Perry v. Board of County Com'rs of Larimer County, 96CA0956

Citation949 P.2d 99
Case DateMay 29, 1997
CourtCourt of Appeals of Colorado

Page 99

949 P.2d 99
21 Colorado Journal 740
Robert Lawrence PERRY, Plaintiff-Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY; the Office
of the Larimer County Sheriff; and Russell A.
Buck, Deputy Sheriff, Defendants-Appellees.
No. 96CA0956.
Colorado Court of Appeals,
Div. I.
May 29, 1997.
Rehearing Denied July 17, 1997.
Certiorari Denied Jan. 12, 1998.

Page 100

Robert Lawrence Perry, Pro Se.

George H. Hass, County Attorney, Jeannine S. Haag, Assistant County Attorney, Fort Collins, for Defendants-Appellees.

Opinion by Judge CRISWELL.

Plaintiff, Robert Lawrence Perry, appeals the summary judgment entered in favor of defendants, the Board of County Commissioners of the County of Larimer, the Office of the Larimer County Sheriff, and Russell Buck, a sheriff's deputy, dismissing his claims of constitutional violations. We affirm.

Plaintiff commenced this action after he was arrested and charged with trespass for entering and remaining in a restricted stairway in the Larimer County Courthouse. Plaintiff's complaint asserted a tort claim for false arrest and a constitutional claim, presumably under 42 U.S.C. § 1983 (1994), for violation of his Fourth, Fifth, and Sixth Amendment rights, as well as for violation of several Colorado statutes.

Defendants moved for dismissal of plaintiff's claims pursuant to C.R.C.P. 12(b)(1) and (5). The trial court granted defendants' motion, in part, and dismissed plaintiff's false arrest claims and the constitutional claims against the board of county commissioners.

After discovery was conducted, and based upon the undisputed facts revealed, defendants moved for summary judgment on the remaining constitutional claims. The trial court granted defendants' motion, determining that plaintiff's constitutional rights had not been violated.

I.

Plaintiff first contends the trial court erred by accepting defendants' untimely motion for summary judgment. We disagree.

C.R.C.P. 56(c) requires a motion for summary judgment to be filed no later than 75 days before the date set for trial, "unless otherwise ordered by the court."

Here, trial was set for May 28, 1996, but defendants' motion was not filed until April 18, less than 75 days before the trial date.

Nevertheless, the case management order here, to which plaintiff expressly consented, provided that all pre-trial motions were to be filed "within 40 days" of trial. Even if it is assumed that this order intended to say "not less than 40 days before" trial, defendants met this time restriction. Their motion, therefore, was not untimely.

II.

We note, preliminarily, that, in conjunction with his constitutional claims, plaintiff alleged that defendants violated § 16-3-403, C.R.S. (1986 Repl.Vol. 8A), and that

Page 101

such violation is actionable under § 1983. This contention is without merit.

Because the rights enforceable under § 1983 are only those recognized either by the federal constitution or by a federal statute, § 1983 cannot be used to enforce purely state rights, including rights arising under state statutes. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981).

Hence, this claim was properly dismissed by the court, irrespective whether defendants' motion otherwise met the requirements for entry of a summary judgment.

III.

A.

Review of a judgment granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

In reviewing a trial court's grant of summary judgment, we must determine whether there is a clear showing that there is no issue of material fact and, therefore, whether the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Knappenberger v. Shea, 874 P.2d 498 (Colo.App.1994). In making this determination, we must resolve all doubts as to the existence of material factual issues against the moving party and give the non-moving party the benefit of any favorable inference that may be drawn from the disclosed facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual issue shifts to the opposing party. Failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App.1991).

In addition, arguments or evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal. See County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), appeal after remand, 198 Colo. 6, 595 P.2d 237 (1979) (appellate jurisdiction limited to issues which had been before the district court in proper procedural posture).

B.

Plaintiff first contends that...

To continue reading

Request your trial
3 cases
  • People v. Vasquez
    • United States
    • Court of Appeals of Colorado
    • 28 Diciembre 2006
    ...counsel "will result in suppression of any evidence obtained as a result of the improper interrogation." Perry v. Bd. of County Comm'rs, 949 P.2d 99, 102 (Colo.App.1997). If a statement obtained in violation of Miranda was admitted as part of the prosecution's case-in-chief, over the defend......
  • Young v. Larimer Cnty. Sheriff's Office, Court of Appeals No. 13CA1338
    • United States
    • Court of Appeals of Colorado
    • 11 Septiembre 2014
    ...constitution or by a federal statute, [section] 1983 cannot be used to enforce purely state rights....” Perry v. Bd. of Cnty. Comm 'rs, 949 P.2d 99, 101 (Colo.App.1997).2 C. Application ¶ 10 For purposes of opposing the summary judgment motion, Young showed that the deputies had killed his ......
  • Young v. Larimer Cnty. Sheriff’S Office, Court of Appeals No. 13CA1338
    • United States
    • Court of Appeals of Colorado
    • 11 Septiembre 2014
    ...constitution or by a federal statute, [section] 1983 cannot be used to enforce purely state rights . . . ." Perry v. Bd. of Cnty. Comm'rs, 949 P.2d 99, 101 (Colo. App. 1997).2C. Application ¶10 For purposes of opposing the summary judgment motion, Young showed that the deputies had killed h......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT