Ferrugia v. City of Steamboat Springs, et al

Filing 83

ORDER that Defendants motion for partial summary judgment ECF No. 48 and Plaintiffs motion for partial summary judgment ECF No. 56 are GRANTED IN PART AND DENIED IN PART as follows: Summary Judgment is entered in favor of the Defendants with r espect to Plaintiffs false arrest claim and the municipal liability claim as it relates to the false arrest claim. The motions are DENIED in all other respects. It is FURTHER ORDERED that a 5-day jury trial is set for Monday, April 20, 2015 at 8:3 0 a.m. A final trial preparation conference is set for Tuesday, April 7, 2015 at 4:00 p.m. The parties are reminded to review and comply with all directives set forth in my Practice Standards with respect to trial preparation, by Judge Wiley Y. Daniel on 9/16/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00747-WYD-KMT
JOHN FERRUGIA
Plaintiff,
v.
CITY OF STEAMBOAT SPRINGS;
RICHARD BROWN;
GERARD GEIS;
EVAN DRISCOLL; and
ROSS BLANK,
Defendants.

ORDER

I.

INTRODUCTION
THIS MATTER is before the Court on both the Defendants’ motion for partial

summary judgment (ECF No. 48), filed March 10, 2014, and Plaintiff’s motion for partial
summary judgment (ECF No. 56), filed March 14, 2014. Responses to the motions
(ECF Nos. 64 and 68) were filed on March 24, 2014 and April 7, 2014 respectively. On
April 10, 2014 and April 21, 2014, the parties filed reply briefs in support of their motions
(ECF Nos. 70 and 72).
Plaintiff asserts three claims for relief in this matter: (1) False Arrest in violation of
42 U.S.C. § 1983 against Defendant police officers Brown, Geis, Driscoll, and Blank; (2)
Excessive Force in violation of 42 U.S.C. § 1983 against Defendant police officers
Brown, Geis, Driscoll, and Blank; and (3) Municipal Liability pursuant to 42 U.S.C.
§ 1983 against the City of Steamboat Springs, Colorado. The instant motions only

concern Plaintiff’s false arrest claim, the excessive force claim asserted against
Defendant Driscoll, and the municipal liability claim.
In their motion for partial summary judgment, the Defendant law enforcement
officers raise the defense of qualified immunity. Therefore, to survive summary
judgment, Plaintiff must demonstrate that the Defendants violated his clearly
established constitutional rights during the incident. After carefully considering the
pleadings and relevant record, I find that the motions should be granted in part and
denied in part as set forth below.
II.

BACKGROUND / RELEVANT FACTS
Plaintiff John Ferrugia filed this lawsuit as a result of an incident that occurred on

September 17, 2012, around 11:00 p.m., during which he was contacted by Defendant
Steamboat Springs police officers. Officer Evan Driscoll, who was on routine patrol,
observed Ferrugia inside Peak Fitness, an exercise facility located in downtown
Steamboat Springs, Colorado.
While Peak Fitness is a 24-hour exercise gym, at 11:00 p.m. on September 17,
2012, no lights were on inside the building, although there was some illumination from a
refrigerator unit. Through the windows, Driscoll observed that Ferrugia was wearing
street clothes rather than clothes appropriate for exercise. After making eye contact
with Ferrugia, Driscoll saw Ferrugia move behind a piece of exercise equipment.
Driscoll called into Routt County Communications Dispatch about a possible burglary in
progress at Peak Fitness. Defendants Sgt. Brown and Officer Blank arrived at the
scene a few minutes later with Defendant Sgt. Geis arriving shortly thereafter.

