IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02441-REB-BNB

ISADORE BROWN,

Plaintiff,

v.

DENVER POLICE OFFICERS GARCIA,

ROMAN YEPSHIN,

SERGEY GUREVICH,

DETECTIVE JOEY SMITH, and

CITY AND COUNTY OF DENVER, jointly and severally,

Defendants.

______________________________________________________________________________

 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

This matter arises on Defendants’ Motion for Summary Judgment [Doc. # 58, filed

10/12/2012]. The plaintiff has not responded. I respectfully RECOMMEND that the Motion for

Summary Judgment be GRANTED and that summary judgment enter in favor of the defendants

and against the plaintiff on all claims.

The plaintiff, through counsel, filed a Complaint asserting four claims for relief:

First Claim: A Monell claim against the City and County of Denver alleging a policy,

custom, or usage to deprive the plaintiff “of the right to be secure, in his person and house,

against unreasonable seizure”;

Second Claim: A claim alleging the use of excessive force by defendant police officers

Garcia, Yepshin, Gurevich, and Smith in violation of 42 U.S.C. § 1983;

Third Claim: A Monell claim against the City and County of Denver alleging policies,

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customs, or usages to (a) provide inadequate training in the use of force; (b) tacitly authorize its

officers to use excessive force and to not prosecute those officers who use excessive force; (c)

fail to discipline officers involved in unjustified police brutality and to endorse irresponsible use

of force; (d) condone and permit the use of excessive force by its officers; (e) “cover-up” police

beatings; and (f) fail to discipline officers who use excessive force; and

Fourth Claim: A claim against all defendants under 42 U.S.C. § 1986 for failing to

“instruct, supervise, control, and discipline on a continuing basis Defendant police officers in

their duties to refrain from” (a) harassing a citizen; (b) arresting a citizen; (c) conspiring to

violate the plaintiff’s constitutional rights; and (d) depriving the plaintiff of his constitutional

rights. 

The events underlying the plaintiff’s claims occurred at the Proof of the Pudding

Nightclub on August 28, 2010. Complaint [Doc. # 1] at ¶6. The plaintiff was at the nightclub;

was carrying a loaded, semi-automatic Beretta pistol; and was arrested on the charge of

possession of a weapon by a previous offender. Affidavit of Joey Smith [Doc. # 58-1] (the

“Smith Aff.”) at ¶¶5, 7; Affidavit of Roman Yepishin [Doc. # 58-3] (the “Yepishin Aff.”) at ¶¶4,

6. The plaintiff subsequently pled guilty to a weapons violation in Denver County Court on

October 28, 2011. Docket Sheet [Doc. # 58-6].

The plaintiff’s counsel was allowed to withdraw on June 28, 2012. Order [Doc. # 41]. 

The plaintiff is now proceeding pro se. 

I. LEGAL STANDARD

As a preliminary matter, I must liberally construe the pleadings of a pro se plaintiff. 

Haines v. Kerner, 104 U.S. 519, 520-21 (1972). Nevertheless, I cannot act as advocate for a pro

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se litigant, 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).

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). Rule 56(c), Fed. R. Civ. P., provides that summary judgment should be

rendered “if the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” 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, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 447 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 by

affidavits, depositions, answers to interrogatories and admissions on file, to designate specific

facts showing that there is a genuine issue for trial. Id. at 324. Only admissible evidence may be

considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy

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Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

Failure to file a response within the time specified results in a waiver of the right to

respond to or controvert the facts asserted in the summary judgment motion. Reed v. Bennett,

312 F.3d 1190, 1195 (10th Cir. 2002). Under these circumstances, the court accepts as true “all

material facts asserted and properly supported in the summary judgment motion. But only if

those facts entitle the moving party to judgment as a matter of law should the court grant

summary judgment.” Id.

II. ANALYSIS

A. Second Claim (Excessive Force) 

Officers Garcia, Yepishin, Gurevich, and Smith (the “Officer Defendants”) move for

summary judgment on the claim of excessive force, asserting the defense of qualified immunity. 

“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 knowledge.’” Pearson v. Callahan, 555 U.S.

