaint,
assert a new legal theory of relief, or add another claim arising out of the same facts.”
Benton v. Bd. of Cnty. Comm’rs, No. 06-cv-01406-PSF-MEH, 2007 WL 4105175, at *3
(D. Colo. Nov. 14, 2007), aff’d, 303 F. App’x 625 (10th Cir. 2008) (unpublished) (citation
omitted). “On the other hand, amendments generally will not relate back if they interject
entirely different facts, conduct, transactions or occurrences.” Id.
Courts usually have found that conduct that is a separate violation of the law
does not relate back to a prior violation simply because it involves similar conduct. See
Eng. Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d 862, 1999 WL 89125, at
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*3 (4th Cir. 1999) (table decision) (“A plaintiff may not baldly allege a broad course of
conduct over a lengthy period of time and later sue on any act that occurred during that
time period. Because the Hobbs letter is a separate instance of defamation arising from
‘facts other than those originally pleaded,’ a claim based on that letter does not relate
back to the original filing date.”) (citation omitted); Snider v. Pa. DOC, 505 F. Supp. 3d
360, 416 (M.D. Pa. 2020) (plaintiff’s new allegations against correctional facility did not
relate back to prior claims against a different correctional facility, despite a claim in
original complaint that he “ha[d] similar experiences” at both facilities); Brightwell v.
Hershberger, 2016 WL 4537766, at *5 (D. Md. Aug. 31, 2016) (finding new claims did
not relate back where plaintiff initially brought state tort and § 1983 claims based on an
alleged prison assault and then sought to add new claims concerning different assaults,
perpetrated by different individuals months before the assault alleged in the original
complaint). “Indeed, even an amendment that shares ‘some elements and some facts
in common’ with the original claim does not relate back if its effect is ‘to fault [the
defendants] for conduct different from that identified in the original complaint.’” Golden
v. Mgmt. & Training Corp., 319 F. Supp. 3d 358, 383 (D.D.C. 2018) (finding age
discrimination claim did not relate back to claim for retaliation based on plaintiff
complaining about alleged age discrimination) (quoting Jones v. Bernanke, 557 F.3d
670, 674 (D.C. Cir. 2009)); Slayton, 460 F.3d at 228 (“even where an amended
complaint tracks the legal theory of the first complaint, claims that are based on an
‘entirely distinct set’ of factual allegations will not relate back”). Moreover, “the statute of
limitations runs separately from each action constituting a civil rights violation.” Cayo v.
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Fitzpatrick, 95 F. Supp. 3d 8, 12 (D. Mass. 2015) (citing Nieves v. McSweeney, 73
F.Supp.2d 98, 102 (D. Mass.1999)).
i. 	Officer Hyatt
Officer Hyatt argues that the claims added against him in the second amended
complaint do not relate back to the allegations in the original complaint under Rule
15(c)(1)(B) because the claims against him are based on a separate incident from the
one identified in the original complaint. Docket No. 102 at 3–8, ¶¶ 6–24. In particular,
Officer Hyatt asserts that the claims against him do not relate back to the incident in the
original complaint because Officer Hyatt’s interaction with Mr. Driscoll occurred an hour
earlier, at a different location, using a sting ball grenade rather than a rubber bullet, and,
unlike the later incident, Mr. Driscoll alleges no physical injuries from this interaction. Id.
at 4–5, ¶ 11.
Mr. Driscoll responds that his claims against Officer Hyatt do relate back because
the original complaint is not focused on the single event where he was shot in the
forehead, but rather the original complaint spends pages detailing Denver police
officers’ use of force against protesters more generally. Docket No. 110 at 3–4; Docket
No. 108 at 7. Mr. Driscoll highlights the fact that his original complaint included an
allegation that he, like other protesters, was subjected to “tear gas and pepper balls.”
Docket No. 108 at 7 (citing Docket No. 1 at 31, ¶¶ 87, 92). He contends that the new
allegations and claims in the second amended complaint only expand upon this
previous allegation and that, therefore, Mr. Driscoll’s second amended complaint relates
back to his initial complaint. Id.
The Court finds that the allegations and claims in Mr. Driscoll’s second amended
complaint against Officer Hyatt do not relate back to his original complaint under Rule
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15(c)(1)(B). First, nowhere in Mr. Driscoll’s original complaint does he include
allegations regarding his interaction with Officer Hyatt. While Mr. Driscoll’s original
complaint describes other acts of alleged use of excessive force against protesters and
journalists at the George Floyd protests, the conduct from which Mr. Driscoll’s claims in
his original complaint arise is the police conduct directed at Mr. Driscoll. The only
specific allegations regarding police conduct directed at Mr. Driscoll in his original
complaint is the incident where Mr. Driscoll was shot in the forehead. Docket No. 1 at
32–34, ¶¶ 98–129.
Second, considering the allegations in the original complaint regarding the
incident where Mr. Driscoll was shot in the forehead, the allegations and claims against
Officer Hyatt do not relate back to the original complaint because the allegations against
Officer Hyatt do not “arise[ ] out of the conduct set forth in the original pleading.”
Slayton, 460 F.3d at 228 (citation omitted). The original complaint does not identify the
officer who shot Mr. Driscoll in the forehead. See Docket No. 1. Despite extensive
analysis of discovery, Mr. Driscoll acknowledges that he could not identify that person.
Docket No. 108 at 2 (“Although this resulted in the identification of many officers,
Plaintiff was unable to identify the officer who shot him in the face.”). However, the
original complaint does provide the following details regarding the incident wherein Mr.
Driscoll was shot in the forehead: (1) the incident occurred at 10:00 p.m. on May 31,
2020; (2) Mr. Driscoll was marching in a group of approximately one hundred protesters
at the intersection of Cherokee Street and 13th Avenue, (3) Denver police officers fired
tear gas into the group of protesters to disperse the crowd, (4) Mr. Driscoll raised a
plywood sign, (5) Mr. Driscoll was shot in the forehead with a rubber bullet, and (6) as a
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result of being hit by the rubber bullet, Mr. Driscoll suffered a skull fracture. Docket No.
1 at 31–34, ¶¶ 96, 98, 113, 114, 119, 135–36. The second amended complaint
contains the following details regarding Officer Hyatt’s interaction with Mr. Driscoll: (1)
the incident occurred at 9:09 p.m. on May 31, 2020; (2) Mr. Driscoll was with a group of
“several protestors” on Colfax Avenue, (3) Mr. Driscoll had a plywood sign, and (4)
Officer Hyatt threw a stingball grenade at Mr. Driscoll’s sign. Docket No. 94 at 44, 53,
¶¶ 139, 166–68. The second amended complaint does not allege that Mr. Driscoll was
injured by Officer Hyatt’s actions. See id. at 53–56, ¶¶ 166–88.
The allegations regarding these two incidents have little in common beyond the
fact that they both occurred during the George Floyd protests and involved police action
against Mr. Driscoll. Instead, Mr. Driscoll’s allegations against Officer Hyatt are based
on an incident that occurred an hour earlier, at a different location, and involving a
different number of protestors than the incident where Mr. Driscoll was shot in the
forehead. Moreover, a different type of less lethal munition is involved in each incident.
The allegations against Officer Hyatt in Mr. Driscoll’s second amended complaint do not
expand on the incident where he was shot in the forehead with a rubber bullet. Nor do
the allegations against Officer Hyatt constitute new claims or legal theories based on his
being shot in the forehead. Benton, 2007 WL 4105175, at *3 (amendments will relate
back if they “assert a new legal theory of relief[ ] or add another claim arising out of the
same facts”). Rather, they are new claims based on separate conduct for which “the
statute of limitations runs separately.” Cayo, 95 F. Supp. 3d at 12.
Finally, the Court finds that the allegation in Mr. Driscoll’s original complaint that
he was subjected to tear gas and pepper balls does not identify conduct with sufficient
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specificity for the allegations against Officer Hyatt to relate back to this allegation. The
original complaint states that Mr. Driscoll “marched, subjecting himself to tear gas and
pepper balls.” Docket No. 1 at 31, ¶ 92. This allegation lacks any pertinent details
regarding when, where, how, and by whom Mr. Driscoll was subjected to tear gas and
pepper balls. Furthermore, this allegation does not state that Mr. Driscoll was subjected
to stingball grenades. At most, this allegation references “a broad course of conduct
over a lengthy period of time,” which does not preserve Mr. Driscoll’s right to sue for any
act that occurred during the protests. Eng. Boiler & Tube, 172 F.3d 862, at *3.
Accordingly, the Court finds that Mr. Driscoll’s claims and allegations against
Officer Hyatt do not relate back to the allegations in his original complaint because the
second amended complaint asserts claims that arose out of conduct distinct from the
conduct set out in the original pleading. See Fed. R. Civ. P. 15(c)(1)(B).
ii. 	Officer Cochran
Officer Cochran argues that the allegations in the second amended complaint
regarding his interaction with Mr. Driscoll do not relate back to the original complaint.
