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Profita v. Puckett

United States District Court, D. Colorado

April 25, 2017

TAYLOR PROFITA, Plaintiff,
v.
CHRIS PUCKETT, in his capacity as an individual, and JOHN AND JANE DOES 1 THROUGH 100 in their capacities as individuals, Defendants.

          RECOMMENDATIONS AND ORDERS ON PENDING MOTIONS

          Craig B. Shaffer United States Magistrate Judge.

         This matter comes before the court for consideration of the following motions: (1) Defendant Chris Puckett's Motion for Summary Judgment (doc. # 93), and (2) Plaintiff Taylor Profita's Motion for Summary Judgment (doc. # 95). These motions were referred to this Magistrate Judge for findings of fact and recommendations pursuant to a memorandum dated February 6, 2017, and both are fully briefed.[1] The court has carefully considered the parties' briefs and attached exhibits, and the entire case file. I also have spent considerable time conducting my own legal research. For the sake of simplicity, these Recommendations will address the summary judgment motions in the order in which they were filed.

         Also pending before the court are the following referred motions: (3) Plaintiff Profita's Motion to Quash Subpoenas (doc. #81); (4) Plaintiff Profita's Motion for Immediate Recusal of Magistrate Judge (doc. # 127); and (5) Plaintiff Profita's Motion to Stay Proceedings Related to Defendant's Motion for Summary Judgment (doc. #127). Plaintiffs Motion to Quash addresses subpoenas directed to health care providers who have treated Mr. Profita in the past. After this motion was fully briefed, I elected to defer my ruling pending the disposition of the parties' motions for summary judgment. I concluded that it would be wholly inappropriate to burden non-parties with the obligations of discovery if the requested information might prove to be wholly superfluous. Mr. Profita and defense counsel agreed with that assessment during a discovery conference on February 10, 2017. See doc. #101.

         Plaintiffs motion to recuse and motion to stay proceedings were referred to this court in an Order (doc. #135) issued by the district court on April 20, 2017. For reasons that will be explained below, I do not believe these two motions require further briefing.

         PROCEDURAL BACKGROUND

         Mr. Profita, a former student at the University of Colorado School of Medicine, filed his pro se Complaint[2] on June 11, 2015, alleging three claims for relief: (1) "false police report and false report of a lawful exclusion of Profita from the Anschutz Medical Campus;" (2) "the unlawful issuance of an allegedly exclusionary order issued in violation of Profita's Due Process rights;" and (3) "the unlawful prohibition of Profita from contact with public employees and officials from the University of Colorado and the University of Colorado School of Medicine." In sum, Plaintiff asserts that he has property and liberty interests and rights "to be present on campus" and "in working with, interacting and corresponding [with] public officials, colleagues and staff at the Anschutz Medical Campus, the University of Colorado School of Medicine and affiliated programs." Mr. Profita contends that the "unlawful issuance of an exclusionary order and the arbitrary prohibition of conduct" deprived him of the aforementioned constitutional rights without due process. The Complaint names as defendants Chris Puckett in his individual capacity, and John and Jane Does 1 through 100 in their individual capacities.[3] Defendant Puckett filed an Answer (doc. #14) on July 27, 2015. After the close of discovery on December 16, 2016, the parties filed the motions for summary judgment that are the subject of this Recommendation.

         ANALYSIS

         I. Defendant's Motion for Summary Judgment

         "Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the [materials in the record, including] . . . 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." Montgomery v. Bd. of County Comm 'rs, 637 F.Supp.2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted); Fed.R.Civ.P. 56(a).

         The burden of persuasion under Rule 56 requires the moving party to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact, given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A fact is "material" if under the substantive law it could have an effect on the outcome of the lawsuit. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). While the moving party bears the initial burden of showing that there is an absence of any issues of material fact, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not negate the non-movant's claim. See John HancockMut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Once the moving party points to an absence of evidence to support the non-moving party's claim, the non-moving party may not rest upon his pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. See Fed. R. Civ. P. 56(e). See also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).

