Although CCD is also a Defendant in this action, they are not party to the instant

1

Motion. Therefore, the Court’s reference to “Defendants” in this Order does not include CCD.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02394-WJM-CBS 

(Consolidated with Civil Action Nos. 11-cv-2395, 11-cv-2396 and 11-cv-2397)

ANA ALICIA ORTEGA,

KELLY BOREN,

KRISTAL CARILLO and

SHARELLE C. THOMAS,

Plaintiffs, 

v.

THE CITY AND COUNTY OF DENVER, a municipality,

OFFICER RICKY NIXON, in his individual and official capacity, and

OFFICER KEVIN DEVINE, in his individual and official capacity,

Defendants.

ORDER ON DEFENDANT NIXON AND DEVINE’S MOTION 

FOR PARTIAL SUMMARY JUDGMENT 

In this consolidated civil rights case, Plaintiffs Ann Alicia Ortega, Kelly Boren,

Kristal Carillo, and Sharelle Thomas (collectively “Plaintiffs”) bring claims against the

City and County of Denver (“CCD”) and Officers Ricky Nixon and Kevin Devine

(together “Defendants” ) arising out of an incident outside of the Denver Diner on July 1

11, 2009. (Compl. (ECF No. 2).) 

Before the Court is Defendants Nixon and Devine’s Motion for Partial Summary

Judgment (“Motion”). (ECF No. 60.) For the reasons set forth below, the Motion is

granted in part and denied in part.

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 1 of 20
 The factual background in this Order is brief and taken primarily from the Statement of 2

Disputed Facts sections of the parties’ briefs on the Motion. Where necessary to provide

background or context, the Court has supplemented with facts from the Complaint. 

2

I. LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem

Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute

as to a material fact depends upon whether the evidence presents a sufficient

disagreement to require submission to a jury or conversely, is so one-sided that one

party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49

(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal

Service, 812 F.2d 621, 623 (10th Cir. 1987).

A fact is “material” if it pertains to an element of a claim or defense; a factual

dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a

reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. 

The Court must resolve factual ambiguities against the moving party, thus favoring the

right to a trial. Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

II. FACTUAL BACKGROUND2

Plaintiffs Ana Ortega (f/k/a Ana Perez) and Kristal Carrillo were at the Denver

Diner on July 12, 2009. (Compl. (ECF No. 2) ¶ 11.) Ms. Carrillo got into a shoving

match with another customer and was forcibly taken outside of the Diner by Defendant

Nixon, a Denver police officer who was working as an off-duty security officer at the

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3

Denver Diner. (Id. ¶¶ 16-17.) Ms. Carrillo followed Nixon and Ortega outside. (Id. ¶

18.)

Shortly thereafter, Plaintiffs Kelly Boren and Sharelle Thomas arrived at the

Denver Diner. (Id. ¶ 23.) They observed the fracas between Nixon and Ortega from

near the door to the Diner. While watching in a crowd of people, Ms. Thomas was

shoved from behind by Officer Devine, who was arriving on the scene to assist Nixon. 

(Id. ¶ 29.) The scene was chaotic and, after being shoved, Ms. Thomas turned and her

elbow hit Officer Devine. (Thomas Dep. (ECF No. 64-6) p. 81-82.) Thomas said “Hey,

what’s that all about?” and told Devine that he did not have to push her. (Spencer Dep.

(ECF Nos. 60-1 & 64-7) p. 81.) Devine pulled Thomas from the crowd. (Thomas Dep.

at 220.)

Kelly Boren then approached Nixon to tell him that she thought his actions were

wrong. (Boren Dep. (ECF No. 64-4) pp. 256-57.) Nixon told Boren that she needed to

leave or he would put her in jail. (Id.; ECF No. 60-6.) Boren made no effort to leave

and said: “Well, then jail me.” (Boren Dep. at 257.) Boren was arrested and charged

with one count of failure to obey a lawful order. (ECF No. 60-6.) 

