Wojdacz v. Colorado Springs City Police Department et al.

Filing 233

ORDER Sustaining 227 Objection to And Rejecting 226 Recommendation of the United States Magistrate Judge and Granting Defendanting Ireland's 207 Motion for Summary Judgment. Plaintiff's Fourth Amendment claim against defendant, Officer John Ireland, is DISMISSED WITH PREJUDICE. Defendant, Officer John Ireland, is DROPPED as a named party to this action, and the case caption AMENDED accordingly. By Judge Robert E. Blackburn on 12/13/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01483-REB-MEH
ELIZABETH WOJDACZ,
Plaintiff,
v.
OFFICER JOHN IRELAND,
GARY LEE NORMAN,
MICHAEL J. DUNCAN, and
CLIFF HUDSON,
Defendants.

ORDER SUSTAINING OBJECTION TO AND REJECTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
AND GRANTING DEFENDANT IRELAND’S MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#226],1 filed October 17, 2013; and (2) Officer John Ireland’s
Objection to the Recommendation of United States Magistrate Judge (Doc. No.
26) [#227], filed October 31, 2013. The magistrate judge finds that there are genuine
issues of material fact regarding whether plaintiff consented voluntarily to Officer
Ireland’s search of her home and thus recommends that Officer John Ireland’s Motion
for Summary Judgment [#207], filed August 30, 2013, be denied. I disagree and
respectfully reject the recommendation and grant Officer Ireland’s motion for summary

1

“[#226]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

judgment.
Plaintiff is proceeding pro se. Accordingly, and appropriately, the magistrate
judge construed her pleadings more liberally and held them to a less stringent standard
than formal pleadings drafted by lawyers, as have I. See Erickson v. Pardus, 551 U.S.
89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d
1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652
(1972)).
I begin my analysis by rehearsing the familiar standard of review: “ [t]he court
shall grant summary judgment if 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). “‘An issue is genuine if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way’ and ‘[a]n issue of fact is material
if under the substantive law it is essential to the proper disposition of the claim.’”
Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (quoting Thom v.
Bristol–Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal quotation
marks omitted).
Additionally, a motion for summary judgment asserting qualified immunity must
be reviewed differently from other motions for summary judgment. See Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), overruled in
part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009); Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), cert.

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denied, 122 S.Ct. 1914 (2002). Where, as here, a defendant asserts qualified
immunity, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595
(10th Cir. 2000). To overcome a claim of qualified immunity, the plaintiff first must
establish "that the defendant's actions violated a constitutional or statutory right."
Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). See also Wilson v.
Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (noting the court
first must decide whether the plaintiff has alleged deprivation of a constitutional right).
This burden entails presenting specific facts establishing the violation. Taylor v.
Meacham, 82 F.3d 1556, 1559 (10th Cir.), cert. denied, 117 S.Ct. 186 (1996).2
Plaintiff’s sole remaining claim against Officer Ireland arises from her consent,
vel non, to a search of her residence. The undisputed, material facts, more thoroughly
recounted by the magistrate judge in his recommendation, demonstrate that plaintiff, out
of concern for her own safety, went to the Police Operation Center in Colorado Springs,
Colorado, to request assistance following an altercation between herself and defendant,
Gary Norman. Officer Ireland went to plaintiff’s residence, but no one responded to his
knock, and Mr. Norman’s vehicle was not at the house. There is no dispute that plaintiff
consented to allow Officer Ireland to search the home and never withdrew her consent.
However, whereas Officer Ireland avers that plaintiff asked him to search the house to
determine whether Mr. Norman had taken any firearms with him, plaintiff insists that,
based on Officer Ireland’s words and tone, she believed she was required to let him

2

Throughout, I have viewed the facts in the light most favorable to plaintiff.

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search the house.3 Based on this divarication, the magistrate judge recommends that
Officer Ireland’s motion for summary judgment on the basis of qualified immunity be
denied.
The warrantless search of a residence does not violate the Fourth Amendment if
the owner voluntarily consents to the search. See United States v. Jones, 701 F.3d
1300, 1317 (10th Cir. 2012). “‘Voluntary consent’ consists of two parts: (1) the law
enforcement officers must receive either express or implied consent, and (2) that
consent must be freely and voluntarily given.” Id. As noted by the magistrate judge,
neither party contests that plaintiff gave Officer Ireland permission to search her home.
Rather, the determinative question is whether plaintiff’s consent was freely and
voluntarily given.
“The question whether a consent to a search was in fact ‘voluntary’ or was the
product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.” United States v. Harrison, 639 F.3d 1273,
1278 (10th Cir. 2011). Factors relevant to this analysis include
physical mistreatment, use of violence, threats, promises,
inducements, deception, trickery, or an aggressive tone, the
physical and mental condition and capacity of the defendant,
the number of officers on the scene, and the display of police
weapons. Whether an officer reads a defendant his Miranda
rights, obtains consent pursuant to a claim of lawful
authority, or informs a defendant of his or her right to refuse
consent also are factors to consider in determining whether
consent given was voluntary under the totality of the

3

During cross-examination in her deposition, plaintiff repeatedly used words to the effect that
Officer Ireland told her that she had to let him in her house. (See, e.g., Def. Motion App., Exh. 1 at p 26,
l. 8; p 26, ll. 14-17; p 27, l. 16; p. 28, ll. 6-7; p. 50, ll. 17-20; p. 51, l. 24 - p. 52, l. 1; p. 53, ll. 8-9; p. 54, ll. 810; & p. 55, l. 12.) As I find and conclude ultimately, her oft-repeated assertions are belied by the record.

