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Arden v. Darr

United States District Court, District of Colorado

December 2, 2014

DALE M. ARDEN, Plaintiff,
DOUGLAS N. DARR, in his official capacity as Sheriff for County of Adams, Colorado; LILIANA BONDELL, Deputy Sheriff, in her professional capacity as Deputy Sheriff for County of Adams, and her personal capacity; and JOHN DOES 1 & 2 in their professional and personal capacities, Defendants.


RAYMOND P. MOORE United States District Judge.

This matter is before the Court on Defendants Sheriff Douglas N. Darr and Deputy Sheriff Liliana Bondell’s motion for summary judgment (ECF No. 20) on each of Plaintiff Dale M. Arden’s claims under 42 U.S.C. § 1983 (“Section 1983”) against Defendants for violating his Fourth Amendment (via the Fourteenth Amendment) rights (ECF Nos. 4, 30).

For the reasons stated below, the Court GRANTS Defendants’ motion for summary judgment.


Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one–sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

If a movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact”) (citation omitted).

Only admissible evidence may be considered when ruling on a motion for summary judgment. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). “Conclusory and self-serving affidavits are not sufficient.” Id. The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). “[O]n a motion for summary judgment, it is the responding party’s burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is “not obligated to comb the record in order to make [Plaintiff’s] arguments for [him].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(e) provides that “[e]very citation in a motion, response or reply shall include the specific page or statutory subsection to which reference is made.” D.C. Colo. L. Civ. R. 7.1(e).


A. Procedural Background

On November 28, 2012, this case was removed from state court. (ECF No. 1.) The Amended Complaint (ECF No. 4) has four “claims for relief” against two named and two unnamed Defendants. A liberal reading of the Amended Complaint informs the Court that Plaintiff’s Section 1983 claims are based on (1) “civil theft” (ECF No. 4 at ¶¶ 33-36); (2) “conspiracy” (ECF No. 4 at ¶¶ 37-51); (3) unlawful search (ECF No. 4 at ¶¶ 52-54); and (4) unlawful seizure (ECF No. 4 at ¶¶ 52-54). No executed return of summons or waiver of service has been filed for either of the John Doe Defendants. (See ECF Dkt.)

On August 30, 2013, Defendants Bondell and Darr filed their motion for summary judgment. (ECF No. 20.) The matter is fully briefed and ripe for adjudication. (See ECF Nos. 25, 26.)

On December 24, 2013, Magistrate Judge Craig B. Shaffer entered a “Final Pretrial Order” in this matter. (ECF No. 30.) The Final Pretrial Order identifies that Plaintiff’s Section 1983 claims are predicated upon an unlawful search and seizure of his home by the named Defendants. (ECF No. 30 at 2-3.) The Final Pretrial Order contains no claim for conversion. (See generally ECF ...

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