UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL P. MAROTTA, Plaintiff-Appellant,

v. CORTEZ, individually and in his official capacity as a Denve r Police Officer; BLACK, individually and in his official capacity as a Denve r 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 appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 9, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Michael P. Marotta, who at a ll times has proceeded pro se, 1 appeals from the district court’s orders di smissing 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 Depa rtment, and the City and County of Denver--removed the action to federal distri ct court. In hi s fourth amended complaint, Mr. Marott a asserted violations of his c onstitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments with respect to two arrests at his condominium building. In specific, he assert ed six claims for relie f: (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) intenti onal 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 for ce 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 independen t 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).- 3 - 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 Fourt eenth Amendment arrest and use-of-force claims because those claims should be raised as Fourth Am endment claims; (4) di smissal of the First Amendment claim for failing to set forth sufficient alle gations and for time bar; (5) dismissal of the Fourth Amendment clai m because (a) Mr. Maro tta failed to allege sufficient facts to st ate a claim that the officers c ould not have believed there was probable cause to arrest him; (b) the office rs were entitled to qu alified immunity; and (c) without a predicate constitutional violati on 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 ar rest Mr. Marotta; and (7) di smissal of the intentional infliction of emotional distress or outra geous conduct claim as conclusory. In summary, the magistrate judge recommended that all clai ms 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 fo rce claim. Mr. Ma rotta 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 dism issal of the Denver Po lice Department.- 4 - The magistrate judge recommended that the motion for summary judgment be granted. In so recommending, the ma gistrate 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 magistra te judge therefore determ ined Officer Rocco-McKeel was entitled to qualified immunity. With re spect 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 Offi cer Rocco-McKeel precluded imposition of municipal liability; (3) Mr. Marotta did not show th e existence of a governmental policy or custom that deprived him of a constituti onal right or a direct causal connection between a Denver policy or custom and the alleged c onstitutional 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 app eal followed. Mr. Marotta argues on appeal that (1) th e district court erred in dismissing his claims for failure to stat e a claim upon which relief may be granted, and, instead, should have held a jury tria l; (2) the district court i gnored both (a) the lack of probable cause for the second arrest due to a false police report and (b) the- 5 - Americans with Disabilities Act (ADA); 3 (3) the district cour t 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 qua lified immunity; (5) the distri ct court ignored disputed issues of material fact con cerning the probable cause statem ent; (6) the district court should have found undisputed material facts concerning the probable cause statement in his favor; (7) the district court i gnored established cas e law and the Equal Protection Clause of the Four teenth Amendment; and (8) th e district court erred in not ruling on his Rule 60(b) motion. We review the district court’s dism issal 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 compla int must contain sufficient factual matter, accepted as true , to state a claim to relief th at is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (inter nal quotation marks omitted). Likewise, we review the “granting [o f] summary judgment de novo, viewing the evidence in the light most fa vorable 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 ba sed on the ADA in his complaint. We therefore will not address any appella te 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 firs t time on appeal).- 6 - is no genuine dispute of mate rial 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 summ ary 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 que stions differently from other summary judgment decisions.” Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). “When a defendant asserts qualifi ed immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutio nal 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 b ear 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 omitt ed). 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 caref ul consideration of the parties’ appellate briefs, the district court record, and relevant case law, we conclude the district court judge, adopting the magist rate judge’s thorough recommendations, appropriately granted defenda nts’ motions to dismiss a nd for summary judgment. Accordingly, we affirm for substantia lly the same reasons set forth in the- 7 - 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, 20 11 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 distri ct court’s failure to rule on his Rule 60(b) motion was reversible erro r. In essence, th e motion presented the same arguments he had been making repeatedly in his district court pleadings. Thus, the motion did not request relief that was “e xtraordinary 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). A lthough Mr. Marotta claims newly discovered evidence supp orted the motion, the evid ence either was known to him previously or was consistent with prior presented eviden ce. We therefore conclude as a matter of law that the district court’s failu re to rule on the motion was not an error requiring reversal. The judgment of the distri ct court is AFFIRMED.

Entered for the Court
Timothy M. Tymkovich Circuit Judge