Arden v. Darr et al

Filing 31

ORDER granting 20 Motion for Summary Judgment. The Clerk of the Court is directed to enter JUDGMENT in Defendants' favor. By Judge Raymond P. Moore on 12/2/2014.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-03099-RM-CBS
DALE M. ARDEN,
Plaintiff,
v.
DOUGLAS N. DARR, in his official capacity as Sheriff for County of Adams, Colorado;
LILIANA BONDELL, Deputy Sheriff, in her professional capacity as Deputy Sheriff for County
of Adams, and her personal capacity; and
JOHN DOES 1 & 2 in their professional and personal capacities,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Defendants Sheriff Douglas N. Darr and Deputy
Sheriff Liliana Bondell’s motion for summary judgment (ECF No. 20) on each of Plaintiff Dale
M. Arden’s claims under 42 U.S.C. § 1983 (“Section 1983”) against Defendants for violating his
Fourth Amendment (via the Fourteenth Amendment) rights (ECF Nos. 4, 30).
For the reasons stated below, the Court GRANTS Defendants’ motion for summary
judgment.
I.

LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 56970 (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, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once
the moving party meets its initial burden of demonstrating an absence of a genuine dispute of
material fact, the burden then shifts to the non-moving party to move beyond the pleadings and
to designate evidence which demonstrates the existence of a genuine dispute 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) (citation omitted). A fact is “material” if it pertains to an element of a claim or defense; a
factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In
considering whether summary judgment is appropriate, the facts must be considered in a light
most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461
(10th Cir. 2013) (citations omitted).
If a movant properly supports a motion for summary judgment, the opposing party may
not rest on the allegations contained in his complaint, but must respond with specific facts
showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372,
380 (2007) (holding that “[t]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact”) (citation omitted).
Only admissible evidence may be considered when ruling on a motion for summary
judgment. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation
omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment
motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

Affidavits must be based on personal knowledge and must set forth facts that would be
admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)
(quotations and citation omitted). “Conclusory and self-serving affidavits are not sufficient.” Id.
The Court will not consider statements of fact, or rebuttals thereto, which are not material or are
not supported by competent evidence. Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). “[O]n a
motion for summary judgment, it is the responding party’s burden to ensure that the factual
dispute is portrayed with particularity, without depending on the trial court to conduct its own
search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal
quotation and citation omitted). The Court is “not obligated to comb the record in order to make
[Plaintiff’s] arguments for [him].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199
(10th Cir. 2000). Further, Local Rule 7.1(e) provides that “[e]very citation in a motion, response
or reply shall include the specific page or statutory subsection to which reference is made.” D.C.
Colo. L. Civ. R. 7.1(e).
II.

BACKGROUND
A.

Procedural Background

On November 28, 2012, this case was removed from state court. (ECF No. 1.) The
Amended Complaint (ECF No. 4) has four “claims for relief” against two named and two
unnamed Defendants. A liberal reading of the Amended Complaint informs the Court that
Plaintiff’s Section 1983 claims are based on (1) “civil theft” (ECF No. 4 at ¶¶ 33-36); (2)
“conspiracy” (ECF No. 4 at ¶¶ 37-51); (3) unlawful search (ECF No. 4 at ¶¶ 52-54); and (4)
unlawful seizure (ECF No. 4 at ¶¶ 52-54). No executed return of summons or waiver of service
has been filed for either of the John Doe Defendants. (See ECF Dkt.)

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On August 30, 2013, Defendants Bondell and Darr filed their motion for summary
judgment. (ECF No. 20.) The matter is fully briefed and ripe for adjudication. (See ECF Nos.
25, 26.)
On December 24, 2013, Magistrate Judge Craig B. Shaffer entered a “Final Pretrial
Order” in this matter. (ECF No. 30.) The Final Pretrial Order identifies that Plaintiff’s Section
1983 claims are predicated upon an unlawful search and seizure of his home by the named
Defendants. (ECF No. 30 at 2-3.) The Final Pretrial Order contains no claim for conversion.
(See generally ECF No. 30.) The Final Pretrial Order contains no claim for civil conspiracy.
(See generally ECF No. 30.)
B.

