Petersen v. Garcia

1

NATALIE PETERSEN, and BLOOMSTRUCK, LLC, Plaintiffs, v. MOSES GARCIA, City Attorney, in his individual capacity, ALICIA CALDERON, former Deputy City Attorney, in her individual capacity, PATTI GARCIA, former City Clerk, in her individual capacity, and CITY OF LOVELAND, COLORADO, home rule municipality, Defendants.

Civil Action No. 22-cv-00797-NYW-NRN

United States District Court, D. Colorado

April 20, 2023

MEMORANDUM OPINION AND ORDER

Nina Y. Wang United States District Judge

This matter is before the Court on Defendants' Motion and Brief in Support of Summary Judgment (the “Motion” or “Motion for Summary Judgment”) [Doc. 33]. Upon review of the Motion and the related briefing, the applicable case law, and the record before the Court, the Court concludes that oral argument will not materially assist in the resolution of this matter. For the reasons set forth below, the Motion for Summary Judgment is respectfully GRANTED.

BACKGROUND

This case arises out of municipal criminal charges filed against Plaintiff Bloomstruck, LLC (“Bloomstruck”) in January 2020. See generally [Doc. 1]. Plaintiff Natalie Peterson (“Ms. Peterson”), the marketing consultant and principal member of Bloomstruck, was hired to create a postcard depicting a political message that was mailed to Ward III residents in the city of Loveland Colorado during the 2019 City Council election. [Id. at ¶¶ 22, 25, 43]. Bloomstruck was subsequently charged in municipal court based on an alleged failure to properly report its expenditures in violation of the City of Loveland's Charter. [Id. at ¶ 72]. The charges were eventually voluntarily dismissed by the City. [Id. at ¶¶ 118, 120].

Plaintiffs allege generally that the charges filed against Bloomstruck were “substantially motivated [by] Plaintiffs' political speech activities and associations” and were brought without probable cause. [Id. at ¶¶ 134, 150]. Plaintiffs initiated this civil action on March 31, 2022 against four Defendants: the City of Loveland Colorado (the “City” or “City of Loveland”); Moses Garcia, the Loveland City Attorney Alicia Calderon, the former Deputy City Attorney (“Ms. Calderon”); and Patti Garcia, the former City Clerk (collectively, “Defendants”).^[1][Id. at 1]. They assert three claims for relief, which each appear to be asserted against all Defendants: (1) a First Amendment retaliation claim under 42 U.S.C. § 1983; (2) a Fourth Amendment malicious prosecution claim under § 1983; and (3) a Fourteenth Amendment due process claim under § 1983. [Id. at 22-31].

Defendants filed the instant Motion on January 10, 2023, [Doc. 33], which has been fully briefed. [Doc. 47; Doc. 50]. The matter is thus ripe for adjudication, and the Court finds that oral argument would not materially assist in its resolution. The Court considers the Parties' arguments below.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation omitted).

“[I]t is not the party opposing summary judgment that has the burden of justifying its claim; the movant must establish the lack of merit.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1110 (10th Cir. 2009). In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point the Court to a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant has met its initial burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To satisfy this burden, the nonmovant must point to competent summary judgment evidence creating a genuine dispute of material fact; conclusory statements based on speculation, conjecture, or subjective belief are insufficient. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see also 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2022) (explaining that the nonmovant cannot rely on “mere reargument of his case or a denial of an opponent's allegation” to defeat summary judgment). In considering the evidence, the Court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Adler, 144 F.3d at 670.

UNDISPUTED MATERIAL FACTS

The below material facts are drawn from the Parties' briefing and the record before the Court and are undisputed unless otherwise noted.

1. The City of Loveland is a home rule municipality with a governing Charter. [Doc. 33 at ¶ 1; Doc. 47 at 1];^[2] see generally [Doc. 33-2].

2. The Loveland Charter contains the following definitions:

(g) Independent expenditure shall mean the payment of money by any person for the purpose of advocating the election, defeat or recall of a candidate, which expenditure is not controlled by, or coordinated with, any candidate or any agent of such candidate. Independent expenditure shall include expenditures for political messages which unambiguously refer to any specific public office or candidate for such office, but shall not include expenditures made by persons, other than political committees, in the regular course and scope of their business and political messages sent solely to their members.

