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, ).

Bark v. Chacon, Not Reported in F.Supp.2d (2012)
2012 WL 1080547

2012 WL 1080547
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Evan BARK, Plaintiff,
v.
Detective Mark CHACON, Colorado Springs Police
Department (in his personal capacity), Sergeant
Dale Fox, Colorado Springs Police Department (in
his personal capacity), Sergeant Mike Freeman,
Colorado Springs Police Department (in his
personal capacity), Sergeant Joshua Benner,
Colorado Springs Police Department (in his personal
capacity), Officer Felix Juliano, Colorado Springs
Police Department (in his personal capacity),
Officer Daniel Mork, Colorado Springs Police
Department (in his personal capacity), Officer
Christopher Laabs, Colorado Springs Police
Department (in his personal capacity), Andrew
Holmes, Deputy Sheriff, El Paso County Sheriff's
Office (in his personal capacity), The City of
Colorado Springs, Colorado, a municipality;
and El Paso County, Colorado, Defendants.
Civil Action No. 10–cv–1570–RBJ–MJW.
|
March 30, 2012.
Attorneys and Law Firms
Alison Lee Ruttenberg, Alison L. Ruttenberg, Attorney
at Law, Boulder, CO, for Plaintiff.
Elliot David Fladen, Shane Matthew White, Colorado
Springs City Attorney's Office, Amy R. Folsom, Diana
Kay May, Colorado Springs, CO, for Defendants.

ORDER
R. BROOKE JACKSON, District Judge.
*1 This matter is before the Court on motions for
summary judgment filed on behalf of Det. Mark Chacon
[Doc. # 42], Deputy Andrew Holmes [# 46], and the other
individual defendants [# 56]. The Court has considered

the motions, plaintiff's response [# 62] and the defendants'
replies [# # 63 and 64].

Facts
On December 30, 2009 officers from the Colorado Springs
Police Department were dispatched to C & D Cuts and
Styles in Colorado Springs, Colorado to investigate an
armed robbery. According to witnesses, the robbers were
two African–American males in their early twenties.
Two women who were in the store when the robbery
occurred thought that they spotted the vehicle in which the
robbers fled and gave pursuit. 1 They managed to obtain
the vehicle's license plate and provided that information
to the police. The police traced the plate to Evan Bark.
At least ten law enforcement officers converged on Mr.
Bark's residence. An attempt to contact the inhabitants by
telephone was unsuccessful.

Mr. Bark's testimony
Mr. Bark was aroused at about 1:00 to 1:30 a.m. by
banging on the door, opened the door, and saw five or six
police officers with flashlights and guns drawn. He was
ordered to get out of the house. Thinking that someone
had broken into his house and the police were there
for that reason, he ran out. He testified that he turned
around and saw “a whole bunch of them go inside.” Then,
“somebody hit me on the back of my knee which dropped
me to the ground.” Bark depo. [# 62–2] at 52–53 (I will
use CM/EC F page numbers for the deposition testimony
rather than the original page numbers in the deposition).
That same officer grabbed his wrists, held his hand behind
his back, and told him to be quiet. It was a police officer,
not a sheriff's deputy, but he does not know who it was.
Id. at 145–47. He was down on his knees in the snow for
approximately 10 minutes.
After officers cleared the house Mr. Bark states that Det.
Chacon and another officer in plain clothes took him
inside and placed him on his couch. Bark depo. at 61. Mr.
Bark recalls that a “sheriff” was present inside the home
with a couple of police officers. Id. at 62. He says that
the two officers (Chacon and presumably Fox) questioned
him for perhaps one and one half hours. Id. at 159. About
half way through they read him his Miranda rights. Id.
at 69. Mr. Bark says that, at that point, he wanted to
call his mother, but they wouldn't let him. Id. at 70. He
isn't sure whether he waived his Miranda rights. Id. at