Docket No. 100 at 6, 9–10. Mr. Driscoll responds that the allegations in the original
complaint sufficiently alleged the course of conduct of Denver Police officers throughout
the protest such that the claims and allegations against Officer Cochran relate back to
his original complaint. Docket No. 108 at 6–7. The allegations in Mr. Driscoll’s second
amended complaint regarding Officer Cochran are that: (1) Mr. Driscoll’s interaction with
Officer Cochran occurred at 9:09 p.m. on May 31, 2020; (2) Mr. Driscoll was with a
group of “several protestors” on Colfax Avenue, (3) Mr. Driscoll had a plywood sign, (4)
after Officer Hyatt threw a stingball grenade at Mr. Driscoll’s sign, Officer Cochran shot
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a KIP at Mr. Driscoll’s sign, and (5) the KIP broke Mr. Driscoll’s sign. Docket No. 94 at
44, 53–56, ¶¶ 132, 166–68, 181–82.
The Court finds that Mr. Driscoll’s claims and allegations against Officer Cochran
do not relate back to his original complaint under Rule 15(c)(1)(B). Nowhere in Mr.
Driscoll’s first amended complaint does he include allegations regarding his interaction
with Officer Cochran. Furthermore, Mr. Driscoll’s allegations regarding being shot in the
forehead are unrelated to Mr. Driscoll’s allegations regarding Officer Cochran shooting
his sign. Although both incidents involve a police officer shooting at Mr. Driscoll with a
projectile, the incidents are separated in both time and space. The allegations against
Officer Cochran do not amplify the facts alleged in the original complaint, but instead
are new claims based on separate conduct. Therefore, Mr. Driscoll’s claims against
Officer Cochran do not relate back to the original complaint.
iii. 	Officer Eberharter
Officer Eberharter argues that the added claims against him are even further
unrelated to the allegations in Mr. Driscoll’s original complaint than the claims added
against Officers Hyatt and Cochran. Docket No. 100 at 6. Officer Eberharter asserts
that not only did the alleged incident occur at a different location, involve a different
method of crowd dispersal, and lack a serious injury, but the incident occurred on a
different day. Id. at 6, 9–10. Mr. Driscoll advances the same arguments as to Officer
Eberharter as he does to Officer Cochran regarding whether the second amended
complaint relates back to the original complaint. See Docket No. 108 at 6–9.
The Court finds that Mr. Driscoll’s allegations against Officer Eberharter do not
relate back to the original complaint. In the second amended complaint, Mr. Driscoll
alleges that: (1) at 7:30 p.m. on May 30, 2020, Mr. Driscoll was standing with a small
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crowd of protesters at the corner of Lincoln Street and Colfax Avenue, (2) Officer
Eberharter threw a teargas canister at Mr. Driscoll’s feet, and (3) the teargas canister
caused Mr. Driscoll severe pain and forced him to stop protesting momentarily. Docket
No. 94 at 35–38, ¶¶ 103–04, 109–10, 113. Mr. Driscoll’s original complaint contains no
allegations regarding his interaction with Officer Eberharter. See Docket No. 1. While
the original complaint alleges that Mr. Driscol “drove up on Saturday, May 30, 2020 and
participated in marching and chanting all day,” and that “he marched, subjecting himself
to tear gas and pepper balls,” id. at 31, ¶¶ 87, 92, these allegations do not identify any
details as to how Mr. Driscoll was subjected to tear gas. Rather, as discussed, these
allegations describe, at most, a general course of conduct by police officers at the
George Floyd protests, which is insufficient for Mr. Driscoll to later bring claims based
on specific incidents of police action taken against him at the protests. Eng. Boiler &
Tube, 172 F.3d 862, at *3.
More importantly, the only allegations in Mr. Driscoll’s original complaint that
identify specific conduct of an officer directed at Mr. Driscoll are the allegations
concerning Mr. Driscoll being shot in the forehead. See Docket No. 1 at 32–35, ¶¶ 98,
113, 114, 119, 135–36. These allegations serve as the basis for Mr. Driscoll’s claims in
the original complaint. Mr. Driscoll’s allegations regarding Officer Eberharter are based
on an incident that occurred on a separate day, in a different location, and involving tear
gas rather than a rubber bullet. Mr. Driscoll’s second amended complaint brings new
claims against Officer Eberharter based on separate conduct from that alleged in the
original complaint. Mr. Driscoll’s allegations regarding Officer Eberharter, therefore, do
not relate back under Rule 15(c)(1)(B) because they are based on a separate violation
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of the law. Slayton, 460 F.3d at 228 (“For a newly added action to relate back, the basic
claim must have arisen out of the conduct set forth in the original pleading.”) (internal
quotations and citation omitted).
c. 	Federal Rule of Civil Procedure 15(c)(1)(C)
The parties debate whether the allegations in the second amended complaint
relate back to the original complaint under Rule 15(c)(1)(C), in addition to relating back
under Rule 15(c)(1)(B). See Docket No. 100 at 10–12; Docket No. 102 at 5–6, ¶¶ 13–
16; Docket No. 108 at 6. Under Rule 15(c)(1)(C), an amendment may also relate back
when “the amendment changes the party or the naming of the party against whom a
claim is asserted.” Fed. R. Civ. P. 15(c)(1)(C). Under this provision of the rule, three
requirements must be met for the amendment to relate back to the original complaint.
First, the amendment must “assert[ ] a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). Second, the new party must have “received
such notice of the action that it will not be prejudiced in defending on the merits” within
the service period provided by Rule 4(m) of the Federal Rules of Civil Procedure. Fed.
R. Civ. P. 15(c)(1)(C)(i). Finally, the plaintiff must demonstrate that the new party “knew
or should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii).
Rule 15(c)(1)(C) is inapplicable to the claims against Officers Eberharter,
Cochran, and Hyatt because Mr. Driscoll’s amendment did not “change[ ] the party or
the naming of the party against whom a claim is asserted.” Fed. R. Civ. P. 15(c)(1)(C).
Although Mr. Driscoll’s second amended complaint does drop the John Doe defendants
from his original complaint and bring claims against other named defendants, the claims
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brought against Officers Eberharter, Cochran, and Hyatt are new claims based on
different incidents. Mr. Driscoll does not substitute Officers Eberharter, Cochran, or
Hyatt for previously unidentified John Doe defendants. Furthermore, even if Rule
15(c)(1)(C) did apply, the Court has already found that the claims against Officers
Eberharter, Cochran, and Hyatt are based on conduct different from that alleged in the
original complaint under Rule 15(c)(1)(B), which is a precondition for relation back under
Rule 15(c)(1)(C). See Fed. R. Civ. P. 15(c)(1)(C). As such, the Court finds that it is
unnecessary to consider the parties’ arguments regarding Rule 15(c)(1)(C).
1. 	Equitable Tolling
Mr. Driscoll argues that, even if the allegations in his second amended complaint
do not relate back to the original complaint under Rule 15(c)(1)(B), amending the
complaint was proper because Mr. Driscoll is entitled to equitable tolling of the statute of
limitations as to his claims against Officers Eberharter, Cochran, and Hyatt. Docket No.
108 at 9.
“Statutes of limitation are enacted to promote justice, discourage unnecessary
delay, and forestall prosecution of stale claims.” Dean Witter Reynolds, Inc. v. Hartman,
911 P.2d 1094, 1096 (Colo. 1996). Equitable tolling is appropriate in two
circumstances: (1) “where the defendant’s wrongful conduct prevented the plaintiff from
asserting [his] claims in a timely manner,” or (2) “where extraordinary circumstances
make it impossible for the plaintiff to file [his] claims within the statutory period.” Brown
v. Walker Com., Inc., 521 P.3d 1014, 1022 n.5 (Colo. 2022) (quoting Dean Witter, 911
P.2d at 1096–97). “This standard is far higher than that for excusable neglect.” Id.
Regarding extraordinary circumstances, “the Colorado Supreme Court has yet to
find a case that qualifies as an extraordinary circumstance that would justify tolling.”
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Graham v. Teller Cnty., Colo., 632 F. App’x 461, 465 (10th Cir. 2015) (unpublished).
“However, th[e] court has relied on cases from other jurisdictions to illustrate that tolling
may apply when a plaintiff is truly precluded from filing suit.” Braxton v. Zavaras, 614
F.3d 1156, 1161 (10th Cir. 2010) (citation omitted). Circumstances where plaintiffs
were precluded from filing suit include courts in southern states being closed during the
Civil War, the plaintiff being interned by Japan during World War II, and where a district
court erroneously enforced an unconstitutional statute that barred the plaintiff from filing
claims in a timely manner. See Dean Witter, 911 P.2d at 1097 (citing Hanger v. Abbott,
73 U.S. 532 (1867); Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947); Seattle
Audubon Soc’y v. Robertson, 931 F.2d 590 (9th Cir. 1991)).
