FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 26, 2013
Elisabeth A. Shumaker
Clerk of Court
ERNIE J. SAVANNAH,
Plaintiff-Appellee,
v. No. 13-1245
(D.C. No. 1:12-CV-02403-RBJ-MJW)
BILL COLLINS, (D. Colo.)
Defendant-Appellant,
and
ROBERT KNAB,
Defendant.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
Officer Bill Collins appeals from the district court’s denial of his Federal Rule
of Civil Procedure 12(b)(6) motion to dismiss Ernie Savannah’s 42 U.S.C. § 1983
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
civil rights complaint alleging that Officer Collins failed to intervene to stop
excessive use of force during Mr. Savannah’s arrest. In denying the motion to
dismiss, the court rejected Officer Collins’s asserted entitlement to qualified
immunity. We reverse the denial of the motion to dismiss and remand with
directions to grant the motion.
We accept as true Mr. Savannah’s pro se factual assertions in his complaint1
with respect to his excessive force claim against Officer Collins.2 See Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2079 (2011) (accepting as true factual allegations in
complaint where case arose from motion to dismiss). Officer Collins arrived at the
arrest scene first, drew his gun, and ordered Mr. Savannah, a robbery suspect, to lie
face down on the ground. Mr. Savannah did so and did not resist arrest. Three to
five minutes later, Officer Robert Knab and his police dog Zorro arrived, and
Officer Knab deployed Zorro immediately without assessing the situation. Zorro first
bit Mr. Savannah on the back of the head and under his right ear. Then Zorro jumped
over him and bit him on the left side of the head at the top of the left ear, on his
left-side jugular vein, and at the base of the left side of his neck.
1
We construe Mr. Savannah’s pro se filings liberally. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
2
Mr. Savannah also asserted claims against various other defendants for
improper housing in administrative segregation, failure to treat his injuries while in
segregation, and harassing his family and friends. These dismissed claims are not at
issue in this appeal. Nor does this appeal concern the excessive force claim asserted
against Officer Robert Knab, and we express no opinion on the sufficiency of the
allegations against him.
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The magistrate judge directed Mr. Savannah to file an amended complaint
complying with the pleading requirements of Federal Rule of Civil Procedure 8.
Instead, Mr. Savannah filed a motion to add an addendum to his complaint consisting
of the two officers’ reports and the medical report from the hospital where he was
treated after his arrest. The district court granted the motion and stated the three
reports would amend the complaint. See Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009) (“In evaluating a Rule 12(b)(6) motion to dismiss, courts may
consider not only the complaint itself, but also attached exhibits and documents
incorporated into the complaint by reference.” (citations omitted)).
Officer Collins moved to dismiss the complaint. The magistrate judge
recommended dismissal, finding no allegation that Officer Collins used any force
against Mr. Savannah, much less excessive force; the allegation that Officer Collins
failed to intervene and stop the excessive force was conclusory; and the allegations
were insufficient to state a claim for excessive force. The district court rejected the
recommendation, however, deciding, based on Mick v. Brewer, 76 F.3d 1127, 1136
(10th Cir. 1996), that Mr. Savannah’s assertion that Officer Collins failed to
intervene and stop the alleged excessive force used by Officer Knab through Zorro
was sufficient to state a claim under § 1983. Additionally, the court decided that
Officer Collins was not entitled to qualified immunity because Mr. Savannah asserted
a violation of his Fourth Amendment rights and Mick, 76 F.3d at 1136, recognized
clearly-established precedent since 1992 holding that an officer could be held liable
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under § 1983 for failing to intervene when another officer used excessive force.
“We review the district court’s denial of a motion to dismiss based on
qualified immunity de novo.” Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.
2011) (internal quotation marks omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Legal conclusions are not
accepted as true, however; instead, they must be supported by facts. Id. at 678-79.
“The doctrine of qualified immunity protects government officials 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.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).
“To survive a motion to dismiss based on qualified immunity, the plaintiff must
allege sufficient facts that show—when taken as true—the defendant plausibly
violated his constitutional rights, which were clearly established at the time of
violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
We have held that “[a]n officer who fails to intervene to prevent a fellow
officer’s excessive use of force may be liable under § 1983.” Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008) (citing Mick, 76 F.3d at 1136); see also Casey
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v. City of Fed. Heights, 509 F.3d 1278, 1283 (10th Cir. 2007) (stating first officer on
scene has duty to keep arrest from getting out of hand). “This duty was clearly
established law at the time of [Mr. Savannah’s] arrest.” Fogarty, 523 F.3d at 1162.
But the officer must have had a realistic opportunity to intervene to prevent harm
from occurring. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.
2008) (citing Anderson v. Branen, 17 F.3d 552, 557 (2nd Cir. 1994)); see also Lusby
v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984) (“[A]lthough [officer]
was not liable merely because he was present at the scene of a constitutional
violation, . . . he may be liable if he had the opportunity to intervene but failed to do
so.”), vacated on other grounds, City of Lawton v. Lusby, 474 U.S. 805 (1985).
Mr. Savannah did not plead sufficient facts, taken as true, to state a claim
against Officer Collins for failure to intervene to stop excessive use of force.
See Iqbal, 556 U.S. at 666. The factual assertions do not plausibly suggest that
Officer Collins had a realistic opportunity to intervene. Although Mr. Savannah
asserts that Officer Collins should have stopped Zorro, he does not assert that
Officer Collins could have stopped Zorro. Officer Collins did not deploy Zorro and
there is no assertion that he had the ability to control the dog. Thus, Mr. Savannah
only concludes, without factual support, that Officer Collins could have intervened
during the attack by Zorro.
Nor does Mr. Savannah assert facts suggesting that Officer Collins had
sufficient time to intervene. Compare Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir.
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1994) (deciding that where one officer tackled and cuffed plaintiff quickly, another
officer had no realistic opportunity to prevent attack); Gaudreault v. Municipality of
Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990) (deciding that officer was not liable for
failing to intervene where “attack came quickly and was over in a matter of
seconds”); and O’Neill v. Krzeminski, 839 F.2d 9, 11 (2nd Cir. 1988) (concluding
defendant had no realistic opportunity to prevent three blows struck in rapid
succession), with Fogarty, 523 F.3d at 1164 (deciding qualified immunity should be
denied because defendant could intervene where plaintiff described arrest as lasting
between three and five minutes); and Priester v. City of Riviera Beach, 208 F.3d 919,
925 (11th Cir. 2000) (deciding two minutes was sufficient time for officer to
intervene and order another officer to restrain police dog). Because there are
insufficient facts for us to draw a reasonable inference that Officer Collins’s conduct
was constitutionally impermissible and because Mr. Savannah’s assertion of a failure
to intervene is an unsupported legal conclusion, Mr. Savannah should not have the
opportunity to continue with litigation against Officer Collins. See Iqbal, 556 U.S. at
678-79 (“Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of discovery for
a plaintiff armed with nothing more than conclusions.”).
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Accordingly, the judgment of the district court is reversed and the case is
remanded for further proceedings consistent with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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