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70. They told him that his car had been identified leaving
the robbery, which he knew could not be true, and they
lied by telling him that he was caught on surveillance
cameras committing the robbery. Id. at 68, 91. He doesn't
know who told him those things, except that Det. Chacon
was one of them. Id. at 91–92. Nevertheless, although
he says he was crying during the interrogation, he was
cooperative and answered all their questions. Id. at 66, 77.
For much of that time he was not aware that the officers
were investigating a robbery. Id. at 66–67.
*2 Mr. Bark acknowledges that he gave the officers
consent to search his home, including his safe, and his car,
but that he did so after “they started threatening me that
if I didn't let them search my property ... [t]hey were going
to tow my vehicles and impound them, and it was going
to cost me a lot of money to get my vehicles back.” Id. at
63. He does not know who told him that, but it was not
Det. Chacon. Id. at 90. He did not give consent because he
was trying to be cooperative. Id. at 69. Different officers
searched the upstairs, the kitchen, and his vehicles. Mr.
Bark did sign a written search waiver, although he says
that he does not remember doing so. Id. at 64–65. He
doesn't know who the officers were that conducted the
searches. Id. at 73.
Mr. Bark testified that he did not know what Officer
Benner, Sgt. Fox, Sgt. Freeman, Deputy Holmes, Officer
Juliano, Officer Laabs, or Officer Mork did. Id. at 88–
89. He agreed that, other than what he had said about
Det. Chacon, he does not know what any other officer did
specifically. Id. at 93. He was scared and nervous and did
not pay attention to names, facial features, height or hair
or eye color. He can only say that there were two different
kinds of uniforms. Id. at 160–61.
Mr. Bark states that after the officers left, and he realized
that an armed robbery charge carries years in prison, he
started having a panic attack. Id. at 77. He called his
mother, but while he was on the phone with her, two
sheriff's deputies, whom he cannot identify, returned with
a plastic bag containing his hats, gloves and other things
that he didn't know they had taken. Ibid. His mother spoke
with one of them who “got reamed out” by her. Id. at 78.
Mr. Bark also called a friend who came over to help him
because he was having an emotional breakdown. Id. at 82.

Det. Chacon's testimony

After being briefed by Officer Juliano, and speaking with
Ms. Calica, Det. Chacon and Sgt. Fox went to Mr. Bark's
address, arriving at about 1:25 a.m. No attempt was made
to obtain a search warrant, nor did Det. Chacon consider
that they were in hot pursuit of a suspect or that there
were exigent circumstances. Chacon depo. [62–1] at 17,
19, 44–46. Det. Chacon and Sgt. Fox met with a number
of officers, including Officers Laabs and Juliano and a
deputy sheriff, at a staging area near Mr. Bark's home.
Det. Chacon recalls that only he and Sgt. Fox were not in
uniform. Id. at 19–20. Sgt. Fox was taking the lead because
of his senior rank. Id. at 67.
An unsuccessful attempt was made to make telephone
contact with anyone in the house, and the decision was
made to attempt contact at the front door. Det. Chacon
went to the back of the residence to make sure no one
would leave from there. As a result, he did not see what
occurred at the front door. Id. at 23. When he was advised
that everything was ok, he came around to the front and
found Mr. Bark kneeling in the sidewalk area. He told
Mr. Bark that they were conducting an investigation and
wished to speak with him, and he suggested that they go
into the house because of the cold. Mr. Bark agreed, and
at least Bark, Chacon and Sgt. Fox went into the house.
Id. at 25–26.
*3 Det. Chacon asked Mr. Bark for consent to search
his car, and Mr. Bark several times gave him consent. Sgt.
Fox and Officer Juliano were in the vicinity and might
have overheard the conversation. Id. at 28–29. Mr. Bark
also gave him consent for a search of the house, in which
at least Det. Chacon, Officer Juliano and Officer Laabs
participated, his cell phone and his trailer. Id. at 30, 70.
Mr. Bark signed a written consent form for the search of
the car and house. Id. at 38. Det. Chacon gave Mr. Bark
the Miranda advisement within 20 minutes of his first
contact with Mr. Bark on the front sidewalk. Mr. Bark
asked whether he could call his mother. Det. Chacon tried
to call her but no one answered. Id. at 34, 37. Mr. Bark
agreed to speak with the officers, at which time he was
Mirandized a second time, waived his rights and agreed
orally to talk. Id. at 37.
Det. Chacon was the primary questioner, but Sgt. Fox
participated at some points. Det. Chacon told Mr. Bark
that they were investigating a robbery and that his vehicle
had been observed on surveillance video. That was not
true and was described by Det. Chacon as an investigative

