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Shinault v. Foster

United States District Court, D. Colorado

January 31, 2014

D.P.D. SERGEANT TONY FOSTER, and D.P.D. R. MAGOT, officer, Defendants.


R. BROOKE JACKSON, District Judge.

Telela Shinault alleges that two Denver police officers employed excessive force against her in violation of her Fourth Amendment rights. United States Magistrate Judge Boyd N. Boland recommends that the defendants' motion for summary judgment, based upon the statute of limitations, be granted. Based upon a de novo review I agree with Judge Boland, and therefore, this case will be dismissed.


In her Amended Complaint [ECF No. 9] Mrs. Shinault alleges that on February 11, 2009 at around 3:00 p.m. she was walking across a Denver park when an unmarked car drove up to her. Two males and a female got out. They did not identify themselves as Denver police officers. Mrs. Shinault heard a voice telling her not to leave, but she assumed it was someone with whom she plays cards in the park wanting her to stay. She continued on.

However, one of the males and the woman grabbed her hands and removed her belongings from her pockets. One or more of the officers then began to beat her across her face and arms with handcuffs, kneed her in the back, and slammed her against "concrete media." They then placed her in the handcuffs. Mrs. Shinault's friend Eddie asked these individuals why they were treating Mrs. Shinault that way. One of the males then identified himself as Sergeant Tony Foster and said the other male was Officer R. Magot. Sgt. Foster then explained that he was making an example out of Mrs. Shinault, because it was his park and when he gave an order not to leave it meant not to leave. Sgt. Foster then grabbed Eddie around the neck and threw him against a fence. Mrs. Shinault alleges that Officer Magot took her wallet, examined her I.D., and said she had an outstanding warrant. Mrs. Shinault denied that, and the (unidentified) female cleared her. Sgt. Foster insisted that she did have a warrant and arrested her on made up charges of interference with a police officer. She was incarcerated in the Denver County jail until she posted a $1, 500 bond. The case was later dismissed.

Mrs. Shinault alleges that she filed a complaint with the Internal Affairs Bureau of the Denver Police Department on March 9, 2009. Although not indicated as such in the Amended Complaint, apparently she did obtain a satisfactory result there. She filed the present lawsuit against Sgt. Foster and Officer Magot on March 13, 2012. She alleges that the described conduct violates her constitutional rights under the Fourth, Fifth, Eighth and Ninth Amendments. The Amended Complaint also mentions the Americans with Disabilities Act, but it does not identify her disability. She prays for money damages to compensate her for facial disfigurement, loss of a tooth, bruises, loss of property (including diamond earrings) and mental and physical pain and suffering.

Even before the defendants were served the magistrate judge issued an order directing Mrs. Shinault to show cause as to why her claims, which the court interpreted as having been brought pursuant to 28 U.S.C. § 1983, should not be denied as barred by the two-year statute of limitations applicable to such claims. [ECF No. 10]. Mrs. Shinault filed a response indicating that she had been told by the Chief of Police and by the Commander of District Six that she had a legitimate claim. [ECF No. 11] With respect to the statute of limitations, she indicated that if her complaint was filed outside the limitations period, the delay should be excused because she was "under heavy mental illness medications" and was suffering from mental and physical disabilities. Id. She seemed to suggest that she was so informed on multiple dates, most recently October 28, 2009. The case was then reassigned, and the limitations issue was not further pursued at that time.

On August 2, 2012 the defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 20]. Defendants argued that the claim was barred by the two-year statute of limitations. Mrs. Shinault responded essentially by incorporating her previous response to Judge Boland's show cause order. [ECF No. 24]. The motion was referred to the magistrate judge. Judge Boland found that the Amended Complaint, coupled with Mrs. Shinault's response to his show cause order, alleged a plausible claim for relief that might be subject to tolling of the statute of limitations. He declined to convert the motion into a motion for summary judgment and consider documents submitted by the defendants outside the pleadings. Accordingly, he recommended that the motion be denied. [ECF No. 28 at 4]. No objections were filed, and this Court adopted the recommendation and denied the motion to dismiss. [ECF No. 32].

