Chambers v. The Board of County Commissioners of the County of Eagle, Colorado et al

Filing 125

ORDER granting 111 Defendant's Motion for Summary Judgment. All pending pretrial deadlines, the combined Final Pretrial Conference and Trial Preparation Conference set 5/1/2015 at 10:00 AM and the trial set to commence 5/18/2015 are VACATED. Plaintiff's claims against defendant are DISMISSED WITH PREJUDICE. By Judge Robert E. Blackburn on 2/27/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00393-REB-MEH
STAN CHAMBERS,
Plaintiff,
v.
HEATH MOSNESS, EAGLE COUNTY DEPUTY SHERIFF, in his individual and official
capacity,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56
Blackburn, J.
The matter before is Defendant’s Motion for Summary Judgment Pursuant to
Fed. R. Civ. P. 56 [#111],1 filed December 1, 2014. I grant the motion.2
I. JURISDICTION
I have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal
question) and 1367 (supplemental jurisdiction).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute to any material

1

“[#111]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

The issues raised by and inherent to the motions for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motions stand submitted on the
papers. Cf. FED. R. CIV. P. 56(a). Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.1988)
(holding that any hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties).

fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). A dispute is “genuine” if the issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has
been properly supported, the burden shifts to the nonmovant to show, by tendering
depositions, affidavits, and other competent evidence, that summary judgment is not
proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the
party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health
and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120
S.Ct. 53 (1999).
III. ANALYSIS
At the heart of this case is the interpretation of a protection order entered in
connection with plaintiff’s divorce3 from Kimberly James. The protection order
restrained plaintiff from contacting or coming within 50 yards of Ms. James. Although
3

I use the term “divorce” colloquially to refer to the legal construct known as “dissolution of
marriage” under Colorado law. See § 14-10-103(2), C.R.S.

2

the no contact provision of the order applied only to “Plaintiff[s],” and Ms. James was
the only named plaintiff, the order also awarded sole custody4 of the couple’s two
children to Ms. James and provided plaintiff with “[n]o visitation unless ordered by [the]
District Court.” (Def. Motion App., Exh. E ¶ 4 at 2 [#111-5], filed December 1, 2014.)
The protection order, which expressly expired on April 7, 2005, subsequently was
incorporated into the parties’ decree of dissolution of marriage, which was entered that
same day:
Petitioner [Ms. James] is appointed residential custodian
of the children and has total parenting time and full
parental responsibility. Petitioner has the right to leave
the state and the country with the children. Respondent
[plaintiff] has no parenting time until application for
parenting time is filed and heard by the Court. The
Permanent Civil Protection Order from 05C38 (attached) is
incorporated herein and remains in effect until modified
by the Court upon proper application of the Respondent.
(Id, Exh. F at 2 (emphasis in original).) Plaintiff presents neither argument nor evidence
suggesting that he ever made application to alter these terms or otherwise was allowed
parenting time with the children. Nevertheless, while plaintiff was incarcerated from
2007 to 2011,5 his case manager authorized him to write letters to the children.
Likewise, after plaintiff was released, his case manager informed him that he could send
gifts and letters to his children.

4

I use the term “sole custody” to describe the practical effects of the allocation of parental
responsibilities under §14-10-124, C.R.S.
5
The reasons for plaintiff’s incarceration are neither apparent from the record nor relevant to the
issues raised by and inherent to the present motion.

3

The events that gave rise to this lawsuit occurred on February 14, 2012, when
plaintiff sent a dozen roses and a card to his daughter at her school for Valentine’s Day.
The assistant principal intercepted the flowers and alerted Ms. James,6 who in turn
contacted defendant, Deputy Sheriff Heath Mosness of the Eagle County Police
Department. Ms. James told defendant that plaintiff was violating the protective order
by attempting to contact his daughter. Reviewing a copy of the protection order in the
Colorado Crime Information Center (“CCIC”) database,7 defendant informed Ms. James
that it did not appear to him that the children were protected parties. According to
defendant, Ms. James responded “that she has spoken with the courts to try to get the
language changed and it hasn’t happened.” (Def. Motion App., Exh. B at 3 of 4 [#1112], filed December 1, 2014.) Knowing that the CCIC database does not always reflect
all information contained in the protection order, defendant told Ms. James that he
would call the court to attempt to clarify the scope of the protection order.

