Mwangi v. Norman et al

Filing 79

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).

Lynch v. Barrett, Not Reported in F.Supp.2d (2010)
2010 WL 3938357

2010 WL 3938357
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Nick LYNCH, Plaintiff,
v.
Adam BARRETT, Sgt. Kenfield, Eric
Golladay, and Michael Morelock, Defendants.
Civil Action No. 09–cv–00405–JLK–MEH.
|
June 9, 2010.
Attorneys and Law Firms
Jonathan Ariel Cross, Robert Mark Liechty, Cross
Liechty Lane, P.C., Greenwood Village, CO, for Plaintiff.
L. Douglas Jewell, Sean Timothy Olson, Bruno, Colin,
Jewell & Lowe, P.C., Wendy J. Shea, Denver City
Attorney's Office, Reid Jason Elkus, Elkus & Sisson, P.C.,
Denver, CO, for Defendants.

RECOMMENDATION ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
MICHAEL E. HEGARTY, United States Magistrate
Judge.
*1 Pending before the Court is Defendants' Motion for
Summary Judgment [filed March 22, 2010; docket # 54].
The motion is referred to this Court for recommendation.
(Docket # 68.) The matter is fully briefed, and oral
argument would not assist the Court in its adjudication.
For the following reasons, the Court RECOMMENDS
that Defendants' Motion for Summary Judgment be
GRANTED IN PART and DENIED IN PART. 1

BACKGROUND
These facts are taken from Defendants' Motion for
Summary Judgment, and Plaintiff does not dispute them.
At approximately midnight on March 29, 2008, Plaintiff
and two of his friends were waiting to get into a
club in downtown Denver. While they were waiting,
Plaintiff got into an argument with Justin Henkenberns

who was also waiting to get into the club. Plaintiff
punched Henkenberns several times, knocking him to
the ground. Plaintiff and his friends left immediately
and walked down Market Street toward 20th Street.
Henkenberns followed them. At approximately 20th and
Market Streets, Plaintiff saw Henkenherns attempting to
flag a policeman (presumably to report Plaintiff's conduct)
and also saw a police officer heading in his direction.
Plaintiff ran down 20th Street into an alley, jumped over
a gate into a parking lot, and laid down in some bushes
near the Volunteers of America building (at the corner
of 19th Street and Market) in order to hide from police.
Shortly thereafter, numerous police officers entered the
gated area, and Plaintiff knew the gig was up. He stood
up from behind the bushes and was apprehended by the
police and placed under arrest. Plaintiff contends that
during his arrest he was subjected to excessive force;
however, he cannot specifically identify any officer who
participated in the alleged use of force against him or
who handcuffed and arrested him. All Defendants deny
hitting him and deny knowing who arrested him and who,
if anyone, hit him.
Plaintiff brings an excessive force claim and a claim for
denial of access to the courts. The excessive force claim is
self explanatory. Indeed, at least for purposes of summary
judgment, Defendants do not deny that if the Plaintiff
was beaten while under arrest, so he has stated a triable
claim for excessive force. As for the second claim, Plaintiff
contends that the police have engaged in a conspiracy
of silence regarding which officer(s) participated in the
arrest. Therefore, Plaintiff believes he is substantially
hindered in prosecuting his excessive force case, and the
Defendants should be held accountable for their silence.

STANDARD OF REVIEW
A motion for summary judgment serves the purpose of
testing whether a trial is required. Heideman v. S. Salt
Lake City, 348 F.3d 1182, 1185 (10th Cir.2003). The
Court shall grant summary judgment if the pleadings,
depositions, answers to interrogatories, admissions, or
affidavits show 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). A fact is material if it might affect
the outcome of the suit under the governing substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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*2 The moving party bears the initial responsibility of
providing to the Court the factual basis for its motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Maldonado v. City of Altus, 433
F.3d 1294, 1302 (10th Cir.2006). “The moving party may
carry its initial burden either by producing affirmative
evidence negating an essential element of the nonmoving
party's claim, or by showing that the nonmoving party
does not have enough evidence to carry its burden of
persuasion at trial.” Trainor v. Apollo Metal Specialties,
Inc., 318 F.3d 976, 979 (10th Cir.2002). Only admissible
evidence may be considered when ruling on a motion for
summary judgment. World of Sleep, Inc. v. La–Z–Boy
Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985).
The non-moving party has the burden of showing there
are issues of material fact to be determined. Celotex, 477
U.S. at 322. If the movant properly supports a motion
for summary judgment, the opposing party may not rest
on the allegations contained in the complaint, but must
respond with specific facts showing a genuine factual
issue for trial. Hysten v. Burlington N. and Santa Fe Ry.,
296 F.3d 1177, 1180 (10th Cir.2002); Fed.R.Civ.P. 56(e).
These specific facts may be shown “ ‘by any of the kinds of
evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves.’ “ Pietrowski v. Town of Dibble, 134
F.3d 1006, 1008 (10th Cir.1998) (quoting Celotex, 477
U.S. at 324) (emphasis added). The Court must view the
record and draw “all favorable inferences in the light most
favorable to the non-moving party.” Pepsi–Cola Bottling
Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255
(10th Cir.2005).

MATERIAL FACTS
I do not believe it is necessary to provide a lengthy
recitation of facts. Most of the facts are undisputed, but
the following facts guide my decision here:

I. Officer Barrett
On the date of the incident, Officer Barrett was
partnered with Officer Abbegayle Dorn working District
6, Downtown Denver. (Docket # 54 at 6, ¶ 20.) Officers
Barrett and Dorn responded to 1900 Market Street. One
or two police cars were already present. (Id. at 8, ¶ 30.)
Barrett helped Officer Morelock get over the fence first,

and then Morelock assisted Barrett. (Docket # 54–2 at 6,
p. 29 (Barrett dep.).) Barrett pulled his service weapon out
and pointed it toward the bushes, at which time he saw
Plaintiff start to stand up and some other police officers
take Plaintiff down. (Id. at 6, p. 30.) Thereafter, Barrett
looked for a way for the officers to walk out of the fenced
area instead of climbing the fence again. Then he heard
Officer Kenfield radio dispatch and tell dispatch that he
had a person in custody, and that Officers Morelock and
Golladay were with him (Kenfield). (Id. at 7, p. 34.)

II. Officer Dorn
Officer Dorn testified in her deposition that once she
got over the fence, she did not see Plaintiff until he was
handcuffed and being held by Officer Morelock. (Docket
# 54–3 at 4, p. 22 (Dorn dep.).) Dorn recalls seeing only
Officers Barrett and Morelock inside the fence. (Id. at
6, p. 27.) However, although she initially testified that
she did not know whether there were any other officers
in the immediate vicinity, after additional questioning
she testified that she knows for certain there were more
officers inside the fence than herself and the two others
listed above, but cannot identify them. (Id. at 6, pp. 29–
30.) Since Plaintiff's claim is that a male arrested and
struck him, Officer Dorn is not a defendant in this case.

III. Officer Morelock
*3 Officer Morelock also went over the fence in pursuit
of Plaintiff. (Docket # 54–5 at 2, ¶ 5 (Morelock decl.).) He
saw at least “several other” officers in the fenced area. (Id.)
He states that by the time he got to Plaintiff, Plaintiff was
handcuffed, and Officer Morelock took possession of him
from the other officers. (Id. at 2, ¶ 6.) Morelock remembers
that Officer Dorn helped him escort Plaintiff to the police
van but does not remember the officers from whom he
took Plaintiff, although he does place Officers Barrett and
Kenfield at the scene. (Id. at 2, ¶ 8; 3, ¶ 13.)

IV. Officer Kenfield
Officer Kenfield also went over the fence in pursuit of
Plaintiff. (Docket # 54–4 at 2, ¶ 5 (Kenfield decl.).)
He saw at least “several officers” in the fenced area.
(Id.) Officer Kenfield remembers that he was the highest
ranking officer on the scene, (id. at 2, ¶ 6), but he does
not remember a single other officer who was present that
evening. (Id.passim.)