         To defeat a defendant's properly supported motion for summary judgment, there must be evidence upon which the jury could reasonably find for the plaintiff. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'"). Conclusory allegations alone will not create a genuine issue of material fact necessitating trial. Dobsonv. City & Cty. of Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999), aff'd, 13 F.App'x 842 (10th Cir. 2001). Cf Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990), rehearing denied (Jan. 29, 1991) ("conclusory allegations without specific supporting facts have no probative value"). Similarly, evidence that is not significantly probative and immaterial factual disputes will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo. 1998), aff'd, 185 F.3d 873 (10th Cir. 1999). The demonstration of "some metaphysical doubt as to the material facts" is not sufficient to establish a genuine issue of material fact. Forman v. Richmond Police Dep 't, 104 F.3d 950, 957 (7th Cir. 1997) (quoting Matsushita, 475 U.S. at 586).

         After construing the factual record and drawing all reasonable inferences therefrom in the light most favorable to the non-moving party, Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996), rehearing denied (Sep. 5, 1996), the court ultimately must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. "The very purpose of a summary judgment action is to determine whether trial is necessary." White v. York lnt'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).

         In addressing the pending motions and related briefs, I recognize that "a pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings." Hall, 935 F.2d at 1110 n. 3 (citations omitted). "[S]uch liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiffs use of legal terminology and proper English." Smith v. Krieger, 643 F.Supp.2d 1274, 1279 (D. Colo. 2009) (citation omitted). The court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008).

         A. The Undisputed Facts

         In addressing a motion for summary judgment, the court's initial focus must be on those facts that "cannot be or [are] genuinely disputed" as evidenced by citations to "particular parts of materials in the record." See Fed. R. Civ. P. 56(c). After carefully reviewing the exhibits proffered by the parties in connection with briefing the competing motions for summary judgment, the following facts and/or events appear to be undisputed.[4]

         In 2012, Mr. Profita was a third-year medical student at the University of Colorado School of Medicine. In August 2012, he commenced apro se civil action in the District Court for Adams County, Colorado asserting claims against the University of Colorado School of Medicine for breach of contract and promissory estoppel, and requesting permanent injunctive relief[5] By the time Mr. Profita's case proceeded to a three-day bench trial on May 6-8, 2013, he had been dismissed from the School of Medicine based upon failing grades in his "Hospitalized Adult Care" clinical rotation and Women's Care rotation.[6] On May 14, 2013, the Adams County District Court entered judgment "in favor of the defendant University of Colorado School of Medicine and against plaintiff Taylor Profita."[7] See Exhibit C (doc. #93-3), attached to Defendant's Motion for Summary Judgment.[8] In particular, the Adams County District Court found that Mr. Profita had not established all of the essential elements of his breach of contract and promissory estoppel claims. The court further found that "[r]estoring Mr. Profita to medical school would adversely affect the public interest." Id. On August 28, 2014, the Colorado Court of Appeals affirmed the judgment against Mr. Profita. See Profita v. Univ. of Colo. Sch. of Medicine, No.l3CA1095, 2014 WL 4248613 (Colo.App. Aug. 28, 2014) and Exhibit D (doc. #93-4), attached to Defendant's Motion for Summary Judgment. Mr. Profita's petition for writ of certiorari was denied by the Colorado Supreme Court on April 30, 2015. See Profita v. Univ. of Colo. Sch. of Medicine, No.l4SC824, 2015 WL 1812936 (Colo. Apr. 20, 2015).

         On May 16, 2013, Defendant Puckett, in his capacity as Senior Assistant University Counsel, sent Mr. Profita an email[9] reminding him that:

because you are no longer a student you are not to be on campus except if/when you are receiving medical care and treatment. You are not to contact any of the faculty involved in person, mail, or by e-mail. If you need to contact anyone with a question or issue with the University, other than for medical care/treatment, please work through me or David Temple. If you violate either of these conditions, then the University may proceed to formally exclude you from campus.

