Handy v. City of Sheridan et al

Filing 179

ORDER Granting 109 Detective Bryants Motion for Summary Judgment; Granting 110 Officer Montoyas Motion for Summary Judgment; Granting 111 City of Sheridans Motion for Summary Judgment; Denying as moot 134 Handys Motion to Continue; Denying 176 Handys Motion for Order; Denying 177 Handys Motion to Alter Judgment, by Judge Wiley Y. Daniel on 2/17/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Criminal Action No. 12-cv-01015-WYD-KMT
WYATT T. HANDY, JR.,
Plaintiff,
v.
CITY OF SHERIDAN;
DET. KRISTINE BRYANT; in her individual and official capacity, and,
OFF. MIKE MONTOYA; in his individual and official capacity,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
THIS MATTER is before the Court on:
(1) Detective Kristine Bryant’s Motion For Summary Judgment [ECF No. 109];
(2) Officer Mike Montoya’s Motion For Summary Judgment [ECF No. 110];
(3) the City Of Sheridan’s Motion For Summary Judgment [ECF No. 111];
(4) Wyatt T. Handy, Jr.’s, Motion To Continue And/Or Stay Proceedings In This
Case And To Modify All Deadlines [ECF No. 134];
(5) Wyatt T. Handy, Jr.’s, Motion For Court To Order Clerk To Send Plaintiff A
Copy Of The Register Of Actions [ECF No. 176]; and,
(6) Wyatt T. Handy, Jr.’s, Motion To Amend Or Alter Judgment Pursuant To Fed.
R. Civ. P. 59(e) [ECF No. 177].
For the reasons stated below: (1) the defendants’ Motions For Summary Judgment
[ECF Nos. 109-111] are GRANTED and plaintiff, Wyatt T. Handy, Jr.’s, claims are

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DISMISSED WITH PREJUDICE; (2) Wyatt T. Handy, Jr.’s, Motion To Continue And/Or
Stay Proceedings In This Case And To Modify All Deadlines [ECF No. 134] is DENIED
AS MOOT; (3) Wyatt T. Handy, Jr.’s, Motion For Court To Order Clerk To Send Plaintiff
A Copy Of The Register Of Actions [ECF No. 176] is DENIED; and, (4) Wyatt T. Handy,
Jr.’s, Motion To Amend Or Alter Judgment Pursuant To Fed. R. Civ. P. 59(e) [ECF No.
177] is DENIED.
BACKGROUND
This suit arises out of events connected to plaintiff, Wyatt T. Handy, Jr.’s,
February 10, 2010, arrest by Sheridan Police Department (“SPD”) personnel and
subsequent criminal charges faced as a result of that arrest.
On January 19, 2010, Handy’s ex-wife, Lacy Jo Smith, and James Burks entered
SPD and spoke with Detective Kristine Bryant about an alleged incident regarding
Handy. Smith told Detective Bryant that Handy had followed her car around town and
violently rammed her car twice. Allegedly, the second ramming occurred while Smith
was in a stopped position at a red light and was so forceful that Smith’s car entered the
intersection after being struck by Handy’s car. According to Smith, her two children and
Burks were also in the car at the time of the alleged ramming. SPD Officer Mike
Montoya inspected Smith’s car that day and observed “visible damage” to the “rear
bumper, trunk, left brake light cover, and left quarter panel.” ECF No. 110-5, pp. 4-5.
On February 1, 2010, Smith contacted Detective Bryant and stated that the
alleged violent rammings terminated her pregnancy. Detective Bryant then submitted
an affidavit in support of an arrest warrant for Handy for second degree attempted
murder and other related offenses. SPD arrested Handy on February 10, 2010, and a

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protection order was subsequently issued in connection with charges filed against him.
On May 28, 2010, Detective Bryant initiated charges against Handy for allegedly
violating the protection order. Detective Bryant submitted an affidavit [ECF No. 109-6]
that Handy alleges included false statements that he violated the protection order by
contacting Smith in March and April of 2010.
On June 16, 2010, Handy attended a preliminary hearing for his second degree
attempted murder charges. Handy alleges that Detective Bryant and Officer Montoya
gave false testimony and misrepresented the facts surrounding the alleged violent
ramming. On June 16, 2011, Handy attended a second preliminary hearing held to
determine whether probable cause existed to increase his second degree attempted
murder charge to first degree extreme indifference attempted murder. Handy alleges
that Detective Bryant and Officer Montoya gave false testimony and misrepresented the
facts surrounding the alleged violent ramming in order to establish probable cause for
the first degree extreme indifference attempted murder charges. The judge found that
probable cause existed, and Handy was charged with first degree extreme indifference
attempted murder.
Handy’s trial commenced on August 16, 2011, and on August 18, 2011, a jury
acquitted him of all charges. However, Handy was arrested that same day for the
alleged protection order violation. On December 7, 2011, the protection order violation
charge was dropped.
Handy filed this suit against the defendants on April 16, 2012, alleging seven
claims under 42 U.S.C. § 19831 and five Colorado state law tort claims: (1) two

1

Pursuant to 42 U.S.C. § 1983:

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malicious prosecution claims; (2) false arrest / false imprisonment; (3) gross negligence;
and, (4) intentional infliction of emotional distress. On June 6, 2012, the defendants
filed a Motion to Dismiss For Lack Of Subject Matter Jurisdiction [ECF No. 19], arguing
that this Court lacks subject matter jurisdiction over Handy’s tort claims because he did
not provide timely notice of this suit to the defendants pursuant to the Colorado
Governmental Immunity Act (“CGIA”), Colorado Revised Statues § 24-10-101, et seq.
On November 7, 2012, Handy filed a Motion to Amend Complaint [ECF No. 60], seeking
to add five additional defendants and seven new claims.
On February 15, 2013, Magistrate Judge Tafoya issued a Recommendation
[ECF No. 93] regarding the defendants’ Motion To Dismiss For Lack of Subject Matter
Jurisdiction [ECF No. 19] and Handy’s Motion to Amend Complaint [ECF No. 60].2
Magistrate Judge Tafoya recommended that both motions be denied in part and granted
in part. On March 26, 2013, I issued an Order [ECF No. 102] affirming in part and
rejecting in part Magistrate Judge Tafoya’s Recommendation [ECF No. 93]. My March
26, 2013, ruling allowed Handy to file an Amended Complaint [ECF No. 60-1] including
only the claims specifically allowed for by the Order. See ECF No. 102, pp. 27-29.
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For
the purposes of this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a statute of the
District of Columbia.
2

At the time the defendants filed their Motion To Dismiss For Lack Of Subject Matter Jurisdiction [ECF
No. 19] and Handy filed his Motion To Amend Complaint [ECF No. 60], Handy was proceeding pro se,
which is the reason I referred the motions to Magistrate Judge Tafoya.

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On May 9, 2013, defendants, Detective Bryant, Officer Montoya, and the City of
Sheridan, filed Motions For Summary Judgment [ECF Nos. 109 – 111] arguing that they
are entitled to judgment as a matter of law on Handy’s remaining claims. On August 20,
2013, Handy filed a Motion To Continue And/Or Stay Proceedings In This Case And To
Modify All Deadlines [ECF No. 134] arguing that a stay is warranted because his
incarceration and apparent imminent transfer to another detention facility prevents him
from adequately responding to pleadings. On January 27, 2014, Handy filed a Motion
For Court To Order Clerk To Send Plaintiff A Copy Of The Register Of Actions [ECF No.
176]. That same day, Handy filed Motion To Amend Or Alter Judgment Pursuant To
Fed. R. Civ. P. 59(e) [ECF No. 177] arguing that my denial of his Motions For Court To
Allow Plaintiff To Respond To Defendants’ Motion For Summary Judgment And To
Strike Plaintiff’s Previous Attorney’s Response To Defendant’s Motion As Moot [ECF
Nos. 131 & 132] was in error.
ANALYSIS
A. Legal Standard
Summary judgment is proper 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, 250
(1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, [the court must] ‘view
the evidence and draw all reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted). “A fact is ‘material’ if,

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under the governing law, it could have an effect on the outcome of the lawsuit.”
Horizon/CMS Healthcare, 220 F.3d at 1190. “A dispute over a material fact is ‘genuine’
if a rational jury could find in favor of the nonmoving party on the evidence presented.”
Id.
“The burden of showing that no genuine issue of material fact exists is borne by
the moving party.” Horizon/CMS Healthcare, 220 F.3d at 1190. “‘Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Atl. Richfield Co., 226 F.3d at 1148
(quotation omitted). All doubts must be resolved in favor of the existence of triable
issues of fact. Boren v. Sw. Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
B. Detective Bryant And Officer Montoya’s Motions For Summary Judgment
[ECF Nos. 109 & 110]3
Handy asserts 14 claims against Detective Bryant and 10 claims against Officer
Montoya. Detective Bryant and Officer Montoya argue that they are entitled to summary
judgment on all claims.
1. Handy’s § 1983 Claims
Pursuant to § 1983, Handy asserts seven claims (Claims 1-5, 17, & 18) against
Detective Bryant and five claims (Claims 1 through 5) against Officer Montoya.
Detective Bryant and Officer Montoya argue that qualified and absolute immunity bar
those claims.

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At the time the defendants filed their Motions For Summary Judgment [ECF Nos. 109-111], Handy was
represented by counsel and his counsel responded to the motions. See ECF Nos. 94, 95, & 115-117.
Thus, the motions were not referred to Magistrate Judge Tafoya.