As part of the crowd watching the events unfold, Ortega was asked to back away

more than once. (Ortega Dep. (ECF Nos. 60-5 & 64-3) pp. 229.) Although she was

initially compliant, later returned and refused to leave. (Id.) Ortega then approached

Devine and asked him to stop hurting people. (Id. at 222-23.) As Ortega walked up to

Devine, her hands got within a few inches of Devine’s baton. (Id. at 224.) Ortega was

arrested by Devine and charged with one count of failure to obey a lawful order. (ECF

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4

No. 60-7.) On July 17, 2009, without the assistance of an attorney, Ortega entered

into a deferred judgment agreement. (ECF No. 60-9.) Consistent with this agreement,

Ortega pled guilty to Failure to Obey a Lawful Order in violation of Denver Revised

Municipal Code § 38-31(c). (Id.) Ortega was sentenced to sixteen hours of community

service, placed on unsupervised probation for one year, and charged fines and costs of

$75.00. (Id.) 

On October 7, 2009, Kelly Boren—represented by counsel—entered into a

deferred judgment agreement. (ECF No. 60-8.) Boren pled guilty to one count of

Failure to Obey a Lawful Order in violation of Denver Revised Municipal Code § 38-

31(c). (Id.) Boren was sentenced to one year unsupervised probation, twenty-four

hours of community service, and charged fines and costs of $216.00. (Id.) 

The events at issue in this case were captured by a HALO (“High Activity

Location Observation”) camera. (Compl. ¶ 1.) Though the Denver Police Department

was in custody of the videotape from the HALO camera during the pendency of Boren’s

and Ortega’s criminal proceedings, it did not notify them of the existence of the video or

provide them with a copy. (Clark Dep. (ECF No. 64-2) pp. 49-53.) 

On October 1, 2010, based on Boren’s successful completion of all of the terms

of her sentence, her guilty plea was withdrawn and her case was dismissed with

prejudice. (ECF No. 64-12.) Ortega also successfully completed her sentence and had

her guilty plea withdrawn and case dismissed. (Id.) 

III. ANALYSIS

On these facts (and the additional facts alleged in the Complaint), Plaintiffs bring

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 4 of 20
 Plaintiff Thomas also brings a claim for false arrest/unlawful seizure but Defendants 3

have not moved for summary judgment on this claim. (Case No. 1:11-cv-2397-WJM-CBS, ECF

No. 2.)

5

the following claims: (1) Excessive Force in violation of 42 U.S.C. § 1983; (2) False

Arrest/Unlawful Seizure in violation of 42 U.S.C. § 1983; (3) Retaliation in violation of

the First Amendment to the United States Constitution; (4) Destruction and/or Hiding of

Exculpatory Evidence in violation of 42 U.S.C. § 1983; (5) Manufacture of Inculpatory

Evidence in violation of 42 U.S.C. § 1983; (6) Malicious and Vindictive Prosecution in

violation of the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983; and (7)

Conspiracy to Violate Civil Rights pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. 

(Compl. ¶¶ 151-236.) Plaintiff Thomas also brings a claim for racial discrimination. 

(Case No. 1:11-cv-2397-WJM-CBS, ECF No. 2 at 35.)

In the Motion, Defendants seek summary judgment on all but the excessive force

claim. (ECF No. 60.) In their combined response, Plaintiffs voluntarily dismiss the

following claims: (1) all Plaintiffs dismiss their conspiracy claims; (2) Plaintiff Thomas

dismisses her race discrimination claim; and (3) Plaintiff Carrillo dismisses her First

Amendment retaliation claim. (ECF No. 64 at 27-28.)

The Court will address each of the remaining claims in turn below.