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Driscoll was familiar with Ferrugia’s criminal history and had previously arrested
him during an incident where Ferrugia was suspected of entering an individual’s home
and locking the homeowner outside. Ferrugia eventually pleaded guilty to trespass and
was also charged with resisting arrest. Sgt. Brown and Sgt. Geis were also aware of
this incident. Further, Sgt. Geis had several prior encounters with Ferrugia for traffic
offenses, and on one such encounter, Ferrugia injured Sgt. Geis by biting his hand. As
a result, Ferrugia was arrested and charged with assault on a police officer.
Once Brown and Blank arrived at Peak Fitness, Driscoll, Brown, and Blank
approached the front door of the gym. Ferrugia, who was visibly upset and frustrated
that the officers had approached him, came to the front door. At some point, Ferrugia
opened the front door, but closed it on the officers while they were questioning him
about his presence at Peak Fitness. Ferrugia told the officers that he had permission to
be at Peak Fitness and was there to exercise. Ferrugia further stated that if he had
contact with the officers, it would be a violation of his probation. Brown asked Ferrugia
to exit the building so that officers could continue questioning Ferrugia and enter Peak
Fitness to secure the gym and verify whether Ferrugia had permission to be on the
premises.
After a physical confrontation with the Defendant officers involving many disputed
facts, Ferrugia was handcuffed, and Brown conducted a pat-down search and removed
an ID card from Ferrugia’s pocket. Once Ferrugia was secure, Officer Bantle, who had
just arrived at the scene, contacted dispatch in order to get in touch with the owner of
Peak Fitness. Bantle verified Ferrugia’s statement that he had permission to be in the
gym, and Ferrugia was immediately released. Ferrugia was handcuffed for one to three

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minutes.1 Following this incident, Ferrugia went to the hospital to receive treatment for
his injuries.
III.

STANDARD OF REVIEW
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the Court may

grant summary judgment where “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Emp’t 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.” Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation marks and citation omitted).
All doubts must be resolved in favor of the existence of triable issues of fact. Boren v.
Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
IV.

ANALYSIS
A.

Qualified Immunity

The Defendants assert the defense of qualified immunity, thus, I begin my
analysis with the doctrine’s relevant standards. “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
1

I note that the parties agree that significant factual disputes exist with respect to
Ferrugia’s excessive force claim, and with the exception of Defendant Driscoll, neither
party moves to dismiss this claim on summary judgment. Accordingly, I need not
include the disputed facts in this Order.
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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).
Thus, 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
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).
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that
“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.” Id. at 236. Here, I first address whether Ferrugia has shown that Defendants

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Brown, Geis, Driscoll, and Blank violated his constitutional rights under the Fourth
Amendment.
1.

Ferrugia’s Fourth Amendment Claims

Ferrugia brings claims for excessive force and false arrest under the Fourth
Amendment. Defendants concede that they seized Ferrugia when they detained him on
the night of September 17, 2012. Thus, the issues with respect to Ferrugia’s claims are
whether that seizure was reasonable and whether the Defendant officers used
excessive force in detaining Ferrugia.2 Ferrugia asserts that it was unreasonable for the
officers to detain him for approximately 19 minutes and place him in handcuffs for 1-3
minutes while they verified his statement that he had permission to be inside Peak
Fitness to exercise on the night of September 17, 2012. In response, the Defendants
contend that their actions were reasonable under the circumstances, given (1) the late
hour; (2) the fact that there were no lights on inside Peak Fitness; (3) Ferrugia’s
inappropriate workout clothing; (4) Ferrugia’s furtive movement behind the exercise
equipment after he was spotted by Driscoll; and (5) Ferrugia’s criminal history with the
officers.
Turning to the first step in the qualified immunity inquiry, I must determine
whether “the facts alleged show the [officials’] conduct violated a constitutional right[.]”
Holland, 268 F.3d at 1185. “The touchstone of Fourth Amendment analysis is always
2

The parties agree that there are genuine issues of material fact as to whether Brown,
Geis, and Blank used excessive force in detaining Ferrugia. However, based on my
review of the record, there is disputed evidence whether all of the Defendant officers,
including Driscoll, used excessive force. For example, Ferrugia states that Driscoll piled
all of his weight on top of Ferrugia during the physical altercation. To the extent that
Driscoll disagrees, this is a question of fact for the jury. I therefore deny Driscoll’s
motion and find that Ferrugia’s excessive force claim survives summary judgment in its
entirety.
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the reasonableness in all the circumstances of the particular governmental invasion of a
citizen’s personal security.” United States v. Oliver, 363 F.3d 1061, 1066 (10th Cir.
2004) (internal quotation marks omitted). The reasonableness inquiry “requires a
careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations and citation omitted).
The Supreme Court has held that “all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
seizure of a free citizen should be analyzed under the Fourth Amendment and its
reasonableness standard.” Id. at 395. The test of reasonableness also “requires
careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Id. Thus, reasonableness is evaluated by examining the
totality of the circumstances of a particular seizure. Blossom v. Yarbrough, 429 F.3d
963, 967 (10th Cir. 2005).
Here, in analyzing the reasonableness of the Defendants’ conduct in detaining
Ferrugia, I must determine whether the Defendants formally arrested Ferrugia or only
detained him long enough to constitute an investigative stop under Terry v. Ohio, 392
U.S. 1 (1968). In Michigan v. Summers, 452 U.S. 692, 699 (1981), the Supreme Court
recognized that “some seizures admittedly covered by the Fourth Amendment constitute
such limited intrusions on the personal security of those detained and are justified by
such substantial law enforcement interests that they may be made on less than