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a. Qualified Immunity
Detective Bryant argues that qualified immunity bars Claims 1, 2, 17, and 18
while Officer Montoya argues that qualified immunity bars Claims 1 and 2.
“In civil rights actions seeking damages from governmental officials, those
officials may raise the affirmative defense of qualified immunity, which protects all but
the plainly incompetent or those who knowingly violate the law.” Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (internal quotations and
citation omitted). Once the affirmative defense is raised by a defendant, the burden
shifts to the plaintiff to come forward with facts or allegations sufficient to show both
“that the defendant’s actions violated a constitutional or statutory right” and that the right
“was clearly established at the time of the defendant’s unlawful conduct.” Medina v.
Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (internal quotations and citation omitted);
see also Workman v. Jordan, 32 F.3d 475, 479 (10th Cir. 1994); Mick v. Brewer, 76
F.3d 1127, 1134 (10th Cir. 1996).
In the context of a motion for summary judgment, I must first consider whether
“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged
show the [officials’] conduct violated a constitutional right?” Holland, 268 F.3d at 1185.
If I determine that there has been a violation of a constitutional right, then I must “ask
whether the right was clearly established at the time of the defendant[s’] unlawful
conduct.” Id. at 1186 (internal quotations and citation omitted). If the plaintiff
successfully establishes the violation of a clearly established right, the burden then
shifts to the defendant, who must prove that there are no genuine issues of material fact

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and that the defendant is entitled to judgment as a matter of law. Medina, 252 F.3d at
1128; Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002).
Recently, the Supreme Court of the United States altered somewhat the
analytical process that may be used when a defendant claims the protection of qualified
immunity. Pearson v. Callahan, 555 U.S. 223 (2009). Pursuant to Saucier v. Katz, 533
U.S. 194 (2001), a court addressing a claim of qualified immunity first must determine
whether the plaintiff has adduced facts sufficient to make out a constitutional or
statutory violation. Id. at 201. Under Saucier, a court must address and resolve this first
question before proceeding to the second step of the analysis, a determination of
whether the claimed constitutional or statutory right was established clearly at the time
of the alleged violation. Id. In Pearson, the Supreme Court held that the sequential two
step analysis mandated in Saucier
should no longer be regarded as mandatory. The judges of the district
courts and the courts of appeals should be permitted to exercise their
sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.
Pearson, 555 U.S. at 236. The Supreme Court noted, however, that the sequence set
forth in Saucier often is the appropriate analytical sequence. Id.
i. § 1983 Claims Based On Alleged Failure To Investigate
(Claims 1 & 2)
(a) Claim 1: Failure To / Duty To Investigate Under the
Fourth Amendment
Handy alleges that Detective Bryant and Officer Montoya “failed to reasonably
interview witnesses readily available at the crime scene, investigate basic evidence . . .
or otherwise inquire if a crime had been committed at all.” ECF No. 60-1, p. 12, ¶ 52. I

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find Handy’s last allegation, “or otherwise inquire if a crime had been committed at all[,]”
instructive. From that statement, I glean that this claim targets Detective Bryant and
Officer Montoya’s pre-arrest investigation of the January 19, 2010, accident, or alleged
lack thereof, and I will construe this claim as such. Handy states that this alleged failure
is a violation of the Fourth Amendment. Because Detective Bryant and Officer Montoya
assert qualified immunity, Handy must show, inter alia, that their actions violated the
Fourth Amendment.
(1) Whether Detective Bryant And Officer
Montoya’s Actions Violated A Clearly
Established Constitutional Right
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. Handy does not allege that Detective Bryant and/or Officer
Montoya illegally searched his person or property. Rather, Handy alleges that Detective
Bryant and Officer Montoya failed to properly investigate Smith’s allegations that led to
his arrest. Under the analytical framework of a qualified immunity claim, Handy as the
plaintiff, has the burden of showing that Detective Bryant and Officer Montoya’s conduct
violated a constitutional right. Medina, 252 F.3d at 1128. However, Handy cites no case
law definitively stating that the Fourth Amendment incorporates a duty to investigate an
alleged crime prior to arrest. A duty to investigate, if such a duty does exist under the
Fourth Amendment, is at best, under this specific set of circumstances, incidental to a
law enforcement officer’s duty to truthfully and accurately complete an affidavit used to
secure an arrest warrant.

