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Mickelson v. Proctor

United States District Court, D. Colorado

December 9, 2014

J.R. PROCTOR and JOHN AND JANE DOE 1-100, Defendants

Gary E. Mickelson, Plaintiff, Pro se, Cortez, CO.

For J.R. Proctor, John and Jane Doe 1-100, Defendant: Andrew Mutabaazi Katarikawe, Colorado Attorney General's Office, LEAD ATTORNEY, Denver, CO.


Craig B. Shaffer, United States Magistrate Judge.

This matter comes before the court on Defendants J.R. Proctor and John and Jane Does' (collectively " Defendants") Motion for Summary Judgment (doc. #21), filed on April 4, 2014.[1] This motion was referred to the Magistrate Judge pursuant to the Order of Reference dated May 22, 2013 (doc. #4) and Memorandum dated April 7, 2014 (doc. #22). This court has carefully considered the motion and related briefing, the entire case file, the comments offered by the parties during the August 26, 2013 Preliminary Scheduling Conference, October 28, 2013 Scheduling Conference, and July 24, 2014 Status Conference, and applicable case law. For the following reasons, I recommend that the Motion for Summary Judgment be denied except as to Plaintiff's claim for conspiracy.


Mr. Mickelson filed this lawsuit pursuant to 42 U.S.C. § 1983 as a pro se plaintiff claiming violations of his Fourth, Fifth, Eighth, Tenth, and Fourteenth Amendment rights premised on allegations of an unlawful stop and detainment, unlawful arrest, and excessive force used during the arrest. Plaintiff also claims Defendants were engaged in a conspiracy to violate his constitutional rights and that a John Doe Colorado State Patrolman is liable in his supervisory role for discouraging Plaintiff from seeking redress. Plaintiff seeks an unspecified amount of compensatory and punitive damages and costs and fees.

A 67 year old resident of Cortez, Colorado, Plaintiff visited a local bar on the night of May 18, 2012, for the purpose of exhibiting his vintage motorcycle at a car show hosted by the tavern. ( See Plaintiff's Response to Motion to Dismiss (Doc. #24) at p. 2). Three officers with the Colorado Department of Revenue's Liquor Enforcement Division were present at the bar that night acting in conjunction with three Colorado State Patrolmen who were parked outside of the bar. (Doc. #24 at p. 68). Plaintiff named Officer J.R. Proctor as a Defendant Patrolman, and designated a second Patrolman as Defendant John Doe 1. In his Response to Defendant's Motion to Dismiss, Plaintiff identified John Doe 1 as Sergeant Matt Ozanic.[2] (Doc. #24 at p. 3). Plaintiff, however, did not seek leave of court to substitute Sergeant Ozanic as John Doe 1, with the consequence that Ozanic has not been served and is not a party to this action. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (" a party not properly named in the caption of a complaint may still be properly before the court if the allegations in the body of the complaint make it plain the party is intended as a defendant; " however, no court may enter judgment against parties who " were not served notice of the lawsuit and are not properly before the court.").

Upon Plaintiff's leaving the bar, one of the Liquor Enforcement Officers alerted Ozanic and Proctor that a male fitting Plaintiff's description appeared intoxicated. ( See Affidavit of Defendant Proctor (Doc. #28-1) at ¶ 3). Ozanic, who was Defendant Proctor's supervisor, instructed Proctor to follow Plaintiff in his patrol car; Ozanic then joined the tail. (Doc. #24 at p. 3). Defendant Proctor was driving behind Plaintiff as Plaintiff approached a local intersection. The vintage motorcycle that Plaintiff was driving did not have turn signal indicators, thus Plaintiff signaled by hand his intent to make a left-hand turn and stopped at the intersection before proceeding with the turn. Defendant Proctor activated his emergency lights as he followed Plaintiff through the intersection, and Plaintiff responded by slowing to a stop on the shoulder of the road. Plaintiff alleges he was aware of the law enforcement presence both within and without the tavern that night, and deliberately drove his motorcycle at or under the speed limit and observed the traffic laws after he left the bar.