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circumstances.
Id. The magistrate judge found that plaintiff’s deposition testimony was sufficient to raise
a genuine issue of material fact regarding the voluntariness of her consent. Specifically,
without ever recalling Officer Ireland’s precise words – or any of his words – or
describing his tone, plaintiff testified that the tone and context of his statements led her to
believe that she could not refuse consent. The magistrate judge concluded that this
testimony created an issue of credibility that precluded summary resolution.
I disagree. This analysis focuses too myopically on plaintiff’s subjective – and
otherwise unsubstantiated – assertions about the tone and context of Officer Ireland’s
words – none of which plaintiff could recall. Considering the totality of all the relevant,
objective circumstances, no reasonable jury could find that plaintiff’s consent to search
was involuntary, even when viewing the evidence in the light most favorable to plaintiff.
None of the other myriad factors that has traditionally been found to inform the
Fourth Amendment analysis is present in this case. There is no evidence of physical
mistreatment, violence, threats, promises, inducements, deception, or trickery used to
secure plaintiff’s consent to search. Although plaintiff maintains that Officer Ireland’s
words and tone conveyed to her the message that she could not refuse consent,
nothing in either her testimony or the remainder of the record supports a conclusion that
his tone was demanding, aggressive, threatening, or hostile. There is no allegation or
evidence that plaintiff’s physical or mental condition made her particularly susceptible to
Officer Ireland’s assertion of authority. There were only two officers on the scene, and
no weapons were displayed. Plaintiff was not under arrest, much less detained, at any

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time prior to, during, or after the search.4
As weighed against these numerous, objective circumstances to the contrary,
plaintiff’s subjective interpretation of Officer Ireland’s request as conveying the message
that she could not refuse consent to search is simply not reasonable. Plaintiff provides
no specifics whatsoever – not a single word or a single detail – that might allow the
court or a rational jury to conclude that her will to refuse consent was overborne by the
force of Officer Ireland’s words or tone or the context of his statements to her. During
her deposition, plaintiff had several opportunities to recall anything Officer Ireland said
or did; however, she was unable to do so. Plaintiff did not provide a single detail about
the words or tone used by Officer Ireland. Therefore, plaintiff has not presented any
facts – as opposed to and distinguished from her uncircumstantiated opinion5 – to
establish that Officer Ireland, in effect, told her that she had to let him in her house, i.e.,
that she could not refuse consent. Absent this factual sine qua non, no reasonable jury
could find her subjective interpretation to be reasonable.
Further, the record is void of any facts evincing coercion, duress, or undue
influence by Officer Ireland. See Jones, 701 F.3d at 1320 (“[N]othing in this record
leads [the court] to believe that a reasonable person would have been so enervated by
the surrounding circumstances that [she] would not have felt capable of rebuffing [the
officer’s] desired investigative plan.”). Indeed, the court construes plaintiff’s
4

A circumstance obviating the necessity to read plaintiff her Miranda rights.

5

Without some factual basis, her lay opinion would be inadmissible under Fed. R. Evid. 701
because neither the court in the first instance nor the jury in the final analysis would have an adequate
factual basis to conclude that the opinion was rationally based on her perceptions, see Rule 701(a), or that
the opinion was helpful in clearly understanding the testimony of the plaintiff or in determining whether her
consent to search was voluntary, see Rule 701(b).

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interpretation of Officer Ireland’s statements as particularly unreasonable in light of the
fact that plaintiff herself requested the officers’ assistance in her dispute with Mr.
Norman out of concern for her own safety and admittedly told the officers where
firearms might be located within the house.
Granted, Officer Ireland did not affirmatively inform plaintiff that she could refuse
consent. Yet such an advisement is neither absolutely required nor necessarily
dispositive even when given. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93
S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973) (“While knowledge of the right to refuse
consent is one factor to be taken into account, the government need not establish such
knowledge as the sine qua non of an effective consent.”).
If a plaintiff could create a genuine dispute of material fact implicating credibility
by simply offering a subjective opinion without concomitant factual circumstantiation,
then bona fide assertions of qualified immunity would be effectively eviscerated. In
effect, a crucially important doctrine designed to insulate public officials from the
ignominy, inefficacity, stress, and expense of spurious litigation could be vitiated by
nothing more than a factually inscrutable opinion.
In short, given the totality of circumstances as evidenced from the undisputed
record before me, I find and conclude that plaintiff has failed to demonstrate by specific
facts a genuine dispute of material fact sufficient to surmount Officer Ireland’s assertion
of qualified immunity. Here, Officer Ireland is entitled to judgment as a matter of law
under Fed. R. Civ. P. 56(a). Accordingly, his motion for summary judgment must be
granted.

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THEREFORE, IT IS ORDERED as follows:
1. That the objections stated in Officer John Ireland’s Objection to the
Recommendation of United States Magistrate Judge (Doc. No. 26) [#227], filed
October 31, 2013, are SUSTAINED;
2. That the Recommendation of United States Magistrate Judge [#226], filed
October 17, 2013, respectfully, is REJECTED;
3. That Officer John Ireland’s Motion for Summary Judgment [#207], filed
August 30, 2013, is GRANTED;
4. That plaintiff’s Fourth Amendment claim against defendant, Officer John
Ireland, is DISMISSED WITH PREJUDICE;
6. That at the time judgment enters, judgment with prejudice SHALL ENTER on
behalf of defendant, Officer John Ireland, against plaintiff, Elizabeth Wojdacz, on
plaintiff’s Fourth Amendment claim against him;
7. That defendant, Officer John Ireland, is DROPPED as a named party to this
action, and the case caption AMENDED accordingly; and
8. That at the time judgment enters, defendant, Officer John Ireland, SHALL BE
AWARDED his costs to be taxed by the clerk of the court pursuant to Fed. R. Civ. P.
54(d)(1) and D.C.COLO.LCivR 54.1.
Dated December 13, 2013, at Denver, Colorado.
BY THE COURT:

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