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technique. Id. at 47. He denies that any threats were made.
Id. at 48. The questioning lasted approximately one hour.
Id. at 71.
No contraband was found, and according to Det. Chacon,
nothing was removed from the home. Id. at 32. Mr. Bark
consistently maintained his innocence, but he was not
cleared as a suspect until January 4, 2010. He was cleared
after one of the eye witnesses, Tracy Stanbach, told Det.
Chacon that she did not believe the car the two women
followed was the robbers' vehicle, because it did not have
tinted windows, and there was a white male in the car.
Id. at 48–51. The record contains no indication that either
the Colorado Springs Police Department or the El Paso
County Sheriff's Office ever apologized to Mr. Bark.

Lawsuit
Mr. Bark understandably was not happy with the manner
in which he had been accused and treated. He filed
a complaint under 42 U.S.C. § 1983, claiming that
his constitutional rights under the Fourth, Fifth and
Fourteenth Amendments had been violated. Initially he
named Det. Chacon, a number of John Does, the City
of Colorado Springs, and El Paso County as defendants.
Later, in an Amended Complaint, he substituted Sgt. Fox,
Sgt. Mike Freeman, Sgt. Joshua Benner, Officer Felix
Juliano, Officer Daniel Mork, and Officer Christopher
Laabs, all of the Colorado Springs Police Department,
and Deputy Andrew Holmes of the El Paso County
Sheriff's Office, for the John Does. Each of the eight
individual defendants is sued solely in his personal
capacity.
The “City Defendants,” comprised of the City of
Colorado Springs and the six officers from the Colorado
Springs Police Department other than Det. Chacon,
moved to dismiss the complaint. The City contended that
Mr. Bark had not adequately alleged a department-wide
custom or practice that allowed the allegedly wrongful
acts of the individual officer or that the City had acted with
deliberate indifference in its police training practices. With
respect to the individual officers, the motion contended
that the plaintiff had failed to allege any facts as to the
specific actions of any of them. The County Defendants,
being El Paso County and Deputy Holmes, filed a similar
motion to dismiss.
*4 On May 18, 2011 the Court, by Chief Judge Daniel,
granted the motion to dismiss the City of Colorado

Springs and El Paso County. The Court noted that
in order to establish municipal liability under § 1983,
the plaintiff would have to show (1) the existence of a
municipal policy or custom, and (2) a direct causal link
between the policy or custom and the injury alleged.
Monell v. Dept. of Social Services of the City of New
York, 436 U.S. 658, 689–90, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978). A municipality could be liable for a failure
to train if its failure evidenced a “deliberate indifference”
to the rights of its inhabitants. City of Canton v. Harris,
489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989). However, the Court agreed with the defendants
that plaintiff's allegations were inadequate to state a claim
based on a failure to train or otherwise. [# 44] at 7–9.
The Court came out differently with respect to the
individual defendants. The Court noted plaintiff's
allegation that he was not personally acquainted with any
of them; that he could not identify which defendant did
what; but that all of the individual defendants were present
and participated in the events described in the Amended
Complaint. Id. at 9. Nevertheless, the Court concluded:
While Plaintiff has not alleged which
specific Defendant committed which
specific act during the incident in
question, it would be unfair to
require Plaintiff to do so based on
the circumstances alleged in this
case. Here, I find that the allegations
in the Amended Complaint provide
sufficient notice to the individual
Defendants of the claims asserted
against them and the grounds upon
which those claims rest.
Id. at 11.
These individual defendants, joined by Det. Chacon
this time, now request an order of summary judgment
dismissing the claims against them.

Standard
The Court may grant summary judgment if “there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party has the burden to show that there
is an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.

