United States District Court, D. Colorado
OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY
S. KRIEGER SENIOR JUDGE
MATTER comes before the Court on the Plaintiff's
Motion for Summary Judgment (# 103), the
Defendant's Response (# 109), and the
Plaintiff's Reply (# 111); and the
Defendant's Motion for Summary Judgment (#
106), the Plaintiff's Response (#
110), and the Defendant's Reply (#
112). For the following reasons, the Defendant's
Motion is granted and the Plaintiff's Motion is denied as
Court exercises jurisdiction under 28 U.S.C. § 1331.
November 2014, Eric White, an officer with the Aurora Police
Department, and Arapahoe County Sheriff Deputy J. Lofland
were called to Belle's and Beau's Academy, a day care
in Aurora, Colorado, by daycare teacher Cora Coon.
(## 104-1 at 1; 104-7 ¶
1, 3.) She had notified the police
of potential child abuse that she observed while assisting a
two-year old boy in the bathroom. Ms. Coon noticed red marks
above the boy's buttocks that had not been there when she
had seen the boy five days prior. (# 104-7
officers tried to contact the boy's parents but were
unsuccessful. (# 104-7 ¶¶ 16-17.)
Officer White observed the boy's injuries and questioned
him, but the boy mostly shrugged in response. (#
104-7 ¶¶ 5, 10.) Officer
White also questioned the boy's five-year-old sister.
(# 104-7 ¶ 8.) When asked if she was
disciplined at home, said that her dad spanks her when she is
in trouble and, one time, used a belt when she could not
identify Mars as the fourth planet from the Sun. (##
104-1 at 2; 104-7 ¶¶
12-13.) Officer White asked if her dad also spanks
her brother; she said yes, she had seen him do so.
(## 104-1 at 2; 104-7 ¶
14.) At some point, Defendant Jeff Brown, another
Aurora police officer, was called to the scene; Officer White
conveyed the information he had gathered to Officer Brown.
(## 104-7 ¶ 19; 104-8 ¶
2.) Officer White and Deputy Lofland departed.
(## 104-7 ¶ 18; 104-8 ¶
4.) Officer Brown remained to speak with whoever
picked up the children to continue the investigation.
(# 104-8 ¶ 4.)
Michael Gibson, the children's father, came to the day
care to pick up the children. (# 104-1 at
3.) Officer Brown encountered Mr. Gibson when he
arrived. (# 104-8 ¶ 7.) Accounts of
what transpired differ. Officer Brown contends that he told
Mr. Gibson that he wanted to speak with him about child abuse
and escorted him into an office at the day care for
questioning. (# 104-8 ¶¶ 8-9.)
Officer Brown maintains Mr. Gibson was free to go at any
time. (# 104-8 ¶ 36.) Mr. Gibson states
Officer Brown told him that he was under arrest, not free to
leave, and that he generally demeaned Mr. Gibson while asking
him questions. (# 103 ¶¶ 12-15.)
During their conversation, Officer Brown spoke on the phone
to Mr. Gibson's wife, who confirmed that Mr. Gibson had
spanked his son recently. (# 104-8 ¶
40.) After being in the office for over an hour,
Officer Brown issued Mr. Gibson a written summons for
misdemeanor child abuse under C.R.S. § 18-6-401.
(# 104-8 ¶ 47.)
the Court's order at the dismissal stage (#
69), the Amended Complaint (# 58)
contains a single claim brought under 42 U.S.C. § 1983
for unlawful arrest in violation of the Fourth Amendment.
Both parties move for summary judgment on that claim
(## 103, 106). Mr. Gibson
contends that Officer Brown had no probable cause to arrest
him, and Officer Brown contends that he had probable cause to
arrest Mr. Gibson before Mr. Gibson arrived. Officer Brown
also invokes qualified immunity.
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).
case involves cross motions for summary judgment. Because the
determination of whether there is a genuine dispute as to a
material factual issue turns upon who has the burden of
proof, the standard of proof and whether adequate evidence
has been submitted to support a prima facie case or
to establish a genuine dispute as to material fact, these
motions must be evaluated independently. See Atlantic
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)
(“Cross-motions for summary judgment are to be treated