UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MICHAEL P. MAROTTA, 

 Plaintiff-Appellant, 

v. 

CORTEZ, individually and in his official 

capacity as a Denver Police Officer; 

BLACK, individually and in his official 

capacity as a Denver Police Officer; 

ROCCO-MCKEEL, individually and in 

his official capacity as a Denver Police 

Officer; THE DENVER POLICE 

DEPARTMENT; THE CITY AND 

COUNTY OF DENVER, 

 Defendants-Appellees. 

No. 11-1494 

(D.C. No. 1:08-CV-02421-WJM-CBS) 

(D. Colo.)

 

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges. 

 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 9, 2012

Elisabeth A. Shumaker 

Clerk of Court
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 Michael P. Marotta, who at all times has proceeded pro se,1

 appeals from the 

district court’s orders dismissing and granting summary judgment on his 42 U.S.C. 

§ 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 Mr. Marotta initially filed this § 1983 action in state court. Defendants--three 

police officers, the Denver Police Department, and the City and County of 

Denver--removed the action to federal district court. In his fourth amended 

complaint, Mr. Marotta asserted violations of his constitutional rights under the First, 

Fourth, Fifth, and Fourteenth Amendments with respect to two arrests at his 

condominium building. In specific, he asserted six claims for relief: (1) violation of 

his right against search and seizure by all defendants; (2) loss of liberty without due 

process by all defendants; (3) excessive force violations by Officer Rocco-McKeel, 

the Denver Police Department, and the City and County of Denver; (4) malicious 

prosecution by all defendants; (5) intentional infliction of emotional distress and 

outrageous conduct by all defendants; and (6) malicious prosecution by all 

defendants resulting in his incurring legal and other expenses. Defendants moved to 

dismiss all claims, except the excessive force claim, under Fed. R. Civ. P. 12(b)(6) 

for failure to state a claim upon which relief may be granted. 

 The magistrate judge recommended (1) dismissal of the Denver Police 

Department because it is not an independent legal entity of the City and County of 

 

1

 We liberally construe Mr. Marotta’s pro se filings. See Haines v. Kerner, 

404 U.S. 519, 520 (1972) (per curiam). 
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Denver and therefore is not a proper party;2

 (2) dismissal of the alleged violation of 

Fifth Amendment rights because no federal official or entity is a defendant; 

(3) dismissal of the Fourteenth Amendment arrest and use-of-force claims because 

those claims should be raised as Fourth Amendment claims; (4) dismissal of the First 

Amendment claim for failing to set forth sufficient allegations and for time bar; 

(5) dismissal of the Fourth Amendment claim because (a) Mr. Marotta failed to allege 

sufficient facts to state a claim that the officers could not have believed there was 

probable cause to arrest him; (b) the officers were entitled to qualified immunity; and 

(c) without a predicate constitutional violation by an officer, the City and County of 

Denver could not be liable; (6) dismissal of the malicious prosecution claims because 

there was probable cause to arrest Mr. Marotta; and (7) dismissal of the intentional 

infliction of emotional distress or outrageous conduct claim as conclusory. In 

summary, the magistrate judge recommended that all claims but the excessive force 

claim be dismissed and that Officers Cortez and Black and the Denver Police 

Department be dismissed. The district court adopted the magistrate judge’s 

recommendation. 

 Thereafter, Officer Rocco-McKeel and the City and County of Denver moved 

for summary judgment on the excessive force claim. Mr. Marotta responded and 

filed a motion under Fed. R. Civ. P. 60(b) seeking relief from the dismissals of the 

other claims. 

 

2

 Mr. Marotta does not challenge the dismissal of the Denver Police Department. 
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The magistrate judge recommended that the motion for summary judgment be 

granted. In so recommending, the magistrate judge decided that Officer 

Rocco-McKeel’s conduct did not rise to the level of a Fourth Amendment violation 

and did not exceed what was reasonable to make a lawful arrest under the 

circumstances. The magistrate judge therefore determined Officer Rocco-McKeel 

was entitled to qualified immunity. With respect to the City and County of Denver, 

the magistrate judge decided that (1) Mr. Marotta could not predicate a § 1983 claim 

against the City and County of Denver based on negligence; (2) the finding of 

qualified immunity for Officer Rocco-McKeel precluded imposition of municipal 

liability; (3) Mr. Marotta did not show the existence of a governmental policy or 

custom that deprived him of a constitutional right or a direct causal connection 

between a Denver policy or custom and the alleged constitutional violation; and 

(4) Mr. Marotta failed to show deliberate indifference by the City and County of 

Denver. The district court adopted the magistrate judge’s recommendation to grant 

summary judgment on the excessive force claim. This appeal followed. 