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“It is a violation of the Fourth Amendment for an arrest affiant to ‘knowingly, or
with reckless disregard for the truth,’ include false statements in the affidavit, Franks v.
Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), or to
knowingly or recklessly omit from the affidavit information which, if included, would have
vitiated probable cause, Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990).”
Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). There is no evidence that
Detective Bryant improperly completed her affidavit regarding the January 19, 2010,
incident, and Officer Montoya did not generate an affidavit in support of Handy’s arrest.
Viewing the evidence in the light most favorable to Handy, he fails to show that
Detective Bryant and Officer Montoya’s conduct violated a clearly established
constitutional right under the Fourth Amendment. As such, Detective Bryant and Officer
Montoya are entitled to qualified immunity regarding Handy’s § 1983 claim for failure to /
duty to investigate under the Fourth Amendment and this claim is DISMISSED WITH
PREJUDICE.
(b) Claim 2: Failure To / Duty To Investigate Under the
Fourteenth Amendment
Handy alleges that Detective Bryant and Officer Montoya “after deliberation,
recklessly or intentionally failed to investigate.” ECF No. 60-1, p. 12, ¶ 55. Handy states
that this alleged failure to investigate violates the Fourteenth Amendment. Handy does
not identify the scope of this claim i.e., whether it relates to the pre-arrest investigation
or post-arrest investigation. This distinction is immaterial because viewing the evidence
in the light most favorable to Handy, he fails to show that Detective Bryant and/or
Officer Montoya’s conduct violated his constitutional rights under the Fourteenth
Amendment.
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(1) Whether Detective Bryant’s Actions Violated A
Clearly Established Constitutional Right
“The Due Process clause of the Fourteenth Amendment protects an individual’s
life, liberty, and property against government actions.” Estate of B.I.C. v. Gillen, 710
F.3d 1168, 1173 (10th Cir. 2013) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).
“A government official violates an individual’s Fourteenth Amendment rights by injuring
his life, liberty, or property interest with deliberate or reckless intent.” Webber v. Mefford,
43 F.3d 1340, 1343 (10th Cir. 1994) (citation omitted). Handy does not specifically state
what interest, if any, under the Fourteenth Amendment was abridged or hindered due to
Detective Bryant and Officer Montoya’s alleged failure to investigate. Assuming
arguendo, that Handy’s liberty interest was abridged and hindered due to Detective
Bryant and Officer Montoya’s alleged failure to investigate, there is no evidence that
they did so with deliberate or reckless intent. Viewing the evidence in the light most
favorable to Handy, he fails to show that Detective Bryant and Officer Montoya’s
conduct violated a constitutional right under the Fourteenth Amendment. As such,
Detective Bryant and Officer Montoya are entitled to qualified immunity regarding
Handy’s § 1983 claim for failure to / duty to investigate under the Fourteenth
Amendment and this claim is DISMISSED WITH PREJUDICE.
ii. § 1983 Claims Based On Protection Order Violation Charges
(Claims 17 & 18)
Handy’s arrest for the alleged protection order violation forms the basis for
Claims 17 and 18. In Claim 17 (false arrest), Handy alleges that Detective Bryant
“subjected [him] to an arrest and [was] held in custody without probable cause, related
to the false protection order violation charge . . . ” ECF No. 60-1, p. 22, ¶ 100. Handy

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alleges that these actions violate the Fourth Amendment. In Claim 18 (false
imprisonment), Handy alleges that Detective Bryant “caused [him] to be subjected to a
restraint, in a bounded area, without justification or consent, related to the false
protection order violation charge . . . ” Id. ¶ 102. Handy alleges that these actions also
violate the Fourth Amendment.
The chief complaint underlying both claims is that Detective Bryant deliberately
included a false statement and purposefully omitted a fact from the affidavit in order to
secure an arrest warrant. The false statement and omitted fact that Handy relies on is
that Detective Bryant states in her affidavit that the repeated violations of the protection
order occurred in Sheridan, Colorado. Handy testified in his deposition that Detective
Bryant knew that the violations could not have occurred in Sheridan because Handy
was incarcerated in Denver County Jail when he wrote the letters and Smith was
incarcerated at the Denver Women’s Correctional Facility. ECF No. 109-11, p. 14 [p.
144, ll. 16-24]. Because Detective Bryant claims qualified immunity, Handy must show,
inter alia, that Detective Bryant’s misstatement violates a constitutional right under the
Fourth Amendment.
(a) Whether Detective Bryant’s Actions Violated A
Clearly Established Constitutional Right
Handy’s false arrest and false imprisonment claims are one in the same, both
focusing on whether probable cause existed to support his arrest. See Kerns v. Bader,
663 F.3d 1173, 1187 (10th Cir. 2011) (“To prove any of his claims [false arrest, false
imprisonment, and malicious prosecution], Mr. Kerns acknowledges he must establish
that his arrest and detention were without probable cause”); Grubbs v. Bailes, 445 F.3d
1275, 1278 (10th Cir. 2006) (“While constitutional claims for wrongful arrest, detention
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and prosecution under § 1983 are analyzed in light of analogous torts . . . the focal point
of our analysis is the probable cause supporting plaintiff’s arrest . . .”).
“Probable cause for an arrest warrant is established by demonstrating a
substantial probability that a crime has been committed and that a specific individual
committed the crime.” Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996) (citing
Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996)). Handy was arrested on August
18, 2011, for the alleged protection order violation. In Detective Bryant’s affidavit
supporting Handy’s arrest for violating the protection order, she states that an
investigator delivered 11 letters to her that Handy wrote to Smith. ECF No. 109-6, p. 2.
Detective Bryant further states that a valid protection order was in place which
prevented Handy from contacting or communicating with Smith and that the violations
occurred in Sheridan, Colorado. Id. at pp. 1-2. However, Detective Bryant states in her
May 9, 2013, affidavit that:
To the best of my knowledge, the protection order violation
actually occurred in Denver where Mr. Handy was being
detained. However, in my affidavit, I stated that the violation
occurred in Sheridan. This was a typo on my part, as I
forgot to change that section of the City’s affidavit form when
I was filling it out.
ECF No. 109-1, p. 3, ¶ 14. Thus, Detective Bryant admits that the alleged location of
the violation is incorrect as stated in her original affidavit. As such, the issue is whether
Detective Bryant’s misstatement vitiates probable cause for Handy’s arrest and
constitutes a Fourth Amendment violation.
In Taylor v. Meacham, 82 F.3d 1556 (10th Cir. 1996), the United States Court of
Appeals for the Tenth Circuit explicitly laid out the analysis a court undertakes when
determining whether misstatements and/or omissions in an arrest warrant affidavit
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vitiate probable cause for arrest. The Tenth Circuit stated, in pertinent part:
It is a violation of the Fourth Amendment for an arrest
warrant affiant to ‘knowingly, or with reckless disregard for
the truth,’ include false statements in the affidavit.” Id.
(quoting Franks v. Delaware, 438 U.S. 154, 155-56, 57 L.
Ed. 2d 667, 98 S. Ct. 2674 (1978)). Similarly, it is a Fourth
Amendment violation to “knowingly or recklessly omit from
the affidavit information which, if included, would have
vitiated probable cause.” Id. (citing Stewart v. Donges, 915
F.2d 572, 581-83 (10th Cir. 1990)). If an arrest warrant
affidavit contains false statements, “the existence of
probable cause is determined by setting aside the false
information and reviewing the remaining contents of the
affidavit.” Id.
82 F.3d at 1562. Applying this analytical framework, I first note that there is no
evidence to suggest that Detective Bryant knowingly or with reckless disregard for the
truth incorrectly stated the location of the alleged protection order violation. Second,
looking at the affidavit in the absence of Detective Bryant’s misstatement, probable
cause exists that Handy violated the protection order. While there may be further
inquiry as to where the violation occurred, it is clear that a violation occurred and the
misstatement does not alter the probable cause determination. Thus, Handy fails to
show the Detective Bryant’s actions violate a constitutional right under the Fourth
Amendment and Detective Bryant is entitled to qualified immunity. Therefore, Handy’s
§ 1983 claims based on the protection order violation (Claims 17 & 18) are DISMISSED
WITH PREJUDICE.
b. Absolute Immunity
Detective Bryant and Officer Montoya state that they are absolutely immune from
Claims 3 through 5. In Claim 3 (malicious prosecution), Handy alleges that Detective
Bryant and Officer Montoya “maliciously instituted false criminal charges against the

