Opinion
Civil Action 18-cv-000320-WJM-STV
03-04-2021
SAMUEL O.P. YEISER, Plaintiff, v. DG RETAIL, LLC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant DG Retail, LLC's Motion for Summary Judgment [#290] (“Defendant's Motion”) and Plaintiff's Response and Motion for Summary Judgement [#317] (“Plaintiff's Motion”), which have been referred to this Court [## 292, 318]. This Court has carefully considered the motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the motions. For the following reasons, I respectfully RECOMMEND that the Defendant's Motion be GRANTED in part and DENIED in part and that Plaintiff's Motion be DENIED.
The Court's focus in addressing this motion must be on those facts that “cannot be or [are] genuinely disputed” as supported by “particular parts of materials in the record.” Fed.R.Civ.P. 56(c). The Court has carefully reviewed the exhibits filed in conjunction with the briefing on these motions, including video recordings of the interactions at issue. Some facts are taken from Plaintiff's Response and Motion itself, and although those statements are not made under penalty of perjury and thus do not comply with the technical requirements of Rule 56(c)(4) or 28 U.S.C. § 1746, “[i]n deference to [Plaintiff's] pro se status and [his] apparent lack of familiarity with litigation formalities, the Court will assume that, if called upon to affirm the truth of the allegations in [his] summary judgment response under penalty of perjury, [he] would do so.” Wimbish v. Nextel W. Corp., 174 F.Supp.3d 1275, 1277 n.1 (D. Colo. 2016). The facts included in this background appear to be undisputed. To the extent there are factual disputes, they are noted.
This matter arises out of an encounter between Plaintiff Samuel Yeiser and employees of Defendant DG Retail (“Dollar General”) on November 10, 2017. [## 290-1 at 4(25:5)-6(29:16); 290-4] On that day, Plaintiff, Richard Rice, and an “Elderly Man” entered the Aurora Dollar General together, and the Elderly Man waited at the front of the store while Rice and Plaintiff proceeded to the aisles. [## 290-1 at 4(25:18)-7(36:5); 290-5 at 17:46:02-47:12] Nagham Majed Darwish, a Dollar General employee, stood at the front of the store talking with the Elderly Man. [## 290-4 at 4; 290-5 at 17:49:40-56] Defendant contends that the Elderly Man told Darwish that Plaintiff and Rice were “about to do something stupid.” [#290-4 at 5]
Defendant contends that the Elderly Man used a racial slur when telling Darwish that Plaintiff was going to do something stupid. [#290-4 at 5] Plaintiff contends that Darwish “displayed racial animus” in repeating that slur to police to describe her interaction with the Elderly Man and argues there is no “direct recorded statement” of the Elderly Man using the racial slur. [#317 at 9] Plaintiff does not argue that he heard the conversation between Darwish and the Elderly Man, and he presents no evidence of the content of that conversation. No. party has presented the Court with an audio recording of the conversation.
Surveillance footage shows Plaintiff walk down the store's automotive aisle, take items off a shelf, place those items out of view of the camera and on his person, and leave the aisle without returning the items to the shelf. [## 290-2 at 17:47:40-48:28; 290-3 at 15(91:16)-16(92:17); 317 at ¶ 23] Darwish claims that she saw Plaintiff take items from the shelf. [## 290-4 at 5] Maribel Garcia-another Dollar General employee who was in the store but not working at the time-testified that she saw Plaintiff place store items in his jacket and walk toward the exit. [#290-6 at 7(76:2)-11(80:25)] Plaintiff disputes that he put the items in his coat and maintains that he intended to purchase the items. [#317 at ¶¶ 20-21, 23] At some point, Darwish obtained pepper spray and a stun gun, which she had on her person. [#326-2 at 8(62:20)-9(63:7)]
Darwish also stated that she saw Plaintiff take items from the hardware aisle [#290-4 at 5], which Plaintiff disputes [#317 at ¶ 23]. There is no surveillance in the hardware aisle. [#326 at ¶ 23]
As indicate above, however, the video clearly shows Plaintiff take two items and put them inside his coat. [#290-2 at 17:48:15-48:21]
Plaintiff then returned to the front of the store, where the Elderly Man and Darwish were standing. [#290-5 at 17:50:02-05] Darwish claims that she saw store items inside Plaintiff's jacket as he approached the front of the store. [## 290-4 at 5; 290-3 at 8(64:8-17)] Plaintiff admits that he had store items on his person, though he claims that he intended to purchase the items. [#317 at ¶ 23; id. at 10] Darwish asked Plaintiff if he would like to pay for the items. [## 290-4 at 5; 290-3 at 8(64:8-17)] According to Darwish, she waited to confront Plaintiff until he passed all points of sale and that he had not attempted to contact a store clerk. [# 290-4 at 5; see also #290-6 at 11(80:16-11) (Garcia providing similar testimony)] Plaintiff has denied stealing items. [## 290-1 at 9; 326-2 at 10(68:8-14)] Plaintiff further asserts that Darwish directed racial epithets toward him. [# 290-1 at 9(41:19-23)]
Plaintiff does not address this assertion in his response and motion.