Mr. Driscoll argues that “[t]he entire circumstances of these protests and the
incredible use of force by hundreds of police officers on thousands of individuals alone
makes this an extraordinary circumstance.” Docket No. 108 at 10. He claims that,
given the circumstances of the protest, protesters were frequently unable to identify
which officer had violated their rights. Id. He maintains that these circumstances are
unique and, therefore, extraordinary. Id.
Mr. Driscoll’s argument regarding extraordinary circumstances misses the point.
The circumstances that must be extraordinary are not those that give rise to Mr.
Driscoll’s claims, but rather the circumstances that prevented Mr. Driscoll from
accessing the courts, such as the courthouse being closed due to war. Mr. Driscoll
identifies no extraordinary circumstances that prevented him from accessing the courts
before the statute of limitations had run on his claims against Officers Eberharter,
Cochran, and Hyatt. In fact, the filing of Mr. Driscoll’s original complaint shows that Mr.
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Driscoll did have the ability to access the courts. Mr. Driscoll provides no explanation
as to why the extraordinary nature of the protests precluded Mr. Driscoll from bringing
his claims against Officers Eberharter, Cochran, and Hyatt but did not preclude him
from bringing his original claims. Mr. Driscoll was aware of the conduct that gave rise to
his claims against Officers Eberharter, Cochran, and Hyatt the moment it happened, but
chose not to seek relief based on this conduct until after the statute of limitations had
passed. See Zundel v. Holder, 687 F.3d 271, 282 (6th Cir. 2012) (plaintiff “may not
escape the limitations period by claiming that he did not learn of the grounds for his
Bivens claim until 2006” because the misconduct supported a Bivens claim at the time it
occurred). Mr. Driscoll does not explain why he could not have asserted all the claims
and allegations in his second amended complaint against John Doe defendants, similar
to the approach he took with his claims against the officer who shot him in the forehead.
As such, the Court finds that no extraordinary circumstances existed that made it
impossible for Mr. Driscoll to bring his claims against Officers Eberharter, Cochran, and
Hyatt within the statute of limitations.
Mr. Driscoll argues that he is also entitled to equitable tolling because Denver
police officers, including Officers Eberharter, Cochran, and Hyatt, engaged in wrongful
conduct that prevented him from timely asserting his claims. Docket No. 108 at 10. In
particular, he claims that the officers’ failure to engage their body-worn cameras during
the protests was a willful attempt to conceal their identities and to prevent individuals
like Mr. Driscoll from filing claims against them. Id. at 10–11. Mr. Driscoll claims that, to
identify Officers Eberharter, Cochran, and Hyatt, his attorney was required to spend
hundreds of hours reviewing videos, documents, and other materials. Id. at 2.
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Defendants’ failure to engage their body-worn cameras explains why Mr. Driscoll
did not identify Officers Eberharter, Cochran, and Hyatt by name in his original
complaint. However, the lack of body-worn camera footage does not explain why the
original complaint contains no allegations wherein a police officer threw a teargas
canister at Mr. Driscoll’s feet, another officer threw a sting ball grenade at him, or a third
officer broke Mr. Driscoll’s sign with a KIP. Mr. Driscoll has not demonstrated that
defendants’ wrongful conduct prevented Mr. Driscoll from asserting his claims in a
timely manner. Therefore, Mr. Driscoll has not shown that he is entitled to have his
claims against Officers Eberharter, Cochran, and Hyatt equitably tolled.
Mr. Driscoll admits that he filed his second amended complaint after the statute
of limitations had passed on his claims against Officers Eberharter, Cochran, and Hyatt.
Id. at 5. Moreover, Mr. Driscoll has not shown that the statute of limitations does not
preclude him from bringing these claims. He has not shown his claims against Officers
Eberharter, Cochran, and Hyatt relate back to the filing of his original complaint under
Rule 15(c)(1)(B). Nor has he demonstrated that he is entitled to equitable tolling of the
statute of limitations as to his claims against these defendants. Accordingly, the Court
finds that Mr. Driscoll should not have been permitted to amend his complaint to add
claims against Officers Eberharter, Cochran, and Hyatt because the applicable statute
of limitations made it futile for him to add such claims. Therefore, the Court will grant
the motions to dismiss filed by Officers Eberharter, Cochran, and Hyatt and will dismiss
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Mr. Driscoll’s first, second, third, fourth, and fifth claims as they relate to Officers
Eberharter, Cochran, and Hyatt.4
B. Motion to Dismiss by Defendants Pazen, Phelan, and the City and
County of Denver
The Court will next consider the motion to dismiss filed on behalf of Denver,
Chief Pazen, and Commander Phelan (“the Denver defendants”). Docket No. 99. The
second amended complaint brings six claims against the Denver defendants, including
a Fourth Amendment claim for excessive force, a Fourteenth Amendment claim for
excessive force, a First Amendment claim for violating Mr. Driscoll’s rights of free
speech and assembly, a First Amendment retaliation claim, a Fourteenth Amendment
due process claim, and a Fourth Amendment failure to train or supervise claim. Docket
No. 94 at 68–81, ¶¶ 277–386. The Denver defendants move pursuant to Rule 12(b)(6)
to dismiss Mr. Driscoll’s failure to train or supervise claim as to Denver. Docket No. 99
at 3–5. In particular, the Denver defendants argue that the allegations in Mr. Driscoll’s
second amended complaint fail to state a claim for municipal liability because they do
not plausibly allege that Denver failed to adequately train and supervise its employees.
Id. at 3. The Denver defendants also argue that Mr. Driscoll’s claims against Chief
Pazen and Commander Phelan should be dismissed because Chief Pazen and
Commander Phelan are entitled to qualified immunity. Id. at 5. The Court will first
consider whether Mr. Driscoll’s second amended complaint adequately states a claim
for municipal liability for Denver’s failure to train its employees.
4 Defendant Hyatt argues, in the alternative, that Mr. Driscoll’s second and fifth
claims brought under the Fourteenth Amendment are improper because Mr. Driscoll has
brought claims under the Fourth Amendment. Docket No. 102 at 7–8, ¶¶ 22–24.
Because the Court has found that the claims against defendant Hyatt should be
dismissed, the Court will not address defendant Hyatt’s alternative argument.
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1. 	The City and County of Denver
The allegations in the second amended complaint regarding Mr. Driscoll’s failure
to train claim against Denver, Chief Pazen, and Commander Phelan state that Mr.
Driscoll “incorporates by reference the allegations contained in the foregoing
paragraphs.” Docket No. 94 at 79, ¶ 373. The preceding allegations include Mr.
Driscoll’s allegations regarding the incident wherein he was shot in the forehead, as well
as his allegations regarding his interactions with Officers Eberharter, Cochran, and
Hyatt.5 Id. at 34–64, ¶¶ 83–246. The allegations in Mr. Driscoll’s failure to train claim
states that “Defendants unlawfully seized Plaintiff by means of excessive physical force,
including use of chemical agents and KIPs.” Id. at 80, ¶ 378. Mr. Driscoll further
alleges that:
379. Defendants Denver, Pazen, and Phalen had an obligation to ensure that
their officers were properly trained in responding to First Amendment activity,
including criticism of officers, and the use of less lethal munitions.
380. Defendants Denver, Pazen, and Phalen were made aware over the course
of several evenings that DPD officers were using less lethal munitions, including
rubber bullets, in a retaliatory manner.
381. Defendants Denver, Pazen, and Phalen were made aware over the course
of several evenings that DPD officers were using less lethal munitions, including
rubber bullets, in a dangerous manner, often aiming for heads and seeking to
inflict the maximum damage possible on protesters.
382. Defendants Denver, Pazen, and Phalen had a duty to the citizens of
Denver and the protesters to stop the use of excessive and often deadly force
against protesters who were not threatening any bodily harm.
5 The Denver defendants do not argue that Mr. Driscoll should not have been
permitted to amend his complaint to add the failure to train and supervise claim nor do
they argue that the allegations regarding Officers Eberharter, Cochran, and Hyatt
should be stricken from the complaint. See Docket No. 99. As such, while the Court
will dismiss the claims against Officers Eberharter, Cochran, and Hyatt, the Court will
consider the allegations against these officers to the extent they are relevant to Mr.
Driscoll’s claims against the Denver defendants.
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383. Defendants Denver, Pazen, and Phalen failed to train their officers in the
use of these less lethal munitions and in how to respond to protest movements.
Id. at 80, ¶¶ 379–83. The Denver defendants argue that these allegations are
insufficient to state a claim for municipal liability against Denver. Docket No. 99 at 3–5.6
Municipalities may not be sued under 42 U.S.C. § 1983 on a theory of
respondeat superior for the actions of their employees. Monell v. Dep’t of Soc. Servs. of
N.Y., 436 U.S. 658, 692 (1978). Instead, local governing bodies can be sued directly
only where “the action that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body’s officers.” Id. at 690. “[I]t is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
6 There is an ambiguity in the Denver defendants’ motion that they clarify in their
reply brief. The Denver defendants’ motion states that “Plaintiff asserts claims against
Denver under 42 U.S.C. § 1983 for its alleged failure to adequately train and supervise
its employees to properly respond to First Amendment activity and deploy munitions.”