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V. Officer Golladay
Officer Golladay, although stating under oath that he does
not remember any facts whatsoever about the incident
involving Plaintiff, did in fact specifically recall that he did
not participate in the search for/chase after Plaintiff, nor
did he participate in his arrest. (Docket # 54–6 at 2–3, ¶¶
3, 4 (Golladay decl.).)

VI. Additional Evidence
The additional material pieces of evidence submitted by
Plaintiff include (1) a declaration by Cory Franek, a
friend of Plaintiff who was not with him during any of
the incidents leading to Plaintiff's arrest, but who was
downtown that evening; and (2) a declaration by Cory
Steiner, who claims to have seen four officers striking
Plaintiff while Plaintiff was in the bushes (although he
could not identify any of the officers). (Docket # 55–
2 at 12–13 (Franek aff.); docket # 55–2 at 6–7 (Steiner
aff.).) According to Franek, when Plaintiff was loaded
into the police van, he called Franek and asked him to call
Plaintiff's father to bail him out of jail. (Docket # 55–2 at
12.) Coincidentally, Franek was very near the van in which
Plaintiff was being held, and Franek saw Officer Barrett
telling a story to another officer and using hitting motions
with his arms and kicking motions with his legs. (Id. at 12–
13.)

ANALYSIS
I. Access to the Courts
Defendants' motion relies on the Plaintiff's inability
to establish the personal participation of any of the
Defendants in the actual beating that Plaintiff alleges
he suffered. Plaintiff does not dispute that he does not
know who hit him. He thinks it may have been Officer
Barrett based on Barrett's undeniable presence at the
scene; Barrett's build (which is consistent with Plaintiff's
recollection of the size of the male officer who struck him);
and Cory Franek's eye witness account of Barrett's body
language while Barrett was engaged in a conversation
with another officer shortly after the incident (almost an
“excited utterance” sort of proffer). Plaintiff contends that
he knows that at least the four Defendants in this case
were on the scene; that Plaintiff was beaten; and that it
must have been one of the four or someone they know.
He claims that the officers' conspiracy of silence (among
the four listed above and the other officers who were

present that evening) is depriving him of the material
evidence needed to prosecute his constitutional excessive
force claim.
*4 Without question, most courts that have addressed
the existence of an “access to the courts” claim under
these circumstances have found that the claim exists. E.g.,
DeLew v. Adamson, 293 F. App'x 504, 506 (9th Cir.2008)
(unpublished); Kelso v. City of Toledo, 77 F. App'x 826,
832 (6th Cir.2003) (unpublished); Harbury v. Deutch, 233
F.3d 596, 607 (D.C.Cir.2000), 2 rev'd on other grounds,
Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179,
153 L.Ed.2d 413 (2002) (finding that plaintiff failed to
sufficiently identify the legal claim which she was barred
from bringing due to the cover up, without deciding the
correctness of the access-to-court analysis); Vasquez v.
Hernandez, 60 F.3d 325, 328 (7th Cir.1995) (“[W]hen
police officers conceal or obscure important facts about a
crime from its victims rendering hollow the right to seek
redress, constitutional rights are undoubtedly abridged.”);
Barrett v. United States, 798 F.2d 565, 575 (2d Cir.1986).
In the Tenth Circuit, unfortunately, the law is far from
clear.
Principally, the Tenth Circuit in Jennings v. City of
Stillwater, 383 F.3d 1199, 1207 (10th Cir.2004) announced
it has never recognized a claim of denial of access to the
courts for a police cover-up. An earlier case, Wilson v.
Meeks, 52 F.3d 1547, 1557 (10th Cir.1995), also stated that
Tenth Circuit precedent did not clearly establish a duty
to avoid a police cover-up. The treatment of these cases
by subsequent opinions has been somewhat hands off. In
Nicholas v. Boyd, 317 F. App'x 773, 778 (10th Cir .2009)
(unpublished), the court stated that it need not rule on the
issue of whether a cover up stated a claim for denial of
access, “because, even if Plaintiffs have a cognizable claim,
it is barred by the applicable statute of limitations.”
One week after Jennings, the Tenth Circuit said the
following:
On the merits of the claim, this court has long
recognized a right of access to the courts. In 1984,
we declared: “The right of access to the courts is
constitutionally protected. Thus, conduct under color
of law which interferes with that right gives rise to
a cause of action under section 1983.” Although the
“right of access to the courts is neither absolute nor
unconditional,” it is unnecessary to explore every