Meanwhile the defendants had served interrogatories, requests for production of documents and requests for admission on Mrs. Shinault. Among other things they sought information relating to her medical and psychological treatment during the period that Mrs. Shinault claims to have been under a disability. Mrs. Shinault did not respond, and she refused to sign releases so that the defendants could obtain medical records. They also attempted to schedule a deposition of Mrs. Shinault. She did not initially respond, but eventually a deposition was scheduled for July 15, 2013. However, before the deposition was taken, Mrs. Shinault informed defense counsel that she would not appear, and in fact, she did not appear for the scheduled deposition.

Defendants then moved to dismiss under Rule 41(b) for failure to prosecute. [ECF No. 42]. Inexplicably Mrs. Shinault then moved for recusal of Magistrate Judge Boland. Perhaps fortunately for her, Judge Boland, to whom the second motion to dismiss had also been referred, denied the recusal motion. He also recommended that defendants' motion to dismiss for failure to prosecute be denied, finding that despite Mrs. Shinault's failure to respond to discovery requests, she had not been warned that this might result in dismissal of her case; and that the defendants had not be unduly prejudiced. [ECF No. 52]. No objections were filed. The motion to dismiss for failure to prosecute and the recommendation that this Court deny the motion are still pending.

On September 19, 2013 defendants next filed a motion for summary judgment, reiterating that Mrs. Shinault filed her lawsuit after the statute of limitations had run, and that Mrs. Shinault had not met her burden of demonstrating that the statute should be tolled. [ECF No. 54]. Once again the motion was referred to Magistrate Judge Boland. Perhaps fearful that Mrs. Shinault would not know of the requirements for responding to such a motion, Judge Boland issued a short order informing Mrs. Shinault that her response would be due on October 10, 2013. [ECF No. 59]. Mrs. Shinault promptly filed another motion for the recusal of Judge Boland [ECF No. 60] which he again denied. [ECF No. 65]. Meanwhile, Mrs. Shinault on October 9, 2013 filed a response to the motion for summary judgment. [ECF No. 63]. In it she accused defense counsel of "rearguing the case" and violating her right to "fair and just justice." Id. at 1. She reiterated her claims against the defendant officers, once again mentioning the Americans with Disabilities Act as well as the United States Constitution.

What Mrs. Shinault did not do, unfortunately, was respond to the limitations and tolling arguments made in the motion for summary judgment. Id. at 1-6. Nevertheless, defense counsel from the Denver City Attorney's Office could not resist filing a six-page reply on behalf of the defendants, the substance of which was, "she didn't respond to our arguments." [ECF No. 64]. Perhaps defendants' history of procedural setbacks in the case made them extra cautious.

Magistrate Judge Boland issued what now is his third recommendation in the case, this time recommending that the motion for summary judgment be granted, and that Mrs. Shinault's claims be dismissed. [ECF No. 66]. The recommendation notes that the facts must be viewed in the light most favorable to the party opposing the motion, here meaning the light most favorable to Mrs. Shinault. Id. at 1. He recited familiar law that the moving party bears the initial burden to show the absence of any genuine issue of material fact, and that if that burden of going forward is met, then the opposing party must go beyond her pleadings and come forward with evidence showing that there is, indeed, a genuine issue for trial. He also reiterated a court's obligation to construe a pro se party's pleadings liberally. Id. at 2.

The magistrate judge also repeated his legal conclusions regarding the statute of limitations applicable to actions asserted under 42 U.S.C. § 1983. Because the federal statute does not contain its own limitations provision, the most analogous state statute of limitations - in this instance Colorado's personal injury limitations statute - is used. Under that statute, the claim must be brought within two years after the cause of action accrues. C.R.S. § 13-80-102. Mrs. Shinault's cause of action accrued on February 11, 2009. She ...

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