Docket No. 99 at 3. The motion then cites to paragraphs 373 through 386 of Mr.
Driscoll’s second amended complaint, which correspond only to Mr. Driscoll’s sixth
claim, titled “Fourth Amendment Violation – Failure to Train or Supervise.” Id. (citing
Docket No. 94 at 79–81, ¶¶ 373–86). In his response, Mr. Driscoll argues that his
second amended complaint “raised three distinct bases for liability: 1) custom or
practice; 2) failure to train; and 3) ratification.” Docket No. 111 at 4. He then cites to
allegations contained in each of his first five claims. Id. (citing Docket No. 94 at 70–79,
¶¶ 292–95, 311–13; 331–33, 350–52, 367–69). In their reply, the Denver defendants
clarify that “Denver’s motion to dismiss only argues the facial deficiency of his failure-to-
train claim.” Docket No. 119 at 2. It refers to this claim in the singular throughout the
rest of the brief. See, e.g., id. Accordingly, the Court will only consider the parties’
arguments as they relate to a failure to train theory of municipal liability and only as they
relate to Mr. Driscoll’s sixth claim for relief. The Court will not consider Mr. Driscoll’s
arguments regarding ratification and custom or practice and will not consider the
allegations in his first five claims for relief except to the extent they are relevant to Mr.
Driscoll’s sixth claim for relief.
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said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id. at 694.
In order to state a claim for municipal liability under § 1983 for the actions of
municipal employees, a plaintiff must allege sufficient facts to demonstrate that it is
plausible (1) that the municipal employees committed a constitutional violation;7 and (2)
that a municipal policy or custom was the moving force behind the constitutional
deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). A municipal
policy or custom can take the form of:
(1) a formal regulation or policy statement; (2) an informal custom amoun[ting] to
a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of the
decisions – and the basis for them – of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or (5) the failure to
adequately train or supervise employees, so long as that failure results from
‘deliberate indifference’ to the injuries that may be caused.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).
To state a Monell claim based on the failure to train, “a plaintiff must sufficiently
allege that the failure ‘amounts to deliberate indifference to the rights of persons with
whom the police come into contact.’” Rehberg v. City of Pueblo, No. 10- cv-00261-LTB-
KLM, 2012 WL 1326575, at *4 (D. Colo. Apr. 17, 2012) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). However, a “municipality’s 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); see also Okla. City v. Tuttle, 471 U.S.
7 The Denver defendants do not challenge whether Mr. Driscoll has adequately
alleged a constitutional violation by the unidentified officer who shot Mr. Driscoll in the
forehead. See Docket No. 99 at 2–5.
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808, 822–23 (1985) (plurality opinion) (discussing how a policy of inadequate training is
“far more nebulous, and a good deal further removed from the constitutional violation,
than was the policy in Monell”).
A plaintiff cannot state a Monell liability claim based on the failure to train by
generally alleging that employees were not properly trained. Instead, a plaintiff must
allege how the employees were trained and how the training was deficient. See, e.g.,
Sexton v. City of Colorado Springs, 530 F. Supp. 3d 1044, 1072 (D. Colo. 2021) (finding
the plaintiff’s failure-to-train allegations insufficient where the plaintiff did not state how
the officers were trained and who trained them); Cook v. Whyde, No. 20-cv-02912-PAB-
STV, 2021 WL 4459051, at *16 (D. Colo. Sept. 29, 2021) (dismissing Monell claim for
failure to allege specific facts concerning how the defendants were trained or why the
training was deficient); Est. of Lobato by & through Montoya v. Correct Care Sols., LLC,
No. 15-cv-02718-PAB-STV, 2017 WL 1197295, at *7 (D. Colo. Mar. 31, 2017) (“Notice
of particular deficiencies in a training program is the crux of a failure-to-train theory.”);
Bark v. Chacon, No. 10-cv-01570-WYD-MJW, 2011 WL 1884691, at *3 (D. Colo. May
18, 2011) (dismissing municipal liability claim where plaintiff had “generally allege[d]”
that the individual defendants were not properly trained, but had not “allege[d] specific
deficiencies in training and supervision, or explain[ed] how the incident described in the
Amended Complaint could have been avoided with different or better training and
supervision”).
Mr. Driscoll argues that the allegations in the second amended complaint
plausibly allege a claim for Monell liability against Denver based on Denver’s failure to
train its officers. Docket No. 111 at 8–9. Mr. Driscoll maintains that for a failure to train
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claim, “a Plaintiff need only allege that: (1) ‘the officers exceeded constitutional
limitations’; (2) the constitutional violation ‘arose under circumstances that constitute a
usual and recurring situation with which police officers must deal’; (3) the inadequate
supervision and discipline ‘demonstrates a deliberate indifference on the part of the city
toward persons with whom the police officers come into contact’; and (4) ‘there is a
direct causal link between the constitutional deprivation and the inadequate’ supervision
and discipline.” Id. (quoting Allen v. Muskogee, 119 F.3d 837, 841–42 (10th Cir. 1997)).
The entirety of Mr. Driscoll’s argument regarding the allegations in his second amended
complaint is that “Plaintiff has alleged Denver failed to train its officers on responding to
First Amendment activity and on the use of less-lethal weapons.” Id. at 9. He then cites
each of the allegations in his sixth claim for relief. Id. (citing Docket No. 94 at 80,
¶¶ 379–83).8
The second amended complaint’s allegations concerning officer training do not
plausibly allege a specific training deficiency that led to Mr. Driscoll’s constitutional
injuries. The allegations establish that the Denver defendants were aware of the fact
that some Denver police officers were using less lethal munitions in a dangerous
8 In his response, Mr. Driscoll references a report made by his retained expert
which “more fully articulates in detail” the Denver defendants’ alleged failures to train.
See Docket No. 111 at 4, 8 n.3, 9. Mr. Driscoll states that, “[i]f the Court would prefer,
Plaintiff will gladly amend his Complaint to include relevant portions of his expert report.”
Id. at 9. In fact, Mr. Driscoll sought leave to file a third amended complaint to
incorporate new allegations based on his expert’s report. Docket No. 136. Magistrate
Judge Neureiter recommended that the Court deny leave to amend the complaint,
finding that Mr. Driscoll had not made diligent efforts to meet the scheduling deadlines
in the case and that Mr. Driscoll’s motion was untimely. Docket No. 164 at 9. Mr.
Driscoll did not file an objection, and the Court adopted the recommendation. Docket
No. 169. Accordingly, the Court will consider only the allegations in the second
amended complaint.
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manner over a period of days. Docket No. 94 at 80, ¶ 381. The complaint does not
state any facts concerning how the officers were trained, who trained them, why their
training was deficient, or how Mr. Driscoll’s injuries could have been avoided with
different training.
Mr. Driscoll argues that “[e]vidence of a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to
handle recurring situations presenting an obvious potential for such a violation, is
sufficient to trigger municipal liability.” Docket No. 111 at 9 (quoting Allen, 119 F.3d at
842). However, the allegations in Mr. Driscoll’s complaint, taken as true, do not show
that Denver failed to train its officers to handle recurring situations presenting an
obvious potential for violating Mr. Driscoll’s constitutional rights. There are no
allegations regarding what training Denver’s employees received. Moreover, there are
no allegations that show that the circumstances of the George Floyd protests were
recurring. Rather, the allegations in the complaint demonstrate that the size of the
protests, as well as the type of crowd control needed and the techniques deployed,
were unusual. In fact, Mr. Driscoll elsewhere argues that the circumstances of the
protest were so unusual that they were extraordinary. Docket No. 108 at 10. Because
Mr. Driscoll’s second amended complaint does not contain allegations regarding what
training Denver provided its police officers, the complaint does not plausibly allege a
claim for Monell liability against Denver based on a failure to train.9 Accordingly, the
9 Mr. Driscoll does not argue that Denver is liable under his sixth claim for relief
based on a failure to supervise. See Docket No. 111 at 4–9. Mr. Driscoll instead
argues that Chief Pazen and Commander Phelan are liable under a theory of
supervisory liability. Id. at 11–15. Mr. Driscoll’s sixth claim is brought against Denver,
Chief Pazen, and Commander Phelan separately. Docket No. 94 at 80, ¶¶ 379–83.
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Court will grant that portion of the Denver defendants’ motion to dismiss seeking
dismissal of Mr. Driscoll’s sixth claim as it relates to the City and County of Denver.
2. 	Defendants Pazan and Phelan
In addition to bringing his claims against the officers directly involved in the
incidents described in Mr. Driscoll’s second amended complaint, Mr. Driscoll brings
each of his six claims against Chief Pazen and Commander Phelan. These include Mr.
Driscoll’s Fourth Amendment and Fourteenth Amendment claims for excessive force
and Mr. Driscoll’s claims for violations of his First Amendment rights. See Docket No.
94 at 68–81, ¶¶ 277–386. Mr. Driscoll brings his claims against Chief Pazen and
Commander Phelan under a theory of supervisory liability.10 See Docket No. 111 at
11–15.
