Padilla-Baca v. Perea et al

Filing 84

ORDER. The 65 Official Capacity Motion and the 66 Individual Capacity Motion are granted. Judgment shall enter in favor of defendants and against plaintiff. The trial preparation conference scheduled for 10/21/2011 and the trial scheduled to commence on 10/31/2011 are vacated. By Judge Philip A. Brimmer on 5/31/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-02968-PAB-MEH
ERICK OMAR PADILLA-BACA,
Plaintiff,
v.
THE CITY OF AURORA, COLORADO,
AURORA POLICE DEPARTMENT,
PATRICIA PEREA, individually and in her professional capacity as a police officer,
RICHARD HEFTY, individually and in his professional capacity as a police officer, and
DAVID PEARSON, individually and in his professional capacity as a police officer,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the motion for summary judgment filed by
defendants The City of Aurora, Colorado and Aurora Police Department, as well as
Patricia Perea, Richard Hefty, and David Pearson in their official capacities (“Official
Capacity Motion”) [Docket No. 65], and the motion for summary judgment filed by
defendants Perea, Hefty, and Pearson (“defendants”) in their individual capacities
(“Individual Capacity Motion”) [Docket No. 66].
I. BACKGROUND
The Court begins by noting that plaintiff has not denied any of the facts asserted
in the Individual Capacity Motion and did not file a response brief to the Official
Capacity Motion. Instead, plaintiff initially filed a document entitled “Opposition to
Defendant’s Motion for Summary Judgment” [Docket No. 71]. As the Court stated in a

May 4, 2011 order, that response appeared to be directed only to the Individual
Capacity Motion. See Docket No. 79 at 2.1 Furthermore, plaintiff failed to, in a section
entitled “Response to Statement of Undisputed Material Facts,” “admit or deny the
asserted material facts set forth by the movant” and to provide “a brief factual
explanation of the reason(s) for the denial and a specific reference to material in the
record supporting the denial.” Practice Standards (Civil cases), Judge Philip A.
Brimmer § III.F.3.b.iv. The Court, therefore, struck the response and granted plaintiff
leave to file a response which included a “Response to Statement of Undisputed
Material Facts.” See Docket No. 79 at 2; cf. Practice Standards (Civil cases), Judge
Philip A. Brimmer § III.F.3.b.ix (“Failure to follow these procedures will result in an order
striking or denying the motion or brief, and it will have to be re-submitted.”). The Court
also ordered that, “if plaintiff opposes the Official Capacity Motion [Docket No. 65], he
may file a motion seeking leave to file a separate response out of time on or before
Friday, May 13, 2011. In the absence of such a request, the Court will deem the
Official Capacity Motion to be unopposed.” Docket No. 79 at 2.
On May 13, 2011, plaintiff filed a “Supplemental Motion in Opposition to
Defendant’s Motion for Summary Judgment” [Docket No. 80], which the Court

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Only one paragraph of plaintiff’s argument appears to address his claims
against the entity and official capacity defendants. See Docket No. 71 (stricken) at 7.
However, plaintiff identifies no relevant facts or evidence in that paragraph or elsewhere
in support of his argument. In any event, as noted above, the Court provided plaintiff
with the opportunity to request leave to file a response to the Official Capacity Motion,
and he declined to do so.
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construes, despite its title, as a response brief.2 Plaintiff did not file a motion seeking
leave to file a response to the Official Capacity Motion. As a result, the Court construes
the supplemental response as opposing only the Individual Capacity Motion. However,
while the supplemental response contains a section entitled “Response to Statement of
Undisputed Material Facts,” it appears that the section responds to the Statement of
Undisputed Facts in the Official Capacity Motion.3
In light of the foregoing, the extent of any factual disputes is unclear.
Nevertheless, for purposes of resolving the present motion, it is sufficient to note that
this case arises out of the arrest of plaintiff and search of his apartment by defendants
Perea, Hefty, and Pearson on November 11, 2008. During the search, defendants
found a shotgun. After his arrest, plaintiff was ultimately charged in federal court with
possession of a firearm by a felon. After the judge in that case suppressed the
shotgun, the government moved to dismiss the indictment against the defendant.
Plaintiff’s pretrial detention lasted approximately eight months.
Based upon these events, plaintiff asserts two claims pursuant to 42 U.S.C.

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In the May 4 order, the Court ordered that plaintiff’s response not include any
additional argument without first requesting leave from the Court to submit a
supplemental response out of time. Plaintiff’s supplemental response omits his
previously filed legal argument completely. Therefore, despite the fact that the Court
struck plaintiff’s original response, it will consider the legal arguments therein for
purposes of resolving the present motions.
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The Court finds that the supplemental response could, therefore, be stricken.
The Court, however, declines to strike the filing or provide plaintiff yet another
opportunity to file a complying response. For the reasons discussed below, even
assuming all of the facts in plaintiff’s Statement of Additional Disputed Facts, see
Docket No. 80 at 3-5, to be true, the Court finds that defendants are entitled to
summary judgment.
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§ 1983 against defendants, the first alleging an illegal search in violation of the Fourth
Amendment and the second alleging cruel and unusual punishment in violation of the
Eighth Amendment. See Docket No. 59. On February 15, 2011, defendants filed the
present motions, which are ripe for disposition.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).

