United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BOYD N. BOLAND, Magistrate Judge.
This matter arises on Defendants Ryan O'Hayre and Stuart Ruybal's Motion for Summary Judgment [Doc. #77, filed 12/17/2013] (the "Motion"). I respectfully RECOMMEND that the Motion be GRANTED.
I. STANDARD OF REVIEW
The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).
The plaintiff filed his First Amended Complaint on February 15, 2012 [Doc. #30] (the "Complaint"). The court has dismissed several claims and defendants [Doc. #51]. The remaining claims are for (1) violation of the plaintiff's Fourth Amendment and due process rights; (2) false imprisonment; (3) assault and battery; (4) intentional infliction of emotional distress and; (5) extreme and outrageous conduct. The defendants seek summary judgment on all remaining claims. The plaintiff did not respond to the defendants' Motion.
In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co. , 398 U.S. 144, 157 (1970). Summary judgment shall be rendered "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating by reference to portions of pleadings, discovery and disclosure materials on file, and any affidavits, the absence of genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). "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).
The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Celotex , 477 U.S. at 324. 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).
II. UNDISPUTED MATERIAL FACTS
1. On July 13, 2010, at approximately 6:29 p.m., City of Lakewood Police Agent Marisa Cordova ("Agent Cordova") responded to the Walmart store located at 7455 W. Colfax Ave., Lakewood, Colorado. Motion, Ex. A, COL 230;Ex. H, ¶ 2. Agent Cordova responded to a call made by Walmart store personnel regarding a backpack found within the store that contained drugs and fireworks. The backpack had been turned into the Walmart security office. Id. at Ex. A, COL 230; Ex. H, ¶ 3.
2. Upon arrival at the Walmart store, Agent Cordova contacted loss prevention officer Nathan Kearney, who was located in the security office. Id. at Ex. A, COL 230; Ex. H, ¶ 4. Mr. Kearney gave Agent Cordova a black and red backpack, which had been found by a store employee. Id. at Ex. A, COL 230; Ex. H, ¶ 5. Agent Cordova looked inside the backpack and found several containers of a green leafy substance. Id. at Ex. A, COL 230; Ex. H, ¶ 6. The substance field tested presumptive positive for marijuana. Id. at Ex. A, COL 231; Ex. H, ¶ 6. Agent Cordova also found two pipes, rolling papers, a grinder, filter screens, a tin containing a black mass of an unknown substance, a spring loaded knife, fireworks, and a wallet. Id. at Ex. A, COL 230; Ex. H, ¶ 7. Agent Cordova looked inside the wallet and located several forms of identification for a Daniel Rhoden, date of birth May 6, 1987. Id. at Ex. A, COL 230; Ex. H, ¶ 8.
3. Agent Cordova was informed that a male at the customer service desk was inquiring about a lost backpack. Id. at Ex. A, COL 230; Ex. H, ¶ 9. Agent Cordova observed the male customer on the store's surveillance system. The male matched the photo identification for Daniel Rhoden which was found in the backpack. Id. at Ex. A, COL 230; Ex. H, ¶ 10.
4. Agent Cordova went to her police vehicle to retrieve a court summons and to make a request for a second unit to respond to the Walmart store. Id. at Ex. A, COL 230; Ex. H, ¶ 11.
5. At 6:45 p.m. on July 13, 2010, defendant Agent Ryan O'Hayre responded to the Walmart to assist Agent Cordova. Id. at Ex. A, COL 232. Agent O'Hayre was advised that Mr. Rhoden was on the west side of the parking lot. Id. at Ex. A, COL 230; Ex. H, ¶ 12.
6. Agent O'Hayre observed a white male wearing a black tee shirt and shorts. The man was identified as Mr. Rhoden. Agent O'Hayre observed Mr. Rhoden walking quickly toward the parking lot. Id. at Ex. A, COL 232. Agent O'Hayre transmitted over his police radio that he was in contact with Daniel Rhoden. Id. at Ex. A, COL 230.
7. Mr. Rhoden began to run when he saw Agent O'Hayre. As Agent O'Hayre approached, Mr. Rhoden opened a car trunk and yelled at Agent O'Hayre, "Why are you running after me?" Agent O'Hayre asked Mr. Rhoden to close the trunk of the vehicle because Agent O'Hayre did not know what was inside. Mr. Rhoden slammed the trunk of the vehicle, walked around to the passenger side of the vehicle, and began to open the passenger door. Agent O'Hayre asked Mr. Rhoden to not open the passenger door. Mr. Rhoden became more upset and quickly walked toward the front of the vehicle. Agent O'Hayre observed that Mr. Rhoden was very agitated and was pacing around and waving his arms in the air. Agent O'Hayre observed that Mr. Rhoden continued to yell about having lost his backpack. Id. at Ex. A, COL 232.
8. Agent Cordova observed Mr. Rhoden gesturing up and down with his arms in an exaggerated motion, and he appeared to be angry. Id. at Ex. A, COL 230; Ex. H, ¶ 16. Agent Cordova also observed Mr. Rhoden throw a small object at an adjacent vehicle. Id. at Ex. A, COL 230; Ex. H, ¶ 14. The object was later identified by Agent Cordova as a set of keys. Id. at Ex. A, COL 231; Ex. H, ¶ 15.
9. Agent O'Hayre intended to calm Mr. Rhoden and question him about the contents of the backpack. During his contact with Mr. Rhoden, Agent O'Hayre was aware that drugs had been located in the backpack. Due to Mr. Rhoden's behavior and the drugs found in the backpack, Agent O'Hayre believed that Mr. Rhoden was under the influence of narcotics. Agent O'Hayre also believed Mr. Rhoden was carrying a weapon. Id. at Ex. A, COL 232.
10. Agent O'Hayre told Mr. Rhoden to turn around and place his hands on his head because Agent O'Hayre wanted to check Mr. Rhoden for weapons. Agent O'Hayre prepared to grab Mr. Rhoden's hands when they reached the top of his head. Agent O'Hayre noticed that Mr. Rhoden's tee shirt was not tucked in. As Mr. Rhoden began to turn around, he immediately and quickly reached down to the front of his shorts with ...