1

The Complaint [Doc. #1] was filed while the plaintiff was represented by counsel. 

Therefore, I do not provide the Complaint a liberal construction.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-01734-PAB-BNB

DANIEL LEROY RHODEN,

Plaintiff,

v.

RYAN O’HAYRE, in His Official and Individual Capacity, and

STUART RUYBAL, in His Official and Individual Capacity,

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

This matter arises on Defendants Ryan O’Hayre and Stuart Ruybal’s Motion for

Summary Judgment [Doc. #77, filed 12/17/2013] (the “Motion”). I respectfully

RECOMMEND that the Motion be GRANTED.

I. STANDARD OF REVIEW

The plaintiff is proceeding pro se, and I must liberally construe his pleadings.1

 Haines v.

Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however,

who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. 

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

The plaintiff filed his First Amended Complaint on February 15, 2012 [Doc. #30] (the

“Complaint”). The court has dismissed several claims and defendants [Doc. #51]. The

remaining claims are for (1) violation of the plaintiff’s Fourth Amendment and due process

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 1 of 16
2

rights; (2) false imprisonment; (3) assault and battery; (4) intentional infliction of emotional

distress and; (5) extreme and outrageous conduct. The defendants seek summary judgment on

all remaining claims. The plaintiff did not respond to the defendants’ Motion.

In ruling on a motion for summary judgment, the facts must be viewed in the light most

favorable to the party opposing the motion and that party must be afforded the benefit of all

reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co., 398 U.S.

144, 157 (1970). Summary judgment shall be rendered “if the movant shows that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). 

The moving party bears the initial burden of demonstrating by reference to portions of

pleadings, discovery and disclosure materials on file, and any affidavits, the absence of genuine

issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party

may carry its initial burden either by producing affirmative evidence negating an essential

element of the nonmoving party’s claim, or by showing that the nonmoving party does not have

enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties,

Inc., 318 F.3d 976, 979 (10th Cir. 2002). 

The party opposing the motion is then required to go beyond the pleadings and designate

evidence of specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at

324. Only admissible evidence may be considered when ruling on a motion for summary

judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). 

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 2 of 16
2

Exhibit A contains police reports which appear to be business records and to which the

plaintiff makes no objection.

3

II. UNDISPUTED MATERIAL FACTS

1. On July 13, 2010, at approximately 6:29 p.m., City of Lakewood Police Agent Marisa

Cordova (“Agent Cordova”) responded to the Walmart store located at 7455 W. Colfax Ave.,

Lakewood, Colorado. Motion, Ex. A, COL 2302

;Ex. H, ¶ 2. Agent Cordova responded to a call

made by Walmart store personnel regarding a backpack found within the store that contained

drugs and fireworks. The backpack had been turned into the Walmart security office. Id. at Ex.

A, COL 230; Ex. H, ¶ 3. 

2. Upon arrival at the Walmart store, Agent Cordova contacted loss prevention officer

Nathan Kearney, who was located in the security office. Id. at Ex. A, COL 230; Ex. H, ¶ 4. Mr.

Kearney gave Agent Cordova a black and red backpack, which had been found by a store

employee. Id. at Ex. A, COL 230; Ex. H, ¶ 5. Agent Cordova looked inside the backpack and

found several containers of a green leafy substance. Id. at Ex. A, COL 230; Ex. H, ¶ 6. The

substance field tested presumptive positive for marijuana. Id. at Ex. A, COL 231; Ex. H, ¶ 6. 

Agent Cordova also found two pipes, rolling papers, a grinder, filter screens, a tin containing a

black mass of an unknown substance, a spring loaded knife, fireworks, and a wallet. Id. at Ex.

A, COL 230; Ex. H, ¶ 7. Agent Cordova looked inside the wallet and located several forms of

identification for a Daniel Rhoden, date of birth May 6, 1987. Id. at Ex. A, COL 230; Ex. H, ¶ 8. 

3. Agent Cordova was informed that a male at the customer service desk was inquiring

about a lost backpack. Id. at Ex. A, COL 230; Ex. H, ¶ 9. Agent Cordova observed the male

customer on the store’s surveillance system. The male matched the photo identification for

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 3 of 16
4

Daniel Rhoden which was found in the backpack. Id. at Ex. A, COL 230; Ex. H, ¶ 10. 

