FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:14-CV-02109-WYD-NYW)
Kenneth A. Padilla of Padilla & Padilla, PLLC, Denver,
Colorado, for Plaintiff-Appellant.
C. Cooperstein, Assistant City Attorney, Denver City
Attorney's Office, Civil Litigation Section, Denver,
Colorado, for Defendant-Appellee.
HOLMES, McKAY, and MORITZ, Circuit Judges.
Anthony Waller appeals the district court's Rule 12(b)(6)
dismissal of his municipal liability claim against the City
and County of Denver for a Denver deputy sheriff's use of
excessive force against him.
September 11, 2012, while in pretrial detention, Mr. Waller
was escorted in handcuffs and other restraints to a courtroom
located within the Denver City Jail for a first advisement
hearing. Mr. Waller remained "very respectful and calm
throughout the advisement." (Appellant's App. at
28.) After the judge finished the advisement, Mr. Waller
"politely address[ed] the Court in a normal and subdued
voice," stating that he thought the investigation should
have come before his arrest. (Id.) The judge began
to respond, but while she was speaking, Deputy Sheriff Brady
Lovingier, who had been standing directly behind Mr. Waller,
suddenly and "without warning, justification[, ] or
provocation" grabbed Mr. Waller, spun him around, and
threw him face first into a nearby glass wall and metal post,
causing him to sustain "serious and permanent
injuries." (Id. at 25, 29.) Deputy
Lovingier's assault on Mr. Waller was captured on video
recorded by the courtroom cameras.
one year later, on September 24, 2013, Deputy Lovingier
received a thirty-day suspension for his assault on Mr.
Waller. The official who issued the suspension order
concluded that Deputy Lovingier had violated "DSD
RR-300.22-Inappropriate Force; DSD RR-300.19.1-Disobedience
of Rule: Department Order 5011.1J-Use of Force; Career
Service Rule 16-60 for Neglect of Duty, Carelessness in
Performance of Duties and Responsibilities, and Conduct
Prejudicial to the Good Order and Effectiveness of the
Department or Conduct That Brings Disrepute on or Compromises
the Integrity of the City." (Id. at 32.) The
official explained that Deputy Lovingier's attack on Mr.
Waller was "unprovoked," "egregious and
unprofessional," and "breached several of the
[Sheriff Department's] Guiding principles," as well
as compromising the efficiency and reputation of the Sheriff
Department and the City and County of Denver. (Id.
at 32-33.) A hearing officer affirmed Deputy Lovingier's
Waller filed this federal lawsuit under 42 U.S.C. § 1983
in July 2014. His complaint included two claims that are
pertinent to this appeal: a claim of excessive force against
Deputy Lovingier, and a claim of municipal liability against
Denver premised on Deputy Lovingier's use of force. The
municipal liability claim alleged that Denver could be found
liable for Deputy Lovingier's unconstitutional use of
force based on the municipality's "failure to train
and to appropriately supervise and discipline officers of the
[Denver Sheriff Department]." (Id. at 67.)
Defendants filed separate motions to dismiss the complaint,
and Mr. Waller then filed a motion for leave to amend. As
pertinent here, Mr. Waller's proposed amended complaint
raised two new theories of municipal liability relating to
Deputy Lovingier's use of force, asserting that Denver
could also be found liable based the Sheriff Department's
poor hiring decisions and inadequate investigation of
excessive force allegations.
magistrate judge reviewed these motions and recommended that
the district court grant Defendants' motions to dismiss
but permit Mr. Waller to amend his complaint in part.
Specifically, the magistrate judge recommended that Mr.
Waller be permitted to amend his original complaint to
clarify the legal basis of his excessive force claim against
Deputy Lovingier. However, the magistrate judge concluded
that neither the original nor the proposed first amended
complaint contained sufficient factual allegations to set
forth a plausible claim of municipal liability against
Denver. The magistrate judge therefore recommended that the
district court deny as futile Mr. Waller's motion for
leave to amend his claim against Denver and grant
Denver's motion to dismiss. Mr. Waller objected to this
recommendation, but the district court ultimately adopted it.
Waller then filed a second amended complaint and proceeded
with his excessive force claim against Deputy Lovingier. This
claim was tried before a jury, which found that Deputy
Lovingier had violated Mr. Waller's right to be free from
excessive force. The jury awarded Mr. Waller $50, 000 in
actual damages but rejected his request for punitive damages.
The district court entered final judgment consistent with
this verdict and the earlier Rule 12(b)(6) dismissal, thus
entering judgment in favor of Denver and against Deputy
Lovingier. In addition to the $50, 000 in damages awarded by
the jury, the district court also awarded Mr. Waller $176,
226 in attorney's fees under 42 U.S.C. § 1988(b).
appeal, Mr. Waller challenges the Rule 12(b)(6) dismissal of
his municipal liability claim against the City and County of
Denver. Although he does not directly challenge the district
court's denial of his motion for leave to amend his
complaint, his arguments regarding the court's Rule
12(b)(6) dismissal are based primarily on the allegations in
his proposed first amended complaint.
review de novo a district court's decision on a
Rule 12(b)(6) motion for dismissal for failure to state a
claim." Alvarado v. KOB-TV, L.L.C., 493 F.3d
1210, 1215 (10th Cir. 2007). Under this standard, we
"must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the plaintiff." Id. (internal
quotation marks omitted). However, "mere 'labels and
conclusions' and 'a formulaic recitation of the
elements of a cause of action' will not suffice."
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). "Accordingly,
in examining a complaint under Rule 12(b)(6), we will
disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the
defendant is liable." Id. Stated differently,
"[a] claim has facial plausibility ...