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Estate of Valverde v. Dodge

United States District Court, D. Colorado

July 9, 2019

ESTATE OF JOSEPH VALVERDE, by and through ISABEL PADILLA, as personal representative, Plaintiff,
JUSTIN DODGE, Defendant.


          Marcia S. Krieger, Senior United States District Judge.

         THIS 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.


         The Court exercises jurisdiction under 28 U.S.C. § 1331.


         The facts[1] 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.

         The 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 (# 105).


         Rule 56 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).

         If the 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.

         If the 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).


         As he 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).

         For all 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 ...

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