                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          May 9, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MICHAEL P. MAROTTA,

             Plaintiff-Appellant,

v.                                                         No. 11-1494
                                              (D.C. No. 1:08-CV-02421-WJM-CBS)
CORTEZ, individually and in his official                    (D. Colo.)
capacity as a Denver Police Officer;
BLACK, individually and in his official
capacity as a Denver Police Officer;
ROCCO-MCKEEL, individually and in
his official capacity as a Denver Police
Officer; THE DENVER POLICE
DEPARTMENT; THE CITY AND
COUNTY OF DENVER,

             Defendants-Appellees.



                            ORDER AND JUDGMENT*


Before TYMKOVICH, BALDOCK, and GORSUCH, 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)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R App. P. 32.1 and 10th Cir. R. 32.1.
      Michael P. Marotta, who at all times has proceeded pro se,1 appeals from the

district court’s orders dismissing and granting summary judgment on his 42 U.S.C.

§ 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Mr. Marotta initially filed this § 1983 action in state court. Defendants--three

police officers, the Denver Police Department, and the City and County of

Denver--removed the action to federal district court. In his fourth amended

complaint, Mr. Marotta asserted violations of his constitutional rights under the First,

Fourth, Fifth, and Fourteenth Amendments with respect to two arrests at his

condominium building. In specific, he asserted six claims for relief: (1) violation of

his right against search and seizure by all defendants; (2) loss of liberty without due

process by all defendants; (3) excessive force violations by Officer Rocco-McKeel,

the Denver Police Department, and the City and County of Denver; (4) malicious

prosecution by all defendants; (5) intentional infliction of emotional distress and

outrageous conduct by all defendants; and (6) malicious prosecution by all

defendants resulting in his incurring legal and other expenses. Defendants moved to

dismiss all claims, except the excessive force claim, under Fed. R. Civ. P. 12(b)(6)

for failure to state a claim upon which relief may be granted.

      The magistrate judge recommended (1) dismissal of the Denver Police

Department because it is not an independent legal entity of the City and County of


1
      We liberally construe Mr. Marotta’s pro se filings. See Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam).


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Denver and therefore is not a proper party;2 (2) dismissal of the alleged violation of

Fifth Amendment rights because no federal official or entity is a defendant;

(3) dismissal of the Fourteenth Amendment arrest and use-of-force claims because

those claims should be raised as Fourth Amendment claims; (4) dismissal of the First

Amendment claim for failing to set forth sufficient allegations and for time bar;

(5) dismissal of the Fourth Amendment claim because (a) Mr. Marotta failed to allege

sufficient facts to state a claim that the officers could not have believed there was

probable cause to arrest him; (b) the officers were entitled to qualified immunity; and

(c) without a predicate constitutional violation by an officer, the City and County of

Denver could not be liable; (6) dismissal of the malicious prosecution claims because

there was probable cause to arrest Mr. Marotta; and (7) dismissal of the intentional

infliction of emotional distress or outrageous conduct claim as conclusory. In

summary, the magistrate judge recommended that all claims but the excessive force

claim be dismissed and that Officers Cortez and Black and the Denver Police

Department be dismissed. The district court adopted the magistrate judge’s

recommendation.

      Thereafter, Officer Rocco-McKeel and the City and County of Denver moved

for summary judgment on the excessive force claim. Mr. Marotta responded and

filed a motion under Fed. R. Civ. P. 60(b) seeking relief from the dismissals of the

other claims.
2
      Mr. Marotta does not challenge the dismissal of the Denver Police Department.


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       The magistrate judge recommended that the motion for summary judgment be

granted. In so recommending, the magistrate judge decided that Officer

Rocco-McKeel’s conduct did not rise to the level of a Fourth Amendment violation

and did not exceed what was reasonable to make a lawful arrest under the

circumstances. The magistrate judge therefore determined Officer Rocco-McKeel

was entitled to qualified immunity. With respect to the City and County of Denver,

the magistrate judge decided that (1) Mr. Marotta could not predicate a § 1983 claim

against the City and County of Denver based on negligence; (2) the finding of

qualified immunity for Officer Rocco-McKeel precluded imposition of municipal

liability; (3) Mr. Marotta did not show the existence of a governmental policy or

custom that deprived him of a constitutional right or a direct causal connection

between a Denver policy or custom and the alleged constitutional violation; and

(4) Mr. Marotta failed to show deliberate indifference by the City and County of

Denver. The district court adopted the magistrate judge’s recommendation to grant

summary judgment on the excessive force claim. This appeal followed.

