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Mickelson v. Proctor

United States District Court, District of Colorado

January 12, 2015

GARY E. MICKELSON, Plaintiff,
v.
J. R. PROCTOR, and JOHN AND JANE DOE 1-100, Defendants.

ORDER

R. Brooke Jackson United States District Judge

This matter is before the Court on the December 9, 2014 Recommendation [ECF No. 30] of Magistrate Judge Craig B. Shaffer that the Court grant in part and deny in part the defendants’ motion for summary judgment (as converted from their motion to dismiss) [ECF No. 21]. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

BACKGROUND

A detailed summary of the procedural and factual background of this case was provided in the Recommendation. As a brief overview, Mr. Mickelson, who appears pro se, claims violations of his Fourth, Fifth, Eighth, Tenth, and Fourteenth Amendment rights, alleging that he suffered from an unlawful stop and detainment, unlawful arrest, excessive force and restraint used during the arrest, a conspiracy to violate his constitutional rights, and supervisory liability for discouraging him to seek redress. The defendants originally moved to dismiss the case claiming qualified immunity, though their motion was subsequently converted into a Rule 56 motion for summary judgment. Upon a thorough review, Judge Shaffer recommended that only the civil conspiracy claim be dismissed.

The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. The defendants filed a timely objection to the entire Recommendation excluding the recommended dismissal of the civil conspiracy claim [ECF No. 31]. The plaintiff did not file an objection. Upon de novo review, the Court finds that the motion for summary judgment should have been granted as to the claims of unlawful arrest and supervisory liability but that it was correctly denied with respect to the claims of unlawful stop and detainment and of excessive force and restraint. On clear error review, the Court affirms and adopts the dismissal of the civil conspiracy claim.

STANDARD OF REVIEW

Following the issuance of a magistrate judge’s recommendation on a dispositive matter, the district court judge must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). The district judge is permitted to “accept, reject, or modify the recommended disposition; receive further instruction; or return the matter to the magistrate with instructions.” Id. “In the absence of timely objection, the district court may review a magistrate . . . [judge’s] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)).

Because Mr. Mickelson is appearing pro se, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court may not act as the advocate of the pro se litigant, nor should it “supply additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

ANALYSIS

In response to the defendants’ timely filed objection, the Court determines de novo whether the unlawful stop and detainment, unlawful arrest, excessive force and restraint, and supervisory liability claims warrant judgment in favor of the defendant as a matter of law. The Court will address each in turn.

Unlawful Stop and Detainment

Unlawful Stop

The defendants argue that there is no genuine dispute of material fact surrounding the legality of the stop. The Court disagrees. Officer Proctor justified stopping Mr. Mickelson for failing to signal a left turn. See Proctor Aff. [ECF No. 28-1] ¶¶ 4–5; DUI Report [ECF No. 28-4] at 3. Mr. Mickelson has consistently maintained that he signaled his turn. The defendants now seek to undermine that testimony by claiming that Mr. Mickelson failed to properly signal the turn by pointing his arm at a 45 degree angle towards the left instead of extending it horizontally. [ECF No. 31 at 5]. Yet Officer Proctor has consistently stated that he stopped the plaintiff for failing to signal “either mechanically or by hand” a left hand turn, not for improper signaling. [ECF No. 28-1 ¶ 4]; see also [ECF No. 28-4 at 3].

The defendants also state that Mr. Mickelson failed to signal for a full 100 feet before making the turn. The defendants rely quite heavily (far too heavily in this Court’s opinion) on Mr. Michelson’s deposition testimony in which he claims that he signaled for about a second, which at 30 miles per hour would mean that he only signaled for the final 44 feet before the turn.[1] Yet even if the Court were to give this argument more weight than it deserves, the defendants do not explain how signaling for the final 44 feet is consistent with being pulled over for failing to signal. The question is whether any signal was given. And there is a ...


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