Sgaggio v. Young

• Decision Date: 31 March 2022
• Docket Number: Civil Action 20-cv-01977-PAB-NYW
• Parties: DELBERT SGAGGIO, Plaintiff, v. MILES DE YOUNG, CITY OF WOODLAND PARK, CITY OF WOODLAND PARK EMPLOYEE JOHN DOE, and JOHN DOES 1-99, Defendants.
• Court: U.S. District Court — District of Colorado

DELBERT SGAGGIO, Plaintiff,
v.
MILES DE YOUNG, CITY OF WOODLAND PARK, CITY OF WOODLAND PARK EMPLOYEE JOHN DOE, and JOHN DOES 1-99, Defendants.

Civil Action No. 20-cv-01977-PAB-NYW

United States District Court, D. Colorado

March 31, 2022

ORDER

PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 24] and the Motion of Firearms Policy Coalition for Leave to File Brief Amicus Curiae in Support of Plaintiff's Objections to the Magistrate Judge's Recommendation [Docket No. 27]. The recommendation addresses the motion for summary judgment filed by defendants Miles De Young (“Chief De Young”) and the City of Woodland Park (the “City”) (collectively, “defendants”). Plaintiff objected to the recommendation, Docket No. 26, and defendants responded. Docket No. 30. Defendants responded to the amicus motion, Docket No. 29, and proposed amicus replied. Docket No. 31.

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I. BACKGROUND^[1]

The City's Police Department (the “Police Department”) executed a warrant to search a residence, which residence was unrelated to plaintiff, for the unlawful possession of marijuana. Docket No. 24 at 2, ¶ 1. On or about July 19, 2018, the Police Department posted about the execution of the warrant on its public Facebook page (“Police Post”). Id., ¶ 2. That day, a Facebook user posted a video about the execution of the warrant with the caption “[d]ad tells a story of the house being raided for MMJ” (“Woodland Park Video”). Id., ¶ 6. In response to the Police Post, plaintiff posted on the Police Department's Facebook page a link to the Woodland Park Video with the caption “[y]ou target sick kids to get your overtime pay.. [sic] That's why you are a pig.” Id. at 3, ¶ 8(a). Plaintiff later commented, “[w]hy did you punk ass pigs remove my post. This is a pubic [sic] forum. I'm going to sue the chief of police, the city of Woodland Park, and whatever punk ass bitch remove my post. Your actions are unconstitutional and violation of federal law 18 usc 241, 242.. [sic] see you pigs in Federal court.. [sic], ” id., ¶ 8(b); posted a link to the Woodland Park Video with the caption “[y]ou target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay.. [sic] dirty ass cops, ” id., ¶ 8(c); and commented, “Tyler Pope they violate the constitution daily. All too stupid to understand the oath they took. We the people will bring these terrorists into federal court.” Id., ¶ 8(d). Plaintiff's accusation that the

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police were targeting sick kids was in reference to the execution of the warrant. Id., ¶ 9. Plaintiff's posts on the Police Department's Facebook page violated the Police Department's social media policy, and Chief De Young temporarily hid plaintiff's posts from public view. Id., ¶¶ 11-12. Plaintiff was restricted temporarily from posting on the Police Department's Facebook page. Id. at 4, ¶ 13.

Plaintiff also posted the Woodland Park Video to the City's Facebook page with the caption “[a]sk the city how they treat sick kids.” Id., ¶ 10. Plaintiff's post on the City's Facebook page contained words that were filtered in accordance with the City's Page Moderation Policy, and plaintiff alleges this post was removed. Id., ¶¶ 16-17. Following the removal of his posts from the Facebook pages, plaintiff did not attempt to republish the posts on any other Facebook page, although he had the option to do so, or on another social media platform. Id., ¶¶ 19-20.

Other people, including Kristopher Kaiser and Sherise Nipper, made posts critical of the Police Department and City that were not removed. Id., ¶ 21. Mr. Kaiser posted, “[w] at [sic] was the probable cause that they had in excess of their allowed 12 plants? What judge signed that warrant?” Id. at 5, ¶ 22. Ms. Nipper posted, “[a]s a human being, this should make you feel terrible. A man made law is causing epilepsy patients to continue to have horrific seizures, even though we know cannabis heals seizures” and called the actions of the Police Department “inhumane.” Id., ¶ 23.

Plaintiff brings four claims against defendants: (1) “First Amendment violation of free speech” and viewpoint discrimination under 42 U.S.C. § 1983 against all

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defendants, ^[2] (2) “First Amendment violation of free press” under 42 U.S.C. § 1983 against all defendants, (3) “Fourteenth Amendment violation of Equal Protections of the Law” under 42 U.S.C. § 1983 against Chief De Young and the City, and (4) “First Amendment - Retaliation for Free Speech/Expression” under 42 U.S.C. § 1983 against all defendants. Docket No. 1 at 29-33. Chief De Young and the City moved for summary judgment on all four claims and argues that Mr. De Young should be granted qualified immunity. See generally Docket No. 18. The magistrate judge recommends granting the motion and that Chief De Young be entitled to qualified immunity. Docket No. 24 at 18.

II. LEGAL STANDARDS

The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection “enables the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” Id.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). The Court therefore reviews the non-objected

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to portions of the recommendation to confirm that there is “no clear error on the face of the record.” Fed.R.Civ.P. 72(b), Advisory Committee Notes. This standard of review is something less than a “clearly erroneous or contrary to law” standard of review, Fed.R.Civ.P. 72(a), which in turn is less than a de novo review. Fed.R.Civ.P. 72(b). Because plaintiff is proceeding pro se, the Court will construe his objections and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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 (1986). 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 & Cnty. 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 nonmoving party. Id. at 839-40.

Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotation omitted).

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“Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

III. ANALYSIS

A. Amicus Motion

The Firearms Policy Coalition (“FPC”) seeks leave to file a proposed amicus curiae brief in support of plaintiff. Docket No. 27 at 2. As an initial matter, the Court notes that FPC has combined its motion and propose amicus brief as a single document. See generally Id. The Local Rules, however, require that “[a] motion shall be filed as a separate document.” D.C.COLO.LCivR. 7.1(d).

“Historically, amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the Court in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another.” WildEarth Guardians v. Lane, 2012 WL 10028647, at *2 (D.N.M. June 20, 2012) (quoting Community Ass'n for Restoration of Env't v. DeRuyter Bros. Dairy, 54 F.Supp.2d 974, 975 (E.D. Wash. 1999)).

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“There is no precedent directly on point in the Tenth Circuit Court of Appeals[ ] . . . in deciding whether to allow or deny amicus participation. Nor is there a pertinent rule of civil procedure” governing amicus participation in federal district courts. Id. The Court thus considers Federal Rule of Appellate Procedure 29, which governs amicus participation in appeals, for guidance. Ctr. for Biological Diversity v. Jewell, No. 16-cv-01932-MSK-STV, 2017 WL 4334071, at...