4. Agent Cordova went to her police vehicle to retrieve a court summons and to make a

request for a second unit to respond to the Walmart store. Id. at Ex. A, COL 230; Ex. H, ¶ 11. 

5. At 6:45 p.m. on July 13, 2010, defendant Agent Ryan O’Hayre responded to the

Walmart to assist Agent Cordova. Id. at Ex. A, COL 232. Agent O’Hayre was advised that Mr.

Rhoden was on the west side of the parking lot. Id. at Ex. A, COL 230; Ex. H, ¶ 12.

6. Agent O’Hayre observed a white male wearing a black tee shirt and shorts. The man

was identified as Mr. Rhoden. Agent O’Hayre observed Mr. Rhoden walking quickly toward the

parking lot. Id. at Ex. A, COL 232. Agent O’Hayre transmitted over his police radio that he was

in contact with Daniel Rhoden. Id. at Ex. A, COL 230.

7. Mr. Rhoden began to run when he saw Agent O’Hayre. As Agent O’Hayre

approached, Mr. Rhoden opened a car trunk and yelled at Agent O’Hayre, “Why are you running

after me?” Agent O’Hayre asked Mr. Rhoden to close the trunk of the vehicle because Agent

O’Hayre did not know what was inside. Mr. Rhoden slammed the trunk of the vehicle, walked

around to the passenger side of the vehicle, and began to open the passenger door. Agent

O’Hayre asked Mr. Rhoden to not open the passenger door. Mr. Rhoden became more upset and

quickly walked toward the front of the vehicle. Agent O’Hayre observed that Mr. Rhoden was

very agitated and was pacing around and waving his arms in the air. Agent O’Hayre observed

that Mr. Rhoden continued to yell about having lost his backpack. Id. at Ex. A, COL 232. 

8. Agent Cordova observed Mr. Rhoden gesturing up and down with his arms in an

exaggerated motion, and he appeared to be angry. Id. at Ex. A, COL 230; Ex. H, ¶ 16. Agent

Cordova also observed Mr. Rhoden throw a small object at an adjacent vehicle. Id. at Ex. A,

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 4 of 16
5

COL 230; Ex. H, ¶ 14. The object was later identified by Agent Cordova as a set of keys. Id. at

Ex. A, COL 231; Ex. H, ¶ 15. 

9. Agent O’Hayre intended to calm Mr. Rhoden and question him about the contents of

the backpack. During his contact with Mr. Rhoden, Agent O’Hayre was aware that drugs had

been located in the backpack. Due to Mr. Rhoden’s behavior and the drugs found in the

backpack, Agent O’Hayre believed that Mr. Rhoden was under the influence of narcotics. Agent

O’Hayre also believed Mr. Rhoden was carrying a weapon. Id. at Ex. A, COL 232. 

10. Agent O’Hayre told Mr. Rhoden to turn around and place his hands on his head

because Agent O’Hayre wanted to check Mr. Rhoden for weapons. Agent O’Hayre prepared to

grab Mr. Rhoden’s hands when they reached the top of his head. Agent O’Hayre noticed that

Mr. Rhoden’s tee shirt was not tucked in. As Mr. Rhoden began to turn around, he immediately

and quickly reached down to the front of his shorts with both hands. Agent O’Hayre believed

Mr. Rhoden was reaching for a weapon in his shorts. Id. at Ex. A, COL 232. 

11. Agent O’Hayre wrapped both of his arms around Mr. Rhoden in an attempt to

prevent Mr. Rhoden from pulling his hands back out of the front of his shorts. Id. at Ex. A, COL

232-233. Mr. Rhoden told Agent O’Hayre that he “had one” which Agent O’Hayre interpreted

to mean that the plaintiff possessed a weapon. Agent O’Hayre reasonably believed Mr. Rhoden

was holding a weapon in his hands on the inside of the front of his shorts. Id. at Ex. A, COL

233. 

12. Agent O’Hayre and Mr. Rhoden fell to the ground. Id. at Ex. A, COL 230; Ex. H, ¶

17. Agent O’Hayre brought Mr. Rhoden down to the ground in order to protect himself. Id. at

Ex. A, COL 233. 

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 5 of 16
6

13. Agent Cordova ran towards Agent O’Hayre and was informed by Agent O’Hayre

that Mr. Rhoden was reaching for what he believed was a weapon, in the front of his waistband. 