6

Previously, when plaintiff mailed gifts, cards, and money to his children at their home address,
Ms. James had filed a report with the Eagle County police department, claiming that plaintiff was violating
the protection order. The officer who investigated that complaint determined that the children were not
protected parties under the order. However, the school was contacted in connection with that
investigation and apparently concluded that the protection order did prohibit plaintiff from contacting his
children. School officials did not deliver the flowers to plaintiff’s daughter.
7

The CCIC database is the Colorado state counterpart of the FBI’s National Crime Information
Center (“NCIC”) database. As described by the court previously, “[t]he NCIC database is ‘an electronic
clearinghouse of crime data’ consisting of 21 separate files, one of which is Protection Orders:”
Criminal justice agencies enter records into NCIC that are accessible to
law enforcement agencies nationwide. . . However, a positive response
from NCIC is not probable cause for an officer to take action. NCIC
policy requires the inquiring agency to make contact with the entering
agency to verify the information is accurate and up-to-date. . . . The
entry, modification, and removal of records are the responsibility of the
agency that entered them.
(Order Overruling Objections to and Adopting Recommendation of United States Magistrate
Judge at 4-5 [#88], filed February 25, 2014 (internal citations and quotation marks omitted).

4

The following day, defendant visited Jackie Cooper, Clerk of the District Court of
Eagle County, Colorado. Ms. Cooper entered plaintiff’s name into the court’s computer
database, Eclipse, which generated an entry showing that the protection order in fact
did prohibit plaintiff from contacting his children. Because the information available to
defendant from the CCIC database therefore appeared in conflict with the information in
the court’s Eclipse database, defendant asked Ms. Cooper to rectify the discrepancy.
Ms. Cooper accordingly cancelled the original information in the Eclipse database and
reentered it, after which the information available on the CCIC database likewise
showed the children as protected parties.8 According to Ms. Cooper, the information
shown on her computer screen when she initially entered plaintiff’s name was the same
as the information she reentered into the system after cancelling the original order. At
the same time, defendant also obtained a paper copy of the protection order and the
decree of dissolution of marriage which incorporated it.
Based on all this information, defendant prepared a warrant affidavit, which he
presented to an assistant district attorney for the Fifth Judicial District for her review and
approval. After being thus vetted, the affidavit was presented to a magistrate judge,
who found probable cause for the arrest issued an arrest warrant for plaintiff. (See Def.
Motion App., Exh. A [#111-1], filed December 1, 2014.) Nevertheless, following a
hearing in January 2013, a judge found no probable cause for the arrest and dismissed

8

Ms. Cooper testified that she cancelled and reentered the order of her own volition and that
defendant made no request that she do so. Viewing the evidence in the light most favorable to plaintiff,
however, I must accept as true defendant’s statement in his investigative report that he affirmatively
asked Ms. Cooper to update the database. (See Def. Motion App., Exh. B at 3 of 4 [#111-2], filed
December 1, 2014.)

5

the case. This lawsuit followed.9 Herein, plaintiff alleges causes of action under 42
U.S.C. § 1983 for false arrest and malicious prosecution against defendant in his
individual capacity, and an official capacity claim for failure to implement appropriate
polices, and under state law for outrageous conduct.10 Defendant moves for summary
judgment, asserting that he is entitled to qualified immunity from all plaintiff’s claims. I
agree and therefore grant the motion.
A state official is immune from civil liability unless his actions violate “clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
396 (1982); see also Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert.
denied, 122 S.Ct. 96 (2001). To overcome this immunity, plaintiff must establish both
that defendant violated his rights under federal law and that such rights were clearly
established at the time of the violation. Greene v. Barrett, 174 F.3d 1136, 1142 (10th
Cir. 1999). A reviewing 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.” Pearson v. Callahan, 555 U.S. 223,
236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). See also Herrera v. City of

9

All other defendants have been dismissed from this lawsuit either on initiative of the plaintiff or
by order of the court.
10

Plaintiff’s complaint also included general allegations of deprivation of his rights under the
Fourth and Fourteenth Amendments. To the extent these allegations are intended to assert claims
separate from plaintiff’s specific claims of false arrest and malicious prosecution, they are far too vague
and conclusory to show the existence of a clearly established right. See Harris v. City and County of
Denver, 2012 WL 263046 at *3 (D. Colo. Jan. 30, 2012) (“Identification of a constitutional right in the
abstract is insufficient; instead, a plaintiff must precisely articulate the clearly established right that was
allegedly violated and specifically identify the defendant’s conduct that violated the right.”).