“A § 1983 defendant sued in an individual capacity may be subject to personal
liability and/or supervisory liability.” Est. of George v. City of Rifle, Colo., 85 F.4th 1300,
Because Mr. Driscoll does not contend that Denver is liable for its failure to supervise its
employees, the Court will not consider the issue. However, even if the Court were to
consider whether the allegations in the complaint state a claim for a failure to supervise
against Denver, the Court’s analysis would be the same. See Zartner v. City & Cnty. of
Denver, 242 F. Supp. 3d 1168, 1173 (D. Colo. 2017) (stating that the Allen factors
“applies to claims related to a failure to supervise as well”). Mr. Driscoll’s complaint
contains no allegations regarding how Chief Pazen, Commander Phelan, or any other
Denver employee supervised and disciplined the officers involved in Mr. Driscoll’s
claims. Nor do the allegations in his complaint show that Mr. Driscoll’s injuries at the
George Floyd protests “arose under circumstances that constitute a usual and recurring
situation.” Allen, 119 F.3d at 842.
10 As discussed in greater detail below, Mr. Driscoll does not allege that either
Chief Pazen or Commander Phelan personally participated in the incidents described in
his second amended complaint, only that they supervised and directed police officers at
the George Floyd protests. As such, he can only bring a claim against Chief Pazen or
Commander Phelan on a theory of supervisory liability. “Individual liability under § 1983
must be based on personal involvement in the alleged constitutional violation.” Est. of
Yoemans by & through Ishmael v. Campbell, 501 F. Supp. 3d 1034, 1053 (D. Colo.
2020) (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)).
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1320–21 (10th Cir. 2023) (quoting Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th
Cir. 2014)). “Section 1983, however, does not authorize liability under a theory of
respondeat superior.” Id. (citations omitted). Put differently, § 1983 “does not recognize
a concept of strict supervisor liability; the defendant’s role must be more than one of
abstract authority over individuals who actually committed a constitutional violation.”
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (citing Jenkins v. Wood, 81
F.3d 988, 994–95 (10th Cir.1996)). Instead, to state a claim for supervisory liability, “the
plaintiff must show an ‘affirmative link’ between the supervisor and the constitutional
violation.” Lieberenz v. Wilson, 2024 WL 2952150, at *9 (10th Cir. June 12, 2024)
(citing Estate of Booker, 745 F.3d at 435). This affirmative link can be established
“between the constitutional deprivation and either the supervisor’s personal
participation, his exercise of control or direction, or his failure to supervise.” Fogarty,
523 F.3d at 1162 (10th Cir. 2008) (quoting Butler v. City of Norman, 992 F.2d 1053,
1055 (10th Cir. 1993)). This requires “more than a supervisor’s mere knowledge of his
subordinate’s conduct.” Est. of Booker, 745 F.3d at 435 (citation omitted). A plaintiff
must plausibly allege three elements to state a successful § 1983 claim against a
defendant based on his supervisory responsibilities: “(1) personal involvement; (2)
causation; and (3) state of mind.” Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir.
2018) (citation omitted); see also Dodds v. Richardson, 614 F.3d 1185, 1194–95 (10th
Cir. 2010).
The allegations in the second amended complaint regarding Chief Pazen’s and
Commander Phelan’s supervisory actions include the following:
5. 	. . . . Defendant Pazen was responsible for supervising individual Defendants
and all Denver police officers and mutual aid partner officers responding to the
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George Floyd Protests and directing their actions during the protests in response
to the murder of George Floyd and, specifically, their actions during the protest
on May 31, 2020.
6. 	. . . . [A]s Commander of Special Operations for the Denver Police
Department. . . Defendant Phelan was in direct command of the officers
responding to the George Floyd protests. Defendant Phelan was responsible for
supervising individual Defendants and all Denver police officers and mutual aid
partner officers responding to the George Floyd Protests and directing their
actions during the protests in response to the murder of George Floyd and,
specifically, their actions during the protest on May 31, 2020.
. . . .
43. Throughout these days of protests, Defendant Phelan, as Commander of the
police response to the protests and Defendant Pazen, as chief of police, were
made aware of the gratuitous use of force by their officers. Complaints were
made by protesters along with calls from elected officials, imploring that the DPD
and its officers stop using such brutality against those seeking change.
44. DPD has body cameras and overhead videos, called HALO cameras,
capturing much of the police violence. There were videos circulating online and
being shown to Defendants Phelan and Pazen.
45. Nonetheless, these Defendants took no action to rein in their officers. They
knew of the brutality being inflicted and they ratified it each day with their
indifference or support.
. . . .
65. Defendants Phelan and Pazen were made aware of the injuries to heads
and eyes. They were told that protesters were being hit in the head and that
people were exhibiting serious injuries at the hands of their subordinate police
officers.
66. They took no action.
. . . .
293. The actions of the Defendants were authorized (before and during the fact),
and ratified (after the fact), by final policymakers for Defendant Denver, including
Chief Pazen and Defendant Phelan.
. . . .
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381. Defendants Denver, Pazen, and Phalen were made aware over the course
of several evenings that DPD officers were using less lethal munitions, including
rubber bullets, in a dangerous manner, often aiming for heads and seeking to
inflict the maximum damage possible on protesters.
Docket No. 94 at 2–3, 14, 18, 70, 80, ¶¶ 5, 6, 43, 44, 45, 65, 66, 293, 381.
The Denver defendants argue that Chief Pazen and Commander Phelan are
entitled to qualified immunity because these allegations are insufficient to establish that
Chief Pazen and Commander Phelan’s actions as supervisors violated Mr. Driscoll’s
clearly established constitutional rights. Docket No. 99 at 5–15.
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916–17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally 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 would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
immunity defense is implicated, the plaintiff[s] ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
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Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When
a defendant raises the defense of qualified immunity, a “plaintiff carries a two-part
burden to show: (1) that the defendant’s actions violated a federal constitutional or
statutory right, and, if so, (2) that the right was clearly established at the time of the
defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)
(internal quotation marks omitted). Courts are “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.” Pearson, 555
U.S. at 236. The Court will consider first whether Mr. Driscoll has met his burden of
demonstrating that the rights he alleges Chief Pazen and Commander Phelan violated
were clearly established.
a. 	Clearly Established
The Denver defendants argue that none of the allegations in Mr. Driscoll’s
second amended complaint show that Chief Pazen or Commander Phelan violated a
clearly established right. Docket No. 99 at 14. The Denver defendants argue that:
Plaintiff has not set forth any facts showing that Pazen or Phelan committed any
constitutional violation. But even if he had, Plaintiff cannot establish that the
specific rights at issue were clearly established prior to May 30, 2020, or that a
reasonable supervisory officer in Defendants’ position that day would have
known they were violating the law. On the contrary, clearly established law in
May 2020 permitted the use of less-lethal munitions for the dispersal of crowds
under the circumstances present here. See, e.g., Cox v. State of La., 379 U.S.
536, 554 (1965); Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001);
Ellsworth v. City of Lansing, 205 F.3d 1340, *3–4 (6th Cir. Feb. 10, 2000) (table
decision). . . . [A]ll of Plaintiff’s claims against Defendants must be dismissed. 11
11 The Court finds that the Tenth Circuit’s decision in Packard v. Budaj, 86 F.4th
859, 869 (10th Cir. 2023), contradicts the Denver defendants’ assertion regarding Mr.
Driscoll’s clearly established rights. In Packard, a protester at the George Floyd protest
in Denver was knocked unconscious by a beanbag round shot by a police officer. Id. at
862. In addressing the second prong of the qualified immunity analysis, the court found
that it was “clearly established that an officer cannot shoot a protester with pepper balls
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Id. at 15.
The Denver defendants having invoked qualified immunity, the burden falls on
Mr. Driscoll to show that the rights Chief Pazen and Commander Phelan violated were
“clearly established” at the time of their conduct. Hernandez v. Norton, No. 23-cv-
00548-GPG-STV, 2023 WL 9375631, at *2 (D. Colo. Dec. 28, 2023) (“Where, as here,
police officers invoke the doctrine of qualified immunity, the burden shifts to the plaintiff
to make a . . . showing . . . that the contours of th[e] violation were ‘clearly established’
at the time of the events.”). To be clearly established, “[i]t is not enough that a rule be
suggested by then-existing precedent; the ‘rule’s contours must be so well defined that
it is clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Packard, 86 F.4th at 868 (quoting City of Tahlequah, Okla. v. Bond, 595
U.S. 9, 12 (2021)). Moreover, Mr. Driscoll cannot rely on a theory of respondeat
or other less-lethal munitions when that protester is committing no crime more serious
than a misdemeanor, not threatening anyone, and not attempting to flee.” Id. at 868–
69. Taking the allegations in Mr. Driscoll’s second amended complaint as true that, at
the time he was shot in the forehead, he was committing no crime, was not threatening
anyone, and was not attempting to flee. Docket No. 94 at 59, ¶¶ 204–06. It was clearly
established that the conduct of the officer who shot Mr. Driscoll in the forehead violated
Mr. Driscoll’s constitutional rights. Packard, 86 F.4th at 869. Therefore, in considering
whether Mr. Driscoll has carried his burden to show that Chief Pazen and Commander
Phelan are not entitled to qualified immunity, the Court will focus on whether Mr. Driscoll
has plausibly stated a supervisory liability claim based on the incident wherein he was
shot in the forehead. The allegations regarding Chief Pazen’s and Commander
Phelan’s supervision of the officer who shot him in the forehead are identical to the
allegations regarding their supervision of the officers in Mr. Driscoll’s other alleged
constitutional violations. As such, if Mr. Driscoll has failed to adequately allege a claim
for supervisory liability regarding his being shot in the forehead, he has also failed to
plausibly allege supervisory liability as to the other alleged violation of his rights.
