Burden v. Wood ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHANE BURDEN,
Plaintiff-Appellant, No. 05-1530
v. (D.C. No. 04-cv-02300-W YD-PAC)
ROBERT W OOD (20883), (D . Colo.)
W estminster Police Officer, acting in
his official capacity,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before K ELLY, M cK AY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Appellant raises three claims under 42 U.S.C. § 1983: (1) police brutality;
(2) “malita assault,” which the magistrate judge and district court interpreted as
an excessive force claim; and (3) “abuse of authority,” which the magistrate judge
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and district court interpreted as a claim for false arrest. All three claims arise
from Appellant’s arrest on June 23, 2004. Appellant makes very few specific
allegations in his complaint, but he does claim that Appellee tackled him and
repeatedly smashed his head into the ground.
According to the M artinez report filed by the government, Appellee was
driving an unmarked police vehicle through a parking lot when he saw Appellant
run through the lot and hide behind a wood fence. See Recommendation of
United States M agistrate Judge, Doc. 74 at 2 (D. Colo. Sept. 30, 2005). Appellee
approached Appellant, identified himself as a police officer, and observed that
Appellant had a bag of white powdery substance which Appellant identified as
speed. Id. After calling for backup, Appellee and another officer, despite
Appellant’s resistance, arrested Appellant and took him to the police department
for booking. Id. at 2-3. Because the arresting officers suspected that Appellant
had ingested what Appellant identified as speed, they sent him to a local hospital
after booking. Id. at 3. According to the M artinez report, Appellant did not
complain of any injuries when at the hospital. Id. Appellant was later convicted
of obstructing a police officer in relation to the June 23 arrest. Id. at 4.
Appellee filed for summary judgment arguing (1) that the false arrest claim
fails under Heck v. Humphrey, 512 U.S. 477 (1994), and (2) that he is entitled to
qualified immunity on all claims. The magistrate judge recommended that
summary judgment be granted on each of Appellant’s claims. Recommendation
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at 6. First, the magistrate judge noted that to prevail on a claim for false arrest
under Heck, a “‘plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid’ or
otherwise called into question by some other tribunal.” Id. at 4 (quoting Heck,
512 U.S. at 486-87). Because Appellant was ultimately convicted of obstructing a
police officer, he cannot pursue this claim. Second, the magistrate judge also
noted that Appellee is entitled to qualified immunity if his actions did not
“‘violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Id. at 5 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Since Appellee has asserted a qualified immunity
defense, Appellant must refute this claim. See Scull v. New M exico, 236 F.3d
588, 595 (10th Cir. 2000). Appellant has made no effort to rebut Appellee’s
claim of qualified immunity.
In fact, after filing his § 1983 action, Appellant made little effort to follow
up on his obligations to the court. The magistrate judge set a date for a hearing to
resolve Appellee’s motion to compel discovery, but Appellant did not appear and
the two notices of the hearing sent to Appellant were returned as undeliverable, as
was the notice of the magistrate judge’s order to compel discovery.
Recommendation at 2. Appellant never informed the court of a change of
address. Id. Neither did Appellant timely file any objections to the magistrate
judge’s recommendation. Order Adopting and Affirming Recommendation of
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United States M agistrate Judge, Doc. 75 at 2 (D. Colo. Nov. 1, 2005). The
district court reviewed the recommendation for clear error and, finding none,
adopted the magistrate judge’s recommendation. Id. Finally, on November 8,
2005, Appellant filed with the district court what we construe as a motion to
reconsider. See Order, Doc. 79 at 1 (D . Colo. Nov. 10, 2005). The district court
denied A ppellant’s motion because “[t]he case is now concluded on the merits,
and it is too late for Plaintiff to file objections to any action taken by [the
magistrate judge].” Id.
W e have carefully reviewed the briefs of both Appellant and Appellee, the
magistrate judge’s recommendation, the district court’s orders, and the record on
appeal. For substantially the same reasons set forth by the magistrate judge in her
recommendation and the district court in its orders, we AFFIRM the district
court’s dismissal of Appellant’s claims. W e GRANT Appellant’s M otion for
Leave to Proceed on appeal W ithout Prepayment of Costs or Fees, and we remind
Appellant of his obligation to continue making payments until the entire fee has
been paid.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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