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2548, 91 L.Ed.2d 265 (1986). The nonmoving party must
“designate specific facts showing that there is a genuine
issue for trial.” Id. at 324. A fact is material “if under
the substantive law it is essential to the proper disposition
of the claim.” Adler v. Wal–Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). A material fact is genuine if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. The Court
will examine the factual record and make reasonable
inferences therefrom in the light most favorable to the
party opposing summary judgment. Concrete Works of
Colorado, Inc. v. City and County of Denver, 36 F.3d 1513,
1517 (10th Cir.1994).

Conclusions
Qualified Immunity
*5 All defendants, as is common in such cases assert
the claims against them are barred by the doctrine of
qualified immunity. This doctrine “shields government
officials performing discretionary functions from liability
for damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.” Toevs
v. Reid, 646 F.3d 752, 755 (10th Cir.2011) (internal
citations omitted). To overcome summary judgment
based on qualified immunity, the plaintiff “must show
that the defendant's actions violated a specific statutory
or constitutional right, and that the constitutional or
statutory rights the defendant allegedly violated were
clearly established at the time of the conduct at issue.”
Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006). A
right is clearly established if it would have been “clear to a
reasonable officer that his conduct was unlawful under the
circumstances presented.” Herrera v. City of Albuquerque,
589 F.3d 1064, 1070 (10th Cir.2009).

Individual Defendants other than Det. Chacon [46 and 56]
The Colorado Springs Police Department offices other
than Det. Chacon, together with Sheriff's Deputy
Holmes, argue that it cannot be established that
any of them violated Mr. Bark's constitutional rights,
because he cannot identify who did what, and no other
evidence of any of these individuals has been developed.
Unfortunately, because I believe that Mr. Bark was
treated poorly unnecessarily, I agree.

Many cases hold that a constitutional violation can be
established only if it can be shown that an individual
officer personally participated in the violating conduct.
See, e.g., Porro v. Barnes, 624 F.3d 1322, 1327 (10th
Cir.2010); Novitsky v. City of Aurora, 491 F.3d 1244, 1254
(10th Cir.2007). Cf. Jenkins v. Wood, 81 F.3d 988, 994–
96 (10th Cir.1996). None of these cases involve facts quite
like the present facts. Nevertheless, the basic proposition
is valid.
A closer case is Lynch v. Barrett, No. 09CV405, which
appears at 2010 WL 3938359 (D.Colo. Oct.5, 2010). In
that case the plaintiff was arrested by several police
officers and claimed that one or more of them used
excessive force in cuffing him and by hitting and kicking
him. None of the officers disclosed which officer did what.
The plaintiff brought two claims, one asserting that the
use of excessive force violated his Fourth Amendment
rights and the other asserting that by preventing him from
obtaining valuable information concerning the excessive
force claim, the officers were denying his right of access to
the courts.
The court dismissed the second claim without prejudice as
premature. However, the court denied defendants' motion
for summary judgment regarding the first claim. The court
found that a jury could infer that defendants had an
opportunity to intervene and failed to do so, and that it
could also infer, based on credibility determinations and
weighing of the evidence, that individual defendants either
participated in the excessive force or witnessed it but did
not intervene. Id. at * 4, 5.
*6 I could follow the lead of my colleague Judge Kane
and deny the pending motion. However, to me that would
be irresponsible on the present facts and would impose
on all these parties the expense of a trial with no realistic
chance that Mr. Bark could recover. Here, Mr. Bark
admits that he has no idea what any officer other than
Det. Chacon did. Someone allegedly knocked him down
in front of his house, but he does not know who. He argues
that he gave consent to search his house, car, trailer and
cell phone under duress, but admits he does not know
who threatened him. He complains about the questioning,
but that was done primarily by Det. Chacon, and Mr.
Bark has no specific complaint against Sgt. Fox who
apparently participated off and on. He has not asserted,
nor certainly has he provided evidence, that any particular