See Exhibit 14 (doc. 95-14), attached to Plaintiffs Motion for Summary Judgment.[10] See also Exhibit E (doc. #93-5), attached to Defendant's Motion for Summary Judgment.

         Mr. Profita visited the Anschutz Medical Campus on June 12, 2013, and was seen by Defendant Puckett entering Building 500.[11] Mr. Puckett was aware that "[d]uring the Adams County litigation, some faculty and administration felt concerned about Plaintiffs conduct and had concerns about their personal safety due to Plaintiffs behavior before and during the litigation." In the aftermath of the state court litigation, Mr. Puckett had been "asked by School of Medicine faculty and administration to direct Plaintiff not to contact them; and for Plaintiff to restrict his visits to campus for medical or psychiatric treatment only." See Exhibit B (doc. #93-2), attached to Defendant's Motion for Summary Judgment.[12]

         Defendant Puckett does not dispute that on June 12, 2013, he contacted the University Police Department to report his observations and advise the University Police that Mr. Profita was not permitted on campus except for medical reasons.[13] Id. An official report described officers' contact with Mr. Profita later that same day.

I observed Mr. Profita walking west on the sidewalk along the south side of 19thAvenue, adjacent to building 500. I contacted Mr. Profita as he walked west crossing the driveway to the RC1N loading dock. I first got his attention from behind when I said "sir" and he turned and looked at me. I asked if his name was Taylor and he said yes. I requested that he step back away from the sidewalk's path, south to the driveway (as to not impede pedestrian traffic so I could speak with him about his presence at the campus). He asked why he was stopped. I asked him his reason for being on campus. He stated he had a meeting. I told him I was told he was not be on campus unless for medical reason, and he replied that's not true, and that he was in a meeting with Dr. Lynn Fenton.[14] I contacted Chief Abraham and he verified this. Mr. Profita was asked in the future to have Dr. Fenton contact the police to let us know when he would be coming to a meeting and he also could do the same, and if someone called in reported seeing him, we would not need to look for him to inquire why he was here. Mr. Profita asked who reported him and at that time I was not aware who called dispatch to report him, but suggested he contact police records to obtain that information.[15]

See Exhibit 4 (doc. #95-4), attached to Plaintiffs Motion for Summary Judgment. See also Exhibit 12 (doc. #107-12), attached to Plaintiffs Response to Defendant's Motion for Summary Judgment. Mr. Profita apparently ended this contact with police by walking away. There is no indication that Plaintiff was arrested on June 12, 2013.

         On June 12, 2013 at 3:33 p.m., Mr. Profita sent Mr. Puckett an email alluding to that day's events. Mr. Profita referred to "the false police report filed today concerning my rights of access to the campus and the subsequent assault by the police officers that were involved when I attempted to deny their unlawful search and detainment is a violation of my rights." Mr. Profita stated that he would be sending "out tomorrow" a "formal letter . . . of notification of intent to sue" and would be seeking damages "on this issue." Mr. Profita further advised Mr. Puckett that he "will not honor the schools (sic) request to remain away from campus." See Exhibit 15 (doc. # 95-15), attached to Plaintiffs Motion for Summary Judgment. Plaintiff sent another email to Mr. Puckett later that same day, reiterating his belief that neither Mr. Puckett "nor the university have a right to arbitrarily exclude me from campus. The campus is open to the public and the public has free access to it." See Exhibit 12 (doc. # 95-12), attached to Plaintiffs Motion for Summary Judgment.

         Mr. Puckett responded by sending Mr. Profita an email on June 13, 2013 at 9:40 a.m.. As Mr. Puckett recounted the circumstances of the day before:

Yesterday I informed the police that I saw you entering Building 500 wearing a jacket in 90 degree weather. As you know, you are not to be on campus except for medical care, which apparently you were (see the attached e-mail). My understanding is that the police contacted you. If you have concerns about the police contact/conduct, you are welcome to file a complaint with them that will be investigated.

Id.

         It also appears that on June 13, 2013, Mr. Profita went to the University Police Department where he submitted a Colorado Denver Police Department Complaint Form and spoke with Sergeant Deana LoSasso. As summarized in a June 13, 2013 letter signed by Doug Abraham, the University of Colorado Denver Chief of Police, Mr. Profita's "detailed account of the occurrence . . . focuse[d] on several issues:"

• The individual that called the Police Department on June 13, 2013[16] made a false report;
• There are several false reports pertaining to your evaluations and conduct as a student and that this information was transmitted among other members of the University; [and]
• That these reports and comments constitute slander, libel and perjury.

See Exhibit H (doc. #93-8), attached to Defendant's Motion for Summary Judgment. As for Mr. Profita's first concern, Chief Abraham advised that

The individual that called the Police Department on June 13, 2013 was Chris Puckett who observed you enter a building on campus in 95 degree heat wearing a leather jacket. Mr. Puckett was aware that you had been notified that your presence in any University building was limited to medical treatment only. As such his call to the Police Department was with foundation and, in fact, firsthand information. There is no probable cause in support of violation of Colorado Revised Statute.

Id. In the same letter, Chief Abraham wrote:

I want to reiterate what you have been informed via email and in person by Sergeant LoSasso.
You are no longer a student and are not be on the Anschutz Medical Campus except if/when you are receiving medical care and treatment. You are not to contact any of the faculty in person, mail or by email
By your admission, you have acknowledged receipt of the email from Chris Puckett advising you of these conditions. You also acknowledged by your statement to Sergeant LoSasso that you were in the School of Medicine' Dean's Office. This is not complying with the direction provided by the University.
Sergeant LoSasso has documented her verbal statement to you regarding these conditions. Your belief that you have a right to be on the campus is erroneous and any further violations may result in a formal exclusion from the campus, the issuance of a summons for trespass or your arrest.

Id.

         Plaintiff sent a lengthy email to Mr. Puckett on June 14, 2013 at 1:14 p.m., addressing the "interesting position" existing between Mr. Profita and the University of Colorado Denver.

The first will be my presence on the University campus. To date, aside from your request, I have received no official notification of a hearing and determination made as to limit my access to the campus. If there has been one, I would request to immediately appeal, as I do, as one who is in the process of studying medicine, have interest in the facilities and interest in contact with those with whom I have worked. I pose no threat to the campus and have done nothing but pursue litigation against the school, which does not pose a threat in any way. As such, I would ask 1) if a formal decision has been made concerning my restriction from the campus, when that restriction was made and the basis upon which it was predicated, and if so, how the University would like me to handle such an appeal of the decision.
Secondly, I am granted the right to reapply to the school of medicine, and as such do need to have contact with staff and faculty. . . . Further, for other endeavors, I would like to and believe I have the right to attain letters of recommendation and advice from the faculty with whom I have worked. As such, the blanket prohibition against my contacting the faculty and staff is in direct contrast with my stated rights as defined by the University. As such, I would ask how you would propose these be reconciled.

See Exhibit 23 (doc. #107-23), attached to Plaintiffs Response to Defendant's Motion for Summary Judgment, and Exhibit 18 (doc. #95-18), attached to Plaintiffs Motion for Summary Judgment.