A. False Arrest/Unlawful Seizure

Defendants move for summary judgment on Plaintiffs Ortega and Bowen’s false

arrest/unlawful seizure claims because Ortega and Boren each pled guilty to one count 3

of Failure to Obey a Lawful Order in violation of Denver Revised Municipal Code § 38-

31(c). (ECF No. 60 at 6.) Specifically, Defendants contend that, because of this guilty

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6

plea, Plaintiffs are precluded from bringing these claims based on the doctrine of

collateral estoppel and/or the case law arising out of Heck v. Humphrey, 512 U.S. 477

(1994). (Id.) 

1. Collateral Estoppel

To determine whether collateral estoppel precludes the Plaintiffs’ claims in this

case, the Court must apply Colorado law. See In re Young, 91 F.3d 1367, 1374 (10th

Cir. 1996) (“in determining the collateral estoppel effect of a state court judgment,

federal courts must . . . apply the state’s law of collateral estoppel”). In Colorado,

collateral estoppel bars relitigation of an issue if: 

(1) The issue precluded is identical to an issue actually

litigated and necessarily adjudicated in the prior proceeding;

(2) The party against whom estoppel was sought was a

party to or was in privity with a party to the prior proceeding;

(3) There was a final judgment on the merits in the prior

proceeding; (4) The party against whom the doctrine is

asserted had a full and fair opportunity to litigate the issues

in the prior proceeding.

Michaelson v. Michaelson, 884 P.2d 695, 700-01 (Colo. 1994). The burden of

establishing these elements rests with the party seeking preclusion, in this case

Defendants. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 85 (Colo. 1999).

It is undisputed that Plaintiffs entered guilty pleas to the criminal offense of

Failure to Obey a Lawful Order for the incidents at issue in this case. Based on this

plea, Plaintiffs do not dispute that the first three elements of the collateral estoppel test

have been satisfied here. (ECF No. 64 at 8-10.) However, Plaintiffs argue that the

fourth element has not been satisfied because the state court criminal proceedings did

not afford Plaintiffs a full and fair opportunity to litigate the issues. (Id.) Specifically,

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7

Plaintiffs contend that they were not provided with the video tapes from the HALO

cameras before they entered their guilty pleas and, therefore, such pleas were not

entered after a “full and fair” opportunity to be heard. (Id.)

The Colorado Supreme Court has held that “[a]n inquiry into whether a party

received a full and fair opportunity to litigate an issue must look to whether the initial

proceeding was so inadequate or so narrow in focus as to deprive an individual of his or

her due process rights should application of the doctrine of collateral estoppel be used

to bar relitigation of that issue.” Bebo Constr., 990 P.2d at 87. The United States

Supreme Court has recognized that collateral estoppel does not apply when there was

not a “full and fair opportunity” to litigate an issue and that “[r]edetermination of issues is

warranted if there is reason to doubt the quality, extensiveness, or fairness of

procedures followed in prior litigation.” Kremer v. Chemical Const. Corp., 456 U.S. 461,

480-81 (1982) (internal citation and quotation omitted). 

It is well established that the Due Process Clause of the Fourteenth Amendment

to the U.S. Constitution requires that a prosecutor disclose any material exculpatory

evidence to a criminal defendant. Brady v. Maryland, 373 U.S. 83, 87 (1963). 

Moreover, Colorado Rules of Criminal Procedure require that a prosecuting attorney

disclose to the defense “any material or information within his or her possession or

control which tends to negate the guilt of the accused as to the offense charged or

would tend to reduce the punishment therefor.” Colo. R. Crim. P. 16(a)(2). This

disclosure requirement is self-executing and does not require that the defense request

the exculpatory material. See People v. District Court of El Paso Cty., 790 P.2d 332,

337 (Colo. 1990). Exculpatory evidence must be provided to a criminal defendant at

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 7 of 20
8

such a time so as to be useful to the defendant for preparation of their defense. See

United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997).

