Barrientos-Sanabria v. Lake County, Colorado et al

Filing 63

ORDER granting 59 Partial Motion for Summary Judgment and Brief in Support. Defendant Lake County, Colorado, through the Lake County Board of Commissioners, is dropped from this action, and the caption of this case is amended accordingly. By Magistrate Judge Kristen L. Mix on 5/10/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00838-KLM
OSVALDO BARRIENTOS-SANABRIA,
Plaintiff,
v.
LAKE COUNTY, COLORADO, a municipality,
EDWARD HOLTE, in his individual and official capacity,
ROD FENSKE, in his official capacity,
ANTONIO LOBATO, in his individual and official capacity, and
AARON D’MIZE, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Partial Motion for Summary Judgment and
Brief in Support [Docket No. 59; Filed March 20, 2012] (the “Motion”), filed by Defendant
Lake County, Colorado through the Lake County Board of Commissioners (the “BOCC”).
On April 4, 2012, Plaintiff filed a Response [#60]. On April 20, 2012, Defendant BOCC filed
a Reply [#62]. The Court has reviewed the Motion, the Response, the Reply, the entire
case file, and the applicable law and is sufficiently advised in the premises. For the
reasons set forth below, the Court GRANTS the Motion.
I. Summary of the Case
The parties agree that the facts relevant to the underlying Motion are few and
undisputed. See Response [#60] at 2. On October 11, 2009, Plaintiff was arrested at

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approximately 1:30 in the afternoon in Lake County, Colorado in connection with a routine
traffic stop. Motion [#59] at 3. The arrest was performed by Defendant Deputy Antonio
Lobato (“Deputy Lobato”). Id. Defendant Lieutenant Aaron D’Mize (“Lieutenant D’Mize”),
although off-duty, assisted Deputy Lobato, because he was in the vicinity at the time the
arrest was made. Id. Plaintiff alleges that each officer was acting in his capacity as a
deputy of the Lake County Sheriff’s Office at the time of the arrest. Id. The parties agree
that “Lake County is a governmental entity that exercises powers within its constitutional
and statutory parameters through a board of county commissioners,” i.e., Defendant
BOCC. Id. Through this arrest, Plaintiff claims that his First, Fourth, and Fourteenth
Amendment rights were violated. See Second Am. Compl. [#31].
In addition to the above agreed-upon facts, Plaintiff provides online news articles
from The Denver Post regarding two incidents post-dating his arrest that involved deputies
from the Lake County Sheriff’s Office. See Response [#60] at 2-3. According to the first
article, on April 8, 2010, Deputy John Ortega demonstrated use of a Taser on thirty-four
high-school students who had signed release forms. Ex. B to Response [#60-2]. He was
later arrested on eleven misdemeanor counts of child abuse. Id. According to the second
article, on April 15, 2010, Deputy Steven James was arrested in connection with an incident
in which “he arrested and jailed a Leadville fire captain who was responding to a medical
emergency call to treat a woman with a neck injury.” Ex. A to Response [#60-1].
II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to
assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if “the pleadings, the
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discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
An issue is genuine if the evidence is such that a reasonable jury could resolve the issue
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986).
A fact is material if it might affect the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex,
477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at
trial, the “movant may make its prima facie demonstration [of the absence of a genuine
issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant
carries the initial burden of making a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for each essential element of his
claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248;
Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his
pleadings and provide admissible evidence, which the Court views in the light most
favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).
Conclusory statements based merely on conjecture, speculation, or subjective belief are
not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).

The nonmoving party’s evidence must be more than “mere
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reargument of [his] case or a denial of an opponent’s allegation” or it will be disregarded.
See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d
ed.1998).
III. Analysis
Defendant BOCC moves for summary judgment on Plaintiff’s four claims pursuant
to 42 U.S.C. § 1983: (1) Fourth Amendment: excessive force; (2) Fourth Amendment: false
arrest/unlawful seizures; (3) First Amendment: freedom of speech; and (4) failure to
properly hire, train, supervise, and discipline. See Motion [#59] at 2-3; Response [#60] at
2. The BOCC argues that it has no authority to set policy or custom on behalf of the Lake
County Sheriff’s Office and its employees and, further, that it has no authority to supervise
or control the Sheriff or his deputies. See Motion [#59] at 1-2.
To succeed in his Section 1983 claims against the BOCC, Plaintiff must show that
the BOCC has some supervisory authority over the Sheriff and his deputies. See Myers
v. Koopman, No. 09-cv-02802-REB-MEH, 2011 WL 650328, at *11 (D. Colo. Feb. 11,
2011). Pursuant to C.R.S. § 30-11-107, the BOCC has the duty and authority to provide
funds for operations by the Sheriff’s Office.

However, pursuant to the Colorado

constitution, the BOCC is a separate, distinct entity from the County Sheriff. See Colo.
Const. art. XIV, §§ 6, 8; Bristol v. Bd. of Cnty. Com’rs of Cnty. of Clear Creek, 312 F.3d
1213, 1219 (10th Cir. 2002). “[O]nly a [S]heriff has the right to supervise and control the
[S]heriff’s deputies” under Colorado law. Myers, 2011 WL 650328, at *11 (citing Tungent
v. Bd. of Cnty. Com’rs of Delta Cnty., 992 P.2d 650, 652 (Colo. App. 1999); Bristol, 312
F.3d at 1219). Accordingly, “the BOCC does not have the legal authority to control or
supervise the [S]heriff and the [S]heriff’s deputies.” Id.
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Plaintiff concedes that the BOCC “may be legally prohibited from setting official
policy for the Sheriff . . . .” Response [#60] at 2 (emphasis added). However, Plaintiff
argues that there may be a nexus between the Sheriff’s Office and the BOCC such that an
alleged pattern of misconduct by the Sheriff’s deputies could be attributed to the BOCC.
See Response [#60] at 2-3 (referring to the incidents involving the Taser and the arrest of
the fire captain) (citing Ex. A to Response [#60-1]; Ex. B to Response [#60-2]).1
Even assuming, arguendo, that the BOCC has some supervisory authority over the
Sheriff and the Sheriff’s deputies based on a sufficiently-close nexus as well as notice of
a pattern of misconduct, Plaintiff may only establish liability against a defendant supervisor
pursuant to section 1983 by demonstrating: “(1) the defendant promulgated, created,
implemented, or possessed responsibility for the continued operation of a policy; (2) the
policy caused the complained of constitutional harm; and (3) the defendant acted with the
state of mind required to establish the alleged constitutional deprivation.” Myers, 2011 WL
650328, at *11 (citing Dodds v. Richardson, 614 F.3d 1185, 1199-1200 (10th Cir. 2010)).
Plaintiff has provided no evidence that the BOCC promulgated, created, implemented, or
possessed responsibility for any policy of the Lake County Sheriff’s Office. In fact, Plaintiff
has provided no evidence in support of any of the three elements. Accordingly, the Court
finds that no reasonable fact finder could find in favor of Plaintiff on Plaintiff’s claims against
the BOCC. See Myers, 2011 WL 650328, at *11.
IV. Conclusion
For the foregoing reasons,

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The Court notes that both of the incidents referred to by Plaintiff occurred after the events
underlying the present lawsuit.

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IT IS HEREBY ORDERED that Defendant BOCC’s Motion [#59] is GRANTED.
IT IS FURTHER ORDERED that Defendant Lake County, Colorado, through the
Lake County Board of Commissioners, is DROPPED from this action, and the caption of
this case is AMENDED accordingly.

Dated: May 10, 2012

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