United States District Court, D. Colorado
RECOMMENDATIONS AND ORDERS ON PENDING
B. Shaffer United States Magistrate Judge.
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. 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
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.
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
Profita, a former student at the University of Colorado
School of Medicine, filed his pro se
Complaint 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. 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.
Defendant's Motion for Summary Judgment
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);
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).
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).
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).
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).
The Undisputed Facts
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
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 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. 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." See Exhibit C (doc. #93-3),
attached to Defendant's Motion for Summary
Judgment. 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).
16, 2013, Defendant Puckett, in his capacity as Senior
Assistant University Counsel, sent Mr. Profita an
email 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. See also Exhibit E
(doc. #93-5), attached to Defendant's Motion for Summary
Profita visited the Anschutz Medical Campus on June 12, 2013,
and was seen by Defendant Puckett entering Building
500. 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
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. 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. 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.
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 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
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.
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
• The individual that called the Police Department on
June 13, 2013 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
• 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
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
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.
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
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.
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 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.
24, 2013, Mr. Profita was personally served with a Level I
Warning/Exclusion 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
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.
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. 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
The Defense of Qualified Immunity
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.
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).
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).
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
Plaintiffs First Claim for Relief
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.
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.
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
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.
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.
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.
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, ...