Estate of Bleck ex rel. Churchill v. City of Alamosa

105 F. Supp. 3d 1222, 2015 U.S. Dist. LEXIS 62791
District Court, D. Colorado·Decided May 12, 2015·No. Civil Action No. 10-cv-03177-REB-KMT·Published

Opinion

ORDER

Blackburn, United States District Judge

This matter is before me on remand from the Tenth Circuit for further consideration of the arguments raised originally in (1) Defendants’ Motion for Judgment on the Pleadings and for Summary Judgment [#38]1 filed August 15, 2011; and (2) Plaintiffs Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 [# 130], filed January 20, 2012. The parties have submitted supplemental briefs on the issues implicated by the Tenth Circuit’s remand order [##226 & 227]. Having considered the Tenth Circuit’s opinion, the arguments raised and authorities cited in the original and supplemental briefs, and all relevant evidence submitted in connection therewith, I find and conclude that defendant is entitled to judgment as to plaintiffs sole remaining claim for failure to train.

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).

II. STANDARD OF REVIEW .

Both plaintiff and defendant have moved for summary judgment.2 ' Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994). A fact is “material” [1226] if it might reasonably affect the outcome .of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not. have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every- essential element of-its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D.Colo.2002). In either case, once the motion has been supported properly, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion.: Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 528 U.S. 933, 120 S.Ct. 334, 145 L.Ed.2d 260 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D.Colo.2000).

III. ANALYSIS

The facts of this case are well known to the parties and recited at length both in this court’s prior order, see Bleck v. City of Alamosa, 839 F.Supp.2d 1149, 1151-52 (D.Colo.2012), and the opinion of the Tenth Circuit on appeal, Estate of Bleck ex rel. Churchill v. City of Alamosa, Colorado, 540 Fed.Appx. 866, 867-868 (10th Cir.2013). They therefore need not be repeated here, except in the context of addressing the issues that remain for determination following, remand.

‘The Tenth Circuit concluded, contrary to this court’s decision, that plaintiff, Steven Bleck,3 was seized when Officer Martinez attempted to push Mr. Bleck down on the bed by going “hands on” without first reholstering his duty weapon. Although Officer Martinez was found to have qualified immunity as to Mr. Bleck’s claims .against him, the case was remanded to consider Mr. Bleck’s claim for failure to train against the City of Alamosa, which enjoys no such immunity from suit. See Starkey ex rel. A.B. v. Boulder County Social Services, 569 F.3d 1244, 1263 n. 4 (10th Cir.2009). To prove this claim, Mr. Bleck must establish “(1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation.” Estate of Bleck, 540 Fed-Appx. at 874 (citation and internal quotation marks omitted). Because I conclude that Mr. Bleck can satisfy neither of these elements, the City is entitled to judgment.

As to the first element, the question whether Officer Martinez committed a [1227] constitutional violation is only partially answered by the Tenth Circuit’s determination that Mr. Bleck was seized when “Officer -Martinez intentionally ■ accomplished the termination of [his] freedom of movement through the tandem action of the hands-on technique and the display of his gun.” Id, at 876. As the Tenth Circuit noted, “[t]hat does not ehd the constitutional analysis, however. Then, the pivotal question becomes whether the seizure was reasonable.” Id, (citation and internal quotation marks omitted). See also Brower. v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382-83, 103 L.Ed.2d 628 (1989) (“ ‘Seizure’ alone is not enough for § 1983 liability; the seizure must be ‘unreasonable.’ ”).

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Estate of Bleck ex rel. Churchill v. City of Alamosa, 105 F. Supp. 3d 1222, 2015 U.S. Dist. LEXIS 62791 (D. Colo. 2015).

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