Powell v. City and County of Denver, Colo.

973 F.Supp. 1198

Cliff POWELL and Terry Sullivan, Plaintiffs, v. CITY AND COUNTY OF DENVER, COLORADO, Rocky Mountain Planned Parenthood, Inc., Gary Jamieson and Michael Newell, Defendants.

Civil No. 94-WM-2572.

United States District Court, D. Colorado.

August 4, 1997.

COPYRIGHT MATERIAL OMITTED

Thomas A. Meyers, Denver, CO, David R. Huggins, National Legal Foundation, Memphis, TN, for Plaintiffs.

Robert M. Liechty, Halaby Cross Liechty Schluter & Buck, Denver, CO, for the City and County of Denver and Gary Jamieson.

Stuart Pack, Denver, CO, F. Brittin Clayton III, Clayton and Stone, L.L.C., Boulder, CO, Kevin C. Paul, Planned Parenthood of the Rocky Mountains, Inc., Denver, CO, for Rocky Mountain Planned Parenthood.

Jennifer L. Viega, Dennis Hanson, Wood, Ris & Hames, P.C., Denver, CO, for Michael Newell.

MEMORANDUM OPINION AND ORDER

MILLER, District Judge.

This matter is before me on the following motions: (1) the motion of defendant Rocky Mountain Planned Parenthood, Inc. ("RMPP") for partial summary judgment; (2) the motion of the defendant City and County of Denver, Colorado ("City") for summary judgment; (3) defendant Michael Newell's motion in limine; and (4) the City's motion in limine. I will address these motions seriatim.

I Background

Plaintiffs are antiabortion protesters who regularly picket and demonstrate at a clinic operated by RMPP in Denver. Defendant Gary Jamieson is the associate director of RMPP. Mr. Newell is retained by RMPP to provide security consulting services to RMPP.

Plaintiffs allege that over several years, the City, through its police officers, has repeatedly and unconstitutionally arrested, prosecuted, and otherwise harassed plaintiffs in violation of 42 U.S.C. § 1983. In contrast, according to plaintiffs, the City has provided police protection to RMPP and its employees, failed to prosecute lawbreakers affiliated with RMPP, and otherwise preferentially treated RMPP.

In addition to a number of alleged incidents of improper arrest, excessive use of force, and harassment against antiabortion protesters, the claims in this case are based on an altercation which occurred on October 5, 1994. The parties agree that, on that date, Messrs. Newell and Jamieson became involved in a scuffle with plaintiffs and another protester David Lane.¹ The parties dispute who started the altercation.

Plaintiffs further allege that following the altercation, Messrs. Powell and Lane were taken to a hospital, whereupon Denver Police officers handcuffed them to their hospital beds and interrogated them without reading their Miranda rights. Upon release from the hospital, Denver Police officers allegedly took Mr. Powell to the police station where he was given Miranda warnings and interrogated. Mr. Powell was eventually arrested on October 22, 1994, pursuant to a warrant and charged with assault and the destruction of public property. It is alleged that those criminal charges were resolved in favor of Mr. Powell.

II. Standard of Review

Summary Judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing the absence of any issue of material fact. If that burden is met, the opponent has a burden of presenting specific facts which show that there is a genuine, material issue for trial. In doing so, the opponent "may not rest upon the mere allegations or denials of the adverse party's pleading...." Fed. R.Civ.P. 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410 (10th Cir.1993). Ultimately, summary judgment is improper if, viewing the facts before the court in a light most favorable to the non-moving party and drawing all reasonable inferences in favor of that party, a reasonable jury could find in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

III. RMPP's Motion for Partial Summary Judgment

In the Trial Preparation Conference plaintiffs stipulated that their claims against RMPP and Messrs. Jamieson and Newell all arise out of the October 5, 1994 altercation. Those claims are as follows: Mr. Powell brings claims of assault and battery and intentional-infliction of emotional distress against Mr. Newell, individually, and against RMPP, as his alleged employer; and Mr. Sullivan brings claims of assault and battery and intentional infliction of emotional distress against Mr. Jamieson, individually, and RMPP, as his employer. RMPP seeks dismissal of Mr. Powell's claims against RMPP. Those claims are based on the actions of Mr. Newell and assert liability against RMPP on a theory of respondeat superior² RMPP argues that the undisputed facts show that Mr. Newell was an independent contractor, whose wrongs may not be imputed to RMPP.

Generally, a party is not liable for the torts of its independent contractors. Huddleston v. Union Rural Electric Ass'n, 841 P.2d 282, 286 (Colo.1992). Employers, however, are liable for the unauthorized torts of their employees committed within the scope of the employment relationship. Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo.1995). Thus, it must be determined whether Mr. Newell was an independent contractor or an employee.

Under Colorado law, "[a]n independent contractor is one who engages to perform services for another, according to his own methods and manner, free from direction and control of the employer in all manners relating to the performance of the work." Scott Wetzel Serv., Inc. v. Johnson, 821 P.2d 804, 814 (Colo.1991) (Rovira, C.J., dissenting) (citations omitted). "Independent contractors, however, are not free from all control. They may be subject to control sufficient to ensure that the end result contracted for is reached, even though they are not subject to control over the means and methods of accomplishing that result." Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278, 281 (Colo.App.1993) (citations omitted). By contrast, an employee is "subject to control over the means and methods of work as well as the ends and results." Id. (citations omitted).

The federal courts have developed a more expansive test for determining whether an individual is an employee or an independent contractor. The focal point of the inquiry is "whether the individual is economically dependent on the business to which he renders service or is, as a matter of economic fact, in business for himself." Dole v. Snell, 875 F.2d 802, 804 (10th Cir.1989) (quotation and citation omitted). Six factors are considered in making that determination: (1) the degree of control exercised by the employer over the work; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the business relationship; (5) the degree of skill the work calls for; and (6) the extent to which the work is integral to the employer's business. Id. at 805 (citation omitted).

By deposition, RMPP presented the following facts that Mr. Newell was an independent contractor: he has been a security consultant since 1979; he owns his own company and has several clients including several not concerned with abortion; and he has consulted with 65 abortion clinics throughout the United States, as well as the National Abortion Federation and Planned Parenthood Federation of America. In Colorado, Mr. Newell has acted as a contract security consultant for two abortion doctors and another-clinic in-addition to his work for RMPP.

RMPP initially retained Mr. Newell to provide security services and advice during Pope John Paul II's visit to Denver in 1993. Since then, he has provided services and advice to RMPP on a "sporadic and ... as-needed basis," working there only 10-20 hours per week on average.

Throughout his relationship with RMPP, Mr. Newell has billed for the services requested by RMPP. He was not on salary, nor given any employment benefits, insurance or otherwise. RMPP did not give Mr. Newell any training, nor did it provide him with instruction on how he was to perform his services.

With the above submissions, RMPP met its initial burden of establishing that there is no question of material fact that Mr. Newell was an independent contractor as a matter of law. It was thus incumbent on defendant Powell to respond with specific facts demonstrating that there is a genuine issue of fact. In an attempt to do so, he makes four assertions.

First, he claims that the facts regarding the October 5, 1994 altercation are in dispute — which they are. However, those facts are not material to the independent contractor issue and, therefore, have no bearing on this question.

Second, Mr. Powell argues that Mr. Newell's deposition raises a question of fact regarding whether he was an employee when he stated that his "responsibility was to — in the chain of command, if you'll have it — was direct contact with Mr. Jamieson." However, when viewed in context, Mr. Newell merely stated the obvious. As a service provider, he reported to Mr. Jamieson, who was in the RMPP hierarchy. That statement alone cannot establish employment status or even suggest a genuine dispute of fact.

Next, plaintiff Powell reaches for a dispute of fact from Mr. Jamieson's testimony that he "generally" did not give security personnel instruction on how to perform their tasks, claiming a necessary implication that sometimes he did provide instruction. However, Mr. Jamieson later clarified that he only provided instruction as to specific security requirements that RMPP might have. Thus, the instruction Mr. Jamieson gave only related to the end result desired by RMPP, which is wholly consistent with independent contractor status. Carpet Exchange of Denver, Inc., 859 P.2d at 281.

Finally, Mr. Powell seeks to infer an...