Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DiPaulo v. Board of County Commissioners for County of Arapahoe

United States District Court, D. Colorado

March 2, 2016





This matter is before the Court on Defendants Board of County Commissioners for Arapahoe County, Arapahoe County Sheriff’s Office and Brian Starbuck’s Motion for Summary Judgment (ECF No. 38), filed on December 30, 2015. Defendants also filed a Motion to Dismiss (ECF No. 17) on May 7, 2015. Both motions are fully briefed.

By way of background, Plaintiff’s claims arise out of an incident on August 27, 2013, when the Plaintiff and the mother of his child both attempted to retrieve their child from day care at the Three Bears Learning Center in unincorporated Arapahoe County. The following facts are undisputed: Defendant Deputy Brian Starbuck (“Starbuck”) arrested Plaintiff for domestic violence and harassment based on interviews and statements provided to Starbuck by Defendants Santana (the child’s mother) and Rodriguez (the child’s maternal grandmother). Santana told Starbuck that in the parking lot outside the day care center, Plaintiff had pushed her, reached through her car door in an attempt to take the child, and had called her cell phone repeatedly after she left the day care center. Rodriguez told Starbuck that Plaintiff had threatened Santana and told the child that Santana would be beaten.

Starbuck approached Plaintiff at his domicile subsequent to his interviews with Santana and Rodriguez. Plaintiff told Starbuck that he was not supposed to pick up the child until 6:30 PM, that he had gotten into a verbal dispute with Santana, that he used foul language, and that he placed the child in his own car. Plaintiff denied touching Santana and claimed that she had attempted to push him. Plaintiff told Starbuck that he had called Santana a few times after she left the day care center.

At some point during Starbuck’s interaction with Plaintiff, Plaintiff suggested that Starbuck secure the surveillance video tape from the day care center. The parties dispute the timing of this request - Plaintiff claims it was prior to his arrest[1], Defendants claim it was after the arrest while Plaintiff was being transported to jail.

The following day, August 28, 2013, Starbuck went to the day care center and talked to an administrator about the existence of a surveillance camera. The administrator stated she could retrieve the camera footage, but had to first consult with the center’s information technology department. Starbuck left instructions with the administrator on how to get the video to the Sheriff’s office. The administrator contacted the Sheriff’s office a few days later, and on August 31, 2013, a deputy other than Starbuck retrieved it. The video was placed into evidence with the Sheriff’s Evidence Section on September 3, 2013.

On August 28, 2013, Plaintiff was arraigned and the court found probable cause for his arrest. Plaintiff was prosecuted on a domestic violence/harassment charge in Arapahoe County Court. Plaintiff was released on bond on August 29, 2013. On January 17, 2014, the District Attorney forwarded a records request to the Arapahoe County Sheriff’s Office (“ACSO”) Records Section for the booking photo and all photos associated with Plaintiff’s prosecution. The request did not seek the surveillance video. On January 25, 2014, the Records Section responded to the District Attorney’s request, noting that the booking photo had been emailed and that no other photos existed. On June 12, 2014, Plaintiff’s public defender requested a copy of the surveillance video. On June 16, 2014, a hearing was conducted in Plaintiff’s criminal case during which Plaintiff’s counsel examined Starbuck about the surveillance video. On June 17, 2014, ACSO provided a copy of the surveillance video to Plaintiff’s counsel. On July 16, 2014, the charges and prosecution against Plaintiff were dismissed because the District Attorney was unable to obtain the presence of Defendant Santana for trial.

On April 4, 2015, Plaintiff filed the instant case, asserting a claim under 42 U.S.C. § 1983. Plaintiff claims that Defendants failed to adequately document the surveillance video’s existence and storage, and “encouraged a custom of filling the forms inadequately without regard for the need to properly use adequate forms to prevent the loss of exculpatory evidence.” Compl., ¶ 34. As a result, Plaintiff claims that Defendants failed to timely retrieve and/or produce the video during the course of his prosecution. Id. Plaintiff also claims that the Board of County Commissioners and ACSO failed to sufficiently train and supervise their employees on the proper procedures for storing, retrieving, documenting, and producing exculpatory evidence, and that they encouraged a custom of inadequately filling out tracking forms regarding such evidence. Id. at ¶¶ 32-35. Plaintiff also claims that the Defendants failed to view the video before causing criminal proceedings against Plaintiff, or in the alternative, viewed the video and caused the proceedings to go forward despite knowing the video exonerated him. Id. at ¶ 34.

Defendants argue that there is an absence of facts and law to support a § 1983 claim against Defendants, and that Defendant Starbuck is entitled to qualified immunity.


Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the dispute under the applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). I must construe all inferences in favor of the party against whom the motion under consideration is made. Pirkheim v. First Unum Life Ins. Co., 229 F.3d 1008, 1010 (10th Cir. 2000). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).


A § 1983 claim requires a court to “isolate the precise constitutional violation” that is being alleged against a defendant. Baker v. McCollan, 443 U.S. 137, 140 (1979). As noted by Defendants, Plaintiff failed to specify in his Complaint on which constitutional provision his single § 1983 claim was based. I note that Plaintiff also failed to specify the basis for his claim in the Scheduling Order issued by Magistrate Judge Mix on August 5, 2015. In their motion to dismiss and in their motion for summary judgment, Defendants suggest that a claim based on a purported failure to produce or timely produce exculpatory evidence would fall under the Due Process Clause of the Fourteenth Amendment as a Brady violation, implicating Brady v. Maryland, 373 U.S. 83 (1963). However, both parties ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.