 Mr. Marotta argues on appeal that (1) the district court erred in dismissing his 

claims for failure to state a claim upon which relief may be granted, and, instead, 

should have held a jury trial; (2) the district court ignored both (a) the lack of 

probable cause for the second arrest due to a false police report and (b) the 
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Americans with Disabilities Act (ADA);3

 (3) the district court ignored the lack of 

exigent circumstances needed to justify a warrantless arrest and therefore the second 

arrest was unconstitutional; (4) the district court erred in finding that the police 

officers were entitled to qualified immunity; (5) the district court ignored disputed 

issues of material fact concerning the probable cause statement; (6) the district court 

should have found undisputed material facts concerning the probable cause statement 

in his favor; (7) the district court ignored established case law and the Equal 

Protection Clause of the Fourteenth Amendment; and (8) the district court erred in 

not ruling on his Rule 60(b) motion. 

We review the district court’s dismissal under Rule 12(b)(6) de novo. Bixler v. 

Foster, 596 F.3d 751, 756 (10th Cir. 2010); Denver Justice & Peace Comm., Inc. v. 

City of Golden, 405 F.3d 923, 927 (10th Cir. 2005) (Rule 12(b)(6) and qualified 

immunity). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 

Likewise, we review the “granting [of] summary judgment de novo, viewing 

the evidence in the light most favorable to the nonmoving party.” Howard v. Waide, 

534 F.3d 1227, 1235 (10th Cir. 2008). Summary judgment is warranted only if there 

 

3

 Mr. Marotta never raised a claim based on the ADA in his complaint. We 

therefore will not address any appellate arguments concerning the ADA. See Walker 

v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (declining to consider 

issue raised for the first time on appeal). 
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is no genuine dispute of material fact and the movant is entitled to judgment as a 

matter of law. See Fed. R. Civ. P. 56(a). 

Although “[w]e review a grant of summary judgment on the basis of qualified 

immunity de novo,” Harman v. Pollock, 586 F.3d 1254, 1260 (10th Cir. 2009), “we 

review summary judgment orders deciding qualified immunity questions differently 

from other summary judgment decisions.” Medina v. Cram, 252 F.3d 1124, 1128 

(10th Cir. 2001). “When a defendant asserts qualified immunity at summary 

judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a 

constitutional right and (2) the constitutional right was clearly established.” Martinez 

v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “If, and only if, the plaintiff meets 

this two-part test does a defendant then bear the traditional burden of the movant for 

summary judgment—showing that there are no genuine issues of material fact and 

that he . . . is entitled to judgment as a matter of law.” Clark v. Edmunds, 513 F.3d 

1219, 1222 (10th Cir. 2008) (internal quotation marks omitted). We view the facts in 

the light most favorable to the non-moving party. Kirkland v. St. Vrain Valley Sch. 

Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006). 

 Applying these standards and upon careful consideration of the parties’ 

appellate briefs, the district court record, and relevant case law, we conclude the 

district court judge, adopting the magistrate judge’s thorough recommendations, 

appropriately granted defendants’ motions to dismiss and for summary judgment. 

Accordingly, we affirm for substantially the same reasons set forth in the 
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recommendations and orders. See R. at 531 (Nov. 3, 2009 magistrate judge’s 

recommendation); id. at 696 (Feb. 16, 2010 district court order adopting magistrate 

judge’s recommendation); id. at 1325 (June 27, 2011 magistrate judge’s 

recommendation); id. at 1358 (Sept. 30, 2011 district court order adopting magistrate 

judge’s recommendation). 

 Lastly, we reject Mr. Marotta’s assertion that the district court’s failure to rule 

on his Rule 60(b) motion was reversible error. In essence, the motion presented the 

same arguments he had been making repeatedly in his district court pleadings. Thus, 

the motion did not request relief that was “extraordinary and may only be granted in 

exceptional circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 

(10th Cir. 2000) (internal quotation marks omitted). Although Mr. Marotta claims 

newly discovered evidence supported the motion, the evidence either was known to 

him previously or was consistent with prior presented evidence. We therefore 

conclude as a matter of law that the district court’s failure to rule on the motion was 

not an error requiring reversal. 

 The judgment of the district court is AFFIRMED. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge