Free Objection to Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM

Document 146

Filed 08/07/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-PAC MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ________________________________________________________________________ DEFENDANTS' OBJECTIONS TO MAGISTRATE'S RECOMMENDATION ________________________________________________________________________ Defendants Rittenmeyer, Lincoln, Robles and Watson respectfully submit the following objections to the Recommendation of United States Magistrate Judge (Doc. 145) filed July 24, 2006: 1. The Magistrate recommended against dismissal of the excessive force claim

against Defendants Robles and Watson on grounds that they failed to intervene to stop Defendant Rittenmeyer and Lincoln from assaulting Garraway. Recommendation, p. 11. Defendants Robles and Watson object to this recommendation. Although an officer present on the scene may be held liable for failing to intervene to prevent the deprivation of a citizen's constitutional rights, liability may only be imposed where he had a reasonable opportunity to intervene. Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10 th Cir. 1984)(noting that an officer present at an assault "may be liable if he had the

Case 1:04-cv-01049-EWN-KLM

Document 146

Filed 08/07/2006

Page 2 of 5

opportunity to intervene but failed to do so"). Numerous courts have explained that it is not reasonable to find an officer liable for failing to intervene unless evidence shows that the officer had a reasonable opportunity to intervene in the assault. Such courts have taken into account whether the use of excessive force was brief, and whether the officer had warning that excessive force would be used. See, e.g., Wilson v. Town of Mendon, 294 F.3d 1, 14 & n.29 (1st Cir. 2002) (finding that a district court properly refused to instruct a jury on a failure to intervene claim where the struggle at issue "lasted only a few seconds," even though the officer held the arrestee's head while another sprayed the arrestee, a jury "could not reasonably find that [the officer] had an opportunity to reflect on the wisdom" of the action, given that the Supreme Court has made clear that where officers "are forced to make split-second judgments, ... the degree of fault must be extremely high before liability attaches"); Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996) (affirming a grant of summary judgment where an officer present at an assault "had no reason to expect the use of excessive force until after it occurred" and "had no reasonable opportunity to protect" the arrestee); Gaudreault v. Municipality of Salem, 923 F.2d 203 (1st Cir. 1990) (observing that an officer "cannot be held liable for failing to intercede if he has no realistic opportunity to prevent an attack," and that summary judgment was properly granted where "the attack came quickly and was over in a matter of seconds") (internal quotation marks omitted); O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988) (affirming summary judgment dismissing a failure to intervene claim

2

Case 1:04-cv-01049-EWN-KLM

Document 146

Filed 08/07/2006

Page 3 of 5

where "[t]he three blows were struck in such rapid succession that [the officer] had no realistic opportunity to prevent them. This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator."). Here, the evidence shows that it would be unreasonable to hold Officers Robles and Watson liable on a theory that they should have intervened to stop the alleged assault. Accepting Garraway's version of events as true, the alleged assaults lasted a matter of seconds. Garraway alleges that Lincoln hit him three times in the jaw, and moments later Rittenmeyer walked over to him while he was lying on the floor and kicked him four times in the face. Indeed, the Magistrate found that Garraway's unauthorized attempt to leave the office would have necessitated some amount of force to restrain him. Rec., p. 9. Given Garraway's disruptive behavior, it would be unreasonable to expect Officers Robles and Watson to have been able to intervene to prevent him from being punched and kicked. 2. Defendants Rittenmeyer, Lincoln, Robles, and Watson also object to the

Magistrate's recommendations for the reasons stated in their motion for summary judgment and reply thereto. WHEREFORE Defendants Rittenmeyer, Lincoln, Robles, and Watson object to the Recommendation of the Magistrate Judge and ask the Court to enter summary judgment in their favor.

3

Case 1:04-cv-01049-EWN-KLM

Document 146

Filed 08/07/2006

Page 4 of 5

DATED this 7th day of August, 2006. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

4

Case 1:04-cv-01049-EWN-KLM

Document 146

Filed 08/07/2006

Page 5 of 5

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 7, 2006, I electronically filed the foregoing with the Clerk of Court using the ECF system. In addition, I hereby certify that I have mailed the document to the following non CM/ECF participants: Mitchell Thephilus Garraway #39096-066 Florence-USP P.O. Box 7000 Florence, CO 81226 And emailed it to: Benjamin J. Brieschke Chris Synsvoll Attorney-Advisor Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, CO 81226 [email protected] s/ Michael A. Miller Michael A. Miller Legal Assistant United States Attorney's Office District of Colorado

5