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probable cause, so long as police have an articulable basis for suspecting criminal
activity.” Id. While ”[e]very arrest is unreasonable unless it is supported by probable
cause,” an investigative Terry stop is reasonable when the “officer’s action was justified
at its inception” and “it was reasonably related in scope to the circumstances which
justified the interference in the first place.” Id.; Terry, 392 U.S. at 20.
An investigative detention is “justified at its inception” so long as the officer
reasonably believes that criminal activity is afoot. See Hiibel v. Sixth Judicial Dist. Court
of Nevada, 542 U.S. 177, 185 (2004). Turning to this matter, Driscoll spotted Ferrugia
in Peak Fitness at 11:00 p.m. with the lights turned off. When they made eye contact,
Ferrugia ducked behind a piece of exercise equipment, presumably to avoid being seen
by the officer. Further, inconsistent with Ferrugia’s statement that he was inside Peak
Fitness to exercise, he was wearing street clothes, not appropriate exercise gear.
Finally, and most importantly, the officers had firsthand knowledge of Ferrugia’s criminal
history, which included suspicion of burglary of a private residence (which resulted in a
conviction for trespassing), resisting arrest, and assaulting an officer. Therefore, I find it
beyond dispute that the officers possessed a reasonable suspicion of criminal activity at
the outset of Ferrugia’s detention.
I now turn to whether the officers’ detention of Ferrugia went beyond
constitutional bounds by either exceeding a reasonable scope or by constituting an
arrest without probable cause. Here, the officers did not formally place Ferrugia under
arrest. However, in Manzares v. Higdon, 575 F.3d 1135, 1148 (10th Cir. 2009), the
Tenth Circuit explained that “[a]n investigative detention evolves into an arrest when the
scope of police conduct is no longer reasonably related to the circumstances initially

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justifying the seizure.” Id. “There is no bright-line rule to determine whether the scope
of police conduct was reasonably related to the goals of the stop; rather our evaluation
is guided by common sense and ordinary human experience.” United States v.
Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994).
Given the totality of the circumstances, I first consider whether Ferrugia’s
detention lasted too long to constitute an investigative stop and whether the use of
handcuffs was warranted. “[T]he brevity of the invasion of the individual’s Fourth
Amendment interests is an important factor in determining whether the seizure is so
minimally intrusive as to be justifiable on reasonable suspicion.” United States v. Place,
462 U.S. 696, 709 (1983). Additionally, when “assessing whether a detention is too
long in duration to be justified as an investigative stop,” I must “examine whether the
police diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly ….” United States v. Sharpe, 470 U.S. 675, 686 (1985).
Based on my careful review of the evidence, the first inquiry—the duration of the
detention—points strongly in the officers’ favor. The entire encounter lasted
approximately 19 minutes, and Ferrugia was only handcuffed for 1-3 minutes while the
officers contacted the owner of Peak Fitness. Once the officers verified that Ferrugia
had permission to be inside the gym, he was released. The second inquiry—whether
the use of handcuffs was warranted—also points in favor of the officers. In order to
protect their safety during a Terry-type detention, officers may reasonably use
handcuffs, draw their weapons, or force a suspect to the ground. Novitsky v. City of
Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007). “In evaluating whether the precautionary
steps taken by an officer were reasonable, the standard is objective—would the facts