It is undisputed that the prosecutors did not disclose the HALO videotape

evidence to Plaintiffs before they entered their guilty pleas. Plaintiffs contend that, had

this evidence been disclosed, they would not have entered into the deferred judgment

agreements, which resulted in their guilty pleas. (Dave Aff. (ECF No. 64-5) ¶ 10.) 

Defendants offer no evidence to rebut this contention and do not dispute Plaintiffs’

contention that the HALO video would have been exculpatory to Plaintiffs in their

criminal cases. The Court finds that the failure to provide this exculpatory evidence to

Plaintiffs reasonably calls into question whether their state court criminal proceedings

were a “full and fair” opportunity to litigate the issues. 

In support of their argument that collateral estoppel applies here, Defendants

rely heavily on Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004). The Court

acknowledges that the Jiron court stated that “a party who has pled guilty to a criminal

in Colorado state court is collaterally estopped from relitigating the elements of that

crime in a civil proceeding.” Id. at 417. However, this statement came in the context of

a discussion of the first prong of the collateral estoppel test had been met. Id. The

Tenth Circuit held that a guilty plea to a crime necessarily involved the “actual

determination” of all of the elements of the crime and that, “because the other elements

of collateral estoppel are satisfied”, the plaintiff was collaterally estopped from

relitigating an element of the crime. Id. 

The Jiron court did not actually address any of the remaining three elements,

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 8 of 20
9

including whether the plaintiff in that case had a full and fair opportunity to litigate the

issues. In Jiron, there was no implication that the underlying criminal action was less than

fair and, therefore, no discussion of the fourth prong of the collateral estoppel test was

necessary. On this basis, the Court finds that Jiron is distinguishable from the instant

action. 

As previously stated, Defendants bear the burden of establishing all of the elements

of collateral estoppel. See Bebo Constr., 990 P.2d at 85. Given the significant issues

raised by Plaintiffs regarding the whether their prior criminal convictions came after a “full

and fair opportunity” to be heard, and the fact that Defendants have not rebutted the

evidence presented by Plaintiffs on this issue, the Court finds that Defendants have not

met their burden of establishing the applicability of the collateral estoppel doctrine to these

claims. Plaintiffs Ortega and Bowen are therefore not collaterally estopped from pursuing

their false arrest/unlawful seizure claims. 

2. Heck v. Humphrey and its progeny

Defendants next contend that the preclusion doctrine first announced in Heck v.

Humphrey, 512 U.S. 477 (1994) also bars Plaintiffs’ false arrest/unlawful seizure claims

because of Plaintiffs’ prior guilty pleas. In Heck, the United States Supreme Court held:

in order to recover damages for . . . harm caused by actions

whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.

512 U.S. at 486-87. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district

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10

court must consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id. at 487; see also Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000)

(“A plaintiff may not bring a civil rights suit if a favorable result in the suit would necessarily

demonstrate the invalidity of an outstanding criminal judgment against the plaintiff.”).

Plaintiffs contend that the Tenth Circuit has narrowly interpreted Heck and that

Heck does not bar their claims because a habeas corpus remedy was not available to

them. (ECF No. 64 at 20.) In Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010), the

Tenth Circuit held that “a petitioner who has no available remedy in habeas, through no

lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.” Id. at

1317; see also Morris v. Noe, 672 F.3d 1185, 1193 n.2 (10th Cir. 2012) (“Because

[plaintiff] was never in custody, but merely received a citation, Heck does not bar Plaintiff’s

unlawful arrest claim.”). It is undisputed that Plaintiffs Ortega and Bowen were sentenced

to one year unsupervised probation, community service, and ordered to pay fines. 

Because these Plaintiffs were never imprisoned following their convictions, they could not

have had these convictions overturned via a habeas corpus proceeding. See Ferry v.

Gonzalez, 457 F.3d 1117, 1132 (10th Cir. 2006) (habeas petition is moot when detainee

no longer in custody). 

Accordingly, the Court finds that Plaintiffs Ortega and Bowen’s false arrest/unlawful

seizure claims are not barred by Heck and its progeny. 

