United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
DISMISS IN PART
Waddoups, United States District Judge
the court is the motion to dismiss by the defendants K.
Olsen, Jacob Hill, and West Valley City
("Defendants"), which seeks to dismiss all claims
that the plaintiffs, Fernando Coronado and Tabeththa Corondao
("Plaintiffs") have filed against them. The motion
has been fully briefed, and this court heard argument on the
same on January 24, 2019. Having reviewed the pleadings and
materials submitted and considered the arguments of counsel,
the court now enters this order DENYING in
part and GRANTING in part
Defendant's motion to dismiss.
August 3, 2016, Tabeththa Coronado ("Mrs.
Coronado") and her husband, Fernando Coronado ("Mr.
Coronado") were having marital difficulties. Am. Compl.
at ¶¶ 13-14, ECF No. 3. On that date, Mr. Coronado
was depressed, "inebriated, disorientated, and in
emotional distress" and had threatened suicide, and Mrs.
Coronado called 911 for assistance. Id. at
¶¶ 13-16, 24. Officers from West Valley City's
Special Weapons and Tactics ("SWAT") unit,
including Defendants K. Olsen and Jacob Hill (the
"Defendant Officers"), responded to Plaintiffs'
residence, a fourth floor apartment. Id. at
¶¶ 17-18. Plaintiffs' apartment is accessed by
an open-air cement landing, and open-air stairwells are
located on the landing's north and south ends.
Id. at ¶¶ 19, 34; see also
Footage of Coronado Encounter, ECF No. 18-1, at 0:00-0:26. Up
to a dozen officers in full armor and SWAT equipment
positioned themselves on both stairwells. ECF No. 3 at ¶
19. Officers spoke to Mr. Coronado through his closed
apartment door for a period of time, and eventually Mr.
Coronado exited his apartment and came out onto the landing.
Id. at ¶ 18. When Mr. Coronado exited this
apartment, he wore only a pair of shorts; he was barefoot,
naked from the waste up, and clearly unarmed. Id. at
¶¶ 20, 22. Once Mr. Coronado exited his apartment,
the officers began giving him overlapping orders, which he
did not follow. Id. at ¶¶ 21, 23-27;
see ECF No. 18-1 at 0:00-0:49. Mr. Coronado was
never told that he was under arrest. ECF No. 3 at ¶ 28;
see ECF No. 18-1 at 0:00-0:49.
Mr. Coronado was conversing with officers positioned on the
stairwell closest to his apartment, the Defendant Officers
came onto the landing via the opposite stairwell.
See ECF No. 18-1 at 0:20-0:49. The Defendant
Officers approached Mr. Coronado on the landing with their
Tasers out and ready to deploy. ECF No. 3 at ¶ 31;
see ECF No. 18-1 at 0:20-0:49. The overlapping
events that commenced over the next five seconds serve as the
basis for Plaintiffs' amended complaint and govern
Defendants' motion to dismiss. See ECF No. 18-1
the Defendant Officers were on the landing, Mr. Coronado
turned to them and took approximately three steps in their
direction. See ECF No. 18-1 at 0:44-0:49. As
Mr. Coronado was taking those steps, the Defendant Officers
ordered him to "get on the ground." See
ECF No. 18-1 at 0:45-0:47. Mr. Coronado did not comply with
the Defendant Officers' first two commands, and during
the third recitation of the command, one of the Defendant
Officers deployed his Taser, which struck Mr. Coronado in the
torso. See id.; see also ECF No. 3 at ¶ 71. The
other Defendant Officer deployed his Taser immediately
thereafter, which also struck Mr. Coronado in the torso.
See ECF No. 18-1 at 0:47-0:48. Mr. Coronado
collapsed and fell forward, striking his head on the floor of
the landing and a door. See ECF No. 18-1 at
0:47-0:49; see also ECF No. 3 at ¶¶ 72-73.
Mr. Coronado suffered serious injuries from the fall.
February 21, 2018, Plaintiffs initiated this civil rights
action against Defendants, alleging excessive force and
unconstitutional policies under 42 U.S.C. § 1983,
flagrant violation of rights under Article I, § 14 of
the Utah Constitution, and loss of consortium. Defendants ask
this court to dismiss each of Plaintiffs' claims.
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." Emps.