Id. at Ex. A, COL 230; Ex. H, ¶ 18. Agent Cordova identified the individual as Daniel Rhoden

who is the same person as depicted on the driver’s license in the backpack. Id. at Ex. A, COL

230. 

14. Mr. Rhoden was handcuffed. Id. at Ex. A, COL 230 and 233; Exhibit H, ¶ 19. After

he was handcuffed, Agent Cordova saw a black folding knife clipped to the front of Mr.

Rhoden’s shorts. Id. at Ex. A, COL 230; Ex. H, ¶ 20. 

15. Paramedics were summoned to the Walmart. Id. at Ex. A, COL 230; Ex. H, ¶ 21. 

The knife was removed by the responding paramedics and placed on the ground where Agent

Cordova photographed it. Id. at Ex. A, COL 230; Ex. H, ¶ 22. Mr. Rhoden was transported to

St. Anthony’s Central Hospital by West Metro paramedics. Id. at Ex. A, COL 235; Ex. H, ¶ 23. 

16. On July 13, 2010, at approximately 6:29 p.m., City of Lakewood Police Agent

Stuart Ruybal was dispatched to the Wal-Mart located at 7455 West Colfax Avenue. Id. at Ex.

A, 237; Ex. G, ¶ 2. Upon arriving at Wal-Mart, Lakewood Police Department Sergeant Cohn

requested Agent Ruybal to follow a West Metro Fire Department Ambulance which was

transporting Mr. Rhoden to St. Anthony Central Hospital. Id. at Ex. A, COL 237; Ex. G, ¶ 3. 

Agent Ruybal followed the West Metro Fire Department Ambulance to St. Anthony’s Central

Hospital. Id. at Ex. A, COL 237; Ex. G, ¶ 4. 

17. While at St. Anthony’s Central Hospital, Agent Ruybal observed Mr. Rhoden

disobey the orders of hospital staff. Id. at Ex. A, COL 237; Ex. G, ¶ 5. Mr. Rhoden admitted to

Agent Ruybal that he reached down the front of his shorts and tried to pull out his pocket knife. 

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 6 of 16
7

Id. at Ex. A, COL 237; Ex. G, ¶ 6. Agent Ruybal did not grab Mr. Rhoden’s head or push it back

into the hospital bed at any time. Id. at Ex. G, ¶ 7; Ex. H, ¶ 26. Agent Ruybal did not refer to

the plaintiff as a skin head at any time. Id. at Ex. G, ¶ 8; Ex. H, ¶ 27. 

18. Agent Cordova went to St. Anthony’s Hospital to photograph Mr. Rhoden. Id. at

Ex. H, ¶ 24. Agent Ruybal was present while Agent Cordova photographed Mr. Rhoden. Id. at

Ex. H, ¶ 25. 

19. Agent Cordova issued Mr. Rhoden municipal summons L564559 for Possession of

Marijuana, Possession of Drug Paraphernalia, Possession of an Illegal Weapon, and Interference

with a Police Officer. Id. at Ex. A, COL 231; Ex. D, COL 243-244. 

20. Mr. Rhoden admits that probable cause existed to arrest and charge him for (1)

possession of not more than eight ounces of marijuana, pursuant to Lakewood Municipal

Ordinance 9.43.030; (2) possession of drug paraphernalia, pursuant to Lakewood Municipal

Ordinance 9.44.030; and (3) possessing/concealing illegal weapons pursuant to Lakewood

Municipal Ordinance 9.70.030. Id. at Ex. E1, ¶¶ 1, 3, 5; E2, ¶¶ 1, 3, 5.

21. Mr. Rhoden was found guilty of violating Lakewood Municipal Ordinance 9.43.030,

possession of not more than eight ounces of marijuana; Lakewood Municipal Ordinance

9.44.030, possession of drug paraphernalia; and Lakewood Municipal Ordinance 9.70.030,

possessing/concealing illegal weapons (a switchblade). Id. at Ex. E1, ¶¶ 2, 4, 6; E2, ¶¶ 2, 4, 6.

III. ANALYSIS

A. Constitutional Claims

Claim One alleges that “[t]he police officers’ actions in assaulting the Plaintiff, placing

him in custody, and bringing false allegations against him” were in violation of the plaintiff’s

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 7 of 16
3

The defendants state that the only remaining constitutional claim is for excessive force

in violation of the plaintiff’s Fourth Amendment rights. However, the plaintiff claims that he

was assaulted and arrested in violation of his Fourth Amendment and due process rights. First

Amended Complaint [Doc. #30], p. 7, ¶ 23; Order [Doc. #51], p. 7. Even though the defendants

do not seek summary judgment on these claims, I address them in the interest of judicial

economy. 