         Further communication between Mr. Profita and Mr. Puckett followed. In a letter dated June 19, 2013, Mr. Puckett wrote to Mr. Profita regarding the "Exclusion Order." As Mr. Puckett set forth his view of the salient circumstances:

On May 16, 2013, you were instructed not to be on campus except for the purpose of medical care and treatment. You violated this restriction on June 12, 2013, by visiting the School of Medicine Dean's Office. As a member of the public, you have no "right" to be on campus. Although the University of Colorado is a public institution of higher education, the University may still restrict who has access to its buildings and properties.
Given your disregard for the guidelines set in place on May 16, 2013, the Chief of Police will be issuing you a formal Level I exclusion order[17] in accordance with University policy. See Attached Policy. As a condition of your Level I exclusion you will be required to notify the [Anschutz Medical Campus] Police Department any time you plan to come to campus for medical treatment. Again, the only reason you should be on campus is for medical treatment and you are restricted from requesting meeting with any campus official, unrelated to your medical care.
If you do not abide by these requirements, the Police Department may issue a Level II or III exclusion and/or pursue criminal trespass charges.
In response to your request to meet with Dean Krugman or Associate Dean Garrity, your request is denied. As you know, you may reapply to medical schools through EMCEES. Please continue to direct your communications to me or David Temple if you desire to contact anyone within the University.

See Exhibit 17 (doc. #107-17), attached to Plaintiffs Response to Defendant's Motion for Summary Judgment, and Exhibit 13 (doc. #95-13), attached to Plaintiffs Motion for Summary Judgment.

         On June 24, 2013, Mr. Profita was personally served with a Level I Warning/Exclusion[18] by the University of Colorado Denver Police Department. That document advised Mr. Profita that his

presence on campus presents a concern to the campus community and is disruptive. To wit: you have been previously advised that you are not to be on the Anschutz Medical Campus except if/when you are receiving medical care and treatment. You have violated that condition by visiting the Dean's office. As a requirement of this Level I exclusion, you will be obligated to notify the [Anschutz Medical Campus] Police Department. . . any time you plan to come to campus for medical treatment. You will traverse directly to and from your provider. You are also advised that you are not to contact any of the faculty in person, by phone, by mail, or by e-mail.

         The Level I Warning/Exclusion also informed Mr. Profita that "further violations by you, may result in your exclusion from campus as directed by the Chancellor of the University of Colorado Denver or his or her designees." See Exhibit K (doc. # 93-11), attached to Defendant's Motion for Summary Judgment; Exhibit 22 (doc. #107-22), attached to Plaintiffs Response to Defendant's Motion for Summary Judgment; and Exhibit 10 (doc. # 95-10), attached to Plaintiffs Motion for Summary Judgment. See also Exhibit 2 (doc. #95-2), attached to Plaintiffs Motion for Summary Judgment.

         On July 8, 2013, Chief Abraham rescinded the Level I Warning/Exclusion issued to Mr. Profita on June 24, 2013. However, Chief Abraham directed Plaintiff to communicate with Mr. Puckett should Mr. Profita wish to contact University employees "regarding your application" to the Medical School.[19] See Exhibit M (doc. # 93-13), attached to Defendant's Motion for Summary Judgment, and Exhibit 16 (doc. #95-16), attached to Plaintiffs Motion for Summary Judgment.

         B. The Defense of Qualified Immunity

         Mr. Profita has invoked the court's subject matter jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983, asserting that his claims arise "under the Constitution, laws, or treaties of the United States." Section 1983 creates a cause of action where a "person . . . under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution." Section 1983 does not create any substantive rights; rather, it creates a remedy for violations of rights secured by federal statutory and constitutional law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 616-618 (1979). See also S. Disposal, Inc. v. Texas Waste Mgmt, 161 F.3d. 1259, 1265 (10th Cir. 1998) ("In order to successfully state a cause of action under section 1983, [plaintiff] must allege . . . the deprivation of a federal right[.]"). In short, to establish a claim under § 1983, Mr. Profita must plausibly demonstrate that he was deprived of a right secured by the Constitution or laws of the United States.