However, as discussed below, to show that Chief Pazen and Commander Phelan are
liable under a theory of supervisory liability, Mr. Driscoll must do more than show that
one of Chief Pazen’s and Commander Phelan’s subordinates violated Mr. Driscoll’s
rights.
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superior, Est. of George, 85 F.4th at 1321, nor can he rely solely on the fact that it was
clearly established that the conduct of the subordinate was a constitutional violation.
Perry, 892 F.3d at 1123. “Instead, to satisfy the second part of the qualified-immunity
test in the context of [a] supervisory-liability claim” a plaintiff must show that as of the
date in question “clearly established law . . . would . . . have put a reasonable official in
[the supervisor’s] position on notice that his supervisory conduct would” violate plaintiff’s
constitutional rights. Id. (quoting Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015)).
In other words, Mr. Driscoll must “‘identify a case where an officer acting under similar
circumstances . . . was held to have violated” the Constitution. Id. (quoting White v.
Pauly, 580 U.S. 73, 79 (2017) (alterations omitted)); see also Cox, 800 F.3d at 1247
(“we elect to focus on the second prong – wherein we inquire whether, under Ms. Cox’s
version of the facts, then-extant clearly established law would have given Sheriff Glanz
fair warning that he could be held liable for his conduct under a supervisory-liability
theory for violating Mr. Jernegan’s Eighth Amendment rights”).
Mr. Driscoll argues that “[t]he law of this circuit reasonably put Defendants on
notice that their actions were unconstitutional.” Docket No. 111 at 14. Mr. Driscoll
identifies two cases that he believes clearly establish that Chief Pazen and Commander
Phelan violated Mr. Driscoll’s constitutional rights. Id. First, Mr. Driscoll relies on the
Tenth Circuit’s decision in Fogarty, 523 F.3d at 1162. He claims that, in Fogarty, the
court “held that multiple supervisory officers during a protest who were charged with
supervising other officers who used excessive force against the peaceful crowd were
not entitled to qualified immunity where there was evidence that the supervisory officers
‘set[ ] in motion a series of acts by others . . . , which he knew or reasonably should
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have known, would cause others to inflict the constitutional injury.” Id. (quoting Fogarty,
523 F.3d at 1164–65). Mr. Driscoll asserts that “[t]his exact scenario is alleged as to
Defendants and Fogarty would put them on notice that their actions violated the
Constitution.” Id.
In Fogarty, the plaintiff was arrested during an antiwar protest in which 500 to
1,000 individuals participated. Fogarty, 523 F.3d at 1150. As part of his protest, Mr.
Fogarty participated in a drum circle outside a bookstore near the University of New
Mexico. Id. at 1150–51. After twenty minutes of drumming, Captain John Gonzales
ordered Albuquerque Police to “remove the drums,” which some officers took as an
order to arrest members of the drum circle. Id. at 1151–52. Captain Gonzales
supervised the seventy-five officers responding to the protest. Id. at 1150. At some
point during the protest, officers deployed less lethal munitions and tear gas. Id. at
1152. Mr. Fogarty was arrested and was later transported to a hospital because of an
asthma attack he was having in response to the tear gas. Id. At summary judgment,
the district court found that Captain Gonzales was not entitled to qualified immunity. Id.
at 1163. Mr. Fogarty brought Fourth Amendment claims against Captain Gonzalez
based on a theory of supervisory liability for Mr. Fogarty’s arrest without probable cause
and for the use of excessive force against Mr. Fogarty during his arrest, including the
use of tear gas and injuries to Mr. Fogarty’s wrist. Id.
The district court determined that Captain Gonzales was not entitled to qualified
immunity. Id. The court found that Captain Gonzales was directly involved, and thereby
“personally participated,” in Mr. Fogarty’s arrest because “John Gonzales either
explicitly ordered that the drummers be arrested, or ordered that their drums be taken
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and that arrests be made as a last resort. Under either set of facts, the district court
reasoned that Fogarty was arrested as a result of John Gonzales’ direct order.” Id. “As
for the excessive force claim, the district court considered both John Gonzales’
involvement with the general deployment of tear gas and projectiles, and his role in
Fogarty’s arrest. With regard to the former, it found that John Gonzales gave orders to
subordinates, moved through the crowd supervising the event, and personally ordered
the use of the tear gas that caused some of Fogarty’s injuries.” Id. The district court
“reasoned that as the incident commander who planned the APD response to the
protest, ordered certain arrests, and controlled the deployment of chemical munitions
and less lethal projectiles, John Gonzales could be held liable under § 1983 as a
supervisor.” Id. The Tenth Circuit affirmed, stating “we agree with its legal conclusion
that an ‘affirmative link’ exists between John Gonzales’ actions and the alleged
constitutional deprivations,” such that Captain Gonzales was personally involved in the
events leading to Mr. Fogarty’s injuries. Id. The court stated that, “[a]t the very least,
under Fogarty’s version of the facts, John Gonzales ‘set in motion a series of acts by
others, which he knew or reasonably should have known, would cause others to inflict
the constitutional injury.’” Id. at 1164 (citation and alterations omitted).
The Court finds that Fogarty, 523 F.3d at 1164, is not clearly established law that
would have put a reasonable official in Chief Pazen’s and Commander Phelan’s position
on notice that their supervisory conduct would violate Mr. Driscoll’s constitutional rights.
The supervisory conduct in Fogarty involved a supervisor who was directly involved in
the incident that gave rise to the plaintiff’s injuries. Captain Gonzales was present at
the protest, moved through the crowd supervising the event, and was specifically aware
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of Mr. Fogarty’s conduct. Moreover, Captain Gonzales ordered the arrest of Mr.
Fogarty and ordered the use of tear gas that caused Mr. Fogarty’s injuries. Here, the
only allegations regarding the supervisory actions of Chief Pazen and Commander
Phelan are that they were “responsible for supervising individual Defendants and all
Denver police officers and mutual aid partner officers responding to the George Floyd
Protests and directing their actions.” Docket No. 94 at 2–3, ¶¶ 5, 6. The allegations in
the second amended complaint state that Chief Pazen and Commander Phelan were
“made aware of the gratuitous use of force by their officers,” that they were shown
videos of police violence, and that they “took no action.” Id. at 14, 18, 70, 80, ¶¶ 43, 44,
45, 65, 66, 293, 381. There are no allegations that either Chief Pazen or Commander
Phelan was present when Mr. Driscoll was shot in the forehead, and there are no
allegations that Chief Pazen or Commander Phelan was aware of Mr. Driscoll or
learned of the events that led to Mr. Driscoll being shot. Moreover, there are no
allegations that Chief Pazen or Commander Phelan ordered the use of tear gas or KIPs
alleged in Mr. Driscoll’s second amended complaint. Mr. Driscoll does not allege any
specific conduct by Chief Pazen or Commander Phelan and instead bases their liability
on the fact that they “took no action.” As such, the supervisory conduct at issue in
Fogarty would not have put Chief Pazen or Commander Phelan on notice that their
inaction or, alternatively or in combination, their general responsibility for supervising
and directing all police action at the George Floyd protests, would violate Mr. Driscoll’s
constitutional rights.
Mr. Driscoll argues that Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.
2008), clearly establishes that Chief Pazen and Commander Phelan violated his
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constitutional rights. Docket No. 111 at 12. He asserts that, “in Buck, the Tenth Circuit
held that an incident commander, who was supervising officers on the ground and gave
directives authorizing the deployment of tear gas on protesters, was liable as a
supervisor for the constitutional violations caused by the deployment of the tear gas by
those under his control.” Id. (citing Buck, 549 F.3d at 1288, 1291).
In Buck, plaintiffs brought claims against Captain Gonzales based on incidents
arising from the same antiwar protest as in Fogarty. Buck, 549 F.3d at 1274 (“We need
not restate the background underlying the antiwar protest, as our related opinion in
Fogarty v. Gallegos, 523 F.3d 1147, 1150–53 (10th Cir. 2008), has already done so.”).