In his statement of facts Plaintiff does not address the assertion that Darwish waited to confront him until he was beyond points of sale, other than admitting that Darwish stated she was acting “as she was trained.” [#317 at 4, ¶ 16]
Defendant asserts that Plaintiff has not presented competent evidence that Darwish used racial slurs [#326 at 6, ¶ 8], but Plaintiff made this assertion in sworn deposition testimony [#290-1 at 9(41:29-23)].
Store video surveillance captured the subsequent interaction. [#290-5 at 17:50:00-51:20] It first shows Plaintiff and Darwish speaking and gesturing in an animated manner. [Id. at 17:50:08-50:44] Darwish then reached toward Plaintiff's jacket. [Id. at 17:50:44-50:46; see also #326-2 at 11(69:1-13)] After Darwish reached toward Plaintiff's jacket, Plaintiff swung an arm at Darwish and she put her arm up in a blocking motion. [#290-5 at 17:50:46-50:48] Plaintiff then lunged at Darwish, while holding what appears to be a knife in his hand. [Id. at 17:50:48-51:00] At that point, Garcia positioned herself between Plaintiff and Darwish, and Plaintiff pushed Garcia's hand away while continuing to wield the knife. [Id. at 17:50:54-51:12] Garcia later testified that she intervened because she saw the knife. [#326-6 at 6(44:8-16)] Garcia further testified that she told Plaintiff to leave the store [id. at 6(44:1-7)] and Plaintiff is observed on the video exiting the store [#290-5 at 17:51:14-51:24].
Plaintiff testified that he does not recall what he was holding [#290-1 at 12(46:21)-13(47:7)], but Garcia testified that it was a knife [#326-6 at 6(44:8-16]]. Throughout the altercation, Darwish was holding a stun gun. [## 290-1 at 9(41:15-18; 290-3 at 12(68:19-25)]
Darwish and Garcia then followed Plaintiff out of the store. [Id. at 17:51:24-51:42] Outside the store, Darwish grabbed at the suitcase Plaintiff brought into the store, which belonged to the Elderly Man. [#326-3 at 5(15:16-21)] Darwish then followed Plaintiff to the Nordic Arms Apartment Complex, which Plaintiff admits is not Dollar General's property. [## 290-4 at 6; 317 at ¶ 13; 326 at ¶ 13] While outside the store, Darwish sprayed pepper spray at Plaintiff on two occasions. [#326-2 at 14(77:19)-15(78:25)] Defendant asserts that Plaintiff cut Darwish with a knife and kicked her while she lay on the ground. [Id.]
Once the police arrived, Darwish told police that in the store she had attempted to recover merchandise from Plaintiff, causing him to push her out of the way and produce a weapon. [#290-4 at 1] Plaintiff was subsequently arrested and charged with theft, two counts of aggravated robbery, assault, and menacing. [#290-8] A jury convicted him of theft and two counts of aggravated robbery, but acquitted him of the other charges. [Id.] Plaintiff has appealed his conviction. [## 326-7; 290-11]
Dollar General maintains a Loss Prevention Policy that instructs employees how to interact with suspected shoplifters. [See generally #290-7, 291] The Loss Prevention Policy states that employees should “[n]ever touch anyone suspected of shoplifting or touch his or her personal belongings” and “[a]t no time should an employee go outside of the store after a suspected shoplifter.” [#290-7 at 4-5] Dollar General does not authorize or train employees to use pepper spray or stun guns. [#326 at 6, ¶ 9]
The Loss Prevention Policy was filed under restriction, but Defendant referred to these provisions of the policy in its publicly filed summary judgment motion. [#290 at ¶ 30]
Plaintiff's Third Amended Complaint alleges racial discrimination in violation of 42 U.S.C. §§ 1981 and 1982, premises liability, negligence and negligence per se, and defamation of character. [#77 at 11-18] This Court previously dismissed Plaintiff's negligence and negligence per se claims. [## 105, 120]. On June 6, 2020, Defendant filed its Motion for Summary Judgment. [#290] Plaintiff filed his Motion for Summary Judgment on December 28, 2020 [#317], which this Court construed as a response to Defendant's motion and a cross motion for summary judgment [#319]. Defendant filed a consolidated Response and Reply on January 18, 2021. [#317]
II. STANDARD OF REVIEW
Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact, which the movant may do “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim” when the movant does not bear the burden of persuasion at trial. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the moving party bears the burden of proof at trial, “the moving party must establish, as a matter of law, all essential elements of the [claim or affirmative defense on which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the moving party “must support its motion with credible evidence showing that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). If the movant carries its initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Adler, 144 F.3d at 671 (quotation omitted).