         In this case, Mr. Puckett has invoked the doctrine of qualified immunity, which "is an affirmative defense to a section 1983 action." Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). "The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Toevs v. Reid, 685 F.3d 903, 909 (10th Cir. 2012) (internal quotation marks and citations omitted). Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

         "When the defense of qualified immunity is raised in a summary judgment motion, we apply special rules to determine whether the motion was properly granted or denied." Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004) (internal quotation marks and citation omitted). See also Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009) (the court's review of summary judgment "in the qualified immunity context differs from that applicable to review of other summary judgment decisions."). "After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, " who must meet a two-part test before the defendant will bear the traditional burden of a movant for summary judgment under Rule 56(c). Holland ex rel. Overdorffv. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (internal quotation marks and citation omitted).

Specifically, [t]he plaintiff initially bears a heavy two-part burden [and] must show (1) that the defendant's actions violated a constitutional. . . right, and (2) that the right allegedly violated [was] clearly established at the time of the conduct at issue. Unless the plaintiff carries [his] twofold burden, the defendant prevails.

Reynolds, 370 F.3d at 1030 (internal quotation marks and citations omitted). See also Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) ("If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment - showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.") (internal quotation marks omitted). "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks omitted).

         For purposes of the qualified immunity doctrine, "[t]he 'clearly established' inquiry examines whether the contours of the constitutional right were so well-settled, in the particular circumstances presented, that 'every reasonable [state] official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012). Stated differently, "the salient question ... is whether the state of the law at the time of [the] incident provided 'fair warning'" to defendants that their alleged conduct was unconstitutional. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014) (quoting Hope v. Peter, 536 U.S. 730, 741 (2002)).

For the law to be "clearly established, " there ordinarily must be a Supreme Court or Tenth Circuit opinion on point, or the clearly established weight of authority from other circuits must point in one direction. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law, the unlawfulness must be apparent."

Pompeo v. Bd. of Regents of the Univ. of New Mexico, 852 F.3d 973, No. 15-2179, 2017 WL 1149501, at *5 (10th Cir. Mar. 28, 2017) (internal citations omitted). "Although plaintiff can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question 'beyond debate." Garcia v. Escalante, ___ F.App'x ___, No. 15-2058, 2017 WL 443610, at *4 (10th Cir. Feb. 2, 2017)("The dispositive question is 'whether the violative nature of the particular conduct is clearly established.'") (internal quotation marks omitted). There must be "a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994) (internal quotation marks and citations omitted).[20]

         C. Plaintiffs First Claim for Relief

         Mr. Profita's first claim is predicated on the events of June 12, 2013 and "The False Police Report and False Report of a Lawful Exclusion of Profita from the Anschutz Medical Campus." In support of this claim, Plaintiff alleges that at all relevant times, he had a constitutionally protected liberty and property interest and right "in receiving medical care at the Anschutz Medical Campus, " "having access to the public and medical facilities provided, housed and hosted" there, as well as "having access to the public and open grounds open to and readily available to the general public." See Complaint, at ¶¶ 55-58. The first claim asserts that Mr. Puckett's "false report to the University Police" deprived Mr. Profita of these property and liberty interests without due process in violation of the Fourteenth Amendment and his "Fourth Amendment protections against unlawful searches and seizures." See Complaint, at ¶¶ 64-66. Defendant Puckett argues, in his motion for summary judgment, that Plaintiffs first claim fails as a matter of law because he did not submit a false report on June 12, 2013 and because Mr. Profita has not sustained his "heavy burden" under the doctrine of qualified immunity.

         There is no evidence in the record to suggest that Mr. Profita was formally arrested on June 12, 2013. That conclusion, however, does not end the court's Fourth Amendment analysis.

         An investigative detention occurs when an officer stops and briefly detains a

person "in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be "reasonable" under the Fourth Amendment. First, the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Second, the investigative detention that follows the stop must be "reasonably related in scope to the circumstances" which justified the stop in the first place, because the Fourth Amendment imposes "limitations on both the length of the detention and the manner in which it is carried out." * * * "For reasonable suspicion to exist, an officer 'need not rule out the possibility of innocent conduct;' he or she simply must possess 'some minimal level of objective justification' for making the stop." Information "falling 'considerably short' of a preponderance standard" will meet the standard for reasonable suspicion. ... An officer may "stop and frisk" an individual under the Fourth Amendment if a reasonably prudent person "in the circumstances would be warranted in the belief that his safety or that of others was in danger."