8

Fourth Amendment and due process rights.3 Complaint, p. 6. 

1. Assault: Fourth Amendment

All claims that police officers used excessive force, deadly or not, in the context of an

arrest, investigatory stop, or other seizure are governed by the Fourth Amendment’s objective

reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). When determining

whether the force used was reasonable under this standard, the court must perform “a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Id. at 396. Application of

the reasonableness test is dependent on the facts and circumstances of each particular case,

“including the severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. 

The reasonableness of a particular use of force must be judged from the perspective of a

reasonable officer at the scene, rather than from hindsight. Id. Not every push or shove, even if

it later may seem unnecessary, violates the Fourth Amendment. Id. Reasonableness embodies

allowance for the fact that police officers are often forced to make split-second judgments about

the amount of force that is necessary, often in circumstances that are tense, uncertain, and rapidly

evolving. Id. at 396-97. 

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 8 of 16
9

The reasonable test is an objective one: the question is “whether the officer’s actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Id. 397. “An officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s

good intentions make an objectively unreasonable use of force constitutional.” Id.

Here, it is undisputed that at the time he encountered Mr. Rhoden, Agent O’Hayre was

aware that drugs had been found in Mr. Rhoden’s backpack; Mr. Rhoden was angry and

agitated; he exhibited bizarre behaviors like pacing and waiving his arms in the air, slamming his

trunk shut, throwing his keys, and yelling; Mr. Rhoden’s tee shirt was not tucked in; when Agent

O’Hayre told him to turn around and place his hands on his head, Mr. Rhoden immediately

reached down to the front of his shorts with both hands; as Agent O’Hayre wrapped both of his

arms around him to prevent him from pulling his hands out of his shorts, Mr. Rhoden said he

“had one”; and Agent O’Hayre immediately brought Mr. Rhoden to the ground. Under these

circumstances, it was reasonable for Agent O’Hayre to believe that Mr. Rhoden had his hands on

a weapon and that he posed an immediate threat to Agent O’Hayre’s safety. Agent O’Hayre’s

actions in grabbing the plaintiff and bringing him to the ground were reasonable to assure Agent

O’Hayre’s safety. 

In addition, it is undisputed that Agent Ruybal did not grab the plaintiff’s head or push it

back into the hospital bead. There is no evidence in the record that Agent Ruybal used any

force, much less excessive force, against the plaintiff. The Motion should be granted insofar as

it seeks summary judgment in favor of the defendants on the plaintiff’s Fourth Amendment claim

for excessive force.

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 9 of 16
10

2. Arrest: Fourth Amendment

If a police officer has probable cause to believe that a person has committed or is

presently committing a crime, the officer may effectuate a warrantless arrest without violating

the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). “The constitutional validity

of a warrantless arrest depends upon whether the arresting officer had probable cause.” Karr v.

Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). 

“Probable cause exists where the facts and circumstances within an officer’s knowledge and of

which he had reasonably trustworthy information are sufficient to warrant a prudent man in

believing that an offense has been or is being committed.” Karr, 774 F.2d at 1031.

Mr. Rhoden admits that probable cause existed to arrest and charge him for (1)

possession of not more than eight ounces of marijuana, pursuant to Lakewood Municipal

Ordinance 9.43.030; (2) possession of drug paraphernalia, pursuant to Lakewood Municipal

Ordinance 9.44.030; and (3) possessing/concealing illegal weapons pursuant to Lakewood

Municipal Ordinance 9.70.030. 

Agent Cordova, who is not a party to this action, and not Agents O’Hayre or Ruybal,

arrested Mr. Rhoden for Interference with a Police Officer. Motion, Ex. D, COL 243. 

Mr. Rhoden’s claim that Agents O’Hayre and Ruybal arrested and charged him in

violation of the Fourth Amendment should be dismissed.

3. Due Process

“[T]he Due Process Clause of the Fourteenth Amendment confers both substantive and

procedural rights.” Albright v. Oliver, 510 U.S. 266, 272 (1994). However, the Due Process

Clause guarantees due process only when a person is to be deprived of life, liberty, or property. 