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plaintiff without probable cause . . . ”. ECF No. 60-1, p. 13, ¶ 58. Handy alleges that
these actions violate the Fourth Amendment. In Claim 4 (malicious prosecution), Handy
alleges that Detective Bryant and Officer Montoya “maliciously manufactured evidence,
and knowingly used that evidence along with perjured testimony to obtain a faulty
probable cause determination, which deprived [him] of his right to a preliminary hearing
and his right to a fair trial . . . ” Id. at ¶ 61. Handy alleges that these actions violate the
Fourteenth Amendment. In Claim 5 (conspiracy), Handy alleges that Detective Bryant
and Officer Montoya “conspired to commit an individual act, or to commit a lawful act by
unlawful means” to inflict injury upon him. Id. at p. 14, ¶ 64.
Handy testified in his deposition that Claims 3 through 5 are based on Detective
Bryant and Officer Montoya’s testimony at the preliminary hearings. See ECF No. 10911, p. 17 [p. 154, ll. 19 – 25 / p. 156, ll.10 – 22], p. 18 [p. 157, ll. 19 – 25, p. 158, ll. 1-2,
p. 159, ll. 1 – 25]. The Tenth Circuit has held that “[a] witness is absolutely immune
from civil liability based on any testimony the witness provides during a judicial
proceeding ‘even if the witness knew the statements were false and made them with
malice.’” PJ v. Wagner, 603 F.3d 1182, 1196 (10th Cir. 2010) (quoting Briscoe v.
LaHue, 460 U.S. 325, 332 (1983)). A preliminary hearing is a judicial proceeding. See,
e.g., Bradley v. Health Midwest, Inc., 203 F. Supp. 2d 1254, 1258 (D. Kan. May 23,
2002) (internal quotation marks and citation omitted) (“The Supreme Court has
explained that adverse judicial proceedings begin at the earliest of either a formal
charge, preliminary hearing, indictment, information, or arraignment”). Thus, Detective
Bryant and Officer Montoya are absolutely immune to any claim based on their
testimony at the preliminary hearings. As such, Claims 3 through 5, which are based on

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Detective Bryant and Officer Montoya’s alleged perjurious testimony at the preliminary
hearings, are DISMISSED WITH PREJUDICE.
2. Handy’s State Tort Claims
a. Claim 6: Malicious Prosecution
Handy alleges that Detective Bryant and Officer Montoya “maliciously instituted
false criminal charges against [him] without probable cause . . . ” ECF No. 60-1, p. 14, ¶
67. Handy does not specify the precise actions on which he bases this claim.
However, his deposition testimony regarding his § 1983 malicious prosecution claim
sheds light on this issue, and I will construe this claim as though it is based on Detective
Bryant and Officer Montoya’s testimony at the preliminary hearings. See ECF No. 10911, p. 17 [p. 154, ll. 19 – 25 / p. 156, ll.10 – 22].
As previously mentioned, Detective Bryant and Officer Montoya are absolutely
immune under federal law from civil liability based on their testimony at the preliminary
hearings. Detective Bryant and Officer Montoya state that under Colorado state law,
they are absolutely immune from civil liability based on their testimony at the preliminary
hearings. They rely on Wagner v. Board of County Comm’rs, 933 P.2d 1311 (Colo.
1997). In Wagner, the Supreme Court of Colorado adopted the functional approach to
determining whether to grant a witness absolute immunity as stated by the Supreme
Court of the United States in Briscoe. As such, the Supreme Court of Colorado framed
the issue regarding witness immunity as “whether grand jury proceedings constitute
‘judicial proceedings’ such that grand jury witnesses are entitled to absolute immunity
from subsequent civil liability for their testimony.” 933 P.2d at 1313. In holding that
grand jury witnesses are entitled to absolute immunity, the Supreme Court of Colorado

