31 F.3d 958 (10th Cir. 1994), 93-1448, Artes-Roy v. City of Aspen

Docket Nº:93-1448.
Citation:31 F.3d 958
Party Name:Kristie ARTES-ROY, Plaintiff-Appellant, v. ASPEN, (The) CITY OF, a Colorado municipal corporation; Gary Lyman, individually and in his official capacity as a Building Inspector for the City of Aspen, Colorado, and Pitkin County, Colorado and as CEO of the Aspen-Pitkin Regional Building Department, Defendants-Appellees.
Case Date:July 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 958

31 F.3d 958 (10th Cir. 1994)

Kristie ARTES-ROY, Plaintiff-Appellant,

v.

ASPEN, (The) CITY OF, a Colorado municipal corporation;

Gary Lyman, individually and in his official capacity as a

Building Inspector for the City of Aspen, Colorado, and

Pitkin County, Colorado and as CEO of the Aspen-Pitkin

Regional Building Department, Defendants-Appellees.

No. 93-1448.

United States Court of Appeals, Tenth Circuit

July 28, 1994

Page 959

Rita M. Farry, Denver, CO, for plaintiff-appellant.

Daniel J. Torpy of Watson, Nathan & Bremer, Denver, CO, for defendants-appellees.

Before LOGAN, SETH, and BARRETT, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Kristie Artes-Roy appeals the district court's judgment granting defendants Gary Lyman and the City of Aspen summary

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judgment on plaintiff's claims asserted under 42 U.S.C. Sec. 1983. 1 At issue are plaintiff's claims that defendant Lyman violated her First and Fourth Amendment rights by unlawfully entering her home, and that the City is liable because Lyman's actions were taken pursuant to the City's unconstitutional policy or practice and because the City failed to train its employees properly. 2

I

Plaintiff's husband obtained a building permit from the Aspen-Pitken Regional Building Department for renovations at the couple's home. When the building department staff noted that no one had called for any of the required inspections, although sufficient time had passed for much of the remodeling to be completed, one of the department's building inspectors went to plaintiff's home. When plaintiff failed to produce documentation of any inspections or a copy of the building plans as required by the building code, the inspector issued a stop work order.

Plaintiff's husband, who was out of the country at the time, telephoned defendant Lyman, the chief building inspector. The two men agreed to meet to discuss the stop work order when plaintiff's husband returned to Aspen in two weeks; in that discussion defendant Lyman was asked to stay away from the house because plaintiff was suffering from an anxiety disorder and was under a doctor's care.

Shortly thereafter, the building inspector who had issued the stop work order noted construction activity continuing at the home. He again informed plaintiff that all work had to stop, and reported to Lyman, his supervisor, that construction work 3 was continuing.

Lyman and the inspector then went to plaintiff's home where they informed several workers on the roof that they were violating the stop work order. Defendant Lyman then went to the door of the house. At this point factual discrepancies exist between plaintiff's deposition testimony describing crucial events at the front door of her home, and the testimony of Lyman and a police officer present at the house. Lyman's deposition testimony indicates that he spoke with plaintiff outside the home immediately upon his arrival, after she came out of the house to see what was happening. I App. 114. He stated that he informed her that he needed to speak to all the workers concerning the stop work order and that she went back into the house, before Lyman and the police officer knocked on the front door a second time. Id. at 114-15. In his deposition, Lyman testified that after knocking several times, cracking the door a little bit and yelling, a worker answered the door and motioned him into the home. He testified that he was barely inside the door and the other workmen's supervisor was present. Id. at 115-16.

Plaintiff, however, asserts that when she first discovered Lyman in her entryway, he was not accompanied by a police officer. II App. 333-34. She testified that she had no idea how Lyman entered the house; she also stated that there were no workers in the

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three or four rooms closest to the front door who could have let him in. Id. at 334. 4 According to plaintiff, Lyman told her at that time that a police officer was on his way to the house. Id. at 333. Plaintiff stated she then went to the back of the house to notify the workers that Lyman wanted to speak with them. Id. at 334-35. She then returned to the entryway and found Lyman was still there, this time accompanied by the police officer. Id. at 336. She asked Lyman and the officer to leave the house, and they did. Id.

The government's brief says Lyman entered only an "enclosed front porch." Appellee's Answer Brief at 4. Lyman testified in his deposition that he was "one step inside the door" of a "very small kind of entryway." I App. 117. Plaintiff testified in her deposition that she found Lyman in her "long living room," III App. 334, apparently near the front door, id. at 333.

It is undisputed that after the exchange between plaintiff and Lyman most of the workers went outside, where Lyman explained that they were working contrary to a stop work order and that they risked being cited if they continued. Lyman gave the workers forty...

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