(i) Person shall mean any individual, partnership committee, association, or other organization or group of persons. Person shall not include corporations, labor unions or political parties.

(j) Political committee shall mean two (2) or more persons who are elected, appointed or chosen, or have associated themselves, for the purpose of making contributions to candidate committees, issue committees, or other political committees, or for the purpose of making independent expenditures. Political committee shall not include:

(1) Issue committees or candidate committees as otherwise defined in this Section; or

(2) Any partnership, committee, association, corporation, labor organization or other organization or group of persons previously established for a primary purpose outside of the scope of this Article.

(k) Political message shall mean a message delivered by telephone, any print or electronic media or other written material which advocates the election or defeat of any candidate or which unambiguously refers to such candidate.

[Doc. 33 at ¶ 2; Doc. 47 at ¶ 2; Doc. 33-2 at 2].^[3]

3. Under the Charter, political committees are required to register with the City Clerk before accepting or making contributions and are required to report contributions greater than $20. [Doc. 33 at ¶ 3; Doc. 47 at 1; Doc. 33-2 at 2, 4].

4. The Charter also requires “[a]ny person or political committee making independent expenditures totaling more than one hundred dollars ($100.00) [to] deliver notice in writing of such independent expenditures to the City Clerk.” [Doc. 33 at ¶ 4; Doc. 47 at ¶ 4; Doc. 33-2 at 5].

5. The Charter provides that “[a]ny person who knowingly violates or fails to comply with any of the provisions of this Article commits a misdemeanor.” [Doc. 33 at ¶ 6; Doc. 47 at ¶ 6; Doc. 33-2 at 5].

6. Defendant Patti Garcia worked as the Loveland City Clerk, and her duties included assisting the public in complying with Article 17 of the Charter and reporting apparent violations of the Charter to the City Manager. [Doc. 33 at ¶ 5; Doc. 47 at 1; Doc. 33-1 at 9-26:2;^[4] Doc. 332 at 5].

7. On or around October 2, 2019, Ms. Peterson was contacted by Gil Barela (“Mr. Barela”), the Larimer County Democratic Party Chair, to “translate” his design into a postcard. [Doc. 33 at ¶ 8; Doc. 47 at ¶ 8; Doc. 33-4 at 41:8-11].

8. Mr. Barela suggested a design concept for the postcard, which was to depict City Council member John Fogle as an octopus and advocate for his defeat in the 2019 City Council election. [Doc. 33 at ¶ 9; Doc. 47 at 2; Doc. 33-4 at 36:11-22, 55:3-18; Doc. 33-6].

9. Ms. Peterson informed Mr. Barela that she would charge $2,000 for the project, and Mr. Barela hired Bloomstruck for the job. [Doc. 33 at ¶ 10; Doc. 47 at 2; Doc. 33-4 at 44:19-45:9].

10. Ms. Peterson performed the job on behalf of Bloomstruck. [Doc. 33 at ¶ 11; Doc. 47 at 2; Doc. 33-4 at 45:21-24].

11. Ms. Peterson created an entity called Reality Check Colorado (“Reality Check”) because Ms. Peterson did not want her home address or name listed on the postcard. [Doc. 33 at ¶ 15; Doc. 47 at ¶ 14;^[5]Doc. 47-15 at 61:3-8].^[6]

12. On October 7, 2019, Ms. Peterson registered Reality Check with the State of Colorado as an Independent Expenditure Committee. [Doc. 33 at ¶ 16; Doc. 47 at ¶ 15; Doc. 33-7 at 2].

13. The back of the postcard stated that it was “paid for by: REALITY CHECK COLORADO.” [Doc. 33 at ¶ 17; Doc. 47 at 2; Doc. 33-6 at 2].

14. Approximately 2,000 postcards were mailed to the City's Ward III residents, which cost approximately $597 in postage. [Doc. 33 at ¶ 21; Doc. 47 at 2; Doc. 33-4 at 73:12-74:2 75:20-22].^[7]...