“[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Evidence, including testimony, offered in support of or in opposition to a motion for summary judgment must be based on more than mere speculation, conjecture, or surmise. Bones v. Honeywell Int'l Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
In its motion, Defendant argues that it is entitled to summary judgment on each of Plaintiff's remaining claims. [#290] Plaintiff, in his cross motion and response, argues that he is equally entitled to summary judgment on all claims. [#317] The Court addresses each claim below.
A. Racial Discrimination under 42 U.S.C. §§ 1981 and 1982
Each party seeks summary judgment on Plaintiff's racial discrimination claims under 42 U.S.C. §§ 1981 and 1982. Because the operative language of sections 1981 and 1982 can be traced to the same legislation, courts construe these statutes identically. See Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 440 (1973) (“In light of the historical interrelationship between [§] 1981 and [§] 1982, we see no reason to construe these sections differently . . .”); Edwards & Assocs. v. Black & Veatch, L.L.P., 84 F.Supp.2d 1182, 1191 (D. Kan. 2000) (“Because of their common origin and purpose, section 1981 and section 1982 are generally construed in tandem”) (citing Morris v. Office Max, 89 F.3d 411, 413 (7th Cir. 1996)); Megna v. Little Switzerland of America Candy Factory, Inc., 17-cv-00308-RM-KMT, 2018 WL 994049, at *4 (D. Colo. Feb. 21, 2018) (same), report and recommendation adopted, 2018 WL 1417705 (D. Colo. Mar. 22, 2018). This Court will therefore consider these claims together.
Section 1981 states in relevant part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981(a). Section 1982 provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. The statutes protect the ability to contract or purchase property free from impairment “so long as the impairment arises from intentional discrimination.” Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1106 (10th Cir. 2001). “Thus the proper focus is on whether the defendant had the intent to discriminate on the basis of race, and whether that discrimination interfered with the making or enforcing of a contract.” Id. at 1106-1107.
To establish a prima facie case under sections 1981 and 1982, a plaintiff must establish: “(1) that the plaintiff is a member of a protected class; (2) that the defendant had the intent to discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in [the statutes].” Hampton, 247 F.3d at 1102. See also Megna, 2018 WL 994049, at *4. In the instant matter, the protected activity at issue is Plaintiff's ability to purchase items from Dollar General, which qualifies both as the making of a contract under section 1981 and the purchasing of personal property under section 1982. Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1278 (10th Cir. 2007) (“All courts to have addressed the issue have held that a customer's offer to do business in a retail setting qualifies as a phase[] and incident[] of the contractual relationship under § 1981.”) (quotation omitted).
It is undisputed that Plaintiff is an African American man, thus fulfilling the first element of a claim under sections 1981 and 1982. [See generally ## 290-5; 317 at 8] The Court therefore addresses only the second and third elements of Plaintiff's discrimination claims.
1. Intentional Discrimination
“A plaintiff alleging discrimination on the basis of race may prove intentional discrimination through either direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination.” Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1225 (10th Cir. 2000). Where a plaintiff attempts to show intentional discrimination by indirect evidence, the Court must apply a burden-shifting framework to the summary judgment claim. Hampton, 247 F.3d at 1107; Le v. Hy-Vee, Inc., 385 F.Supp.2d 1111, 1117 (D. Kan. 2005). Under this framework, the plaintiff must first establish a prima facie case under the statute and, if successful, the defendant may then produce a nondiscriminatory justification for the action. Le, 385 F.Supp.2d at 1117. The burden then shifts back to the plaintiff to show by “specific facts” that the proffered reason is pretextual. Id.