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contour of this right here. We need only recount
two principles. First, intentional, bad-faith destruction
or concealment of evidence that burdens a plaintiff's
ability to access the courts is an unconstitutional denial
of access; and, second, allegations that police were
negligent in an investigation or that they negligently lost
or destroyed evidence will not support a denial of access
claim.
Donohue v. Hoey, 109 F. App'x 340, 356–357 (10th
Cir.2004) (unpublished). This case seems to hold that
the intentional withholding of evidence by police would
support a constitutional claim. The point may have to
remain academic, however, because I believe, based on
the analysis in the next section, that the case should go
forward on the excessive force claim, thereby rendering
moot (or, perhaps more accurately at this point in time,
not ripe) the alleged denial of access to the courts.
*5 The Jennings court ultimately rejected the plaintiff's
claim for unconstitutional deprivation of access to the
courts because “[p]laintiff pursued her claims and reached
a monetary settlement with the four football players and
OSU.” 383 F.3d at 1209. Relying upon the Supreme
Court's “forward looking” and “backward looking”
characterizations of access to court claims, Christopher
v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d
413 (2002), 3 the court found that the plaintiff's claim for
denial of access, of the backward-looking variety, hinged
upon the plaintiff's loss of some remedy she otherwise
would have had absent the deprivation. 383 F.3d at 1209.
In Jennings, since the plaintiff did in fact proceed on
her Section 1983 claim against government officials and
achieved a monetary settlement of that claim, a necessary
element of an access to court claim was absent. The
Jennings plaintiff “pursued her claims and reached a
monetary settlement ... thus [having] access to the courts,
and obtained a remedy.” Id. (looking to Christopher,
536 U.S. at 415, for the proposition that there is “no
point in spending time and money to establish the facts
constituting denial of access when a plaintiff would end up
just as well off after litigating a simpler case without the
denial-of-access element.”).
Using that same logic here, if Plaintiff's case proceeds
to trial, Plaintiff may be unable to satisfy the “loss of
remedy” element of his second claim. Consistent with
Christopher, Plaintiff enjoys access to the court to bring
this suit and may “end up just as well off after litigating

a simpler case without the denial-of-access element.”
However, I believe that the dismissal of the access to
court claim should be without prejudice. Many courts
require that access to the courts be adequate, effective,
and meaningful. E.g., Vasquez, 60 F.3d at 328. I believe
that the determination of the quality of Plaintiff's access
to the courts may have to await the ultimate outcome of
this case. At this stage of the proceedings, it is premature
to say that Plaintiff's right of access to the courts has
been constitutionally preserved. Therefore, I recommend
granting Defendants' Motion for Summary Judgment
to the extent that Plaintiff's Second Claim be dismissed
without prejudice.

II. Excessive Force
In my review of the parties' briefs and in my own research,
I have seen decisions on both sides of the issue of whether
a plaintiff's excessive force claim can survive when the
plaintiff does not know who engaged in the alleged force,
and the government officials who are questioned all deny
their respective individual participation and also deny that
they know who else was involved. 4 However, the Tenth
Circuit's analysis in Fogarty v. Gallegos, 523 F.3d 1147
(10th Cir.2008) guides my recommendation here. In that
case, the plaintiff alleged that as a result of police officers'
excessive and unreasonable force, he was injured and
suffered a torn tendon in his wrist. The plaintiff could not
positively identify which officers escorted him while under
arrest and engaged in the unconstitutional conduct, which
included forcing plaintiff to the ground, pulling his arms
behind his back and forcing the palm of his hand toward
his forearm in a “hyperflexion position,” handcuffing him,
ripping a drum off his belt, and dragging him down a
street, all the time while he was having an asthma attack.
523 F.3d at 1152. No police arrest report was filed on the
plaintiff's arrest. Id.
*6 The Fogarty Court noted that the “[d]efendants'
individual roles in Fogarty's arrest are the subject of
a spirited factual dispute. Fogarty was never able to
identify the officers who arrested him.” Id. 5 Moreover,
the plaintiff had alleged that one of the defendants who
witnessed the arrest and did not stop the alleged excessive
force was not wearing a gas mask, which was consistent
with that defendant's own characterization of his attire
that day. The district court determined that this was
sufficient to support an inference that this defendant
may have witnessed plaintiff's arrest without stopping