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 10 of 16
4

In addition, the Substantive Due Process Clause cannot form the basis for a cause of

action where, as here, the Fourth Amendment “provides an explicit textual source of

constitutional protection” against the defendants’ behavior. Albright, 510 U.S. at 273. 

5

Agent Ruybal does not invoke qualified immunity.

11

U.S. Const. amend. XIV, § 1. 

The Complaint summarily states that “[t]he police officers’ actions in assaulting the

Plaintiff, placing him in custody, and bringing false allegations against him were willful and

wanton, and in violation of the Plaintiff’s federally protected rights under the Fourth

Amendment, the Fourteenth Amendment, the due process clause, and other civil rights, all

guaranteed by the United States Constitution.” It is unclear whether the plaintiff is claiming a

violation of his substantive or procedural due process rights, or both. Moreover, the plaintiff

does not identify the liberty or property interest of which he was deprived.

A complaint must contain specific allegations sufficient to establish that it plausibly

supports a claim for relief. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir.

2007). “The burden is on the plaintiff to frame a complaint with enough factual matter (taken as

true) to suggest that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247

(10th Cir. 2008) (internal quotations and citation omitted). The plaintiff’s due process claim is

devoid of factual detail.4 Accordingly, the plaintiff’s due process claim should be dismissed.

4. Qualified Immunity: Agent O’Hayre

Agent O’Hayre asserts that he is entitled to qualified immunity.5

 Motion, pp. 14-15. 

Qualified immunity shields government officials from liability for civil damages provided that

their conduct when committed did not violate “clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 11 of 16
6

The order in which I may consider these factors is discretionary. Pearson v. Callahan,

555 U.S. 223, 236, (2009); Shroff v. Spellman, 604 F.3d 1179, 1188 (10th Cir. 2010).

12

818 (1982). Qualified immunity not only shields a defendant from unwarranted liability, it also

protects the defendant from the burdens of defending a suit. Medina v. Cram, 252 F.3d 1124,

1128 (10th Cir. 2001). The qualified immunity defense is available only to government officials

sued in their individual capacities. Buchwald v. University of New Mexico School of Medicine,

159 F.3d 487, 492 (10th Cir. 1998). 

When a defendant asserts a qualified immunity defense on summary judgment, a heavy

two-part burden shifts to the plaintiff. Medina, 252 F.3d at 1128. The plaintiff must establish

that “the defendant’s actions violated a constitutional or statutory right.” Scull v. New Mexico,

236 F.3d 588, 595 (10th Cir. 2000) (internal quotations and citations omitted). The plaintiff must

also show “that the constitutional or statutory right the defendant allegedly violated was clearly

established at the time of the conduct at issue.”6 Id. “A right is clearly established only if there

is a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts has found the law to be as the plaintiff maintains. Only if the

plaintiff establishes both elements of the test does the defendant bear the traditional burden of

showing that there are no genuine issues of material fact and that he or she is entitled to

judgment as a matter of law.” Id. “If the plaintiff fails to satisfy either part of the two-part

inquiry, the court must grant the defendant qualified immunity.” Medina, 252 F.3d at 1128. 

The plaintiff has not established that Agent O’Hayre’s actions violated the Due Process

Clause or the Fourth Amendment, nor has he shown that his due process and Fourth Amendment

rights were clearly established at the time of Agent O’Hayre’s conduct. Therefore, Agent

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 12 of 16
13

O’Hayre is entitled to qualified immunity on these claims. 

B. State Law Tort Claims

The plaintiff’s remaining claims are state law tort claims against Agents O’Hayre and

Ruybal for false imprisonment; assault and battery; intentional infliction of emotional distress;

and extreme and outrageous conduct.

The defendants move to dismiss the state law tort claims, arguing that the court lacks

subject matter jurisdiction over these claims because they do not fall within any of the

exceptions to immunity under the Colorado Governmental Immunity Act (“CGIA”). Because

the issue is jurisdictional, I address this argument prior to the defendants’ other arguments

regarding the state law tort claims. 

The standard of review for a motion to dismiss for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1) is described as follows:

Generally, Rule 12(b)(1) motions to dismiss for lack of subject

matter jurisdiction take two forms. First, a facial attack on the

complaint's allegations as to subject matter jurisdiction questions

the sufficiency of the complaint. In reviewing a facial attack on

the complaint, a district court must accept the allegations in the

complaint as true. 