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 10 of 20
11

3. Qualified Immunity

With respect to Plaintiffs’ false arrest/unlawful seizure claims, the only arguments

raised by Defendants in their briefing on the Motion are discussed above, i.e., collateral

estoppel and preclusion based on Heck v. Humphrey. (ECF No. 60 at 6-9.) However,

Defendants assert in the both the opening and reply briefs that, based on collateral

estoppel and/or Heck, Defendants are entitled to “qualified immunity”. (ECF Nos. 60 at 6,

8 & 9; ECF No. 68 at 6.) 

Qualified immunity is an affirmative defense that is completely separate and apart

from the affirmative defenses of collateral estoppel and preclusion based on Heck. See

Suasnavas v. Stover, 196 F. App’x 647, 652 (10th Cir. 2006). While collateral estoppel

and Heck both require the Court to evaluate the effect of a prior state court criminal

proceeding on the instant civil action, qualified immunity revolves around a completely

different set of facts. “The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” 

Pearson v. Callahan, 555 U.S. 223 (2009) (quotation omitted). Resolution of a dispositive

motion based on qualified immunity involves a two-pronged inquiry. “First, a court must

decide whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right.” Id. at 232 (internal citations omitted). “Second, . . . the court must

decide whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct.” Id. 

Though Defendants argue that they are entitled to “qualified immunity”, their

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 11 of 20
 The Court notes that Plaintiffs address the two prongs of qualified immunity in their 4

opposition brief and Defendants reply to Plaintiffs’ contentions. (ECF No. 64 at 22-23; ECF No.

68 at 7-8.) However, raising the issue in a reply brief is insufficient. See State Farm Fire &

Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (“[A]ppellant failed to raise this issue

in his opening brief and, hence has waived the point.”) Moreover, even in the Reply Brief,

Defendants fail to elaborate on their qualified immunity argument and state only that, because

collateral estoppel bars Plaintiffs from relitigating whether Defendants had probable cause to

arrest Plaintiffs, “there could be no constitutional violation and Defendant Officers are entitled to

qualified immunity.” (ECF No. 68 at 7.) This bare assertion is insufficient to raise the defense

of qualified immunity in the instant motion. See Sports Racing Servs., Inc v. Sports Car Club of

Am., Inc., 131 F.3d 874h, 880 n.9 (10th Cir. 1997) (holding that party who noted issue and

made “several broad, conclusory statements” on appeal waived argument for failure to

develop).

12

opening brief contains no argument related to the two-prong inquiry set forth above.4

Defendants do not contend that Plaintiffs failed to show a violation of a constitutional right

or that such constitutional right was not clearly established. The briefing on the Motion is

simply devoid of such analysis. Therefore, the Court finds that Defendants have not

raised qualified immunity as an affirmative defense in the instant Motion. 

That Defendants have not asserted qualified immunity in response to Plaintiff’s

false arrest/unlawful seizure claims is significant because of the right to appeal the denial

of qualified immunity on an interlocutory basis. See Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). There is no right to interlocutory appeal of the denial of collateral estoppel or the

application of Heck. See Suasnavas, 196 F. App’x at 653 (“the denial of a collateral

estoppel motion to dismiss is not a collateral order appealable under 28 U.S.C. § 1291.”);

Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir. 2000) (no right to interlocutory

appeal denial of motion based on Heck). Because Defendants have not raised qualified

immunity as an affirmative defense, they have no right to appeal—on an interlocutory

basis—this aspect of the Court’s denial of summary judgment. 

For the reasons set forth above, the Court denies Defendants’ Motion for Summary

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 12 of 20
13

Judgment in so far as it pertains to Plaintiffs’ false arrest/unlawful seizure claims. 

B. Malicious Prosecution

Defendants next move for summary judgment on Plaintiff Ortega’s and Bowen’s

claims for malicious prosecution. (ECF No. 60 at 10-12.) 