The Tenth Circuit affirmed the district court’s conclusion that:
there is an affirmative link between Defendant Gonzales and the use of
excessive force against Plaintiffs Chavez, Doyon, and Michael Kisner sufficient to
overcome a motion for summary judgment. Seen in the light most favorable to
these three Plaintiffs, the evidence suggests that Defendant Gonzales set in
motion a series of events that he knew or reasonably should have known would
cause his officers to violate Plaintiffs Chavez, Doyon, and Michael Kisner’s
constitutional rights when he authorized the use of pepper ball rounds, ordered
Plaintiff Doyon’s arrest, and ordered his officers to sweep people from the front of
the Frontier restaurant.
Id. at 1291. The court found that “Capt. Gonzales allowed and encouraged the use of
force against compliant demonstrators.” Id. The court distinguished Captain Gonzales’
actions from the actions of the supervisor in Holland ex rel. Overdorff v. Harrington, 268
F.3d 1179, 1191 (10th Cir. 2001). Id. The court found that, whereas the plaintiffs in
Holland “did not show that defendants decided to use the SWAT team knowing that the
SWAT team would use excessive force, intending to cause harm to any person, or that
they instructed the SWAT team to use excessive force while conducting the raid,” id.
(quoting Holland, 268 F.3d at 1191 (alterations omitted)), “Capt. Gonzales did not want
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his officers to act independently.” Rather, Captain Gonzales “contacted his officers
through radio, hand signal, and direct verbal command”; “[h]e deployed chemical
munitions, and also ordered the deployment of tear gas, pepper ball rounds, and bean
bag projectiles”; and “[h]e directed the arrest of several protestors and encouraged the
arrests of others.” Id. The court found that Captain Gonzales was not entitled to
qualified immunity because he was liable for this supervisory conduct. Id. at 1291–92.
As with Fogarty, Buck involved a supervisor who ordered his subordinates to
take certain actions that he knew or reasonably should have known would violate a
plaintiff’s constitutional rights. Here, there are no allegations that Chief Pazen or
Commander Phelan communicated with the officer who shot Mr. Driscoll in the forehead
or ordered the use of KIPs on Mr. Driscoll. Rather, Mr. Driscoll argues that Chief Pazen
and Commander Phelan failed to act on information that was given to them at an
unspecified time. Docket No. 94 at 18, ¶ 66. Because neither Fogarty nor Buck are
applicable to the supervisory conduct of Chief Pazen or Commander Phelan in this
case, Mr. Driscoll has failed to meet his burden of demonstrating that, on the day Mr.
Driscoll was shot in the forehead, clearly established law would have put a reasonable
official in Chief Pazen’s or Commander Phelan’s position on notice that “his supervisory
conduct would” violate Mr. Driscoll’s constitutional rights.12 Perry, 892 F.3d at 1123
(emphasis omitted).
12 Mr. Driscoll cites Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000), in
support of the proposition that “any form of official retaliation for exercising one’s
freedom of speech . . . constitutes an infringement of that freedom.” Docket No. 111 at
15. Worrell does not provide clearly established law that Chief Pazen’s or Commander
Phelan’s supervisory conduct was unconstitutional. Instead, the right at issue in Worrell
was Mr. Worrell’s right to testify at trial. Worrell, 219 F.3d at 1215 (“Mr. Worrell has
alleged that Mr. Turner violated his First Amendment right to testify at trial. Decisions of
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“If the plaintiff fails to establish either prong of the two-pronged qualified-immunity
standard, the defendant prevails on the defense.” Cummings v. Dean, 913 F.3d 1227,
1239 (10th Cir. 2019) (quoting A.M. v. Holmes, 830 F.3d 1123, 1134–35 (10th Cir.
2016)) (alterations omitted); see also Crane v. Utah Dep’t of Corr., 15 F.4th 1296, 1303
(10th Cir. 2021) (noting that “plaintiff bears the burden of citing to [the court] what he
thinks constitutes clearly established law” (citation omitted)); Est. of Melvin by & through
Melvin v. City of Colo. Springs, Colo., 2023 WL 8539921, at *6 (10th Cir. Dec. 11, 2023)
(granting qualified immunity to the officers because the plaintiff “failed to meet its burden
to show the constitutional right at issue was clearly established”); Flores v. Henderson,
101 F.4th 1185, 1193 (10th Cir. 2024) (noting that a “court must grant the defendant
qualified immunity if the plaintiff fails to prove either prong” (citation omitted)). Because
Mr. Driscoll has failed to meet his burden as to the second prong of the qualified
immunity test, the Court finds that it is unnecessary to reach the parties’ arguments
regarding the first prong. Cummings, 913 F.3d at 1239 (“Because we need not do so,
we do not reach the first prong of the qualified-immunity standard.”). Therefore, the
Court grants the Denver defendants’ motion to dismiss and dismisses all of Mr.
Driscoll’s claims as to Chief Pazen and Commander Phelan.
this circuit have held that the right to testify truthfully is clearly established.”). Mr.
Driscoll also cites Esparza v. Bowman, 523 F. App’x 530, 536 (10th Cir. 2012)
(unpublished). Docket No. 111 at 15. In Esparza, the court held that the plaintiff’s “First
Amendment right to be free from retaliatory arrest was clearly established.” Esparza,
523 F. App’x at 536. The case did not involve supervisory liability and does not provide
clearly established law that Chief Pazen’s or Commander Phelan’s conduct was
unconstitutional.
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b. Constitutional Violation
Moreover, even if the Court were to consider whether the allegations in the
second amended complaint plausibly allege that Chief Pazen and Commander Phelan
violated Mr. Driscoll’s constitutional rights, the Court would find that Mr. Driscoll fails to
meet his burden on prong one of the qualified immunity test. As discussed, to state a
claim for supervisory liability, Mr. Driscoll must show: “(1) personal involvement; (2)
causation; and (3) state of mind.” Perry, 892 F.3d at 1121 (citation omitted).
i. 	Personal Involvement
The Tenth Circuit has repeatedly declined to circumscribe the exact parameters
of what constitutes “personal involvement” post-Iqbal. See, e.g., Keith v. Koerner, 843
F.3d 833, 838 (10th Cir. 2016) (“We have since recognized that Iqbal may have
changed the § 1983 supervisory liability landscape, but we have not yet had occasion to
determine what allegations of personal involvement meet Iqbal’s stricter liability
standard.” (alterations, citation, and quotations omitted)); Dodds, 614 F.3d at 1195.
Instead, the Tenth Circuit has found that certain types of claims clearly remain within the
scope of supervisory liability under § 1983. Dodds, 614 F.3d at 1199 (“we conclude the
following basis of § 1983 liability survived [Iqbal] . . . : § 1983 allows a plaintiff to impose
liability upon a defendant-supervisor who creates, promulgates, implements, or in some
other way possesses responsibility for the continued operation of a policy the
enforcement (by the defendant-supervisor or her subordinates) of which subjects, or
causes to be subjected that plaintiff to the deprivation of any rights secured by the
Constitution” (citation, quotations, and alterations omitted). The court has explained
that “[t]he exercise of control which may create the ‘affirmative link’ does not need to be
. . . on-the-ground, moment-to-moment control,” but rather that “the establishment or
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utilization of an unconstitutional policy or custom can serve as the supervisor’s
‘affirmative link’ to the constitutional violation.” Id. (quoting Davis v. City of Aurora, 705
F.Supp.2d 1243, 1263 (D. Colo. 2010)). “[W]here an official with policymaking authority
creates, actively endorses, or implements a policy which is constitutionally infirm, that
official may face personal liability for the violations which result from the policy’s
application.” Id. (quoting Davis, 705 F.Supp.2d at 1264).
Mr. Driscoll argues that he has plausibly stated a claim for supervisory liability
against Chief Pazen and Commander Phelan because his second amended complaint
alleges that “Defendants Pazen and Phelan exercised supervisory control over
individual officers and authorized their conduct both before and after the fact.” Docket
No. 111 at 12 (citing Docket No. 94 at 2–3, 70, 72, 74, 76, ¶¶ 5, 6, 293, 311, 331, 353).
Paragraphs five and six of the second amended complaint state that Chief Pazen and
Commander Phelan were “responsible for supervising individual Defendants and all
Denver police officers and mutual aid partner officers responding to the George Floyd
Protests and directing their actions.” Id. at 2–3, ¶¶ 5, 6. Paragraphs 293, 311, 331, and
353 of Mr. Driscoll’s second amended complaint state that “[t]he actions of the
Defendants were authorized (before and during the fact), and ratified (after the fact), by
final policymakers for Defendant Denver, including Chief Pazen and Commander
Phelan.” Id. at 70, 72, 74, 76, ¶¶ 293, 311, 331, 353.