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stated:
The function of a grand jury proceeding is to determine the
true facts of a case in order to decide whether to indict a
criminal defendant. This function closely resembles that of a
trial, which is to determine the true facts of a case in order to
decide whether to convict a criminal defendant. Additionally,
the United States Supreme Court has held that a prosecutor
seeking an indictment is in the judicial phase of a criminal
proceeding. See Malley v. Briggs, 475 U.S. 335, 343, 89 L.
Ed. 2d 271, 106 S. Ct. 1092 (1986). It thus follows that the
grand jury, which decides whether to indict, is also part of
the judicial phase. As such, we hold that grand jury
proceedings constitute judicial proceedings which entitle
participants to absolute immunity from subsequent civil
liability.
Id.
Wagner addressed absolute immunity for witnesses testifying during grand jury
proceedings, not during preliminary hearings. The parties have not cited any Colorado
state court that has specifically extended absolute immunity to witnesses who testify at
a preliminary hearing. In the absence of an authoritative pronouncement of law from a
state’s highest court, as is the case here, a federal court’s task under the Erie doctrine
is to predict how the state’s highest court would rule on an issue. Wankier v. Crown
Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003) (“When no controlling state decision
exists, the federal court must attempt to predict what the state’s highest court would
do”).4 Thus, I must predict how the Colorado Supreme Court would rule if it were
presented with the issue of whether witnesses testifying at a preliminary hearing are
entitled to absolute immunity from civil liability based on such testimony.

4

Though jurisdiction in this case is premised on federal question subject matter jurisdiction, the Erie
doctrine still applies. Wright, Miller & Cooper, FEDERAL PRACTICE and PROCEDURE: Jurisdiction 2d § 4520
(“It is frequently said that the doctrine of Erie Railroad Company v. Tompkins applies only in diversity of
citizenship cases; this statement is simply wrong. The Erie case and the Supreme Court decisions
following it apply in federal question cases as well”) (emphasis added).