Second, a party may go beyond allegations contained in the

complaint and challenge the facts upon which subject matter

jurisdiction depends. When reviewing a factual attack on subject

matter jurisdiction, a district court may not presume the

truthfulness of the complaint's factual allegations. A court has

wide discretion to allow affidavits, other documents, and a limited

evidentiary hearing to resolve disputed jurisdictional facts under

Rule 12(b)(1). In such instances, a court's reference to evidence

outside the pleadings does not convert the motion to a Rule 56

motion.

However, a court is required to convert a Rule 12(b)(1) motion to

dismiss into a Rule 12(b)(6) motion or a Rule 56 summary

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 13 of 16
14

judgment motion when resolution of the jurisdictional question is

intertwined with the merits of the case. The jurisdictional question

is intertwined with the merits of the case if subject matter

jurisdiction is dependent on the same statute which provides the

substantive claim in the case.

Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted). The plaintiff has

the burden to prove jurisdiction in the face of a challenge under Rule 12(b)(1), Fed. R. Civ. P. 

Trinity Broadcasting of Denver, Inc., v. City of Westminster, 848 P.2d 916, 925 (Colo. 1993).

Under the CGIA, public employees are immune to tort claims “unless the claim falls

within one of the six limited areas for which immunity has been waived or unless the act or

omission causing the injury was willful and wanton.” Moody v. Ungerer, 885 P.2d 200, 204

(Colo. 1994); C.R.S. § 24-10-118. The six exceptions to immunity are (1) the operation of a

motor vehicle owned or leased by a public entity; (2) the operation of any public hospital,

correctional facility, or jail by a public entity; (3) a dangerous condition of any public building;

(4) a dangerous condition of a public highway, road, or street; (5) a dangerous condition of any

public hospital, jail, public facility located in any park or recreation area maintained by a public

entity, or public water, gas, sanitation, electrical, power, or swimming facility; or (6) the

operation and maintenance of any public water, gas, sanitation, electric power, or swimming

facility by a public entity. C.R.S. § 24-10-106(a). The statute extends sovereign immunity to

employees of a municipality. C.R.S. §§ 24-10-103(4)(a) and (5). 

The CGIA does not define the term “willful and wanton.” Moody, 885 P.2d at 205. 

However, the Colorado Supreme Court has looked to the definition of “willful and wanton” for

purposes of exemplary damages (“conduct purposefully committed which the actor must have

realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 14 of 16
15

rights and safety of others, particularly the plaintiff”); the definition as used in the automobile

guest statute (“wholly disregardful of the rights, feelings and safety of others ... at times even

imply[ing] an element of evil”); and the definition found in Black’s Law Dictionary (an act or

omission that is “not only negligent, but exhibit[s] conscious disregard for safety of others”). 

None of Mr. Rhoden’s tort claims fall within the six exceptions to immunity found in

section 24-10-106(a). Moreover, there is no evidence in the record to create a material fact

dispute that the defendants’ behavior was willful and wanton. To the contrary, Agent O’Hayre

reasonably believed that Mr. Rhoden was reaching for a weapon. Far from acting heedlessly or

recklessly, Agent O’Hayre brought Mr. Rhoden to the ground in order to ensure his safety. 

Mr. Rhoden has failed to meet his burden of proving that his claims fall within one of the

CGIA’s exceptions to immunity and that this court has subject matter jurisdiction over his state

law tort claims. I respectfully recommend that the Motion be granted insofar as it seeks

dismissal of the plaintiff’s state law tort claims for lack of subject matter jurisdiction.

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 15 of 16
7

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 14 days

after service of this recommendation to serve and file specific, written objections. A party’s

failure to serve and file specific, written objections waives de novo review of the

recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-

48 (1985), and also waives appellate review of both factual and legal questions. In re Key

Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party’s objections to this

recommendation must be both timely and specific to preserve an issue for de novo review by the

district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d

1057, 1060 (10th Cir. 1996). 

16

IV. CONCLUSION

I respectfully RECOMMEND that Defendants Ryan O’Hayre and Stuart Ruybal’s

Motion for Summary Judgment [Doc. #77] be GRANTED and that summary judgment be

entered in favor of the defendants on all of the plaintiff’s claims against them.7

Dated March 4, 2014.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

Case 1:11-cv-01734-PAB-BNB Document 82 Filed 03/04/14 USDC Colorado Page 16 of 16