Marotta v. Cortez et al

Filing 177

ORDER AFFIRMED and ADOPTED in its entirety 173 Report and Recommendations of the Untied States Magistrate Judge. granting 154 Motion for Summary Judgment; Judgment shall enter in favor of Defendants on Plaintiffs only remaining Third Claim for Relief in the Fourth Amended Complaint, ECF No. 39 . It is FURTHER ORDERED that Plaintiffs Objection to Recommendation of the Magistrate Judge, ECF No. 174 , is OVERRULED. by Judge William J. Martinez on 9/30/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 08-cv-02421-WJM-CBS
MICHAEL P. MAROTTA,
Plaintiff,
v.
ROCCO-MCKEEL, individually and in his official capacity
as a Denver Police Officer, and
THE CITY AND COUNTY OF DENVER,
Defendants.

ORDER ON JUNE 27, 2011 RECOMMENDATION
OF U.S. MAGISTRATE JUDGE

THIS MATTER is before the Court on the April 18, 2011 Recommendation of
United States Magistrate Judge (“Recommendation”). (ECF No. 173.) In this
Recommendation, Magistrate Judge Craig B. Shaffer recommends the Court grant
Defendant’s Combined Summary Judgment Motion and Brief, ECF No. 154, and that
summary judgment on the only remaining Third Claim for Relief in the Fourth Amended
Complaint, ECF No. 39, be entered in favor of Defendants. (ECF No. 173 at 15.) The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed.
R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1.
On July 7, 2011, Plaintiff filed an objection to the Recommendation. (ECF No.
174.) In light of this objection, the Court has conducted the requisite review of the
issues, the Recommendation, and the objection. For the reasons stated below, the