Proctor stated the reason for haling Plaintiff was his failure to signal the turn. ( See Doc. #28-1 at ¶ ¶ 4-5). Proctor claims that upon approaching Mickelson on foot, he noted " a moderate odor of an unknown alcoholic beverage on his breath and [that] his eyes appeared to be bloodshot and watery and his speech was slow." (Doc. #28-1 at ¶ 5). Proctor attested in his affidavit that he asked Plaintiff if he had consumed alcohol, to which " [Plaintiff] stated that he had four drinks earlier, but had stopped." Id. Mickelson disputes that he told Proctor he had consumed four beverages. ( See Plaintiff's Supplemental Brief (Doc. #29) at pp. 6-7 n.2). Proctor then asked for Mickelson's driver's license, vehicle registration, and proof of insurance, during which Ozanic arrived in his patrol car. (Doc. #28-1 at ¶ 6). Proctor instructed Mickelson to perform a field sobriety test and noted before they began that Mickelson was " unsteady" on his feet, prompting him to ask if Mickelson was disabled in any way that would interfere with his ability to perform the field sobriety test. (Doc. #28-1 at ¶ 7). Mickelson alleges he told Proctor in Ozanic's presence that his only disability was being " old and hard of hearing." (Doc. #24 at p. 4). Mickelson alleges he complied with Proctor's instruction to count backward from fifty-seven to forty-seven, but that Proctor arrested him for suspicion of driving under the influence because Proctor claimed the instruction was to count backward to forty-three.

Upon arrest, Proctor asked Mickelson to place his hands behind his back. Mickelson attempted to comply but found that his hands could not touch behind him. Mickelson alleges that Proctor then " violently jerked his left arm backward" and " pushed [his hands] together and handcuffed [him]." (First Amended Complaint (Doc. #13) at p. 4; Doc. #24 at pp. 45-46, TR:48:22-4).[3] Mickelson testified that he felt pain in his upper left back and shoulder immediately upon being handcuffed, and exclaimed, " That hurts me. Could you put [the handcuffs] in the front?" (Doc. #24 at pp. 46, 47, TR:49:1-4, 50:1-4).[4] Proctor escorted Plaintiff to the backseat of the patrol car without responding. Mickelson testified that while sitting in the car the pain escalated to the point that he began to cry. (Doc. #24 at p. 48, TR:50:8-18, TR:51:10-14). The small interior of the backseat required him to sit sideways, and he felt the sensation of a " really bad cramp" in the left side of his upper back and shoulder. (Doc. #24 at p.48, TR:51:12-22). Mickelson expressed to Proctor again that he was hurting and asked that the handcuffs be repositioned. Proctor responded that " the rules" prevented him from adjusting the handcuffs." (Doc. #24 at pp. 48-49, TR:51:23-52:4).[5] Mickelson alleges he waited in the backseat of the patrol car for approximately thirty minutes before being driven to the Cortez Police Department. ( See Doc. #13 at p. 4; Doc #24 at p. 51, TR:54:4-12).

Proctor first drove Mickelson to the Police Department, which was one quarter mile from the arrest site. Mickelson alleges that throughout the experience he complained approximately ten times about the pain caused by the handcuffs ( See Doc. #24 at p. 49, TR:52:12-13). Mickelson further alleges that when they reached the Police Department, Proctor responded to the complaints with, " [t]hat's my job, " to which Plaintiff retorted, " [y]our job sucks." (Doc. #24 at p. 50, TR:53:3-4). Proctor then stated, " Okay, that does it. I'm not going to take you here to the police station for your test, I'm going to take you to the Sheriff's Office." (Doc. #24 at p. 50, TR:53:9-11). Mickelson alleges that he and Proctor then sat in the patrol car in front of the Police Department for five or ten minutes before Proctor drove Mickelson to the Sheriff's Office. ( See Doc. #24 at p. 55, TR:58:3-11). Plaintiff alleges that during that time, he sat in the backseat of the patrol car crying due to the pain. Id. Proctor drove Mickelson another quarter mile to the Sheriff's Office, where they waited for approximately five minutes in the patrol car. After entering the station, Proctor re-cuffed Mickelson's hands in front of him and Mickelson waited approximately thirty minutes on a bench before Proctor administered two breathalyzer tests. Mickelson states that the pain in his left shoulder and back disappeared during this time. ( See Doc. #28-5 at pp. 17-18, TR:60:18-61:3, 61:20-63:2). Both tests demonstrated that Plaintiff had a blood alcohol content of .008, well under the legal limit. See C.R.S. § 42-4-1301(2)(a). Proctor removed the handcuffs after the second test and drove Mickelson to retrieve his motorcycle without issuing a charge or ticket.

