United States District Court, D. Colorado
ESTATE OF JOSEPH VALVERDE, by and through ISABEL PADILLA, as personal representative, Plaintiff,
JUSTIN DODGE, Defendant.
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger, Senior United States District Judge.
MATTER comes before the Court on the Defendant's
Motion for Summary Judgment (# 91), the
Plaintiff's Response (# 98), and the
Defendant's Reply (# 106); and the
Defendant's Motion to Strike (# 105),
the Plaintiff's Response (# 107), and
the Defendant's Reply (# 111). For the
following reasons, the Motion for Summary Judgment is denied
and the Motion to Strike is denied as moot.
Court exercises jurisdiction under 28 U.S.C. § 1331.
facts in this matter can be briefly summarized.
In July 2014, the Denver Police Department performed an
undercover drug operation in which officers arrested Joseph
Valverde after an undercover officer sold him cocaine. Once
the sale was complete, seven SWAT officers surrounded Mr.
Valverde. Mr. Valverde pulled a firearm from his waistband,
but then dropped it and raised empty hands near his head. The
parties' versions of what happened at this point differ.
The Plaintiff claims that after the Mr. Valverde dropped the
firearm to the ground, Defendant Officer Justin Dodge shot
Mr. Valverde multiple times, killing him. Officer Dodge says
he saw Mr. Valverde raise and point his firearm which
prompted him to fire his weapon. An aerial video has been
submitted as part of the record, but the parties disagree as
to what it shows.
Plaintiff brought this suit in July 2016. Following the
stipulated dismissal of claims against the City and County of
Denver (# 90), only one claim remains - that
Officer Dodge used excessive force in violation of Mr.
Valverde's Fourth Amendment rights. Officer Dodge moves
for summary judgment on that claim (# 91)
and seeks to strike portions of the video evidence (#
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas
Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is
precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin
Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
did at the dismissal stage, Office Dodge seeks to dismiss the
claim against him by application of the doctrine of qualified
immunity. Qualified immunity protects individual state actors
from civil liability if their conduct “does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Messerschmidt v. Millender, 565 U.S. 535, 546
(2012). Because of the underlying purposes of qualified
immunity, the Court treats qualified-immunity questions
differently from other questions on summary judgment. See
Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir.
2010). After a defendant asserts qualified immunity, the
burden shifts to the plaintiff, who must: (1) show facts that
“make out a violation of a constitutional right,
” and (2) establish that, at the time of the conduct at
issue, it was clearly established under existing law that the
defendant's conduct breached the constitutional right.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). The
Court may address these questions in whichever order is best
suited to the case. If the plaintiff fails to satisfy either
prong of this inquiry, the Court “must grant the
defendant qualified immunity.” Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.
2001). However, if the plaintiff establishes the violation of
a clearly established right, it becomes the defendant's
burden to prove is no genuine issue of material fact and that
she is entitled to judgment as a matter of law. Medina v.
Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
practical purposes, the question of whether the evidence
shows violation of a constitutional right is
indistinguishable from the inquiry that the Court would make
in determining whether the Plaintiff has come forward with
sufficient evidence to establish a prima facie claim
in accordance with Rule 56. The plaintiff must show
sufficient evidence to demonstrate the existence of a
cognizable claim. The Court considers the evidence in the
light most favorable to the plaintiff and ...