Undisputed Material Facts1

The facts as recited below are based on adequate citations to the record which would be
admissible at trial. The facts are recited in a light most favorable to the non-moving party.
On August 10, 2010, Deputy Sheriff Bondell of the Adams County Sheriff’s Office was
dispatched in response to a suicidal party/overdose report to 14684 Jackson Street in Adams
County. (ECF No. 20-1 at 12, Bondell Report.) Paula Moody (“Moody”) was the reporting
party. (Id.) Moody stated that Arden had called her and was slurring his words as he told her
that he was taking pills every two hours and would continue to do so because no one cares about
him. (Id.) The front door was open and Bondell announced her presence prior to entering the
residence. (Id.) Bondell identified Plaintiff in his bedroom as he was on the phone with Moody.
(Id.) Bondell checked Plaintiff for weapons and observed that there were several rifles/shotguns
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In opposition to Defendant’s summary judgment motion (ECF No. 20), Plaintiff argues that his “Amended
Complaint contains no less than 25 factual allegations referencing unlawful search of Mr. Arden’s home, the
unlawful seizure of Mr. Arden’s firearms and ammunition or the unlawful invasion of Mr. Arden’s privacy in his
home, effects and possessions, which involve the direct actions of Deputy Bondell and other Defendants.” (ECF
No. 25 at 6-7.) Plaintiff is correct; the Amended Complaint (ECF No. 4) contains “allegations.” But it is Plaintiff’s
obligation in opposition to a summary judgment motion to present “facts” beyond the pleadings. 1-800-Contacts,
Inc., 722 F.3d at 1242. Thus, the Amended Complaint is insufficient to present “evidence” sufficient to demonstrate
a dispute as to a material fact.

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in the room. (Id.) Plaintiff was unresponsive to Bondell’s questions. (Id.) During Bondell’s
questioning, Plaintiff stared blankly and his mouth was dry and foamy. (Id.)
Emergency medical technicians (“EMTs”) arrived to assist Plaintiff to an ambulance.
(Id.) Plaintiff could barely walk. (Id.) Plaintiff was transported to Good Samaritan Hospital at
which point he told hospital staff that he did not want to live. (Id.) Bondell placed Plaintiff on a
“M-1” hold due to Plaintiff’s having suicidal thoughts and his actions as reported by Moody as
well as his incoherent and unresponsive state. (Id.; ECF No. 20-2, Bondell Dep. 41:25-42:6,
48:12-16, 48:22-49:6; ECF No. 20-4 at 1, Emergency Mental Illness Report and Application.)
Section 27-65-105 of the Colorado Revised Statutes (effective April 29, 2010 to June 30, 2011),
permits a certified peace officer to initiate a mental health hold on a person who appears to be an
imminent danger to himself. C.R.S. § 27-65-105(1)(a)(i).
Bondell checked the “call history” for the address to which she reported and learned that
Plaintiff had overdosed on July 31, 2010. (ECF No. 20-1 at 12, Bondell Report.)
Because this was Plaintiff’s second suicide attempt in ten days, Bondell determined it
was prudent to take custody of eleven rifles, four shotguns, eight pistols, and about 850 rounds of
ammunition that were in plain view inside Plaintiff’s residence. (Id.; ECF No. 20-2, Bondell
Dep. 39:4-15, 41:10-13, 40:7-41:19.) Bondell determined that there were no other family
members or a responsible party to whom she could release these items and as such, she “booked”
them for safekeeping. (ECF No. 20-1 at 12, Bondell Report; ECF No. 20-5 at 7, Interrog. Resp.
No. 7.) Bondell removed the firearms and ammunition from the home because she believed the
unsecured and loaded weapons potentially presented a danger to the community and to Plaintiff
if he should return to the home and remain suicidal. (ECF No. 20-5 at 7, Interrog. Resp. No. 7.)

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The evaluating licensed counselor at Good Samaritan Hospital determined that Plaintiff
needed hospitalization. (ECF No. 26-1, Behavioral Health Assessment at 4.)
Subsequent to Plaintiff’s release from the hospital, the firearms and ammunition removed
from Plaintiff’s residence were returned to him. (ECF No. 20-3, Arden Dep. 26:3-10.)
Because each search or seizure is case specific, the Adams County Sheriff’s Department
has policies or procedures only generally relating to the searches and seizures of property. (ECF
No. 25-3, Darr Dep. 12:11-14, 44:8-45:2; ECF No. 26-3, Sheriff’s Office Policy Manual at 2-3.)
The Adams County Sheriff’s Department provides training on search and seizure to its deputies.
(ECF No. 25-3, Darr Dep. 12:15-13:6.)
III.

ANALYSIS2,3
A.

Defendants are Entitled to Qualified Immunity for Claims against Them in
Their Individual Capacities

Bondell asserts that she is entitled to judgment as a matter of law on Plaintiff’s claims
against her in her personal capacity. (ECF No. 20 at 6-12.)
“The doctrine of qualified immunity protects government officials 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.” Pearson v. Callahan, 555 U.S. 223,
2