Mickelson alleges he could " hardly move his arm" when he awoke the following morning, and the pain persisted after that. (Doc. #24 at p. 52, TR:55:2-5). Approximately one week after the incident Plaintiff traveled to Phoenix, Arizona to see his doctor at the Veterans Affairs Hospital and was treated by his doctor's assistant because he arrived without an appointment. The assistant advised that she would speak with the doctor about the reported pain, and Plaintiff received 800-miligram Tylenol in the mail from the VA two days later with instructions to take eight per day. (Doc. #24 at p. 5; p. 52, TR:55:3-25). Sometime in June 2012 Mickelson fainted, purportedly from ingesting too much Tylenol, and was transported to John C. Lincoln Hospital in Phoenix where doctors administered an MRI. Plaintiff learned from reading the MRI results that he had a full thickness tear of his left supraspinatus tendon. (Doc. #24 at p. 53, TR:1-11, 75:7-15). In January 2014, Mickelson visited Dr. Jennifer Forrest, an orthopedic surgeon in Durango, Colorado, and learned that he had waited too long to repair the tear. (Doc. #24 at p. 64, TR:74:25-75:6; Doc. #28-5 at p. 22). Plaintiff suffers from persistent pain in his left exterior shoulder, which wakes him four to five times per night. ( See Doc. #24 at p. 74, TR:1-8, 18-23). He has also lost approximately twenty pounds of muscle and his " left side" has atrophied from lack of use. Id.

On June 7, 2014, Plaintiff attempted to report his injury and lodge a complaint with Proctor and Ozanic's supervisor, " John Doe 2, " at the Durango office of the Colorado State Patrol (" CSP"). (Doc. #28-5 at p. 19, TR:69:1-16). Plaintiff claims John Doe 2 refused to lodge the complaint or report the injury, stating that he had reviewed the incident and believed that Proctor and Ozanic had acted in accordance with CSP policies and procedures. ( See Doc. #13 at pp. 5-6; Doc. #28-5 at p. 20, TR:70:10-71:2, 72:4-7, 72:25-73:5). In his Response to Defendant's Motion to Dismiss, Plaintiff identified Captain Martin Petrik as John Doe 2. As is the case with Ozanic, Plaintiff did not seek leave of court to substitute Petrik as John Doe 2. Petrik has not been served and is not before this court.


Defendant Proctor waived service on June 13, 2013 and CSP waived service on June 21, 2013. (Doc. #5 and #7). On August 23, 2013, Plaintiff filed a Motion for Entry of Default (doc. #10). The Clerk declined to enter default because Plaintiff's Motion did not include the Fed.R.Civ.P. 55 affidavit. (Doc. #11). This court held a Preliminary Scheduling Conference on August 26, 2013, during which the undersigned explained to Plaintiff the necessity of pleading specific statements of facts rather than conclusions of fact, and the parties discussed Plaintiff's Motion for Entry of Default. (Doc. #12). On September 6, 2013, Plaintiff filed an Amended Complaint narrowing his claims to violations of the Fourth and Fourteenth Amendments and omitting CSP from the lawsuit. (Doc. #13). Defendant Proctor filed an Answer to the Amended Complaint on September 20, 2013 (doc. #15).

This court held a Scheduling Conference on October 28, 2013, at which Plaintiff proposed filing a Second Amended Complaint and requested 120 days to complete discovery, and the undersigned entered dates for the completion of discovery, filing of dispositive motions, and a Final Pretrial Conference. (Doc. #17).

Defendant Proctor filed a Motion to Dismiss on April 4, 2014 (doc. #21). Plaintiff filed his Response to Defendant's Motion to Dismiss on May 6, 2014, in which he included material outside of the pleadings and asked the court to convert Defendant's Motion to Dismiss into a Motion for Summary Judgment (doc. #24). Defendant filed a Reply in support of his Motion to Dismiss on May 20, 2014 (doc. #25). This court held a Status Conference in lieu of a Final Pretrial Conference on July 24, 2014, at which the undersigned converted Defendant's Motion to Dismiss into a Motion for Summary Judgment and directed Defendant to file supplemental briefing by August 25, 2014. (Doc. #27). Defendant filed his supplemental brief on time (doc. #28), and Plaintiff filed a response on September 24, 2014 (doc. #29).


Summary judgment is appropriate only if " the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). " A 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 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 conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). 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 party could return a verdict for either party. Anderson, 477 U.S. at 248. " Where the record taken as a ...

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