To survive summary judgment on their malicious prosecution claims, Plaintiffs must

show a genuine dispute of fact as to the following elements: 

(1) the defendant caused the plaintiff’s continued confinement

or prosecution; (2) the original action terminated in favor of the

plaintiff; (3) no probable cause supported the original arrest,

continued confinement, or prosecution; (4) the defendant acted

with malice; and (5) the plaintiff sustained damages.

Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). 

In the Motion, Defendants focus on the second prong—whether Plaintiffs have

shown that the original action terminated in their favor. (ECF No. 60 at 10.) Plaintiffs

contend that there is a dispute of fact regarding whether their criminal cases terminated in

their favor because they entered deferred judgment pleas and the claims against them

were ultimately dismissed. (ECF No. 64 at 24-25.) 

Plaintiffs cite no case law supporting their contention that the fact that Plaintiffs’

state court criminal cases were ultimately dismissed creates a dispute of fact as to

whether their cases terminated in their favor. On summary judgment, establishing a

dispute of fact is the plaintiff’s burden. See Simms v. Okla. ex rel. Dep’t of Mental Health

& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Plaintiffs do not

dispute that they entered guilty pleas, were sentenced to a term of unsupervised

probation, required to perform community service hours, and fined. It was only after they

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 The Court finds that Colorado’s deferred judgment statute is distinguishable from the 5

Kansas diversion statute discussed in Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir.

2009). The Kansas diversion statute is a pre-trial mechanism; a defendant who enters into a

diversion agreement does not enter a plea. See State v. Chamberlain, 120 P.3d 319, 323 (Kan.

2005). Under Colorado’s deferred judgment statute, a defendant must plead guilty and

successfully complete all aspects of her sentence before the case can be dismissed. See

Denver Revised Municipal Code § 14-66(a). 

14

completed each aspect of their sentence that their cases were dismissed. Again, Plaintiffs

fail to cite any case law supporting their contention that a situation of this type is favorable

termination. 

5

Because the undisputed facts show that the Plaintiffs were required to pay a fine,

complete community service, and successfully complete a term of unsupervised probation,

the Court finds that there is no dispute of fact as to whether their state court criminal

actions terminated in their favor. See DeLeon v. City of Corpus Christi, 488 F.3d 649,

655-56 (5th Cir. 2007) (“a deferred adjudication order is a conviction for the purposes of

[the] favorable termination rule.”).

Because Plaintiffs have failed to show a genuine dispute of fact as to an essential

element of their malicious prosecution claims, the Court grants Defendants’ Motion for

Summary Judgment as to these claims. 

C. Destruction and Hiding of Exculpatory Evidence and Manufacture of

Inculpatory Evidence

With respect to Plaintiffs’ claims for destruction and/or hiding of exculpatory

evidence and manufacture of inculpatory evidence, Defendants raise the same arguments

as addressed above in the context of malicious prosecution. (ECF No. 60 at 12.) 

Defendants contend that these claims “are not separate claims in and of themselves” but

are simply different ways to restate the malicious prosecution claims. (Id.) 

Case 1:11-cv-02394-WJM-CBS Document 103 Filed 01/30/13 USDC Colorado Page 14 of 20
 In Plaintiffs’ Opposition, Plaintiff Carillo voluntarily dismisses her First Amendment 6

retaliation claim. (ECF No. 64 at 28.)

15

In their Response to the Motion, Plaintiffs fail to address any aspect of their claims

for destruction and/or hiding of exculpatory evidence and manufacture of inculpatory

evidence. (ECF No. 64.) As the Court has previously stated, once Defendants move for

summary judgment on a claim, it is Plaintiffs’ burden to come forward with sufficient

evidence to show a trial-worthy dispute of fact as to that claim. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin

Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Plaintiffs have failed to do so here.