Plaintiff’s Complaint also named as Defendants Deputy Sheriff John Doe No. 1 and Deputy Sheriff John Doe No.
2. (ECF No. 4 at 1.) To the extent Plaintiff’s claims are against any unnamed individuals, those claims suffer from
the same infirmities as identified in this Order and therefore, judgment for those Defendants is appropriate on the
bases of qualified immunity and lack of municipal liability. The Court recognizes Plaintiff, in response to
Defendants’ summary judgment motion, states that “Sergeant Louis A. Dixon” is John Doe No. 1. (ECF No. 25 at
1.) Plaintiff, however, never amended his complaint to identify the unnamed Defendant.
3
To the extent Defendants’ motion for summary judgment (ECF No. 20) does not address claims that were in
Plaintiff’s Amended Complaint (ECF No. 4) but not in the Final Pretrial Order (ECF No. 30), those claims are
waived. The Final Pretrial Order “supersedes the pleadings and controls the subsequent course of litigation.”
Hullman v. Bd. of Trs. at Pratt Cmty. Coll., 950 F.2d 665, 667 (10th Cir. 1991). Further, Defendants’ motion for
summary judgment asserts that Plaintiff did not intend to pursue his claim for conversion (ECF No. 20 at 8 n.2) and
Plaintiff does not controvert such assertion in opposition to Defendants’ motion for summary judgment (see
generally ECF No. 25). The Final Pretrial Order (ECF No. 30) also does not identify unnamed Defendants.
Therefore, claims against those unnamed and unidentified Defendants are not properly before the Court. See Culp v.
Williams, 456 F. App’x 718, 720 (10th Cir. 2012) (unpublished) (affirming dismissal of claims against unnamed
defendants following a suitable length of time for the plaintiff to identify the John Does).

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231 (2009) (internal quotation marks and citation omitted). To resolve a claim of qualified
immunity, the Court must consider two elements: (1) whether a constitutional violation
occurred, and (2) whether the right violated was “clearly established” at the time of the violation.
Id. at 230-31. The Court may “exercise [its] 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.” Id. at 236; accord Brown v. Montoya, 662 F.3d 1152, 1164 (10th
Cir. 2011). “Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the
inquiry.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).
1.

No Fourth Amendment Violation Occurred

The Fourth Amendment to the United States Constitution states
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const., amend. IV. The United States Supreme Court has repeatedly recognized that only
unreasonable searches and seizures are proscribed. Illinois v. McArthur, 531 U.S. 326, 330
(2001); Florida v. Jimeno, 500 U.S. 248, 250 (1991). In Mincey v. Arizona, 437 U.S. 385, 392
(1978), the Supreme Court held that “the Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a person within is in
need of immediate aid.” In Mincey, the Supreme Court fashioned the “emergency aid exigency”
which is informed by the “practical recognition of critical police functions quite apart from or
only tangential to a criminal investigation.” United States v. Najar, 451 F.3d 710, 714-15 (10th
Cir. 2006). The Tenth Circuit Court of Appeals recognizes that
police are also expected to reduce the opportunities for the commission of some
crimes through preventative patrol and other measures, aid individuals who are in
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danger of physical harm, assist those who cannot care for themselves, resolve
conflict, create and maintain a feeling of security in the community, and provide
other services on an emergency basis.
Id. at 715. The Fourth Amendment’s protection against unreasonable seizures extends to real
property. United States v. James Daniel Good Real Prop., 510 U.S. 43, 52 (1993); Presley v.
City of Charlottesville, 464 F.3d 480, 483-84 (4th Cir. 2006). “To prevail on a seizure claim, a
plaintiff must prove that the government unreasonably seized property.” Presley, 464 F.3d at
485 (citation omitted). The Fourth Amendment governs temporary seizures. Presley, 464 F.3d
at 487 (citations omitted).
a.

Exigent Circumstances

“The existence of exigent circumstances is a mixed question of law and fact.” Najar, 451
F.3d at 717 (internal quotation and citation omitted). It is undisputed that Bondell did not obtain
a warrant before entering Plaintiff’s residence and seizing his firearms. Therefore, unless an
exception to the warrant requirement applies, Bondell’s entry into Plaintiff’s home is
presumptively unreasonable under the Fourth Amendment. See id. (citation omitted). The
government bears the heavy burden of proving the exigency exception to the warrant
requirement applies. See id. (citations omitted). The Tenth Circuit instructs that there is a twopart test to determine whether exigent circumstances exist, whether: (1) the officer has an
objectively reasonable basis to believe there is an immediate need to protect the lives or safety of
themselves or others, and (2) the manner and scope of the search and seizure is reasonable. Id. at
718.
(1)

Bondell Had Reasonable Grounds to Believe There Was an
Immediate Need to Protect Plaintiff’s Life

