Miller v. Foster et al

Filing 62

ORDER granting 48 Motion for Summary Judgment. The 54 Report and Recommendations is ACCEPTED as to the dismissal of Plaintiff's claims based on allegations of an illegal strip/body cavity search. By Judge Raymond P. Moore on 3/10/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02525-RM-MJW
JELANI LATEEF MILLER,
Plaintiff,
v.
ANTHONY FOSTER, #86035 sued in his official and individual capacity,
SCOTT MATTOS, #01051 sued in his official and individual capacity, and
SAMUEL STIGLER, III, #05024 sued in his official and individual capacity,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
THIS MATTER is before the Court on Defendants’ Objection in Part to Report and
Recommendation (“Objection”) (ECF No. 56) to the Magistrate Judge’s Recommendation on
Defendants’ Motion for Summary Judgment (“Recommendation”) (ECF No. 54) dated
November 18, 2013. Defendants had moved for summary judgment of dismissal on four
grounds but the Magistrate Judge recommended dismissal of all claims based on one of the
grounds, leaving the other grounds undecided in the interest of judicial economy. Defendants’
Objection is to the Magistrate Judge’s decision not to address, and rule in their favor on, the
other three grounds raised. The Recommendation properly informed Plaintiff of the time period
for objecting and the consequences of failing to object, but he filed no objections or response to
Defendants’ Objection.
For the reasons stated below, Defendants’ Objection is overruled in part and granted in
part, and Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 48) is GRANTED

as stated herein.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P.
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.” In conducting its review, “[t]he
district court judge may accept, reject, or modify the recommendation; receive further evidence;
or return the matter to the magistrate judge with instructions.” Id.
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, 569570 (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 is so
one–sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-252 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000);
Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). Once the moving party meets
his initial burden of demonstrating an absence of a genuine issue of material fact, the burden then
shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact to
be resolved at trial. See 1-800-Contacts, Inc. v. Lens.Com, Inc., 722 F.3d 1229, 1242 (10th Cir.
2013).1
The facts must be considered in the light most favorable to the nonmoving party. Cillo v.
City of Greenwood Village, supra at 461. Further, a pro se litigant’s pleadings are to be

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The Court recognizes there is a difference in the standard where a qualified immunity defense has been raised, as
in the case at hand, but need not address such standard in light of its resolution of the Objection and Defendants’
Motion. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (describing two-part inquiry for resolving qualified
immunity claims); Cillo v. City of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013) (same).

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construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520–21 (1972). The Court, however, cannot serve as a pro se
litigant’s advocate and make his arguments for him. Walters v. Wal-Mart Stores, Inc., 703 F.3d
1167, 1173 (10th Cir. 2013); Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. FACTUAL BACKGROUND
No objections were made to the recitation of facts set forth by the Magistrate Judge in the
Recommendation. (ECF No. 54 at 1-3.) Accordingly, the Court adopts and incorporates the
Factual Background of the Recommendation as if set forth herein. To the extent any additional
facts are necessary for the Court’s resolution of the summary judgment motion, such facts are set
forth in the analysis section below.
III. ANALYSIS
Plaintiff’s claims, liberally construed, are based on an alleged illegal strip/body cavity
search of his person and the alleged use of excessive force independent of such search, i.e., where
no causal connection between the claimed excessive force and the discovery of the evidence are
alleged. Defendants’ Motion raised four grounds as the bases for dismissal: (1) qualified
immunity as to claims based on illegal strip search allegations; (2) collateral estoppel or issue
preclusion as to claims based on illegal body cavity search allegations; (3) the application of
Heck v. Humphrey, 512 U.S. 477 (1994) as a bar to all illegal search claims; and (4) the failure to
allege or demonstrate any injury on any claim based on excessive force allegations. The
Recommendation found all of Plaintiff’s claims are barred under Heck v. Humphrey and, in the
interest of judicial economy, did not address the other three grounds raised.

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As the Supreme Court has stated, a substantial expenditure of scarce judicial resources is
not required on questions that have no effect on the outcome of the case. See Pearson v.
Callahan, supra at 236-237. Moreover, courts need not pass upon a constitutional question
unless such adjudication is unavoidable. Id. at 241. In this case, the Magistrate Judge carefully
and thoroughly evaluated the merits of Plaintiffs’ alleged illegal strip/body cavity search claims
and found they are barred under Heck v. Humphrey. The Magistrate Judge also properly
considered the interest of judicial economy in determining whether to address Defendants’ other
arguments. The Court finds, however, that because Plaintiff’s claims include allegations of the
use of excessive force, independent of the search, at least one of Defendants’ other arguments
should also be addressed. In this case, Heck v. Humphrey would not bar the excess force claim
alleged because a judgment in favor of Plaintiff on this claim would not necessarily imply the
invalidity of his state conviction or sentence for possession of a controlled substance.2
The Court is persuaded that dismissal of Plaintiff’s case is nonetheless warranted as his
excessive force claim is insufficient as a matter of law. In order to recover on this claim, a
plaintiff must show: “(1) that the officers used greater force than would have been reasonably
necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable
seizure that is not de minimis, be it physical or emotional.” Cortez v. McCauley, 478 F.3d 1108,
1129 n.25 (10th Cir. 2007); Fisher v. City of Las Cruces, 584 F.3d 888, 894 & 897 (10th Cir.
2009).
Defendants argue Plaintiff alleged3 that Defendants Mattos and Stigler “slammed”
Plaintiff into a wall during the search, but did not allege or demonstrate such conduct caused him

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Or otherwise affect his guilty plea to the distribution of a controlled substance.
These allegations are assumed true for the purposes of the Motion. (ECF No. 48, page 2 n.1.)

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a cognizable injury. Further, Defendant Foster is not alleged to have engaged in such conduct.
Plaintiff did not respond to Defendants’ Motion and therefore neither disputed Defendants’
construction of the claim nor responded with any additional information for the Court to
consider. Left with nothing but bare conclusory allegations to deliberate, the Court agrees that
no actual harm has been shown. Accordingly, summary judgment of dismissal is appropriate as
to any claim by Plaintiff based on the use of excessive force.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Objection is granted to the extent they sought
a determination of their argument that Plaintiff’s claim for excessive force is subject to dismissal
for failure to demonstrate a cognizable injury and denied in all other respects. Accordingly, the
Court ORDERS as follows:
1. Defendants’ Objection (ECF No. 56) is OVERRULED IN PART and GRANTED IN
PART as stated herein;
2. The Magistrate Judge’s Recommendation (ECF No. 54) is ACCEPTED as to the
dismissal of Plaintiff’s claims based on allegations of an illegal strip/body cavity
search;
3. Plaintiffs’ claims are dismissed without prejudice on the basis stated in the
Recommendation and for failure to demonstrate any cognizable injury as to any claim
of excessive force, and Defendants’ Motion for Summary Judgment (ECF No. 48) is
GRANTED on these bases; and

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4. The Clerk shall enter judgment as set forth herein in favor of Defendants, with each
party to bear his own costs.
DATED this 10th day of March, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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