Calling a customer a racial slur is direct evidence of discrimination. Green v. Dillard's, Inc., 483 F.3d 533, 540 (8th Cir. 2007) (citing Ross v. Douglas Cnty., 234 F.3d 391, 393, 397 (8th Cir. 2000); Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). As direct evidence of discrimination, Plaintiff asserts that Darwish called him a racial slur while confronting him at the front of the Dollar General store. [#290-1 at 9(41:19-25)] Plaintiff made this assertion in sworn deposition testimony that Defendant filed with its summary judgment motion. [#290-1 at 9(41:29-23)] Plaintiff repeated this assertion in his summary judgment response and, cognizant of Plaintiff's pro se status, the Court assumes that Plaintiff would affirm the truth of this allegation under penalty of perjury if called upon to do so. Wimbish v. Nextel W. Corp., 174 F.Supp.3d 1275, 1277 n.1 (D. Colo. 2016). Consequently, the Court finds that Plaintiff has provided sufficient evidence of intentional discrimination to satisfy the intentional discrimination prong of his federal discrimination claims. Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 278, (10th Cir. 2002) (“The Plaintiff's own testimony may, by showing a genuine question of fact as to a material issue, be sufficient to survive summary judgment.”).
Plaintiff also asserts that Darwish used a slur to describe him in a conversation with the police and that she incorrectly attributed the slur to the Elderly Man. [#317 at 9] Plaintiff does not present evidence to support his assertion regarding the conversation between Darwish and the Elderly Man. Specifically, he does not have testimony or an affidavit from the Elderly Man regarding the conversation and does not argue that he personally heard the conversation. Instead he merely states that a “logical inference can be determined that more than likely . . . the elderly man would not have made a [racial slur] to describe [Plaintiff].” [#317 at 9] Without supporting evidence, Plaintiff's personal opinion of what the Elderly Man would have or would not have said does not support a finding of a genuine dispute of fact on this point. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”).
The Court sees no reason to require Plaintiff-who may not have access to the transcript given his pro se status-to refile the deposition transcript with his response.
In their response to Plaintiff's Motion, Defendant disputes that Darwish called Plaintiff a racial slur. [#326 at 6, ¶ 8] But Defendant does not present any evidence- such as an affidavit from Darwish or any other witness to the altercation-to contradict Plaintiff's allegation concerning the racial slur. Accordingly, the Court finds that Defendant has failed to create a genuine issue of material fact as to the direct evidence of intentional discrimination. Adler, 144 F.3d at 671 (indicating that when he movant carries his initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial”) (quotation omitted).
2. Interference with a Protected Activity
The Court therefore turns to the final element of Plaintiff's discrimination claim. This element may be satisfied “where a retailer asks a customer to leave a retail establishment in order to prevent the customer from making a purchase, ” Gregory v. Dillard's Inc., 565 F.3d 464, 471 (8th Cir. 2009), “explicitly refuse[s] service” to a customer, Green, 483 F.3d at 539, or interrupts the contracting process midstream, Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 1996 WL 617165, at *4 (N.D. Ill. Oct.23, 1996), Hampton, 247 F.3d at 1106. However, in order to succeed on this claim, Plaintiff must have undertaken “some tangible attempt to contract.” Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 752 (5th Cir. 2001).