Accordingly, Defendants’ Motion for Summary Judgment is granted with respect to

Plaintiffs’ claims for destruction and/or hiding of exculpatory evidence and the

manufacture of inculpatory evidence. 

D. First Amendment Retaliation

Plaintiffs Boren, Ortega, and Thomas bring claims for retaliation in violation of the

First Amendment. Defendants move for summary judgment on these claims and also 6

assert qualified immunity. 

As stated above, qualified immunity is a two-part affirmative defense. Pearson v.

Callahan, 555 U.S. 223 (2009). “First, a court must decide whether the facts that a

plaintiff has alleged or shown make out a violation of a constitutional right.” Id. at 232

(internal citations omitted). “Second, . . . the court must decide whether the right at issue

was ‘clearly established’ at the time of the defendant’s alleged misconduct.” Id. A

reviewing court may “exercise [its] sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in light of the circumstances in

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16

the particular case at hand.” Id. at 236. Qualified immunity is applicable unless the

plaintiff can satisfy both prongs of the inquiry. Id. at 232. 

To show a violation of their First Amendment rights, Plaintiffs must satisfy the

following elements: (1) that the plaintiff was engaged in constitutionally protected activity;

(2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a

person of ordinary firmness from continuing to engage in that activity; and (3) that the

defendant’s adverse action was substantially motivated as a response to the plaintiff’s

exercise of constitutionally protected conduct. Worrell v. Henry, 219 F.3d 1197, 1212

(10th Cir. 2000). 

The Court finds that Plaintiffs have shown that they engaged in protected activity. 

Plaintiffs allege that, on the night in question, they were voicing their disapproval of

Nixon’s and Devine’s actions. (ECF No. 64 at 27.) The Supreme Court has held: “The

freedom of individuals verbally to oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we distinguish a free nation from a

police state.” Hill v. United States, 482 U.S. 451, 462-63 (1987). Thus, the Court finds

that protesting police conduct is protected activity. 

It is undisputed that Plaintiffs Boren and Ortega were arrested by Defendants. The

Court finds that being arrested and charged with a criminal offense is an injury that would

chill a person of ordinary firmness from critiquing police behaviors. See McCormick v. City

of Lawrence, 253 F. Supp. 2d 1172, 1196 (D. Kan. 2003). Therefore, Plaintiffs Boren and

Ortega have satisfied the second element. 

However, Plaintiff Thomas has failed to come forward with any evidence showing

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17

that she was subjected to an injury that would chill a person of ordinary firmness from

engaging in a protected activity. Thomas was not arrested by Defendants. The Court

recognizes that the Complaint contains allegations of mistreatment towards Thomas. 

(See ECF No. 1 ¶¶ 35-41.) However, on summary judgment, a party cannot rely solely on

allegations in a complaint. See Fed. R. Civ. P. 56(c)(1). Plaintiffs’ Response to the

Individual Defendants’ Motion for Summary Judgment contains no facts or evidence

showing that Thomas was mistreated by Defendants. (ECF No. 64.) Therefore, the Court

finds that Plaintiff Thomas has failed to meet her burden of showing that she suffered an

injury that would chill a person of ordinary firmness from engaging in a protected activity. 

Defendants’ Motion for Summary Judgment is granted as to Plaintiff Thomas’s First

Amendment retaliation claim.

With respect to Plaintiffs Boren and Ortega, the third element requires that they

show that their arrests and subsequent charges were substantially motivated by their

criticism of Defendants’ activities. “‘Intent to inhibit speech . . . can be demonstrated either

through direct or circumstantial evidence.’” McCook v. Spriner Sch. Dist., 44 F. App’x 896,

905 (10th Cir. 2002) (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283,

1300-01 (9th Cir. 1999)). Because “proof of an official’s retaliatory intent rarely will be

supported by direct evidence of such intent,” Poole v. County of Otero, 271 F.3d 955, 962