223, 231 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Where, as here, defendants assert qualified immunity in a motion for summary judgment

“the burden shifts to the plaintiff to show that: (1) the defendant[s] violated a constitutional right

and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082,

1088 (10th Cir. 2009). A court may exercise its discretion in determining which of the two

prongs of qualified immunity to address first. Pearson, 555 U.S. at 236.

In this case, the undisputed evidence is that there was no use of excessive by the Officer

Defendants against the plaintiff. The uncontroverted Affidavit of Gayla Jennings [Doc. # 58-5]

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(the “Jennings Aff.) establishes that “[a]ll officers on scene were calm. None of the officers used

any force.” Mr. Brown was “guided to the police car where he was placed in the backseat. . . . 

No police officers yelled at Mr. Brown, grabbed Mr. Brown or forced him into the police car.” 

Id. at ¶¶5-6.

I rely principally on the Jennings Affidavit to establish the absence of any excessive force

because she is a disinterested, third-party witness. The Officer Defendants also provided

evidence that they did not engage in the use of excessive force. Affidavit of Joey Smith [Doc. #

58-1] at ¶12 (stating that “[n]o officer on the scene used any force. Mr. Brown was cooperative

and never complained of pain”); Affidavit of Ben Garcia [Doc. # 58-2] at ¶7 (stating that he “did

not see any officer on the scene use any force” and that he “did not see or hear that Mr. Brown

was injured or complaining of being in pain”); Affidavit of Roman Yepishin [Doc. # 58-3] at ¶8

(stating that “[n]o officer on the scene used any force,” that he “did not grab, pull or use any

force on Mr. Brown,” and that “Mr. Brown was cooperative and never complained of any pain or

injury”); and Affidavit of Sergey Gurevich [Doc. # 58-4] at ¶8 (stating that “[n]o officer on the

scene used any force,” that he “did not grab, pull or use any force on Mr. Brown,” and that “Mr.

Brown was cooperative and never complained of any pain or injury”).

The Officer Defendants contrast their conduct to that addressed in Cortez v. McCauley,

478 F.3d 1108, 1126-29 (10th Cir. 2007). In Cortez, there was evidence that police officers

grabbed the plaintiff by the arm and pulled him from the doorway of his home; handcuffed him

so tightly as to result in red marks on his wrists; placed him in the back seat of a locked patrol

car; and ignored his pleas that the handcuffs were too tight. Even in the face of that evidence,

the Tenth Circuit Court of Appeals reversed the district court and held, as a matter of law, that

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the conduct was insufficient to support a claim for excessive force.

 The plaintiff did not respond to the Motion for Summary Judgment and failed to provide

any evidence that the police officers used excessive force against him.

The plaintiff has failed to present any evidence establishing a triable issue of fact on the

question of the use of excessive force. Accordingly, the Officer Defendants are entitled to

summary judgment in their favor and against the plaintiff on the Second Claim.

B. First and Third Claims (Monell Claims)

The City and County of Denver moves for summary judgment on the First and Third

Claims arguing that there is no evidence of a policy, custom, or failure to train or supervise

which resulted in the violation of the plaintiff’s Fourth Amendment rights.

A municipality, like the City and County of Denver, will not be held liable solely because

its employees have inflicted injury. Monell v. Dept. of Social Services of the City of New York,

436 U.S. 658, 694 (1978). Instead:

[T]o establish municipal liability, a plaintiff must show: 1) the

existence of a municipal policy or custom and 2) a direct causal

link between the policy or custom and the injury alleged. . . . In

addition, a municipality may not be held liable where there was no

underlying constitutional violation by any of its officers.

Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006).

The constitutional violations asserted by the plaintiff in the Complaint are (1) use by the

Officer Defendants of excessive force during the plaintiff’s arrest and (2) a failure to train or

supervise the Officer Defendants on the proper use of force. Complaint [Doc. # 1] at ¶¶17, 21. 

There is no evidence that the Officer Defendants violated the plaintiff’s constitutional rights by 

using excessive force during his arrest, and the uncontroverted evidence is to the contrary. 

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Jennings Aff. [Doc. # 58-5] at ¶¶5-6. 

Similarly, to prevail on his claim for failure to train in the use of force, the plaintiff must

show, among other things, that the Officer Defendants exceeded constitutional limitations on

their use of force against the plaintiff. Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). 

The uncontroverted evidence is that the officers did not use excessive force, however.