First, these allegations are conclusory, and the Court is not required to accept
them as true. Hackford v. Babbit, 14 F.3d 1457, 1465 (10th Cir. 1994) (“we are not
bound by conclusory allegations, unwarranted inferences, or legal conclusions”); see
also Neal v. U.S. Penitentiary Atwater, 2009 WL 2852406, at *5 (E.D. Cal. Sept. 2,
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2009) (holding that plaintiff’s allegation “that Cobb directed and supervised all the mass
searches during lock-downs at USP–Atwater” was insufficient to state a claim for
supervisory liability because “plaintiff must allege some facts that would support a claim
that supervisory defendants either: personally participated in the alleged deprivation of
constitutional rights; knew of the violations and failed to act to prevent them; or
promulgated or implemented a policy so deficient that the policy itself is a repudiation of
constitutional rights' and is ‘the moving force of the constitutional violation” (citation and
quotations omitted)).
Second, the allegations in Mr. Driscoll’s complaint do not establish that Chief
Pazen or Commander Phelan “create[d], promulgate[d], [or] implement[ed]” a policy the
enforcement of which caused Mr. Driscoll’s injuries. Dodds, 614 F.3d at 1199. The only
allegations in Mr. Driscoll’s second amended complaint regarding a policy that led to Mr.
Driscoll’s injuries are that “Defendant Denver has a custom, practice, or policy of
tolerating violations of the Fourth Amendment of the United States Constitution,” Docket
No. 94 at 70, ¶ 292, and that “Defendant Denver has a custom, practice or policy of
tolerating violations of the First Amendment of the United States Constitution.” Id. at 74,
¶ 330. These allegations are conclusory. Moreover, these allegations do not show that
Chief Pazen or Commander Phelan created, promulgated, or implemented such
policies.
Finally, even if the Court accepts Mr. Driscoll’s argument that the allegations in
his complaint regarding police conduct towards protestors other than Mr. Driscoll
establish that Denver police officers had a custom of using excessive force against
protestors, Docket No. 111 at 6, the second amended complaint contains no allegations
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that demonstrate that Chief Pazen or Commander Phelan established or utilized such
an unconstitutional custom. Dodds, 614 F.3d at 1199. More importantly, the allegations
in the second amended complaint do not establish that Chief Pazen or Commander
Phelan were aware of such a custom at the time Mr. Driscoll was shot in the forehead.
The only allegations in the second amended complaint that would give rise to the
inference that Chief Pazen or Commander Phelan authorized or ratified the
unconstitutional uses of force by police at the protests such that they were responsible
for a policy of using such force are that Chief Pazen and Commander Phelan were
“made aware” of police conduct, see, e.g., Docket No. 94 at 80, ¶ 380, and that they
were shown videos of police uses of force. Id. at 14, ¶ 44. These allegations do not
identify when or how Chief Pazen and Commander Phelan were made aware of the
unconstitutional actions of their subordinates. Moreover, the allegations do not identify
when Chief Pazen and Commander Phelan were shown videos of police or what was
on the videos, such that these videos would have put them on notice that their
subordinates had a custom of using unconstitutional force. For all these reasons, the
allegations in Mr. Driscoll’s second amended complaint fail to demonstrate Chief
Pazen’s and Commander Phelan’s personal involvement in the violations of Mr.
Driscoll’s constitutional rights.
ii. 	Causation
“The second element requires the plaintiff to show that the defendant’s alleged
action(s) caused the constitutional violation by setting in motion a series of events that
the defendant knew or reasonably should have known would cause others to deprive
the plaintiff of [his] constitutional rights.” Est. of Booker, 745 F.3d at 435 (citation and
quotations omitted). Mr. Driscoll’s second amended complaint contains no allegations
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regarding any actions that Chief Pazen or Commander Phelan took beyond the
conclusory allegation that they supervised and directed all police action at the protest.
For this reason, Mr. Driscoll’s second amended complaint fails to establish causation as
to Chief Pazen or Commander Phelan.13 Neal, 2009 WL 2852406, at *5 (allegation
“that Cobb directed and supervised all the mass searches” was insufficient because
“[t]he causal link between Cobb and the claimed constitutional violation must be
specifically alleged”).
iii. 	State of Mind
The third element of a supervisory liability claim “requires the plaintiff to show
that the defendant took the alleged actions with the requisite state of mind,” which “can
be no less than the mens rea required” of the subordinates to commit the underlying
constitutional violation. Est. of Booker, 745 F.3d at 435 (citations omitted). Mr. Driscoll
13 Some courts outside of the Tenth Circuit have found that “a supervisor may
cause violations when he or she has actual knowledge of past constitutional violations
being carried out by a subordinate, and does nothing to stop future occurrences.”
Dodds, 614 F.3d at 1212 (Tymkovich J., concurring); see also Hernandez v. Keane, 341
F.3d 137, 145 (2d Cir. 2003) (supervisory liability can result from “failure to act on
information indicating that unconstitutional acts were occurring”); Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001) (liability is appropriate for supervisors who
“know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see”); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)
(widespread abuse that is “obvious, flagrant, rampant and of continued duration” can
lead to supervisory liability if the supervisor does not act to correct these behaviors);
Castillo v. Bobelu, 1 F. Supp. 3d 1190, 1204 (W.D. Okla. 2014), aff’d in part, appeal
dismissed in part sub nom. Castillo v. Day, 790 F.3d 1013 (10th Cir. 2015), and aff’d
sub nom. Castillo v. Jones-Cooper, 660 F. App’x 614 (10th Cir. 2016) (unpublished)
(“The court agrees with plaintiffs that if a supervisor knows about misconduct and fails
to act or is aware of a significant risk and does not alleviate it, she can be held liable
under § 1983”). Even if the Court were to find that actual knowledge of past
constitutional violations and a failure to act on such knowledge could demonstrate
causation, for the reasons discussed above, the allegations in Mr. Driscoll’s second
amended complaint do not establish that Chief Pazen or Commander Phelan had actual
knowledge of past constitutional violations at the time Mr. Driscoll was shot in the
forehead.
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provides no argument as to whether Chief Pazen and Commander Phelan had the state
of mind necessary to sustain a claim of supervisory liability as to each of his claims.
The allegations in Mr. Driscoll’s second amended complaint do not provide any details
as to what Chief Pazen and Commander Phelan knew at the time Mr. Driscoll was shot
in the forehead. Without any non-conclusory allegations regarding what Chief Pazen
and Commander Phelan knew, Mr. Driscoll cannot show that Chief Pazen and
Commander Phelan took actions with the state of mind required to commit the
underlying constitutional violation. Est. of Booker, 745 F.3d at 435.
Thus, even if the Court were to consider whether the allegations in Mr. Driscoll’s
second amended complaint plausibly allege that Chief Pazen and Commander Phelan
violated his constitutional rights, the Court would find that Mr. Driscoll’s complaint fails to
sufficiently allege the elements of a claim for supervisory liability because it does not
plausibly allege Chief Pazen’s and Commander Phelan’s personal involvement, a
causal link between their actions and the violation of Mr. Driscoll’s constitutional rights,
or Chief Pazen’s and Commander Phelan’s state of mind.14
14 Mr. Driscoll argues that he has adequately alleged supervisory liability as to
Chief Pazen and Commander Phelan based on their failure to train their subordinates.
Docket No. 111 at 12–13 (citing Houston v. Reich, 932 F.2d 883, 888 (10th Cir. 1991);
Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016)). In Houston, the Tenth Circuit
stated that “a supervisor or the municipality may be liable in a § 1983 action brought for
excessive use of force by the police ‘where there is essentially a complete failure to
train, or training that is so reckless or grossly negligent that future misconduct is almost
inevitable.’” Houston, 932 F.2d at 888 (alterations omitted) (quoting Meade v. Grubbs,
841 F.2d 1512, 1528 (10th Cir. 1988)). As discussed, Mr. Driscoll’s second amended
complaint contains no allegations as to what training Denver police officers received.
As such, the second amended complaint does not demonstrate that there was
“essentially a complete failure to train.” Id. Therefore, Mr. Driscoll has also failed to
state a claim against Chief Pazen and Commander Phelan based on a failure to train
their subordinates.
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IV. 	CONCLUSION
Therefore, it is
ORDERED that the Motion to Dismiss Second Amended Complaint on Behalf of
Denver, Chief Pazen, and Commander Phelan [Docket No. 99] is GRANTED. It is
further
ORDERED that Michael Driscoll’s sixth claim for relief is DISMISSED with
prejudice. It is further
ORDERED that Michael Driscoll’s first, second, third, fourth, and fifth claims for
relief against defendants Paul Pazen and Patrick Phelan are DISMISSED with
prejudice. It is further
ORDERED that defendants Paul Pazen and Patrick Phelan are terminated from
this case. It is further
ORDERED that the Motion to Dismiss Plaintiff’s Second Amended Complaint
[Docket No. 100], and Defendant Timothy Hyatt’s Motion to Dismiss Plaintiff’s Second
Amended Complaint [Docket No. 102] are GRANTED. It is further
ORDERED that Michael Driscoll’s first, second, third, fourth, and fifth claims for
relief against defendants Rick Eberharter, Timothy Hyatt, and Christopher Cochran are
DISMISSED with prejudice. It is further
ORDERED that defendants Rick Eberharter, Timothy Hyatt, and Christopher
Cochran are terminated from this case.
DATED September 30, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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