Court AFFIRMS and ADOPTS the Recommendation.
STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge's [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection is properly made if it is both timely
and specific. U.S. v. One Parcel of Real Property Known As 2121 East 30th Street, 73
F.3d 1057, 1059 (10th Cir.1996). An objection is timely if made within 10 days after the
Magistrate Judge issues his recommendation. Id. An objection is sufficiently specific if
it “enables the district judge to focus attention on those issues–factual and legal–that
are at the heart of the parties’ dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)). If objections are not made, or if made improperly, the Court has discretion
to review the recommendation under whatever standard it deems appropriate.
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). In conducting its review,
“[t]he district judge may accept, reject, or modify the [recommendation]; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
In considering the Magistrate Judge’s Recommendation in the instant case, the
Court is mindful of Plaintiff’s pro se status, and accordingly, reads his pleadings and
filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal
construction is intended merely to overlook technical formatting errors and other defects
in Plaintiff’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Pro se status does not relieve Plaintiff of the duty to
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comply with various rules and procedures governing litigants and counsel or the
requirements of the substantive law and, in these regards, the Court will treat Plaintiff
according to the same standard as counsel licensed to practice law before the bar of
this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
Finally, the Recommendation appropriately defined the Court’s review of a
defense of qualified immunity. Whether a defendant is entitled to qualified immunity is a
legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007). See also
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Gonzales v. Duran, 590 F.3d 855, 859 (10th Cir. 2009) (Qualified immunity is “almost
always” a question of law.) (citation omitted). “[W]e review summary judgment orders
deciding qualified immunity questions differently from other summary judgment
decisions.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (internal quotation
marks and citation omitted). “When a defendant asserts qualified immunity at summary
judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a
constitutional right and (2) the constitutional right was clearly established.” Martinez,
563 F.3d at 1088 (citation omitted). Only if Plaintiff satisfies both of these prongs will
the burden shift to Defendant Rocco-McKeel to assume the normal burden of showing
that there are no disputed material facts and that he is entitled to judgment as a matter
of law. Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008). If “the plaintiff fails to
carry either part of his two-part burden, the defendant is entitled to qualified immunity.”
Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). See also Wilder, 490 F.3d
at 813 (“If the [defendant]'s conduct did not violate a constitutional right, the inquiry ends
and the [defendant] is entitled to qualified immunity.”) (citation omitted).
BACKGROUND
The following facts, as discussed in the Recommendation, are not in dispute.
Police officers were called to Plaintiff’s residence at 1200 Vine Street in Denver twice on
November 21, 2007. (See Marotta Dep., ECF No. 154-1 at 10-11; Rocco-McKeel Aff.,
ECF No. 154-2 at 2.) After the officers left, Plaintiff called the police back to the
premises. (See ECF No.154-1 at 12-13; ECF No. 39 at 10 ¶ 36; see also id. at 19 ¶ 80
(alleging that “Plaintiff had initiated the call to the Denver Police Department to report on
the conduct of its officers when responding to an earlier call. It was when responding to
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Plaintiff’s call that the arrest was made. . . . Plaintiff was on probation at the time of the
arrest.”).) Defendant Rocco-McKeel was present at both calls. (See ECF No.154-1 at
10-11; ECF No.154-2 at ¶ 2; ECF No.158 at 2.)
Plaintiff was expecting a police officer to come to his residence in response to his
call to the police station. (See ECF No.154-1 at 13; ECF No.158 at 2.) Defendant
Rocco-McKeel was one of the officers who responded to Plaintiff’s call. (See ECF
No.154-1 at 14; ECF No.158 at 2.) The officers knocked on Plaintiff’s door and he
opened the door. (See ECF No.154-1 at 13-14; ECF No.154-2 at ¶ 4; ECF No.158 at
2.) Defendant Rocco-McKeel “advised Plaintiff he was being placed under arrest” and
asked him to step out of his unit. (See ECF No.154-1 at 15; ECF No.154-2 at ¶ 4.)
Plaintiff said “No.” (See ECF No.154-1 at 15; ECF No.154-2 at ¶ 4; ECF No.158 at 2.)
Defendant Rocco-McKeel then grabbed Plaintiff’s wrist and pulled him out of the door,
across the hall and into the wall. (See ECF No.154-1 at 15; ECF No.154-2 at ¶ 7; ECF
No.158 at 2.)
Plaintiff does not dispute that Defendant Rocco-McKeel used a single pulling
motion to pull Plaintiff out of his unit and did not strike him in any way. (See ECF
No.154-1 at 35-36 (“I can’t tell you exactly what happened. All I know is I was in my unit
at one point.”); ECF No.158 at 2.) Plaintiff suffered no bruises, cuts, or other injury from
hitting the wall. (See ECF No. 154-1 at 17-18.) Defendant Rocco-McKeel handcuffed
Plaintiff. (See id.) Plaintiff’s reading “glasses popped off” and Officer Black placed
them back on his face. (See ECF No.154-1 at 15-16; ECF No.158 at 2.)
Defendant Rocco-McKeel walked with Plaintiff to the elevator, “using the
handcuffed hands as a method of control.” (See ECF No.154-2 at ¶ 10; ECF No.154-1
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at 22.) Defendant Rocco-McKeel faced Plaintiff against the elevator wall to maintain
appropriate control. (See ECF No.154-2 at ¶ 10.) When Plaintiff attempted to turn to
talk to Officer Nyugen, Defendant Rocco-McKeel turned him back to face the elevator
wall. (See ECF No.154-2 at ¶¶ 11-13; ECF No.154-1 at 22, 24-25.) Plaintiff was
transported to the jail and transferred to the custody of the Denver Sheriff’s Department.
(See ECF No.154-2 at ¶ 15; ECF No.154-1 at 23.)
Plaintiff did not seek medical treatment at the jail or later as a result of the events
on November 21, 2007. (See Marotta Dep., ECF No.154-1 at 5, 8-9; ECF No.158 at 2.)
It is undisputed that Plaintiff has no physical impairment, suffered no psychological
injury, and suffered no economic damages resulting from the events on November 21,
2007. (See ECF No.154-1 at 6-7, 9, 26-27.) Plaintiff does not dispute that the events of
November 21, 2007 did not affect his ability as an advanced skier.
DISCUSSION
Plaintiff’s one remaining claim, “Physical Abuse (violation of Fourth Amendment
of the Constitution of the United States)” alleges Plaintiff was abused by Defendant
Rocco-McKeel, a Denver police officer, both at the time of his arrest by being thrown
across a hallway and subsequent to the arrest, by being shoved against an elevator
wall. (ECF No. 39 at 16 ¶ 66.) Plaintiff alleges he was “brutally handcuffed” such that
he now has a scar on his right wrist. (Id.) Plaintiff further alleges that Defendant City
and County of Denver (“Denver”) failed to ensure that the Denver Police Department
properly instructed, oversaw, and supervised its officers conduct, and was therefore
negligent and a party to the actions of Defendant Rocco-McKeel. (Id. at 16 ¶ 68.)
Defendant Rocco-McKeel moves for summary judgement on the Third Claim for Relief
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based on qualified immunity. (ECF No. 154 at 9.) Defendant Denver moves for
summary judgment based on Plaintiff’s failure to demonstrate municipal liability. (Id. at
16.)
A.