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The purpose of a preliminary hearing is to determine whether probable cause
exists to believe that a crime was committed and whether the defendant committed the
crime. See Rule 5(a)(4) of the COLORADO RULES of CRIMINAL PROCEDURE. This is the
initial “gatekeeping” judicial proceeding and if probable cause does not exist, the
defendant is released. Thus, truthful testimony is necessary and required and
witnesses at a preliminary hearing, much like those at a grand jury proceeding, should
not bear the fear of possible civil liability while simultaneously testifying under oath. I
predict that if the Colorado Supreme Court were presented with the issue of whether
witnesses testifying at a preliminary hearing are entitled to absolute immunity, the court
would extend its holding in Wagner to include witness testimony at preliminary hearings.
Therefore, Detective Bryant and Officer Montoya are absolutely immune from Handy’s
Colorado state law malicious prosecution claim and this claim is DISMISSED WITH
PREJUDICE.
b. Claims 8 & 14: Negligence and Gross Negligence
In Claim 8 (negligence), Handy alleges that Detective Bryant and Officer
Montoya “breach[ed] a legal duty of care owed to [him], which caused [his] injuries.”
ECF No. 60-1, p. 15, ¶ 72. In Claim 14 (gross negligence), Handy alleges that
Detective Bryant and Officer Montoya’s conduct exhibited “serious carelessness” and
“[fell] below the ordinary standard of care that one can expect from a reasonable
person.” Id. at p. 18, ¶ 84.
Handy’s negligence claims are covered by the Colorado Governmental Immunity
Act (“CGIA”), COLO. REV. STAT. § 24-10-101, et seq. Pursuant to the CGIA:
It is the intent of this article to cover all actions which lie in
tort or could lie in tort regardless of whether that may be the
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type of action or the form of relief chosen by the claimant. No
public entity shall be liable for such actions except as
provided in this article, and no public employee shall be
liable for injuries arising out of an act or omission occurring
during the performance of his or her duties and within the
scope of his or her employment, unless such act or omission
was willful and wanton, except as provided in this article.
Nothing in this section shall be construed to allow any action
which lies in tort or could lie in tort regardless of whether that
may be the type of action or the form of relief chosen by a
claimant to be brought against a public employee except in
compliance with the requirements of this article.
COLO. REV. STAT. 24-10-105(1) (emphasis added). Under the CGIA’s plain language, a
plaintiff asserting a negligence claim against a public employees such as Detective
Bryant and Officer Montoya, however styled, must show that the employees’ acts or
omissions were willful and wanton. Because willful and wanton conduct is an element
of gross negligence, Handy’s negligence claims are one in the same. See Hamill v.
Cheley Colo. Camps., Inc., 262 P.3d 945, 954 (10th Cir. 2011) (“Gross negligence is
willful and wanton conduct, that is, action committed recklessly, with conscious
disregard for the safety of others”). To note, the CGIA bars Handy’s negligence claims
to the extent they relate to incidents surrounding his February 10, 2010, arrest. See
ECF No. 102, p. 11, ¶ 2 (“this Courts lacks subject matter jurisdiction over Handy’s tort
claims arising out of his February 10, 2010, arrest and the subsequent second degree
attempted murder charges”). Thus, these claims may only relate to Handy’s June 16,
2011, preliminary examination and the first degree extreme indifference attempted
murder charge and the protection order violation.
“To recover on a claim in negligence, the plaintiff must establish the existence of
a legal duty, breach of the duty, causation, and damage.” Perreira v. State, 768 P.2d
1198, 1208 (Colo. 1989) (citing Leake v. Cain, 720 P.2d 152, 155 (Colo. 1986)). “A
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negligence claim . . . will fail if the claim is based on circumstances for which the law
imposes no duty.” Id. (citing University of Denver v. Whitlock, 744 P.2d 54, 56 (Colo.
1987)). Handy neither identifies a duty owed to him by Detective Bryant and Officer
Montoya nor does he offer case law supporting his assertion that a duty exists. As
such, I find that Handy fails to show the existence of duty owed to him by Detective
Bryant and Officer Montoya. As such, his negligence claims fail and they are
DISMISSED WITH PREJUDICE.
c. Claims 12 & 13: False Arrest and False Imprisonment
In Claim 12 (false arrest), Handy alleges that in relation to the protection violation
charge, Detective Bryant subjected him to an arrest in which probable cause did not
exist. ECF No. 60-1, p. 17, ¶ 80. In Claim 13 (false imprisonment), Handy alleges that
in relation to the protection violation charge, Detective Bryant subjected him to “restraint
in a bounded area without justification or consent.” Id. at ¶ 82.
Detective Bryant states that the CGIA bars these claims. She is correct. In my
March 26, 2013, Order [ECF No. 102] I stated the scope of these claims. Specifically, I
stated, “[t]o be clear, the CGIA bars Handy’s claims for false arrest and false
imprisonment to the extent they related to his February [10], 2010, arrest and the
second degree attempted murder charges, and Handy’s August 18, 2011, arrest.” ECF
No. 102, p. 14, ¶ 1. Because Handy’s Colorado state law claims for false arrest and
false imprisonment relate to his arrest on August 18, 2011, those claims are barred. As
such, Handy’s Colorado state law claims for false arrest and false imprisonment are
DISMISSED WITH PREJUDICE.

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d. Claim 15: Intentional Infliction of Emotional Distress / Outrageous
Conduct
Handy alleges that Detective Bryant and Officer Montoya’s action of filing “false
criminal charges” was “intentional or reckless, and extreme and outrageous” and
caused him “severe emotional distress.” ECF No. 60-1, p. 18, ¶ 86.
To the extent that this claim relates to Handy’s February 10, 2010, arrest, the
CGIA bars this claim. ECF No. 102, p. 11, ¶ 2. To the extent that this claim relates to
Detective Bryant and Officer Montoya’s alleged perjurious testimony at the preliminary
hearings, they are absolutely immune from any civil liability related to such testimony.
See Sections B(1)(b) and B(2)(a) of this opinion. Thus, Handy may only proceed with
this claim as it relates to the first degree extreme indifference attempted murder charge
and the protection order violation charge.
“One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress . . .
” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999).
[T]he level of outrageousness required for conduct to create
liability for intentional infliction of emotional distress is
extremely high: “Liability has been found only where the
conduct has be so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.”
Id. (quoting Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)). Handy fails to show
that any actions taken by Detective Bryant and Officer Montoya rise to this high
standard. As such, this claim is DISMISSED WITH PREJUDICE.