Here, Defendant argues that it is entitled to summary judgment because Plaintiff has not shown that he was actually prevented from purchasing items while at the Dollar General. [#290 at 18-19] Defendant argues that Plaintiff's actual intent was to steal items from the store. [Id.] As support for this argument, Defendant points to a number of facts, including: (1) surveillance video and witness testimony establishing that Plaintiff concealed store products in his jacket; (2) the Elderly Man's warning to Darwish that Plaintiff was “about to do something stupid”; (3) Plaintiff passing all points of sale prior to being confronted; (4) Darwish asking Plaintiff if he would like to purchase the items; (5) Plaintiff's criminal conviction of theft from this incident; and (6) Plaintiff's criminal counsel, during opening arguments at the criminal trial, admitting that Plaintiff shoplifted from Dollar General. [Id.; #326 at 22-23]
Defendant asks the Court to determine that Plaintiff's theft conviction has a preclusive effect on the issue of whether he intended to purchase an item while in the store. [#326 at 24-27] In general, issue preclusion applies when:
Plaintiff's criminal counsel stated: “[T]he only thing that [Plaintiff] did wrong was steal something . . . . We're not sitting here asking you to find that shoplifting is an appropriate behavior to take. We're not asking you to not hold [Plaintiff] accountable for the theft.” [#290-3 at 4-5] “What we have in this case is a theft.” [Id. at 5] Like with Defendant's request for issue preclusion regarding Plaintiff's conviction, the Court is not convinced that the issue of whether Plaintiff committed a theft is identical to the issue of whether Defendants interfered with a protected activity. See supra note 12. Moreover, “there are other potential concerns in any holding that a criminal defense lawyer's statements made in various court proceedings are, in all circumstances, binding on the defendant.” Goodloe v. Cty. and Cnty. of Denver, No. 05-cv-02522-EWN-MEH, 2007 WL 2697605, at *9 (D. Colo. Sept. 11, 2007) (finding that Plaintiff's defense counsel's statements at sentencing were not sufficient to justify summary judgment); see also United States v. Valencia, 826 F.2d 169, 172-73 (2nd Cir. 1987) (“[C]are must be exercised in the criminal context in determining under what circumstances attorney statements may be used against a client, and we decline[ ] to subject such statements to the more expansive practices sometimes permitted under the rule allowing use of admissions by a party-opponent.”) (quotations omitted). The Court is cognizant that Plaintiff's criminal case is in the early appellate stages and that Colorado courts have found that “[c]onceding facts tantamount to a concession of guilt can be ineffective assistance of counsel.” Mingo v. Raemisch, No. 14-cv-03282-RBJ, 2016 WL 879826, at *7 (D. Colo. March 8, 2016) (citing People v. Dillon, 739 P.2d 919, 922 (Colo.App. 1987)). Here, Plaintiff himself was silent in the face of these statements, and he has stated that he disagreed with his counsel's admission and asked the criminal court for replacement counsel. [#317 at 26, ¶ 26] The Court therefore declines to extend summary judgment to Defendant on the basis of these statements.
But in his cross motion, Plaintiff repeatedly states that he had planned to purchase the items before being confronted by Darwish. [#317 at ¶ 23; id. at 10] And while Plaintiff may have passed all points of sale, the video clearly demonstrates that Plaintiff had not yet attempted to leave the store when confronted by Darwish. [#290-5 at 17:50:03-50:12] Between the location where the confrontation occurred and the exit were items available for purchase [id.], and a jury could reasonably conclude that Plaintiff had not yet completed his shopping when confronted. Moreover, while Darwish may have asked Plaintiff whether he intended to purchase the items, the conversation was clearly animated and quickly escalated. So, while Plaintiff may have had the intent to purchase the items before being confronted, his intentions may have changed after the interference. Admittedly, Plaintiff's placement of the items inside his coat make less credible his statements that he intended to purchase the items, but “[j]udgments about intent are best left for trial and are within the province of the jury.” Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995); see also Romero v. Union Pac. R.R., 615 F.2d 1303, 1309 (10th Cir. 1980) (debatable issues of motive and intent are “particularly inappropriate for summary judgment disposition”).
The two out-of-district cases cited by Defendant are distinguishable. In Hunter v. The Buckle, Inc., the first plaintiff had selected jeans to try on, but there was no evidence that she had decided to purchase those jeans. 488 F.Supp.2d 1157, 1172 (D. Kan. 2007). The second plaintiff testified that she had intended to purchase a pair of shoes after completing her shopping, but there was no evidence that the store had those shoes in her size. Id. Here, by contrast, Plaintiff had selected the particular items he wanted and has affirmatively stated that he intended to purchase those items.
In Wesley v. Don Stein Buick, Inc., the plaintiff visited an auto dealership for the purpose of obtaining general price information. 42 F.Supp.2d 1192, 1201 (D. Kan. 1999). The plaintiff did not submit any evidence indicating an intent to purchase a vehicle. Id. Once again, this contrasts with Plaintiff here, who selected the particular items he wanted and affirmatively stated that he intended to purchase those items.
Accordingly, the Court concludes that there is a material dispute of fact as to whether Plaintiff intended to purchase the items prior to the interference from Darwish. The Court therefore RECOMMENDS that Defendant's motion be DENIED as to these claims and that Plaintiff's motion be DENIED as to these claims.