'Ret. Sys. of R.1. v. Williams Cos., Inc., 889 F.3d
1153, 1161 (10th Cir. 2018) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). "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."
Free Speech v. Fed. Election Comm 'n, 720 F.3d
788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S.
at 678). In assessing Defendants' motion, this court must
"accept as true 'all well-pleaded factual
allegations in a complaint and view these allegations in the
light most favorable to the plaintiff" Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013)
(quoting Kerber v. Qwest Grp. Life Ins. Plan, 647
F.3d 950, 959 (10th Cir. 2011)).
The Defendants Officers' use of force was not
of excessive force are evaluated using an
objective-reasonableness standard, where a court must ask
"whether the officers' actions are 'objectively
reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent
or motivation." Graham v. Connor, 490 U.S. 386,
396-97 (1989). "The 'reasonableness' of a
particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight" and "depends on whether
the totality of the circumstances justified the conduct at
issue." Id. at 396 (internal citations
omitted). The Supreme Court has instructed courts tasked with
determining the reasonableness of officers' actions to
pay "careful attention to the facts and circumstances of
each particular case" and has provided three factors
that should be considered in making the decisions: "the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to
evade arrest by flight." Id. (citing Tennessee v.
Garner, 471 U.S. 1, 8-9 (1985)). Defendants assert that
Plaintiffs' claims should be dismissed because as a
matter of law, the Defendant Officers' use of a Taser
against Mr. Coronado in this situation was objectively
reasonable. This court disagrees.
motion to dismiss, this court must accept as true all of
Plaintiffs' well-pled factual allegations and view those
allegations in the light most favorable to Plaintiffs.
See Schrock, 727 F.3d at 1280. Thus, for purposes of
this motion, the court accepts Plaintiffs' assertion that
"[Mr.] Coronado neither expressed nor exhibited any
aggression toward the officers" and rejects Defendants
allegation that Mr. Coronado "aggressively lunged
towards" the officers. Compare ECF No. 3, at
¶ 37 with ECF No. 18, at p. 5, ¶ 10.
Defendants attempt to minimalize the importance of this
distinction, asserting that "[ultimately, how the
parties characterize [Mr. Coronado's] actions is not
relevant to the motion. As shown in the video and alleged in
the Amended Complaint, [Mr. Coronado] moved towards the
officers. That is all that is necessary for the West Valley
Defendants' motion." See Defs.' Reply
in Supp. of Mot to Dismiss, ECF No. 29, at p. 5. This court
refuses to find that as a matter of law, it is objectively
reasonable for officers to taser any suspect who moves
towards them-such a broad sentiment does not pay homage to
"the facts and circumstances of [a] particular
case." See Graham, 490 U.S. at 396. Rather, the
reasonableness of the Defendant Officers' conduct must be
determined by analyzing the specific facts and actions of
this situation under the three Graham factors.
first Graham factor concerns the severity of the
crime at issue. See Id. Defendants assert that this
factor weighs in their favor because Mr. Coronado was "a
threat to himself and others," was "drunk,
disoriented and mentally disturbed," "had
threatened suicide," "refused to comply with
repeated instructions by officers to get on the ground and
surrender," and "subsequently pled guilty to
threatening with or using a weapon in a fight."
See ECF No. 18, at p. 9. Clearly, it was not a crime
for Mr. Coronado to be disoriented and mentally disturbed,
nor was it a crime for him to be drunk in his own home.
Further, because reasonableness of force "must be judged
from the perspective of a reasonable officer on the
scene" only the knowledge that the officers gained
from Mrs. Coronado's 911 call or from their observations
on the scene are relevant. See Graham, 490 U.S. at
396 (emphasis added). Mr. Coronado's subsequent guilty
plea to threatening with a weapon could not have been known
to the officers at the time they tased Mr. Coronado and is
therefore irrelevant to this analysis. While Mr.
Coronado's refusal to comply with officers'
instructions may have amounted to a misdemeanor, this minor
offense is at least partially mitigated by the fact that
during his interactions with Defendants, Mr. Coronado was
never told that he was under arrest. See ECF No. 3
at ¶¶ 28, 32. While threatening suicide is a
serious matter, it is not a crime, and the severity of this
offense was diminished by the fact that Mr. ...