(10th Cir. 2001), the Tenth Circuit has set forth a test for examining the issue of intent in

the context of a summary judgment motion based on qualified immunity. “First,

Defendants must make a prima facie showing of the objective reasonableness of the

challenged conduct. If Defendants meet their burden of showing objective

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reasonableness, we next consider whether the [plaintiff] satisfied the burden of presenting

evidence Defendants acted on the basis of a culpable subjective state of mind.” McCook,

44 F. App’x at 905.

Defendants allege that Plaintiffs were arrested based on Defendants’ belief that

they had probable cause to arrest Plaintiffs for failure to obey a lawful order. (ECF No. 60

at 14-15.) The criminal complaints filed against Boren and Ortega support this position. 

(ECF Nos. 60-6 & 60-7.) Plaintiffs admitted in their depositions that they did not, in fact,

obey Defendants’ orders. (Boren Dep. at 257; Ortega Dep. at 289-90.) Thus, the Court

finds that Defendants have made a prima facie showing that it was reasonable to believe

that they had probable cause to arrest Plaintiffs for failure to obey a lawful order. 

Plaintiffs have failed to come forward with any evidence showing that Defendants

acted with a culpable state of mind in making the arrests. Plaintiffs’ brief on this issue

makes only the conclusory statement: “Plaintiffs Boren’s and Ortega’s arrests were

motivated by their protesting of Nixon’s and Devine’s misconduct” and cites four

paragraphs from the statement of facts. (ECF No. 64 at 27.) The evidence cited in

support of this statement shows only that Plaintiffs were engaging in protected activity

before their arrests. Plaintiffs have presented no evidence suggesting that Defendants did

not believe that they had probable cause to arrest Plaintiffs. 

“[O]n a motion for summary judgment, ‘it is the responding party’s burden to ensure

that the factual dispute is portrayed with particularity, without depending on the trial court

to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290

(10th Cir. 2004). The Court finds that Plaintiffs have failed to portray with particularity any

factual dispute regarding Defendants’ motivation for arresting Plaintiffs Ortega and Boren. 

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Therefore, Plaintiffs Ortega and Boren have failed to meet their burden with respect to the

third prong of their First Amendment retaliation claims.

Because the Court finds that Plaintiffs have not shown that there is a genuine

dispute of fact as to whether they suffered a constitutional violation, the Court need not

address whether Defendants’ action violated a clearly established constitutional right. See

Pearson, 555 U.S. at 236. Accordingly, the Court concludes that Defendants are entitled

to qualified immunity on Plaintiffs’ First Amendment retaliation claims. Defendants’ Motion

for Summary Judgment is granted with respect to such claims.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows: 

1. Plaintiff Boren and Ortega’s conspiracy claims are DISMISSED WITH PREJUDICE;

2. Plaintiff Thomas’s race discrimination claim is DISMISSED WITH PREJUDICE; 

3. Plaintiff Carillo’s First Amendment retaliation claim is DISMISSED WITH

PREJUDICE; 

4. Defendants’ Motion for Summary Judgment (ECF No. 60) is GRANTED IN PART

and DENIED IN PART; 

5. Judgment shall enter in favor of Defendants on Plaintiffs Boren and Ortega’s claims

for malicious/vindictive prosecution, destruction and/or hiding of exculpatory

evidence, and manufacture of inculpatory evidence;

6. Judgment shall also enter in favor of Defendants on Plaintiffs Ortega, Boren, and

Thomas’s claims for First Amendment retaliation; 

7. This case shall proceed to trial against Defendants Devine and Nixon on all

Plaintiffs’ excessive force and Plaintiffs Boren, Ortega, and Thomas’s false

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arrest/unlawful seizure claims.

8. Because Defendants Nixon and Devine did not assert qualified immunity in

response to either the excessive force or the false arrest/unlawful seizure claims,

Defendants do not have the right to appeal this Order on an interlocutory basis.

Dated this 30 day of January, 2013. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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