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the excessive use of force. The Tenth Circuit agreed,
stating that under the circuit's clearly established law, if
an officer is present at an arrest, “with an opportunity to
prevent the excessive use of force, he would have had a
duty to intervene.” Id. at 1163. “Fogarty contends that
[defendant] set the wheels of the alleged constitutional
deprivation in motion and that he may have stood by and
witnessed Fogarty's arrest and resultant injuries. We thus
cannot hold at this stage in the litigation that [defendant]
is entitled to qualified immunity on Fogarty's claim of
excessive force.” Id.
All of the Defendants in this matter were at the general
scene of the arrest. At least with regard to Defendant
Barrett, I believe there are sufficient facts in the record to
support a jury verdict that he participated in the arrest of
the Plaintiff. As to the remaining three officers, I believe
there is sufficient evidence in the record to support a jury
verdict that they witnessed the arrest and did not stop the
alleged excessive force (and it bears repeating here that the
allegation of the use of excessive force is not at issue in
this motion). Officers Morelock and Golladay were close
enough to the action that they escorted the arrested and
cuffed Plaintiff to the transport vehicle. As for Officer
Kenfield, he acknowledges that he was the most senior
officer at the scene. As the Fogarty Court discussed, if one
of the officers supervises the arrest and is present when
lower ranking officers carry out the arrest, these facts raise
an inference of a duty to intervene. In Fogarty, the Tenth
Circuit held that the district court was correct in denying
qualified immunity to the supervisor in such a situation.
Id. at 1163–64.
I recognize that the “failure to intervene” aspect of an
excessive force/Section 1983 claim was not specifically
argued by the Plaintiff. This presents the question of
whether such a theory is a unique claim that must be
separately pleaded, or whether it is a theory of 1983
liability that falls within the penumbra of an excessive
force claim (a claim which Plaintiff has brought here).
The failure to intervene theory is clearly derivative of an
excessive force claim; if a plaintiff did not suffer excessive
force, there can be no failure to intervene claim. Brooks
v. Brown, No. 95–1386, 1996 WL 460048, at *3 (10th
Cir.1996) (unpublished) (“Moreover, our conclusion that
officers Korkowski and Brown did not use excessive
force forecloses any derivative claim that Rasmussen and
Wilson could be liable for failing to intervene on plaintiff's
behalf.”). The Tenth Circuit appears to denominate a

failure to intervene theory as a variety of a 1983 excessive
force claim. E.g., Vondrak v. City of Las Cruces, 535 F.3d
1198, 1204 (10th Cir.2008).
*7 Plaintiff's failure to argue the “failure to intervene”
theory is troublesome, but I am guided by the Eleventh
Circuit's analysis in Velazquez v. City of Hialeah, 484 F.3d
1340 (11th Cir.2007). There, the two defendants argued,
on summary judgment, that plaintiff “would be unable at
trial to prove the essential element of his claim of excessive
force—that one or both officers beat him ...,” id. at 1342,
because the undisputed fact was that plaintiff did not see
who beat him. The court stated:
Velazquez alleged that two officers
were present when he was subjected
to a beating while handcuffed.
He has named the two officers
in his complaint. They have
admitted being present. Velazquez's
allegations, taken in the light most
favorable to him, as we must on
summary judgment, create a triable
issue of fact as to whether one or
both of the officers used excessive
force upon him, and whether one or
the other failed to intervene to stop
the use of such force. Velazquez's
testimony at trial that he was beaten
is competent evidence from which
a jury may infer that excessive
force was used. His testimony that
two officers were present, coupled
with their admission that they
were present, permits the jury, if
it believes that he was beaten,
to find that both of the officers
administered the excessive force or
that one beat him while the other
failed to intervene.... Velazquez's
testimony that he was beaten after
being handcuffed and that the two
officers were present permits such
an inference where the law prohibits
both the beating and the failure to
intervene.
Id. I believe the same analysis is applicable here. The facts,
taken in a light most favorable to Plaintiff as the nonmoving party, would support both a “beating” theory