J.H. ex rel. J.P. v. Bernalillo Cty., 61 F.Supp.3d 1085, 1143-44 (D.N.M. 2014) (internal citations omitted). Mr. Profita contends that after being approached by University police officers on June 12, 2013, he was grabbed, his arms were "wrenched, " he was placed against a wall and searched by one officer as another officer restrained his arms. See Exhibit I (Deposition Transcript of Taylor Profita, at pp. 104:14-25 and 105:1-25), attached to Defendant's Response to Plaintiffs Motion for Summary Judgment.

         None of the foregoing facts are reflected in the corresponding police report. See Exhibit 4 (doc. #95-4), attached to Plaintiff s Motion for Summary Judgment. But for purposes of Defendant's motion, I must construe the facts in a light most favorable to Mr. Profita, the non-moving party. Nevertheless, Plaintiff cannot prevail on his Fourth Amendment claim if Defendant Puckett did not personally participate in that alleged constitutional violation.

         As the Tenth Circuit acknowledged in Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997), "[i]ndividual liability under § 1983 must be based on personal involvement in the alleged constitutional violation;" state officials are only liable for their own misconduct. "To establish personal liability, a plaintiff must show that the [named defendant] caused the deprivation of a federal right." Nasious v. Colorado, No. 09-cv-01051-ZLW-KMT, 2011 WL 721255, at *4 (D. Colo. Jan. 10, 2011) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)), rec. and report adopted, 2011 WL 798857 (D. Colo. Feb. 22, 2011). Alternatively, a plaintiff can establish the required causal connection by showing that the defendant "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of [his] constitutional rights." Poolaw v. Marcantel, 565 F.3d 721, 732-33 (10th Cir. 2009). "[A] defendant may be liable if a plaintiff can show that an 'affirmative link exists between the [constitutional] deprivation and either the [officer's] personal participation, his exercise of control or direction, or his failure to supervise." Id. at 733.

         To the extent that Mr. Profita is alleging that Defendant Puckett violated his Fourth Amendment rights on June 12, 2013, 1 conclude that portion of the first claim for relief must fail. Mr. Profita has not come forward with any evidence to show that Mr. Puckett was physically present during the interaction between Plaintiff and law enforcement officers. There is absolutely no evidence in the record to suggest that Mr. Puckett was the officers' supervisor or within their chain of command. More importantly, Mr. Puckett did not direct University officers to seize or briefly detain Mr. Profita. Cf. J.H. ex rel. J.P., 61 F.Supp.3d. at 1143 (recognizing that a consensual encounter does not constitute a seizure within the meaning of the Fourth Amendment and "occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter" or when a police officer interviews someone "for the purpose of investigating a complaint or conducting other official business"). Nothing in the record would permit a reasonable trier of fact to find that Defendant Puckett knew or reasonably should have known that his brief telephone call on June 12, 2013 would culminate in a possible deprivation of Plaintiffs Fourth Amendment rights. To the contrary, Mr. Puckett acknowledged that Mr. Profita might properly be on campus for medical treatment or might not even be located by officers.

         The facts in this case are remarkably similar to those in Lewis v. Tripp,604 F.3d 1221, 1230 (10th Cir. 2010). In that case, the plaintiff alleged that the defendant's decision to alert authorities to a possible case of unauthorized practice of medicine made that same defendant liable for unlawful activities subsequently taken by other state officers. In rejecting that argument, the Tenth Circuit observed that the plaintiff was relying on "the speculative assumption that one state officer seeking to report a violation of law to other state officers 'just should've known' that those other officers would respond to the report by themselves violating the law." Id. Writing for the majority of the three-judge panel, then-Circuit Judge Gorsuch noted that "we have, however, previously and consistently rejected exactly this assumption, ...


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