Defendant Rocco-McKeel
In the Recommendation, the Magistrate Judge first considered whether

Defendant Rocco-Mckeel used excessive force in arresting Plaintiff by pulling him from
his building unit into the hallway, turning him against the wall in the elevator, and
handcuffing him too tightly. The Magistrate Judge found that it was reasonable, under
the circumstances, for Defendant Rocco-McKeel to conclude that Plaintiff may have
posed a threat to the safety of the officers or other building residents and to promptly
gain physical control over Plaintiff and place him under arrest. (ECF No. 173 at 9 (citing
Cortez v. McCauley, 478 F.3d 1108, 1128-30 (10th Cir. 2007)).)
Upon review of the record and a videotape of the elevator ride, the Magistrate
Judge found that Defendant Rocco-McKeel’s conduct in the elevator also did not
constitute a violation of the Fourth Amendment. (Id. (citing Graham v. Connor, 490 U.S.
386, 396 (1989)).) As for the scar, the Recommendation notes that Plaintiff had a
rollerblading accident in August 2007, which resulted in a cut to his right wrist, a scab or
scar, and heightened sensitivity. (Id. at 10 (citing ECF No. 15401 at 19-21).) Plaintiff’s
left wrist, however, sustained no injury. (See ECF No. 154-1 at 21.) The Magistrate
Judge found Plaintiff’s evidence of injury insufficient, as a matter of law, to support an
excessive force claim based on the use of handcuffs. (ECF No. 173 at 10 (citing
Cortez, 478 F.3d at 1129).) The Magistrate Judge recommends Defendant RoccoMcKeel be granted qualified immunity because the force demonstrated by the record
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does not exceed what was reasonable to effectuate a lawful arrest under the
circumstances. (Id. at 11.)
Plaintiff did not provide a specific objection to this portion of the Magistrate
Judge’s Recommendation. (See ECF No. 174.) The Court, therefore, need not conduct
a de novo review of this claim. Upon consideration of the Recommendation as to the
claim against Defendant Rocco-Mckeel, the Court hereby adopts the Recommendation
as the findings and conclusions of this Court. Thus, Defendant Rocco-McKeel is
granted qualified immunity on Plaintiff’s Third Claim for Relief in the Fourth Amended
Complaint.
B.

Defendant Denver
In the Recommendation, the Magistrate Judge next considered whether

Defendant Denver failed to ensure that the Denver Police Department properly
instructed, oversaw, and supervised its officers conduct, and was therefore negligent
and a party to the actions of Defendant Rocco-McKeel. The Recommendation
appropriately discussed the standard for liability on this claim. A municipality or other
governmental entity “can be found liable under [42 U.S.C.] § 1983 [(“§ 1983")] only
where the municipality itself causes the constitutional violation at issue. Respondeat
superior or vicarious liability will not attach under § 1983.” City of Canton v. Harris, 489
U.S. 378, 385 (1989) (citation omitted). Thus, in order to hold the Defendant Denver
liable under § 1983, Plaintiff must prove that “(1) a municipal employee committed a
constitutional violation, and (2) a municipal policy or custom was the moving force
behind the constitutional deprivation.” Myers v. Oklahoma County Bd. of County
Comm'rs, 151 F.3d 1313, 1318 (10th Cir.1998) (citation omitted).
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As the Recommendation states, without an underlying constitutional harm
inflicted by an officer, Defendant Denver has no liability. (ECF No. 173 at 13 (citing
Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).) Thus, the Magistrate
Judge recommends the Court rely on its finding of qualified immunity of Defendant
Rocco-McKeel to preclude the imposition of any municipal liability and grant summary
judgment on the Third Claim for Relief as to Defendant Denver. (Id.)
The Magistrate Judge further found that Plaintiff failed to allege or demonstrate
sufficient facts to establish an unconstitutional custom or policy or a direct causal
connection between a Denver custom or policy and the alleged constitutional violation.
(Id. at 15.) Accordingly, the Magistrate Judge recommends that Defendant Denver be
granted summary judgment on the Third Claim for Relief.
Plaintiff did not provide a specific objection to this portion of the Magistrate
Judge’s Recommendation. (See ECF No. 174.) The Court, therefore, need not conduct
a de novo review of this claim. Upon consideration of the Recommendation as to the
claim against Defendant Denver, the Court here adopts the Recommendation as the
findings and conclusions of this Court. Thus, Defendant Denver is granted summary
judgment on Plaintiff’s Third Claim for Relief in the Fourth Amended Complaint.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Recommendation of
the Untied States Magistrate Judge, ECF No. 173, filed June 27, 2011, is AFFIRMED
and ADOPTED in its entirety. For the reasons cited therein and in this Order,
IT IS HEREBY ORDERED that:
1)

Defendant’s Combined Summary Judgment Motion and Brief, ECF No.
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154, is GRANTED; and
2)

Judgment shall enter in favor of Defendants on Plaintiff’s only remaining
Third Claim for Relief in the Fourth Amended Complaint, ECF No. 39.

It is FURTHER ORDERED that Plaintiff’s Objection to Recommendation of the
Magistrate Judge, ECF No. 174, is OVERRULED.
Dated this 30th day of September, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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