Absent a constitutional violation by the Officer Defendants, the City and County of

Denver may not be held liable under Monell. Consequently, the City and County of Denver is

entitled to summary judgment on the First and Third Claims.

C. Fourth Claim (42 U.S.C. § 1986)

In his Fourth Claim, the plaintiff alleges that the defendants violated 42 U.S.C. § 1986. 

Section 1986 provides:

Every person who, having knowledge that any of the wrongs

conspired to be done, and mentioned in section 1985 of this title,

are about to be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or refuses so to

do, if such wrongful act be committed, shall be liable to the party

injured, or his legal representative, for all damages caused by such

wrongful act, which such person by reasonable diligence could

have prevented.

Although not a model of clarity, the Fourth Claim apparently is premised on an alleged

violation of 42 U.S.C. § 1985(3). The circuit court has explained the requirements for stating a

claim under § 1985(3) as follows:

The essential elements of a § 1985(3) claim are: (1) a conspiracy;

(2) to deprive plaintiff of equal protection or equal privileges and

immunities; (3) an act in furtherance of the conspiracy; and (4) an

injury or deprivation resulting therefrom.

Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).

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The plaintiff’s complaint contains only conclusory allegations of a conspiracy among the

defendants, the first essential element of a § 1985(3) violation. In particular, the only allegations

of any conspiracy contained in the Complaint are that (1) the Officer Defendants “were acting,

respectively, under the direction and control of Defendant City and County of Denver,”

Complaint [Doc. # 1] at ¶46; (2) all defendants failed to “refrain from [] conspiring to violate the

rights, privileges, and immunities guaranteed to Plaintiff,” id. at ¶47(c); and (3) all defendants

“had knowledge or, had they diligently exercised their duties to instruct, supervise, control, and

discipline on a continuing basis, should have had knowledge that the wrongs conspired to be

done . . . were about to be committed.” Id. at ¶48.

Insofar as the Fourth Claim is brought against Denver, “a municipality cannot be liable

for a civil conspiracy unless the City could actually be said to have participated through policy

or custom.” Hogan v. Winder, 2012 WL 4356326 *5 (D. Utah Sept. 24, 2012). The plaintiff has

failed to present any evidence of a policy or custom of the City and County of Denver supporting

the use of unreasonable force or any other constitutional violation. To the contrary, the only

evidence on the point is the Use of Force Policy of the Denver Police Department contained in

the Operations Manual [Doc. # 58-7], which provides in part:

The Denver Police Department recognizes the value of all human

life and is committed to respecting human rights and the dignity of

every individual, and the Constitutional right to be free from

excessive force, whether deadly or not, by a law enforcement

officer. . . . When deciding whether to use force, officers shall act

within the boundaries of the United States and Colorado

constitutions and laws, ethics, good judgment, this use of force

policy, and all other relevant Denver Police Department policies,

practices and training. With these values in mind, an officer shall

use only that degree of force necessary and reasonable under the

circumstances.

* * *

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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

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Use of force that is not lawful, reasonable and appropriate will not

be tolerated. Department Policy as well as relevant Federal, State,

and Local laws shall govern use of force by officers.

Id. at §§105.01(1) and (2).

 

To establish a conspiracy by the Officer Defendants in violation of § 1985(3), the

plaintiff must present evidence establishing “the combination of two or more persons acting in

concert” and “a meeting of the minds or agreement among the defendants.” Brever v. Rockwell

Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994). Without any evidence of communications

between or among the Officer Defendants concerning the plaintiff, there is nothing to give rise to

the inference that they conspired.

Nor is there any evidence of injury or deprivation to the plaintiff as a result of the

conduct of the Officer Defendants or the City and County of Denver, the fourth essential element

of a 

§ 1985(3) violation.

The plaintiff has failed to produce any evidence creating a genuine issue of fact for trial

on his claim under 42 U.S.C. § 1986, and the defendants are entitled to the entry of summary

judgment in their favor.

III. RECOMMENDATION

I respectfully RECOMMEND that the Motion for Summary Judgment [Doc. # 58] be

GRANTED and that summary judgment enter in favor of the defendants and against the plaintiff

on all claims.1

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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. Makin v.

Colorado Dept. of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d

1411, 1412-13 (10th Cir. 1996). 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).

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Dated November 16, 2012.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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