Lynch v. Barrett
| Decision Date | 24 May 2012 |
| Docket Number | Civil Action No. 11-cv-1120-RBJ-MEH |
| Parties | NICK LYNCH, Plaintiff. v. ADAM BARRETT, SGT. STEPHEN KENFIELD, MICHAEL MORELOCK, ABBEGAYLE DORN, and THE CITY AND COUNTY OF DENVER. Defendants. |
| Court | U.S. District Court — District of Colorado |
Honorable R. Brooke Jackson
This matter is before the Court on defendant's Motion for Summary Judgment [#43] and defendant's Motion to Strike Response to Motion [#56]. Both motions are fully briefed and ripe for review.
This case has an unusual procedural history, being the second of two cases to arise out of a single incident. The event that gave rise to both actions occurred on March 29, 2008 outside of a club in lower downtown Denver. [#1] at ¶5. Mr. Lynch was in an argument with another man. According to him he believed he was about to be hit and "preemptively" struck the other man. Id. at ¶6. Then, fearing that he would be charged with assault, Mr. Lynch fled the area and hid in some bushes near the intersection of 20th Street and Larimer Street. Id. at ¶6. Approximately three to six officers discovered him. Mr. Lynch alleges that when the officers approached, Mr.Lynch rose from his hiding place but was then thrown to the ground and hit six times in the left thigh with either a baton or a flashlight. Id. at ¶7. He claims that because he was face-down on the ground, he could not identify who threw him to the ground or who struck him. Ibid. However, he alleges that Sgt. Stephen Kenfield, and Officers Adam Barrett, Michael Morelock and Abbegayle Dorn were present at the scene and witnessed the arrest.
In his first suit, Lynch v. Barrett, No. 09CV405 (Lynch I), Mr. Lynch asserted that officers Barrett, Dorn, Morelock and Eric Golladay violated his constitutional rights by using excessive force during the arrest and by denying him access to the courts when they intentionally refused to reveal the identity of the officer or officers who used excessive force. The Court granted summary judgment dismissing the access-to-courts claim without prejudice, based on its finding that "[p]laintiff has yet to experience a concrete injury, or denial of meaningful relief, and therefore, his access-to-courts claim is unripe." Lynch I, 2010 WL 3938359, at *6 (D. Colo. October 5, 2010)(Kane, J). The excessive force case went to trial, but at the close of plaintiff's evidence, the Court granted the defendant's oral motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50. The Court concluded that Mr. Lynch had not presented evidence sufficient to find that any of the four individuals had used excessive force or had failed to take reasonable steps to intervene and prevent the harm. Reporter's Transcript, Feb. 3, 2011 [docket #137] at 7.
Having failed to obtain relief in the excessive force trial, Mr. Lynch then filed the present lawsuit on April 27, 2011. He alleges that Sgt. Kenfield and Officers Barrett, Morelock and Dorn know who was involved in the arrest and who struck him, but they have failed and refused to identify the perpetrator(s). Complaint [#1] ¶20-21. He further alleges that the officers' collective silence when faced with a claim an officer administered excessive force is condoned by the Denver Police Department and, therefore, by the City and County of Denver, thusallowing officers who are aware of this practice to cover up instances of excessive force without fear of reprisal. See id. ¶¶25-28. Mr. Lynch asserts that, as a result, excessive force was used, but he was unable to identify the perpetrators, was unable to prove his excessive force claim, and was denied his constitutional right to have access to the courts to obtain relief.
The Court may grant summary judgment if "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(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
Motion to Strike [#56].
As a preliminary matter, the Court must address defendant's Motion to Strike. A juror in Lynch I contacted Mr. Lynch's counsel after the Court dismissed the case and expressed opinions about the credibility of the police officers and whether a cover-up had occurred. [#48-1]. The unsolicited email then became a centerpiece of plaintiff's response to the pending summaryjudgment motion, allegedly demonstrating the existence of a genuine dispute of material fact as to whether there was in fact a cover-up. [#48] at 1-2, 5, 11, 12. Defendants complain that the use of the juror's email was "completely inappropriate" for various reasons, and that the Court should consider sanctioning plaintiff's counsel for attempting to prejudice the Court against the defendants.
This is a tempest in a teapot. The reaction of a juror to witnesses who testified in the trial of Lynch I is irrelevant to the present case. Even if the juror's opinion caused the Court to question any witness' credibility, which it does not, the Court would not make a credibility determination in ruling on a motion for summary judgment. Credibility is the province of the jury, namely, the jury that will be empaneled to hear this case. The Court agrees that reference to the email in plaintiff's response to the pending motion was not appropriate. It was also harmless. The Motion to Strike [#56] is GRANTED, but the Court declines the suggestion that sanctions be awarded against plaintiff's counsel.
Motion for Summary Judgment [#43]
Defendants argue that that they are entitled to summary judgment for three reasons: (1) the individual defendants are entitled to qualified immunity; (2) judicial estoppel bars claims against Officer Dorn; and (3) Mr. Lynch has no evidence of municipal liability on the part of the City of Denver.
To avoid summary judgment based upon qualified immunity, Mr. Lynch "must show that the defendant's actions violated a specific statutory or constitutional right, and that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue." Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). A rightmay be deemed clearly established if "it would be clear to a reasonable police officer that his conduct was unlawful under the circumstances presented." Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).
This Court is satisfied that intentional concealment of evidence by a police officer that interferes with an individual's ability to obtain redress for police misconduct is unconstitutional. See Donohue v. Hoey, 109 F. App'x 340, 356 (10th Cir. 2004) (unpublished). See also Jennings v. City of Stillwater, 383 F.3d 1199, 1207-08 (10th Cir. 2007). This Court is also satisfied that it would be clear to a reasonable police officer that intentional concealment of evidence of another officer's misconduct, the so-called conspiracy of silence, is unlawful. Accordingly, if these officers did intentionally conceal evidence of another officer's administration of excessive force, they are not entitled to qualified immunity.
The question remains whether Mr. Lynch has presented sufficient evidence to raise a genuine issue of material fact as to whether these defendants violated his right of access to the courts. To begin, plaintiff has presented the affidavit of an alleged eyewitness, Cody Steiner. [#48-3]. He states that he was able to see, from across the street, that four police officers jumped over a fence, walked towards the bushes where Mr. Lynch was hiding, and struck him while he was lying down. Id. ¶2. Mr. Steiner is a friend of Mr. Lynch, and his credibility is subject to question. However, that is not at issue on a motion for summary judgment.
Mr. Lynch has indicated in an affidavit that he was thrown down and struck several times in the back of his left thigh and ankle. [#48-4] ¶2-3. He has photographs that purportedly show bruises resulting from the beating.
Plaintiff was unsuccessful in his effort to prove that the officers named as individual defendants used excessive force. However, he maintains that they were in a position to haveobserved who, if anyone, did administer such force. Officer Barrett testified that he could not estimate how many officers went to the bushes to apprehend Mr. Lynch, and he could not hear what the officers were saying (or, implicitly, see what they were doing). Barrett Depo. [#43-6], at 32:4-25, 33:1-3, 17-25. However, he also testified that as he approached the bushes he "saw Mr. Lynch start to stand up, and then the officers rushed the bush, and he was taken down." Id. at 30:20-23. This testimony raises the factual questions of whether Officer Barrett saw who rushed Mr. Lynch, who arrested him, and who either used excessive force or was in a position to know who, if anyone, did. The credibility of Officer Barrett's testimony, like that of the other officers, is also unresolved.
Officer Morelock states in an affidavit that [#43-5] at ¶5....
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