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III. DISCUSSION
A. Official Capacity Motion
As noted above, on May 4, 2011, the Court ordered that, “if plaintiff opposes the
Official Capacity Motion [Docket No. 65], he may file a motion seeking leave to file a
separate response out of time on or before Friday, May 13, 2011. In the absence of
such a request, the Court will deem the Official Capacity Motion to be unopposed.”
Docket No. 79 at 2. Plaintiff has not filed a motion seeking leave to file a response to
the Official Capacity Motion. As such, the Court concludes that plaintiff does not
oppose the entry of summary judgment on behalf of defendants The City of Aurora,
Colorado and Aurora Police Department, as well as Patricia Perea, Richard Hefty, and
David Pearson in their official capacities. In light of that failure to oppose entry of
summary judgment, plaintiff has identified no disputes of material fact, and the Court
concludes that the entity and official capacity defendants are entitled to judgment as a
matter of law on plaintiff’s claims. The Court therefore will grant the Official Capacity
Motion.
B. Individual Capacity Motion
In the Individual Capacity Motion, defendants assert the defense of qualified
immunity in response to plaintiff’s Fourth Amendment claim. Under the doctrine of
qualified immunity, “government officials performing discretionary functions generally
are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Upon a public official’s

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assertion of a qualified immunity defense, plaintiff bears a “heavy burden” under a twopronged analysis. Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008).
Under the first prong of the analysis, the plaintiff is required to “establish that the
defendant’s actions violated a constitutional or statutory right.” Smith v. Cochran, 339
F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel. Overdorff v. Harrington, 268
F.3d 1179, 1185 (10th Cir. 2001)). The determination of whether a violation occurred
under the first prong of the qualified immunity analysis turns on substantive law
regarding that right. See, e.g., Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83
(10th Cir. 2007).
Under the second prong, the plaintiff must show that the right at issue was
“clearly established” at the time of the defendant’s alleged misconduct. Saucier v. Katz,
533 U.S. 194, 201 (2001). “A plaintiff can demonstrate that a constitutional right is
clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or
the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th
Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)) (internal
quotation marks omitted).4 A plaintiff need not identify “a case directly on point, but
4

In Prison Legal News, Inc. v. Simmons, 401 F.Supp.2d 1181, 1189-90 (D. Kan.
2005), the court noted that the quoted language “from other circuits” appears to be a
misquote of the Tenth Circuit’s decision in Medina v. City and County of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992), where the court used the language “from other
courts.” That misquote first appeared in Murrell v. School District No. 1, Denver, Colo.,
186 F.3d 1238, 1251 (10th Cir. 1999), and has since appeared repeatedly in Tenth
Circuit cases. The Prison Legal News court, though concluding that the “misquote was
merely a scrivener's error” and was not meant as a substantive change to the legal
standard, added that “the fact that this error has not been discussed in a reported case
from the Tenth Circuit suggests that the error may not be very significant.” 401 F.
Supp. 2d at 1191. “In other words, although the circuit may be willing to consider cases
from courts beyond the federal appellate courts, the focus should normally be on cases
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existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, --- S. Ct. ----, 2011 WL 2119110 (May 31, 2011).
However, “contrary authority from other circuits does not preclude a finding that the law
in this circuit was clearly established, if the contrary authority can be distinguished.”
Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001).
The Court may exercise its discretion “in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances.”
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009). The Court need only
address the second prong because, even assuming arguendo that defendants violated
plaintiff’s Fourth Amendment rights, plaintiff does not contend that it was clearly
established at the time that defendants’ conduct violated the Fourth Amendment.
Indeed, he fails to even acknowledge that required showing. Because plaintiff has not
sought to meet his heavy burden, defendants are entitled to qualified immunity and, by
extension, to summary judgment on plaintiff’s Fourth Amendment claim.
Defendants also seek summary judgment on plaintiff’s Eighth Amendment claim.
Plaintiff offers no argument in response. As an initial matter, defendants are correct
that plaintiff may not assert an Eighth Amendment claim arising out of his time as a
pretrial detainee. See Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir. 2010). Rather,
plaintiff must instead rely upon the due process clause of the Fourteenth Amendment.
See Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999). In addressing such a
claim, however, the Court “appl[ies] an analysis identical to that applied in Eighth

decided by other circuits.” Id.
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Amendment cases brought pursuant to § 1983.” See id. (citing Hare v. City of Corinth,
74 F.3d 633, 643 (5th Cir. 1996)). “A prison official is liable under the Eighth
Amendment for denying an inmate humane conditions of confinement if the official
‘knows of and disregards an excessive risk to inmate health and safety.’” Perrotti v.
McQueen, No. 10-cv-01965-BNB, 2011 WL 334505, at *2 (D. Colo. Jan. 31, 2011)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Here, there is no evidence that
the defendant police officers had any role whatsoever in the conditions of plaintiff’s
confinement. Nor does plaintiff supply any information regarding the nature and
conditions of that confinement. Consequently, defendants are entitled to summary
judgment on plaintiff’s second claim for relief.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Official Capacity Motion [Docket No. 65] and the Individual
Capacity Motion [Docket No. 66] are GRANTED. Judgment shall enter in favor of
defendants and against plaintiff. It is further
ORDERED that the trial preparation conference scheduled for October 21, 2011
and the trial scheduled to commence on October 31, 2011 are vacated.

DATED May 31, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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