6

Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).
In the Tenth Circuit, a constitutional claim for either false arrest or malicious
prosecution originates with the elements of the corresponding state law tort. See
Erikson v. Pawnee County Board of County Commissioners, 263 F.3d 1151, 1154
(10th Cir. 2001) (malicious prosecution), cert. denied, 122 S.Ct. 1438 (2002); Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (false arrest), cert. denied, 123 S.Ct. 109
(2002). To bring either variety of claim within the ambit of section 1983, however,
plaintiff must demonstrate, in addition to the elements of the state law tort, that his
“Fourth Amendment right to be free from unreasonable search and seizure has been
violated.” Trimble v. Park County Board of Commissioners, 2000 WL 1773239 at *3
(10th Cir. Dec. 4, 2000) (false arrest). See also Becker v. Kroll, 494 F.3d 904, 914
(10th Cir. 2007) (same in context of malicious prosecution claim ).11
Thus, the tort of false arrest achieves constitutional dimension when the arrest is
not supported by probable cause. See Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th
Cir. 2012); Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008).
“Probable cause exists if facts and circumstances within the arresting officer's
knowledge and of which he or she has reasonably trustworthy information are sufficient
to lead a prudent person to believe that the arrestee has committed or is committing an

11

Although plaintiff also purports to bring his false arrest claim under the Fourteenth
Amendment, the Tenth Circuit has held that such claims, whether implicating the substantive or
procedural aspects of the Fourteenth Amendment, are not cognizable in light of Albright v. Oliver 510
U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). See Becker, 494 F.3dat 918-19 ("[T]he unavoidable
construction of Albright is that no § 1983 claim will arise from filing criminal charges without probable
cause under the substantive due process protections of the Fourteenth Amendment. . . . [W]e find
Albright's reasoning regarding substantive due process equally persuasive with regard to the Fourteenth
Amendment's procedural component.").

7

offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (citations and internal
quotation marks omitted). In determining whether an officer has sufficient, reasonably
trustworthy information to establish probable cause, the court looks to the "totality of the
circumstances." United States v. Morgan, 936 F.2d 1561, 1569 (10th Cir. 1991), cert.
denied, 112 S.Ct. 1190 (1992). An officer may weigh the credibility of witnesses, but he
may not “ignore available and undisputed facts." Baptiste v. J.C. Penney, 147 F.3d
1252, 1259 (10th Cir. 1998). Nevertheless, the Fourth Amendment is not offended by
mere negligence or innocent mistake in the determination whether probable cause
exists. See Bruner v. Baker, 506 F.3d 1021, 1027 (10th Cir. 2007). A constitutional
violation requires evidence that the officer knowingly or recklessly included false
statements in the affidavit or knowingly or recklessly omitted information which would
have vitiated a finding of probable cause. Id. at 1026.
Under these standards, I cannot find that defendant knowingly or recklessly
provided a false or misleading warrant affidavit. Defendant plainly set forth the
discrepancy between what Ms. James reported to him about the scope of the protection
order and what the CCIC database revealed. He provided the pertinent language of the
protection order verbatim. Although the order named only Ms. James as a plaintiff, it
also provided that plaintiff was to have no visitation with the children unless and until he
had applied to the court to alter that condition. Defendant then averred that, given these
apparent conflicts, he contacted the clerk of the issuing court to clarify whether the
children were protected parties under the protection order.12

12

Plaintiff’s suggestion that the affidavit is infirm for omitting the particulars of defendant’s
conversation with Ms. Cooper is frankly puzzling. If anything, those details would have strengthened the
affidavit’s showing of probable cause, as they further confirm that defendant’s interpretation of the scope

