Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:03-cv-02328-RPM-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2328-RPM-OES GREG JOSEPH GONZALES, by and through his next friend, JUNE BRAVO, Plaintiff, v. OFFICER BRETT C. TITUS, in his official and personal capacity, and CITY & COUNTY OF DENVER, a municipality, Defendants. DENVER'S MOTION FOR SUMMARY JUDGMENT Defendant City and County of Denver, by and through its attorneys, the Office of the Denver City Attorney, Thomas Bigler, Assistant City Attorney, submit's Denver's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, as follows: 1. Summary judgment should be granted where, taking the facts in the light

most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105 (10th Cir.1991). In civil rights cases grounded on the Fourth Amendment, the Tenth Circuit has held that although the question of probable cause ordinarily falls within the province of the jury, a conclusion that probable cause existed as a matter of law is appropriate when there is not room for a difference of opinion concerning the facts. DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir.1990).

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2.

The Fifth, Sixth and Seventh Claims for Relief contained in the Third

Amended Complaint allege that Defendants lacked probable cause to seize Plaintiff in violation of the Fourth Amendment to the United States Constitution. Summary judgment in favor of Denver and against Plaintiff is appropriate because, based on the undisputed facts, the defendant police officer had reasonable articulable suspicion that the suspects may have been involved in a felony based on the police dispatchers report of a serious crime coupled with his personal observation of a person driving the subject vehicle that resembled the suspect coming from the direction of the crime; the officer's personal observation of numerous traffic violations committed by the driver of the vehicle; and, Plaintiff's failure to obey a lawful police order and his attempt to flee from the officer. 3. The Fifth, Sixth and Seventh Claims for Relief alleging lack of probable

cause are barred by Heck v. Humphrey, 512 U.S. 477, 480, n. 2, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Here, it is undisputed that Plaintiff entered into a plea agreement in his criminal case resulting from the incident complained of, thereby pleading guilty and establishing probable cause for his arrest. These claims for relief require Plaintiff to call into question findings from the criminal case in which he did not prevail by showing a lack of probable cause. See, United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1996); Taylor v. Meachum, 82 F.3d 1556, 1561 (10th Cir. 1996). Because Plaintiff did not prevail in his criminal case but in fact pled guilty to a criminal charge, Plaintiff is collaterally estopped from proceeding with his probable cause claim premised upon 42 U.S.C. § 1983. 4. Summary judgment should be granted for Denver on Plaintiff's Eighth

Claim for Relief because plaintiff can not establish a constitutional violation grounded on

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supervisory liability. To make a prima facie showing of municipal liability under § 1983 on a supervisory liability claim, the Plaintiff must show that "an affirmative link exists between the [constitutional] deprivation and either the supervisor' personal participation, s his exercise of control or direction, or his failure to supervise. Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988). The Plaintiff can not meet his burden of production in this case because he can not present any competent evidence to support any of the elements of this claim. Plaintiff can not identify any supervisory personnel that personally participated in the events complained of, exercised control or direction or failed to supervise in this case. Likewise, Plaintiff can not show that an affirmative link exists between the constitutional violations alleged in the Complaint and either the supervisor' personal participation, his exercise of control or direction, or his failure to s supervise. 5. Summary judgment should be granted for Denver on Plaintiff's Eighth

Claim for Relief because plaintiff can not establish a constitutional violation grounded on municipal liability. To prevail on this claim, Plaintiff must demonstrate that an official policy or custom is responsible for deprivation of rights protected by the Constitution. Monell v. Dept. of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). There must also be "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). The Plaintiff can not meet his burden of production in this case because he can not present any competent evidence to support any of the elements of this claim. Plaintiff's conclusory allegations in the Complaint failed to identify any official policy or custom to support his claim that Denver's policies sanction

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the unlawful use of force. Plaintiff cannot identify any official policy or custom of Denver which caused an alleged deprivation of his constitutional rights and can not present any competent evidence that there is a direct causal link between Denver's policies and any alleged constitutional deprivation. WHEREFORE, Defendant City and County of Denver, for the reasons set forth herein and in Denver's Brief in Support of Motion for Summary Judgment filed contemporaneously herewith, respectfully requests that the Court grant summary judgment against Plaintiff and for Denver on Plaintiffs Fifth, Sixth, Seventh and Eighth Claims for relief, and for such other relief as the Court deems appropriate.. Dated this 4th day of November, 2005. Respectfully submitted: DENVER CITY ATTORNEY'S OFFICE

THOMAS BIGLER Assistant City Attorney s/ Thomas Bigler__________ Thomas Bigler Denver City Attorney' Office s Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, Colorado 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 Attorney for City and County of Denver

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of November, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] s/ Raquel R. Trujillo_____________ Raquel R. Trujillo, Legal Secretary Denver City Attorney's Office

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