Rodeman v. Foster, Civil Action No. 09–cv–01857–PAB–MJW.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
• Citation: 767 F.Supp.2d 1176
• Parties: Kathy “Cargo” RODEMAN, Plaintiff,v.Erik FOSTER, individually and in his official capacity as an Officer with the Oak Creek, Colorado Police Department, and The Town of Oak Creek, Colorado, Defendants.
• Docket Number: Civil Action No. 09–cv–01857–PAB–MJW.
• Decision Date: 16 March 2011

767 F.Supp.2d 1176

Kathy “Cargo” RODEMAN, Plaintiff,
v.
Erik FOSTER, individually and in his official capacity as an Officer with the Oak Creek, Colorado Police Department, and The Town of Oak Creek, Colorado, Defendants.

Civil Action No. 09–cv–01857–PAB–MJW.

United States District Court, D. Colorado.

Feb. 9, 2011.Order Denying Reconsideration March 16, 2011.

[767 F.Supp.2d 1178]

Kristopher L. Hammond, Adam Wyatt Mayo, Hammond Law Offices, Steamboat Springs, CO, for Plaintiff.Gordon Lamar Vaughan, Ann Baumgartner Smith, Vaughan & Demuro, Colorado Springs, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT PHILIP A. BRIMMER, District Judge.

This matter is before the Court on defendants' motion for summary judgment [Docket No. 46]. The motion is fully briefed and ripe for disposition. For the following reasons, the Court will grant the motion in part and deny it in part.

I. JURISDICTION

Plaintiff asserts claims under 42 U.S.C. § 1983, as well as the Fourth Amendment of the United States Constitution. The

[767 F.Supp.2d 1179]

Court therefore has federal-question jurisdiction over these claims pursuant to 28 U.S.C. § 1331. Plaintiff also asserts claims under Colorado law, over which the Court exercises supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

II. BACKGROUND

On July 18, 2008, plaintiff Kathy Rodeman went to the Colorado Bar in Oak Creek, Colorado with two friends, Shoshanna Montoya and Tashena Montoya. While at the bar, plaintiff had three drinks. When the three women left the bar and went to plaintiff's car, Sgt. Erik Foster of the Oak Creek Police Department watched them through his binoculars.

The events that followed are disputed. Sgt. Foster remembers seeing plaintiff fumble with the car's door handle, which plaintiff denies. Next, although both parties agree that Sgt. Foster followed plaintiff's car out of the Colorado Bar parking lot, they disagree about what Sgt. Foster observed as he followed her car. According to Sgt. Foster, plaintiff exceeded the 25 mile per hour speed limit and failed to signal for a turn. On the other hand, plaintiff claims she did not exceed the speed limit and that she signaled every turn on the way from the Colorado Bar to her house. One of plaintiff's passengers, Shoshanna Montoya, also claims plaintiff signaled every turn.

According to Sgt. Foster, he turned on his patrol car's lights while following plaintiff's car in order to initiate a traffic stop, and plaintiff responded by increasing her speed and pulling into her driveway. Plaintiff contradicts this account, claiming that she was aware that Sgt. Foster was following her, but that she did not increase her speed and that he did not activate his lights until after she had pulled into her driveway.¹ Shoshanna Montoya also recalls Sgt. Foster activating his lights after he pulled in behind plaintiff's parked car.

Plaintiff got out of her car and told her two passengers to “get in the house.” Docket No. 46–4 at 3. The three women ran into the house, despite Sgt. Foster shouting for them to get back into the car. Sgt. Foster's personal video recorder (“VIDMIC”) shows Sgt. Foster ordering the women to get back in the car, but then the recorder cuts off. Before entering the house, Sgt. Foster radioed dispatch to report that he was being attacked by five people. Sgt. Foster followed the women to the doorway. According to Shoshanna Montoya, she was the last person to enter the house, and after she entered the house, she placed her foot on the floor behind the door to keep Sgt. Foster from pushing it open. Sgt. Foster nonetheless pushed the door open and entered. In contrast, Sgt. Foster claims that he was able to get part of his body, including his left foot, between the door jamb and the front door. He

[767 F.Supp.2d 1180]

claims that Shoshanna Montoya then threw her weight into the door and repeatedly slammed Sgt. Foster between the door and the door jamb.