8

Given the totality of these relevant circumstances, I find and conclude that
defendant had more than adequate probable cause to believe that plaintiff had violated
the protection order. Although plaintiff appears to believe that the scope of the
protection order is obvious from the face of the document, it is not. Indeed, given that
the protection order gave Ms. James full parental rights and precluded even visitation
for plaintiff, it was entirely reasonable for plaintiff to conclude that plaintiff was not to
have contact with the children and thus seek an arrest warrant.13
Other circumstances in this case further support the conclusion that defendant
had probable cause to arrest plaintiff. Defendant did not take Ms. James’s (potentially
biased) word at face value, nor did he rely exclusively on the (potentially incomplete)
CCIC database. Instead, he went directly to the issuing court for further clarification.
The information contained in the court’s Eclipse database affirmed that the order
prohibited plaintiff from contacting his children. In addition, defendant presented his
warrant affidavit to both an assistant district attorney and a magistrate judge, each of
whom independently confirmed that probable cause existed for plaintiff’s arrest.14

of the order was reasonable.
13

Even if the order might be thought unclear in the this regard, the Constitution neither requires
an officer to pursue every possible avenue of inquiry contrary to finding of probable cause nor guarantees
an error-free investigation. See Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d
433 (1979). Moreover, even if defendant were mistaken in concluding that probable cause existed, such
mistakes are insufficient to raise a constitutional claim. Bruner, 506 F.3d at 1027. “The Constitution does
not guarantee that only the guilty will be arrested.” Baker, 99 S.Ct. at 2695. See also Romero, 45 F.3d
at 1480 (“[A] police officer does not commit false imprisonment merely by arresting an individual who
happens to be innocent.”).
14

Contrary to plaintiff’s argument, the evidence does not suggest either that defendant
presented false information in the affidavit or alternatively that he omitted material information that would
have vitiated the finding of probable cause. This is not a case in which the warrant was so “lacking in
indicia of probable cause as to render official belief in its existence unreasonable.” Malley v. Briggs, 475
U.S. 335, 344-45, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 27 1(1986). Thus the judge’s imprimatur was
sufficient to allow defendant reasonably to believe that his affidavit established probable cause.

9

Even if plaintiff could establish a Fourth Amendment violation based on this
evidence, defendant would be entitled to qualified immunity under the second prong of
the analysis in any event. The Fourth Amendment right implicated by a false arrest
claim is considered clearly established if "it would have been clear to a reasonable
officer that probable cause was lacking under the circumstances." Koch v. City of Del
City, 660 F.3d 1228, 1241 (10th Cir. 2011). This standard is satisfied if there was
“arguable probable cause” for the arrest. See Kaufman v. Higgs, 697 F.3d 1297,
1300 (10th Cir. 2012); Robertson v. Las Animas County Sheriff's Department, 500
F.3d 1185, 1191 (10th Cir. 2007). Thus, “[e]ven law enforcement officials who
reasonably but mistakenly conclude that probable cause is present are entitled to
immunity.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589
(1991) (citation and internal quotation marks omitted).
Despite plaintiff’s protestations to the contrary, it was entirely reasonable for
defendant to conclude that the protection order extended to the children. Given the
conflicting information he received from Ms. James on the one hand and the CCIC
database on the other, defendant wisely inquired further. He obtained a copy of the
original protection order, the decree of dissolution of marriage which extended – or
revitalized, as the case may be – the no parenting time provisions of the protection
order, and further information from the judicial Eclipse database, all of which reasonably
supported his conclusion that the protection order covered the children. He included all
this information without misstatement or omission in his warrant affidavit, which he
vetted through an assistant district attorney before presenting it to a judge, who
independently found probable cause for plaintiff’s arrest. On the relevant evidentiary
10

record, it would have been far from clear to a reasonable officer that probable cause
was lacking under the circumstances.
Accordingly, I find and conclude that plaintiff has failed to present evidence
sufficient to create a genuine dispute of material fact as to whether defendant had
probable cause to arrest plaintiff and whether it would have been clear to a reasonable
officer that probable cause was lacking in the same or similar circumstances. In the
absence of such proof, plaintiff’s constitutional claim of false arrest fails. Accordingly,
defendant is entitled to qualified immunity on this claim.
This same analysis is dispositive of plaintiff’s malicious prosecution claims under
the Fourth and Fourteenth Amendments as well. See Pierce v. Gilchrist, 359 F.3d
1279, 1285-86 (10th Cir. 2004) (“The initial seizure is governed by the Fourth
Amendment, but at some point after arrest, and certainly by the time of trial,
constitutional analysis shifts to the Due Process Clause.”) (citations and footnote
omitted).) To prove such a claim, plaintiff must establish, inter alia, that defendant acted
with malice. See Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007).
Such a finding cannot be based on proof of mere negligence or inadvertent mistake,
much less the wholly reasonable conclusion here that probable cause existed for the
arrest. See id. Thus, defendant is entitled to qualified immunity on this claim as well.
Given the absence of an underlying constitutional violation, plaintiff’s putative
official capacity claim for failure to implement appropriate policies fails as well.15

15

Plaintiff’s theory of municipal liability is meritless in any event. His arguments are premised
entirely on the actions of defendant in relation to this particular case, which evidence would not constitute
a policy or custom even if there were a constitutional violation. See Moss v. Kopp, 559 F.3d 1155, 1169
(10th Cir. 2009); Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).

11

Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir.), cert. denied, 130 S.Ct. 259 (2009);
Fuchs v. Sanders, 659 F.Supp.2d 1136, 1149 (D. Colo. 2009). See also Myers v.
Oklahoma County Board of County Commissioners, 151 F.3d 1313, 1316 n.2 (10th
Cir. 1998) (“[A section 1983] suit against a municipality and a suit against a municipal
official acting in his or her official capacity are the same.”) (citation and internal
quotation marks omitted). Thus, even if plaintiff had not agreed previously to dismiss all
official capacity claims (see Order Regarding Addendum to Plaintiff’s Unopposed
Motion To Dismiss [#74], filed October 9, 2013), defendant would be entitled to
summary judgment on this claim in any event.
Finally, I find and conclude that defendant is entitled to summary judgment on
plaintiff’s outrageous conduct claim. The elements of the state law claim for outrageous
conduct require, tautologically, that defendant engaged in extreme and outrageous
conduct. Culpepper v. Pearl Street Building, Inc., 877 P.2d 877, 882 (Colo. 1994).16
The level of outrageousness required to constitute extreme and outrageous conduct is
extraordinarily high, Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999), and
conduct is not considered outrageous unless it is “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,” Destefano v. Grabrian,
763 P.2d 275, 286 (Colo. 1988). Defendant’s actions here, which at most show only
negligence, plainly do not rise to this level.

16

Nor is there any evidence suggesting that the other two elements of this tort claim – that
defendant engaged in such conduct recklessly or with the intent of causing plaintiff severe emotional
distress and that defendant's conduct caused plaintiff to suffer severe emotional distress – are satisfied in
this case.

12

IV. ORDERS
For these reasons, I find and conclude that defendant is entitled to summary
judgment as to all plaintiff’s remaining claims in this lawsuit.
THEREFORE, IT IS ORDERED as follows:
1. That Defendant’s Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56 [#111], filed December 1, 2014, is GRANTED;
2. That plaintiff’s claims against defendant are DISMISSED WITH PREJUDICE;
3. That all pending pretrial deadlines, the combined Final Pretrial Conference
and Trial Preparation Conference set May 1, 2015, at 10:00 a.m., and the trial set to
commence May 18, 2015, are VACATED;
4. That judgment with prejudice SHALL ENTER on behalf of defendant, Heath
Mosness, Eagle County Deputy Sheriff, in his individual and official capacities, against
plaintiff, Stan Chambers, on all claims for relief and causes of action asserted in this
action;
5. That judgment without prejudice SHALL ENTER in accordance with the
following orders:
a. Order Overruling Objections to and Adopting Recommendation of
United States Magistrate Judge [#86], filed February 12, 2014;
b. Order Re: Objections to Recommendation of United States
Magistrate Judge [#87], filed February 18, 2014;
c. Order Overruling Objections to and Adopting Recommendation of
United States Magistrate Judge [#88], filed February 25, 2014;
d. Order Regarding Addendum to Plaintiff’s Unopposed Motion To
13

Dismiss [#74], filed October 9, 2013; and
e. Order Regarding Plaintiff’s Unopposed Motion To Dismiss [#66],
filed September 9, 2013;
6. That defendant is AWARDED his costs to be taxed by the clerk of the court in
the time and manner prescribed in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1;
and
7. That this case is CLOSED.
Dated February 27, 2015, at Denver, Colorado.
BY THE COURT:

14