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Chambers v. Mosness

United States District Court, D. Colorado

February 27, 2015

HEATH MOSNESS, EAGLE COUNTY DEPUTY SHERIFF, in his individual and official capacity, Defendant.


ROBERT E. BLACKBURN, District Judge.

The matter before is Defendant's Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 [#111], [1] filed December 1, 2014. I grant the motion.[2]


I have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).


Summary judgment is proper when there is no genuine dispute 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, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).


At the heart of this case is the interpretation of a protection order entered in connection with plaintiff's divorce[3] from Kimberly James. The protection order restrained plaintiff from contacting or coming within 50 yards of Ms. James. Although the no contact provision of the order applied only to "Plaintiff[s], " and Ms. James was the only named plaintiff, the order also awarded sole custody[4] of the couple's two children to Ms. James and provided plaintiff with "[n]o visitation unless ordered by [the] District Court." (Def. Motion App., Exh. E ¶ 4 at 2 [#111-5], filed December 1, 2014.) The protection order, which expressly expired on April 7, 2005, subsequently was incorporated into the parties' decree of dissolution of marriage, which was entered that same day:

Petitioner [Ms. James] is appointed residential custodian of the children and has total parenting time and full parental responsibility. Petitioner has the right to leave the state and the country with the children. Respondent [plaintiff] has no parenting time until application for parenting time is filed and heard by the Court. The Permanent Civil Protection Order from 05C38 (attached) is incorporated herein and remains in effect until modified by the Court upon proper application of the Respondent.

( Id, Exh. F at 2 (emphasis in original).) Plaintiff presents neither argument nor evidence suggesting that he ever made application to alter these terms or otherwise was allowed parenting time with the children. Nevertheless, while plaintiff was incarcerated from 2007 to 2011, [5] his case manager authorized him to write letters to the children. Likewise, after plaintiff was released, his case manager informed him that he could send gifts and letters to his children.

The events that gave rise to this lawsuit occurred on February 14, 2012, when plaintiff sent a dozen roses and a card to his daughter at her school for Valentine's Day. The assistant principal intercepted the flowers and alerted Ms. James, [6] who in turn contacted defendant, Deputy Sheriff Heath Mosness of the Eagle County Police Department. Ms. James told defendant that plaintiff was violating the protective order by attempting to contact his daughter. Reviewing a copy of the protection order in the Colorado Crime Information Center ("CCIC") database, [7] defendant informed Ms. James that it did not appear to him that the children were protected parties. According to defendant, Ms. James responded "that she has spoken with the courts to try to get the language changed and it hasn't happened." (Def. Motion App., Exh. B at 3 of 4 [#111-2], filed December 1, 2014.) Knowing that the CCIC database does not always reflect all information contained in the protection order, defendant told Ms. James that he would call the court to attempt to clarify the scope of the protection order.

The following day, defendant visited Jackie Cooper, Clerk of the District Court of Eagle County, Colorado. Ms. Cooper entered plaintiff's name into the court's computer database, Eclipse, which generated an entry showing that the protection order in fact did prohibit plaintiff from contacting his children. Because the information available to defendant from the CCIC database therefore appeared in conflict with the information in the court's Eclipse database, defendant asked Ms. Cooper to rectify the discrepancy. Ms. Cooper accordingly cancelled the original information in the Eclipse database and reentered it, after which the information available on the CCIC database likewise showed the children as protected parties.[8] According to Ms. Cooper, the information shown on her computer screen when she initially entered plaintiff's name was the same as the information she reentered into the system after cancelling the original order. At the same time, defendant also obtained a paper copy of the protection order and the decree of dissolution of marriage which incorporated it.

Based on all this information, defendant prepared a warrant affidavit, which he presented to an assistant district attorney for the Fifth Judicial District for her review and approval. After being thus vetted, the affidavit was presented to a magistrate judge, who found probable cause for the arrest issued an arrest warrant for plaintiff. ( See Def. Motion App., Exh. A [#111-1], filed December 1, 2014.) Nevertheless, following a hearing in January 2013, a judge found no probable cause for the arrest and dismissed the case. This lawsuit followed.[9] Herein, plaintiff alleges causes of action under 42 U.S.C. § 1983 for false arrest and malicious prosecution against defendant in his individual capacity, and an official capacity claim for failure to implement appropriate polices, and ...

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