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available to the officer at the moment of the seizure … warrant a man of reasonable
caution in the belief that the action taken was appropriate.” Id. (internal quotations and
citations omitted). Here, given the totality of the circumstances I have previously
discussed—the late hour, Ferrugia’s clothing, Ferrugia’s furtive movements, Ferrugia’s
agitated demeanor, and the physical altercation that had just occurred—coupled with
the officers’ knowledge of Ferrugia’s criminal history, I find that the officers acted
reasonably in placing Ferrugia in handcuffs and proceeding with caution to both secure
the gym and verify Ferrugia’s statements. See United States v. Hensley, 469 U.S. 221,
235 (1985) (stating that officers may take steps reasonably necessary to protect their
personal safety and to maintain the status quo during the course of the stop).
Based on the foregoing, I find that the officers’ detention of Ferrugia was
reasonably related to Driscoll’s suspicion that Ferrugia was burglarizing Peak Fitness.
Ferrugia has failed to meet his burden to “show with particularity facts and law
establishing the inference” that the defendant’s actions constituted an unlawful seizure
or false arrest under the Fourth Amendment. Hollingsworth v. Hill, 110 F.3d 733, 73738 (10th Cir. 1997). Thus, Defendants Brown, Geis, Driscoll, and Blank are entitled to
qualified immunity on Ferrugia’s claim of false arrest.
2.

Plaintiff’s Municipal Liability Claim Against Defendant City of
Steamboat Springs

A municipality may not be held liable under § 1983 simply because it employs a
person who is liable under § 1983. Monell v. New York City Dept. of Social Services,
436 U.S. 658, 694 (1978). Instead, to find a municipality liable under § 1983 for acts of
its employees, a plaintiff must establish that the municipality has a policy or custom that
directly caused the constitutional violation at issue. City of Canton, Ohio, v. Harris, 489
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U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 658). The Tenth Circuit has articulated
five possible ways that a municipal policy or custom may be subject to § 1983 liability:
(1) the existence of “a formal regulation or policy statement”; (2) the existence of an
informal custom that is “a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to constitute a
custom or usage with the force of law”; (3) “the decisions of employees with final
policymaking authority”; (4) “the ratification by such final policymakers of the decisions
… of subordinates”; and (5) the “failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the injuries that may be
caused.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th
Cir. 2010) (internal quotations and citations omitted).
Ferrugia asserts that the City of Steamboat Springs had a policy or custom that
directly caused a deprivation of his constitutional rights under a ratification theory as the
basis for establishing municipal liability. Specifically, Ferrugia argues that the
Steamboat Springs Police Department Chief Joel Rae ratified the Defendant officers’
conduct by reviewing reports prepared by Deputy Chief Robert DelValle and ultimately
approving the officers’ decision making and actions during the encounter with Ferrugia
at Peak Fitness. “[A] municipality will not be found liable under a ratification theory
unless a final decision maker ratifies an employee’s specific unconstitutional actions, as
well as the basis for these actions.” Bryson v. City of Oklahoma City, 627 F.3d 784, 790
(10th Cir. 2010). With respect to Plaintiff’s false arrest claim however, since I find no
constitutional violation, there can be no municipal liability. As to the excessive force
claim, because there are disputed facts as to whether there was a constitutional

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violation, at this stage of the litigation I cannot determine from the evidence submitted
whether there is municipal liability with respect to the excessive force claim.
Accordingly, summary judgment is entered in favor of the Defendants with respect to
Plaintiff’s municipal liability claim as it relates to false arrest only.
V.

CONCLUSION
Based on the foregoing, it is
ORDERED that Defendants’ motion for partial summary judgment (ECF No. 48)

and Plaintiff’s motion for partial summary judgment (ECF No. 56) are GRANTED IN
PART AND DENIED IN PART as follows: Summary Judgment is entered in favor of the
Defendants with respect to Plaintiffs’ false arrest claim and the municipal liability claim
as it relates to the false arrest claim. The motions are DENIED in all other respects. It
is
FURTHER ORDERED that a 5-day jury trial is set for Monday, April 20, 2015 at
8:30 a.m. A final trial preparation conference is set for Tuesday, April 7, 2015 at 4:00
p.m. The parties are reminded to review and comply with all directives set forth in my
Practice Standards with respect to trial preparation.
Dated: September 16, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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