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e. Claim 19: Defamation / Libel / Slander
Handy alleges that Detective Bryant and Officer Montoya made “false attempted
murder and unlawful termination of pregnancy statements.” ECF No. 60-1, p. 23, ¶ 104.
Handy further alleges that such statements were “libelous and slanderous,” “imputed
criminal offenses,” and were “unmistakably recognized as injurious.” Id. Handy appears
to use this claim as a “catch all” claim, attempting to state that Detective Bryant and
Officer Montoya’s statements regarding Smith’s terminated pregnancy constitute
defamation, libel, and slander. To be clear, merely alleging that a statement is “libelous
and slanderous” is insufficient to state a claim for such torts. Handy specifically states
that his alleged injuries under this claim are “are set forth under the state tort
defamation,” and I will construe this claim as such. Pursuant to my March 26, 2013,
Order [ECF No. 102, p. 11, ¶ 2], this claim may only relate to information Handy learned
during the June 16, 2011, preliminary hearing i.e., the first degree extreme indifference
attempted murder charge and the protection order violation.
In order to prevail on a Colorado state law claim for defamation, a plaintiff must
establish:
(1) a defamatory statement concerning another; (2)
published to a third party; (3) with fault amounting to at least
negligence on the part of the publisher; and (4) either
actionability of the statement irrespective of special damages
or the existence of special damages to the plaintiff caused
by the publication.
Williams v. District Court, 866 P.2d 908, 912 n.4 (Colo. 1993) (citations omitted). A
statement is defamatory when it “holds an individual up to contempt or ridicule and
causes injury or damage.” Wilson v. Meyer, 126 P.3d 276, 279 (Colo. App. 2005) (citing
Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994)).
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Under Section B(2)(a) of this opinion, I opine that if the Supreme Court of
Colorado were presented with the issue of whether witnesses testifying at a preliminary
hearing are entitled to absolute immunity, the court would most likely extend its holding
in Wagner to include witness testimony at preliminary hearings. Thus, to the extent that
this Colorado state law claim relates to Detective Bryant’s testimony at the June 16,
2011, preliminary hearing, absolute immunity bars such a claim.
The only other statements that can conceivably relate to this claim are found in
Detective Bryant’s February 1, 2010, Supplemental Police Report [ECF No. 109-2]. In
that report, Detective Bryant states that Smith’s pregnancy “is no longer viable” and
Smith “believes that the loss is a direct result of injuries she sustained during the
incident with Handy.” ECF No. 109-2, p. 9. Detective Bryant merely reduced to writing
what was told to her by Smith. Under these circumstances, Detective Bryant’s
statements in her Supplemental Police Report [ECF No. 109-2] are not defamatory.
Further, there is no evidence that Officer Montoya made any statements that Smith’s
terminated pregnancy was the result of the January 19, 2010, incident. As such,
Handy’s Colorado state law defamation claim is DISMISSED WITH PREJUDICE.
C. City Of Sheridan’s Motion For Summary Judgment [ECF No. 111]
In Claim 16, Handy alleges a § 1983 municipal liability claim against the City of
Sheridan.
“A municipality or other local government may be liable under [42 U.S.C. § 1983]
if the governmental body itself ‘subjects’ a person to a deprivation of rights or causes a
person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 131 S.Ct. 1350,
1359 (2011) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692

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(1978)). “But, under § 1983, local governments are responsible only for “their own
illegal acts.” Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). Local
governments “are not vicariously liable under § 1983 for their employees’ actions.” Id.
(citations omitted).
“Plaintiffs who seek to impose liability on local government’s under § 1983 must
prove that ‘action pursuant to official municipal policy’ caused their injury.” Connick, 131
S.Ct. at 1359 (citing Monell, 436 U.S. at 691). Thus, in order for a plaintiff to prevail on
a § 1983 municipal liability claim, he must establish “(1) that a municipal employee
committed a constitutional violation, and (2) that a municipal policy or custom was the
moving force behind the constitutional deprivation.” Myers v. Okla. Cnty. Bd. of Cnty.
Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing Monell, 436 U.S. at 694).
As previously stated in this opinion, Handy has not established that either
Detective Bryant and/or Officer Montoya, who are employees of the City of Sheridan,
committed a constitutional violation. Thus, the analysis stops here. As such, Handy’s
§ 1983 municipal liability claim against the City of Sheridan is DISMISSED WITH
PREJUDICE.
D. Handy’s Motion To Amend Or Alter Judgment Pursuant To Fed. R. Civ. P.
59(e) [ECF No. 177]
Pursuant to Rule 59(e) of the FEDERAL RULES of CIVIL PROCEDURE, “[a] motion to
alter or amend judgment must be filed no later than 28 days after the entry of judgment.”
Judgment has not been entered in this action and therefore the motion is premature. As
such, the motion is DENIED.

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CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that Detective Bryant’s Motion For Summary Judgment [ECF No.
109] is GRANTED, and Handy’s claims asserted against Detective Bryant are
DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that Officer Montoya’s Motion For Summary Judgment
[ECF No. 110] is GRANTED, and Handy’s claims asserted against Officer Montoya are
DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that the City of Sheridan’s Motion For Summary
Judgment [ECF No. 111] is GRANTED, and Handy’s claim against the City of Sheridan
is DISMISSED WITH PREJUDICE. Because all of Handy’s claims are dismissed, it is
FURTHER ORDERED that Handy’s Motion To Continue And/Or Stay
Proceedings In This Case And To Modify All Deadlines [ECF No. 134] is DENIED AS
MOOT. It is
FURTHER ORDERED that Handy’s Motion To Amend Or Alter Judgment
Pursuant To Fed. R. Civ. P. 59(e) [ECF No. 177] is DENIED. It is
FURTHER ORDERED that Handy’s Motion For Court To Order Clerk To Send
Plaintiff A Copy Of The Register Of Actions [ECF No. 176] is DENIED.
Dated: February 17, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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