       Mr. Marotta argues on appeal that (1) the district court erred in dismissing his

claims for failure to state a claim upon which relief may be granted, and, instead,

should have held a jury trial; (2) the district court ignored both (a) the lack of

probable cause for the second arrest due to a false police report and (b) the




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Americans with Disabilities Act (ADA);3 (3) the district court ignored the lack of

exigent circumstances needed to justify a warrantless arrest and therefore the second

arrest was unconstitutional; (4) the district court erred in finding that the police

officers were entitled to qualified immunity; (5) the district court ignored disputed

issues of material fact concerning the probable cause statement; (6) the district court

should have found undisputed material facts concerning the probable cause statement

in his favor; (7) the district court ignored established case law and the Equal

Protection Clause of the Fourteenth Amendment; and (8) the district court erred in

not ruling on his Rule 60(b) motion.

       We review the district court’s dismissal under Rule 12(b)(6) de novo. Bixler v.

Foster, 596 F.3d 751, 756 (10th Cir. 2010); Denver Justice & Peace Comm., Inc. v.

City of Golden, 405 F.3d 923, 927 (10th Cir. 2005) (Rule 12(b)(6) and qualified

immunity). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

       Likewise, we review the “granting [of] summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party.” Howard v. Waide,

534 F.3d 1227, 1235 (10th Cir. 2008). Summary judgment is warranted only if there


3
       Mr. Marotta never raised a claim based on the ADA in his complaint. We
therefore will not address any appellate arguments concerning the ADA. See Walker
v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (declining to consider
issue raised for the first time on appeal).


                                            -5-
is no genuine dispute of material fact and the movant is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a).

      Although “[w]e review a grant of summary judgment on the basis of qualified

immunity de novo,” Harman v. Pollock, 586 F.3d 1254, 1260 (10th Cir. 2009), “we

review summary judgment orders deciding qualified immunity questions differently

from other summary judgment decisions.” Medina v. Cram, 252 F.3d 1124, 1128

(10th Cir. 2001). “When a defendant asserts qualified immunity at summary

judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established.” Martinez

v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “If, and only if, the plaintiff meets

this two-part test does a defendant then bear the traditional burden of the movant for

summary judgment—showing that there are no genuine issues of material fact and

that he . . . is entitled to judgment as a matter of law.” Clark v. Edmunds, 513 F.3d

1219, 1222 (10th Cir. 2008) (internal quotation marks omitted). We view the facts in

the light most favorable to the non-moving party. Kirkland v. St. Vrain Valley Sch.

Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006).

      Applying these standards and upon careful consideration of the parties’

appellate briefs, the district court record, and relevant case law, we conclude the

district court judge, adopting the magistrate judge’s thorough recommendations,

appropriately granted defendants’ motions to dismiss and for summary judgment.

Accordingly, we affirm for substantially the same reasons set forth in the


                                            -6-
recommendations and orders. See R. at 531 (Nov. 3, 2009 magistrate judge’s

recommendation); id. at 696 (Feb. 16, 2010 district court order adopting magistrate

judge’s recommendation); id. at 1325 (June 27, 2011 magistrate judge’s

recommendation); id. at 1358 (Sept. 30, 2011 district court order adopting magistrate

judge’s recommendation).

      Lastly, we reject Mr. Marotta’s assertion that the district court’s failure to rule

on his Rule 60(b) motion was reversible error. In essence, the motion presented the

same arguments he had been making repeatedly in his district court pleadings. Thus,

the motion did not request relief that was “extraordinary and may only be granted in

exceptional circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009

(10th Cir. 2000) (internal quotation marks omitted). Although Mr. Marotta claims

newly discovered evidence supported the motion, the evidence either was known to

him previously or was consistent with prior presented evidence. We therefore

conclude as a matter of law that the district court’s failure to rule on the motion was

not an error requiring reversal.

      The judgment of the district court is AFFIRMED.


                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




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