The Court evaluates whether Bondell was confronted with reasonable grounds to believe
there was an immediate need to protect Plaintiff’s life or the safety of others “‘guided by the
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realities of the situation presented by the record’ from the viewpoint of ‘prudent, cautious, and
trained officers.’” Id. at 718-19 (citation omitted). “The inquiry determining the existence of an
exigency is essentially one of reasonable belief.” Id. at 719 (citation omitted). The Tenth Circuit
recognizes that 911 calls are the predominant means of communicating emergency situations.
Id. at 719.
Bondell responded to an emergency 911 call at Plaintiff’s residence. (ECF No. 20-1 at
12, Bondell Report.) Upon arriving at the residence, Bondell found Plaintiff to be unresponsive.
(ECF No. 20-2, Bondell Dep. 41:25-42:6, 48:12-16, 48:22-49:6.) At the residence, Bondell
found a large cache of firearms as well as ammunition in the home and collected and removed
them for the community’s safety and Plaintiff’s safety should he return home and remain
suicidal. (ECF No. 20-2, Bondell Dep. 39:4-4; ECF No. 20-5 at 7, Interrog. Resp. No. 7.) The
Court concludes that Bondell reasonably believed there existed an immediate need to protect
Plaintiff’s life and the community’s safety which justified her entry into Plaintiff’s home for the
purpose of providing emergency aid and temporarily seizing his weapons.
(2)

The Manner and Scope of the Search and Seizure Were
Reasonable

Bondell confined her search to only those places in the home where a threat could be
present. (ECF No. 20-2, Bondell Dep. 41:10-13.) As Bondell searched the home, she seized
only those weapons in plain sight. (ECF No. 20-2, Bondell Dep. 40:7-41:19.) In sum, the Court
concludes that Bondell had reasonable grounds to believe there was an immediate need to
investigate concerns for the life or safety of another and reasonably effected the search and
seizure of weapons to protect the community from unsecured weapons while Plaintiff was
temporarily placed under medical care. Additionally, her concern for Plaintiff’s safety
immediately upon release from hospitalization was also reasonable.
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Thus, the search of the home and seizure of firearms were lawful as exigent
circumstances existed.
2.

No Conspiracy Claim Can Be Established Since There Was Not an
Underlying Constitutional Violation

To prevail on a Section 1983 conspiracy claim, “a plaintiff must plead and prove not only
a conspiracy, but also an actual deprivation of rights.” Snell v. Tunnell, 920 F.2d 673, 701 (10th
Cir. 1990) (internal citations omitted). Because Plaintiff has failed to establish a Fourth
Amendment violation, his conspiracy claim against Defendants necessarily fails. See Snell, 920
F.2d at 701.
B.

Because There Exists No Municipal Liability, Defendants are Entitled to
Judgment as a Matter of Law on Plaintiff’s Claims against Them in Their
Official Capacities

In addition to bringing suit against Darr and Bondell in their individual capacities,
Plaintiff also names Darr and Bondell as liable in their official capacities. (ECF No. 4.) “An
action against a person in his official capacity is, in reality, an action against the government
entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th
Cir. 1998) (citation omitted).
The Supreme Court in Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S.
658, 690-91 (1978) held that a municipality can be liable under Section 1983 only where the
municipality itself causes the constitutional violation at issue. And the Supreme Court has
further held that “[i]t is only when the execution of the government’s policy or custom . . .
inflicts the injury that the municipality may be held liable under [Section] 1983.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (internal citations omitted). A practice may be
an official policy or custom under Section 1983 “if it is a formally promulgated policy, a wellsettled custom or practice, a final decision by a municipal policymaker, or deliberately
10

indifferent training or supervision.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d
760, 770 (10th Cir. 2013).
Plaintiff concedes that the Adams County Sheriff’s Office has no policy, custom,
practice, or final decision by a municipal policymaker related to specific searches and seizures of
property. (ECF No. 25 at 9.) The Adams County Sheriff’s Office has a policy related to
searches and seizures which is based on “reasonableness” and that comports with the Fourth
Amendment. (See ECF No. 26-3, Sheriff’s Office Policy Manual at 2-3.) Plaintiff argues that it
is the failure to establish such specific policies that leads to the constitutional violation. (ECF
No. 25 at 9.) This argument misses the mark as described previously. Further, the decision to
search and seize property is made by the individual police officer. (ECF No. 25-3, Darr Dep:
44:8-45:2.) And Plaintiff fails to show (or even argue) that the Adams County Sheriff’s Office
engages in “deliberately indifferent training or supervision” when it allows an individual police
officer to make the decision to search and seize property.
As Plaintiff has not alleged facts bridging the alleged individual constitutional violation
into an official policy or custom, no genuine issue of material fact exists and as such, Darr and
Bondell are entitled to judgment as a matter of law on Plaintiff’s claims against them in their
official capacities.

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IV.

CONCLUSION
Based on the foregoing, the Court:
(1)

GRANTS Defendants’ motion for summary judgment (ECF No. 20).

The Clerk of the Court is directed to enter JUDGMENT in Defendants’ favor.
DATED this 2nd day of December, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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