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individual officer witnessed an improper action, was in a
position to intervene and stop it, but did not. He has not
alleged that any particular officer is covering up another's
wrongdoing.
As indicated above, I am also aware that my colleague,
Chief Judge Daniel, denied these defendants motion
to dismiss which was based on the same theory. The
difference is that was simply a motion for failure to state a
claim. It was unknown then whether plaintiff had or could
develop evidence, through investigation or discovery, that
might link specific wrongful acts to a particular individual.
The issue before the Court now is whether plaintiff has
come forward with facts that show that there is a genuine
dispute of material fact regarding the allegedly wrongful
actions of any of these officers. The Court finds that he
has not.
Moreover, without knowing what any of the individuals
did, it would be impossible to assess whether a reasonable
police officer or sheriff's deputy would know that the
conduct was unlawful, i.e., the second prong of the
qualified immunity doctrine. I might be willing to say
that knocking Mr. Bark to his knees in the snow, without
necessity or provocation, might be determined by a
reasonable jury to be improper. However, with no ability
to attribute that conduct to any named defendant, other
than Mr. Bark's testimony that it was a police officer
and not a sheriff's deputy, or even to know for sure that
each of the defendants was present when this occurred, a
reasonable jury could not attach liability to any of them.
The record before me does not contain deposition
testimony from anyone other than Mr. Bark and Det.
Chacon. It does not contain police reports that might
shed some light on the matter. I noticed that a number
of questions were posed to Det. Chacon in his deposition
about what individual officers did, and for the most part
he proclaimed ignorance. He certainly did not attribute
misconduct to any other officer.
Therefore, as unsatisfying as it might be, even to me, I
have to find that there is no evidence of a material and
genuine dispute regarding possible wrongdoing by any of
the individual defendants other than Det. Chacon. I have
reached this conclusion after careful study of the entire
file. Therefore, these motions are GRANTED.

Det. Mark Chacon [# 42].

*7 As Judge Gorsuch observed in Porro v. Barnes, “[o]ur
first task in any § 1983 suit alleging a constitutional
violation is ‘to isolate the precise constitutional violation
with which [the defendant] is charged.’ ” Id. at 1325
(citation omitted). Neither the Complaint nor the brief
in opposition to the pending motion clearly articulate
what violations are claimed. The Complaint simply
claims violations of the Fourth, Fifth and Fourteenth
Amendments and then lists a number of alleged wrongs
that might support those constitutional claims. The
response brief is also unclear.
Giving plaintiff the benefit of the doubt, it appears
from the Complaint that, at that time, plaintiff might
have been alleging that Det. Chacon (1) violated Mr.
Bark's Fourth Amendment right to be secure against an
unreasonable search by not obtaining a search warrant,
not having exigent circumstances, and instead threatening
and misleading him into granting consent to search his
residence, vehicles and cell phone, (2) violated his Fourth
Amendment right to be secure against an unreasonable
seizure by using excessive force, specifically, making him
kneel in the snow, and by detaining him on his couch
for three hours of questioning; (3) violated his Fifth
and Fourteenth Amendment rights to due process by
lying to him about his having been identified by eye
witnesses and about his car being caught on a surveillance
tape; (4) violated his Fifth Amendment right not to
incriminate himself by questioning him for three hours
without providing access to counsel, lying to him and
attempting to get him to confess; and (5) removing items
from his house without his consent.
Search. Mr. Bark testified that someone told him that
if he did not consent to a search, his vehicle would
be impounded. Implicitly, he granted consent based on
duress or misrepresentation. However, Mr. Bark testified
that Det. Chacon is not the one who did this. The evidence
from Det. Chacon is that he obtained a written consent.
There is no evidence of which the Court is aware that Det.
Chacon did this by misrepresentation or lying.
Seizure, Excessive Force. There is no evidence that Det.
Chacon was present in the front of the house when Mr.
Bark was forced to his knees and pat searched. There is
also no evidence that Det. Chacon compelled Mr. Bark
to submit to three hours of questioning. Although Mr.
Bark's original estimate was in the two to three hour range,
he revised that after his counsel pointed out during the

