United States District Court, District of Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
Plaintiff Theresa Petekeiwicz, an allegedly blind and disabled woman as defined in the Americans with Disabilities Act (ECF No. 1, the “Complaint” at ¶¶ 10, 28), seeks to hold two police officers and the town of Castle Rock (“Castle Rock”) liable for the broken arm she sustained when police officers Terry Watts (“Watts”) and Troy Stembel (“Stembel”) detained her in order to undergo an emergency mental health evaluation. This matter is currently before the Court on three motions: Plaintiff’s motion to amend her Complaint (ECF No. 33); Defendants’ combined motion for partial summary judgment under Fed.R.Civ.P. 56. (ECF No. 37); and Defendants’ motion to strike certain exhibits submitted by Plaintiff in opposition to Defendants’ motion for partial summary judgment (ECF No. 40). With respect to Plaintiff’s motion to amend, U.S. Magistrate Judge Kristen L. Mix has issued a recommendation (ECF No. 44, the “Recommendation”) that the motion be denied and Plaintiff has submitted timely objections to the Recommendation. (ECF No. 40.)
For the reasons stated below, the Court AFFIRMS and ADOPTS the Recommendation, OVERRULES Plaintiff’s objections, and DENIES Plaintiff’s motion to amend the Complaint. The Court further GRANTS Defendants’ combined motion for partial summary judgment and DENIES Defendants’ motion to strike as moot.
I. LEGAL STANDARD
A. Review of the Magistrate Judge’s Recommendation
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” In conducting his review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the “district judge to focus attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).
B. 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. Lens.com, 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 her 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 [her].” 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).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts as recited below are based on adequate citations to the record which would be admissible at trial. The facts are recited in a light most favorable to the non-moving party.
On the morning of August 9, 2012, Watts and Stembel went to Plaintiff’s apartment after they received a report that Plaintiff had made suicidal statements to the receptionist at her church. (ECF No. 37-1, Petekiewicz Dep. at 91:1-15, ECF No. 37-4, Stembel Aff. at ¶ 3, ECF No. 37-5, Watts Aff. at ¶ 3.) Upon confronting Plaintiff about the report they received, Plaintiff acknowledged that she was “under a lot of stress” because she was in the process of moving. (ECF No. 37-1, Petekeiwicz Dep. at 92:20-25, 93:18-20) but also informed the officers that she was not suicidal and did not require their assistance. (Id. at 92:20-25, 93:24-94:5, 98:22-99:3.) As Plaintiff, Watts and Stembel discussed the report the officers received, Plaintiff became agitated and disagreed vehemently with the report as it was described by the officers to her. (Id. at 98:21 – 99:3.) Following several minutes of argument, Plaintiff attempted to end the conversation by entering her home and closing her door on the officers. (Id. at 99:19-23, 110:4; ECF No. 37-4, Stembel Aff. at ¶7; ECF No. 37-5, Watts Aff. at ¶7.) As Plaintiff moved to close the door on the officers, Watts placed his foot in the doorway and grabbed Plaintiff’s arm to draw her back outside from the threshold of the apartment. (ECF No. 1 at ¶22; ECF No. 37-1, Petekiewicz Dep. at 105:16-25; ECF No. 37-5, Watts Aff. at ¶¶6-7.) Plaintiff described at her deposition that Watts grabbed Plaintiff “gently” and, in her opinion, did not use excessive force. (ECF No. 37-1, Petekeiwicz Dep. at 106:13-16, 107:23-24, 108:10-23.) Plaintiff then began using foul language, referring to the officers as “devils” and cursing. (Id. at 109:3-110:7; ECF No. 37-4, Stembel Aff. at ¶6; ECF No. 37-5, Watts Aff. at ¶6; ECF No. 37-6, Canova Dep. at 44:20-45:7.) Stembel then performed an “arm bar takedown, ” grabbing Plaintiff by the arm, pushing her head forcibly to the ground and wrapping her arm behind her back to restrain her. (ECF No. 1 at ¶¶24-25; ECF No. 37-1, Petekeiwicz Dep. at 105:4-7, 106:18-23, 107:11-17; ECF No. 37-4, Stembel Aff. at ¶ 7; ECF No. 37-5, Watts Aff at ¶ 7.) During the course of the “takedown” performed by Stembel, Plaintiff sustained a fracture to her humerus in her left arm. (ECF No. 1 at ¶ 25, ECF No, 37-1, Petekeiwicz Dep. at 106:23.) Stembel placed Plaintiff in hand restraints with Watts’ assistance (ECF No. 37-4, Stembel Aff. at ¶ 8, ECF No. 37-5, Watts Aff. at ¶ 8), and she was taken for an emergency mental health evaluation.
Plaintiff filed her initial complaint on July 13, 2013, against Stembel, Watts, and Police Chief Jack Cauley (“Cauley”) in their official and personal capacities and also against Castle Rock alleging various state law and federal claims relating to the alleged excessive force Watts and Stembel used when they detained her. (ECF No. 1.) Pursuant to the Scheduling Order entered in this action, the parties have engaged in and completed discovery. (ECF No. 17.) The Scheduling Order also specifies December 23, 2013, as the deadline to amend pleadings. (Id. at 6.) However, through correspondence with Defendants’ counsel on May 19, 2014, it was brought to the attention of Plaintiff’s counsel that the Eighth Amendment claims she pleaded against Stembel and Watts did not apply to the facts of this case since the alleged excessive force occurred before Plaintiff was in custody. (ECF No. 36-1, May 19, 2014, Correspondence at 2.) As a result of that correspondence, Plaintiff filed a motion to amend her complaint and to change ...