Sgt. Foster was eventually able to enter the residence and followed Shoshanna Montoya to a back bedroom where plaintiff and Tashena Montoya were located. After entering the house, Sgt. Foster realized his VIDMIC was not turned on and reactivated it. Sgt. Foster ordered plaintiff to stand up and turn around, but plaintiff called 911 to request another officer on the scene. Sgt. Foster contacted dispatch on his radio and advised dispatch that plaintiff was calling and to take her call. Plaintiff spoke with the dispatcher, explaining that Sgt. Foster entered her house without a warrant and that she did not know why he was there.

Sgt. Foster repeatedly asked plaintiff to stand up and, when she did not comply, took hold of her arm. Plaintiff pulled away from Sgt. Foster's grip and continued to ask for another officer. Throughout plaintiff and Sgt. Foster's interaction, the Montoya sisters were present in the room, often screaming loudly. Eventually, Sgt. Foster advised plaintiff that he would use his TASER on her if she failed to comply and ordered her several times to turn around. Plaintiff refused to comply, and Foster fired his TASER at plaintiff. The TASER was ineffectual, however, since apparently only one of the TASER's prongs made contact. Foster then activated the TASER while pressing it to plaintiff's shoulder. Plaintiff subsequently complied and Foster took the three women into custody.

After Sgt. Foster took the three women out of the house, Oak Creek Police Officer Eileen Rossi, who was off duty, responded to the scene. Officer Rossi took custody of the women and Sgt. Foster returned to plaintiff's house to perform a protective sweep. During his sweep, Sgt. Foster observed marijuana in plain view and also evidence of its use. After her arrest, plaintiff took a breath test and her blood alcohol level was 0.102. Plaintiff was charged with driving under the influence, driving under the influence per se, eluding, resisting arrest, obstructing a peace officer, and failure to signal for a turn.

III. STANDARD OF REVIEW

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when “the movant shows that 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Concrete Works of Colorado, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir.1994); see also Ross v. The Board of Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir.2010). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir.2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198 (10th Cir.2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir.2010).

IV. DISCUSSION

Plaintiff originally asserted twelve claims for relief against Sgt. Foster, the town of Oak Creek, Russell Caterinicchio

[767 F.Supp.2d 1181]

(the Oak Creek Police Chief), and several town board members. See Docket No. 1–1. Several of these claims were dismissed by stipulation. See Docket No. 66. Plaintiff's remaining federal claims both allege violations of 42 U.S.C. § 1983 and the Fourth Amendment of the United States Constitution.² Plaintiff is also pursuing state law claims for assault, battery, trespass, false imprisonment, false arrest, and outrageous conduct against Sgt. Foster, and seeks respondeat superior liability against the town of Oak Creek for these torts.

A. Unreasonable Search and Seizure1. Illegal Entry

Plaintiff's first federal claim asserts that Sgt. Foster violated her Fourth Amendment ³ rights and 42 U.S.C. § 1983 when he entered her home without a warrant in order to arrest her. In response, Sgt. Foster asserts the defense of qualified immunity and argues that his entry to the home was justified by probable cause and exigent circumstances. Sergeant Foster asserts that he is entitled to qualified immunity on all of plaintiff's Fourth Amendment claims. Docket No. 46 at 20. Public officers are entitled to qualified immunity “to shield them from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Where a § 1983 defendant raises the defense of qualified immunity, the burden shifts to plaintiff to show that “(1) that the defendant violated his constitutional or statutory rights, and (2) that the constitutional right was clearly established at the time of the alleged unlawful activity.” Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1199 (10th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815–16, 172 L.Ed.2d 565 (2009)). The court may examine either of these two prongs first, depending on “the circumstances in the particular case at hand.” Id. (quoting Pearson, 129 S.Ct. at 817–18). “If the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002). If the plaintiff does satisfy her burden, then the burden shifts back to the defendant who must show that no material dispute of fact exists and he is entitled to judgement as a matter of law. Id. However, where “the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be ‘properly denied.’ ” Id. (quoting...