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deposition that it was probably in the one and one half
hour range. More importantly, the evidence is that he was
cooperative and answered all the questions. The Fourth
Amendment permits “an arrest or investigatory stop” with
the “right to use some degree of physical coercion or
threat thereof to effect it.” Graham v. Connor, 490 U.S.
386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here
the detention was minimal. He sat on his own couch,
without handcuffs or other restraint. The Court finds that
the detention described in the record of this case did not
violate Mr. Bark's Constitutional rights by detaining him
on his couch.
*8 Lying. Mr. Bark alleges that Det. Chacon, in an effort
to elicit a confession, out and out lied to Mr. Bark about
the supposed eye witnesses and the surveillance tape. This,
according to Det. Chacon, is a technique called “strategic
deception.” I have seen this tactic used many times in
my thirteen and a half years as a judge. Judges sitting
in chambers are probably not well qualified to comment
about what happens on the street. Nevertheless, I didn't
like dishonesty the first time I came across it, and I don't
like it today.
Regardless of my personal view, however, “ploys to
mislead a suspect or lull him into a false sense of security
that do not rise to the level of compulsion or coercion
to speak are not within Miranda's concerns.” Illinois v.
Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d
243 (1990). Statements such as Det. Chacon's do not
amount to coercion. Nor was any harm caused by Det.
Chacon's tactic. Mr. Bark knew he was innocent. He
did not confess, nor were any of his statements used
against him. Therefore, Det. Chacon's statements do not
constitute a violation of Mr. Bark's rights.
Self-incrimination. The Fifth Amendment, applicable to
the states through the Fourteenth Amendment, requires
that “no person ... shall be compelled in any criminal case
to be a witness against himself.” Chavez v. Martinez, 538
U.S. 760, 766, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003).
Although the Supreme Court declined to define the precise
moment a criminal case begins, the Court did state that
“it is enough to say that police questioning does not
constitute a ‘case.’ ” Id. at 767. It is not until a statement
compelled by police interrogation is used at trial that a
violation of the Self–Incrimination Clause occurs. Id.

Mr. Bark was never made to testify against his own
interests in violation of the Fifth Amendment's Self–
Incrimination Clause. In fact, Mr. Bark was never
criminally charged or even arrested. He was read his
Miranda rights and agreed to speak with Det. Chacon.
Even if Mr. Bark's speech was the result of intimidation,
the “mere use of compulsive questioning, without more,
[does not violate] the Constitution.” Id. Therefore, the
Court finds that there is no genuine issue of material
fact that requires trial concerning whether Det. Chacon
violated Mr. Bark's right not to testify against himself.
Removal of items from the home. There is no evidence
that Det. Chacon removed any items from the house.
He adamantly denied it, and Mr. Bark's testimony was
that sheriff's deputies, not police officers, returned certain
items to him later in the morning of December 31, 2009.
In summary, the Court concludes that plaintiff has not
shown that there is a genuine dispute of fact regarding any
of the constitutional violations attributed to Det. Chacon.
Nor has the plaintiff shown that Det. Chacon violated a
clearly established right that a reasonable officer would
have known was unlawful. The problem with this case, as
I see it, is that Det. Chacon is the one individual whom
plaintiff can identify, but he does not have evidence that
creates a triable issue of fact regarding Det. Chacon's
actions. There might have been improper conduct by
others, but they haven't been, and apparently cannot be,
identified.

Order
*9 For the foregoing reasons, the Court orders that
1. Motion # 42 is GRANTED.
2. Motion # 46 is GRANTED.
3. Motion # 56 is GRANTED.
4. This civil action and all claims therein are dismissed
with prejudice, each party to bear his or its own costs and
attorney's fees.

All Citations
Not Reported in F.Supp.2d, 2012 WL 1080547

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Footnotes

1

Officer Juliano advised Det. Chacon, and has repeated in his affidavit, that witness Vanessa Calica told him that she
saw the robbers get into the car. That plainly is wrong. Ms. Calica told Det. Chacon that she did not see anyone get into
the car. Moreover, it has been determined that the car that the two women followed—Mr. Bark's car—was not involved
with the robbers or the robbery.

End of Document

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