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and a “failure to intervene” theory within a Section 1983
excessive force claim.
One other basis for denying summary judgment on this
point is the Defendants' selective memory of the events
that occurred that evening. Although Defendants argue
that it is “difficult for the named Defendants to remember
the identities of all of the officers who may have responded
to the scene,” I believe the jury should be entitled to
evaluate the credibility of the officers' memories. (Docket
# 65 at 17 (placing the blame for the stale memories
on the Plaintiff for waiting eight months to file a claim
after the incident).) As noted above in the material
facts, each officer has a specific memory of something
significant concerning that evening, but none of them
remembers who arrested Plaintiff, which would have been
the paramount event of the whole occurrence. Therefore,
I conclude that summary judgment in favor of Defendants
would be inappropriate on these pleadings. I recommend

that Defendants' motion be denied in this respect, and
Plaintiff's First and Third Claims for use of excessive force
be permitted to proceed.

CONCLUSION
For the reasons stated above and the entire record herein,
the Court RECOMMENDS that Defendants' Motion for
Summary Judgment [filed March 22, 2010; docket # 54
] be GRANTED IN PART and DENIED IN PART,
and Plaintiff's Second Claim be DISMISSED WITHOUT
PREJUDICE, leaving Plaintiff's First and Third Claims
to proceed. 6

All Citations
Not Reported in F.Supp.2d, 2010 WL 3938357

Footnotes

1

2

3
4
5
6

Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing
objections must specifically identify those findings or recommendations to which the objections are being made. The
District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections
to proposed findings and recommendations contained in this report may bar the party from a de novo determination by
the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676–83, 100
S.Ct. 2406, 65 L.Ed.2d 424 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed
findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from
appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn,
474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); In re Garcia, 347 F. App'x 381, 382–83 (10th Cir.2009).
“Should it have been clear to an objectively reasonable official that affirmatively misleading [plaintiff] for the purpose of
preventing her from filing a lawsuit would violate her constitutional rights?-we think the answer is plainly yes. Not only
have five of our sister circuits held that cover-ups that conceal the existence of a cause of action (or make it difficult to
prosecute one) infringe the constitutional right of access to courts, and not only are we unaware of any contrary decision,
but we think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of
protecting themselves from suit.”
“ ‘[B]ackwards looking claims' arise when plaintiffs allege that a specific claim ‘cannot be tried (or tried with all the evidence)
[because past official action] caused the loss or inadequate settlement of a meritorious case.’ ” Jennings, 383 F.3d at
1208 (quoting Christopher, 536 U.S. at 413–14).
E.g., Panaderia La Diana, Inc. v. Salt Lake City Corp., 342 F.Supp.2d 1013, 1032–33 (D.Utah 2004) and cases cited
by Defendants.
Defendants also argued in the Tenth Circuit that they were not present for the alleged use of excessive force and should
be dismissed. As the court noted, this is a fact-based argument that was inappropriate for the court to decide, given that
the case was on interlocutory appeal from the district court's denial of qualified immunity. See 523 F.3d at 1165–66.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing
objections must specifically identify those findings or recommendations to which the objections are being made. The
District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections
to proposed findings and recommendations contained in this report may bar the party from a de novo determination by

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the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676–83, 100
S.Ct. 2406, 65 L.Ed.2d 424 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed
findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from
appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn,
474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); In re Garcia, 347 F. App'x 381, 382–83 (10th Cir.2009).

End of Document

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