B. Colorado Premises Liability Act, C.R.S. § 13-21-115
The Colorado Premises Liability Act (“CPLA”) provides the “exclusive remedy against a landowner for injuries sustained on the landowner's property.” Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612, 613 (Colo.App. 2003); see also Raup v. Vail Summit Resorts, Inc., 160 F.Supp.3d 1285, 1288 (D. Colo. 2016) (same). The Colorado Supreme Court has explained:
The statute applies to a personal injury action that meets four requirements: (1) the action involves the plaintiff's entry on the landowner's real property;
(2) the plaintiff's injury occurred while on the landowner's real property; (3) the injury occurred by reason of the property's condition, activities conducted on the property, or circumstances existing on the property; and (4) the landowner breached the duty of care it owed the plaintiff under the premises liability statute's classification of trespasser, licensee, or invitee.Larrieu v. Best Buy Stores, L.P., 303 P.3d 558, 562 (Colo. 2013).
According to the Complaint, there are three locations of injury at issue: (1) inside the Dollar General store, (2) outside the store in a parking lot, and (3) at an apartment complex near the store. [#77 at 6-8] Defendant argues that Plaintiff cannot establish a CPLA claim because there is no evidence that Plaintiff was physically injured inside the store and no evidence that Defendant is the landowner of the parking lot or apartment complex. [#290 at 20] The Court will address each location in turn.
As explained below when addressing Plaintiff's Motion, Plaintiff has not provided evidence that Defendant breached its duty of care to Plaintiff. But Defendant does not make this argument and it is not the Court's obligation to create legal arguments for it. Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating that "the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues"); Goodwin v. Bruggeman-Hatch, No. 13-CV-02973-REB-MEH, 2014 WL 4723916, at *2 (D. Colo. Sept. 22, 2014) (finding that “an issue that is not raised in response to the apposite motions to dismiss or otherwise brought to the attention of the magistrate judge is waived”). Moreover, in responding to Defendant's Motion-as opposed to advancing his own Motion-Plaintiff cannot be expected to supply evidence on an element that Defendant does not contest.
1. Inside the Store
First, Defendant “does not dispute that it could qualify as a landowner for the inside of the [Dollar General] store.” [#326 at 30] But Defendant asserts that Plaintiff was not physically injured in the store and that the CPLA does not support claims for mental injury. [#290 at 23] In his response and cross motion, Plaintiff appears to concede that he was not physically injured inside Dollar General, stating: “Although the Plaintiff did not sustain a claim of traumatic physical body injuries, he does assert personal injuries under the scope of mental anguish.” [#317 at 12] Additionally, although Plaintiff's statement of facts claims at various times that Darwish physically assaulted Plaintiff inside the store, no competent summary judgment evidence supports this assertion. The Court therefore finds that there is not a genuine dispute as to whether Plaintiff was physically injured within the Dollar General store; he was not.
In his motion, Plaintiff states that he suffers from “anxiety, depression, humiliation, undue stress, sleepless nights, and loss of self-esteem.” [#317 at 11] He further states that these injuries stem from Defendant's employees' “malicious, willful wanton, and outrageous conduct committed by racially motivated discrimination[].” [Id.]
For example, although store surveillance video does show Darwish reaching toward Plaintiff and perhaps lightly touching his coat, it does not show her making any contact that could cause physical injury. [#290-5 at 17:50:00-17:51:20] Additionally, while both parties agree that Darwish sprayed Plaintiff with pepper spray, there is no evidence that this action occurred inside the store. [Id. (video of incident that does not show Darwish pepper spraying Plaintiff); #317 at ¶¶ 14-15 (Plaintiff describing pepper spray occurring outside the store); #290-1 at 23(66:9-21) (Plaintiff testifying to pepper spray occurring outside the store); 326-2 at 14(77:6-21) (Darwish testifying to pepper spray occurring near apartment complex)] Finally, while it is undisputed that Darwish grabbed a suitcase, Plaintiff does not assert that the suitcase or property in it was damaged and Plaintiff's own deposition testimony admits that the suitcase did not belong to him. [## 326-3 at 5(15:16-21); 326-4 at 6(77:6-21)]
Defendant further argues that it is not liable for the “mental anguish” injury Plaintiff asserts because the CPLA provides remedies only for physical injuries. [#290 at 20, 23] The Court disagrees with that assessment. As support for its argument, Defendant cites cases that state that claims for physical injury occurring on a landowner's property must be brought exclusively under the CPLA. Rieger v. Wat Buddhawararam of Denver, Inc., 338 P.3d 404, 408 (Colo.App. 2013) (stating the CPLA “provides the sole and exclusive remedy against a landowner for physical injuries on the landowner's property”); Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 540 (Colo.App. 2005) (“The Colorado Premises Liability Act, § 13-21-115, provides the exclusive remedy against a landowner for physical injuries sustained on the landowner's property.”). However, these cases do not state that the CPLA supports only claims for physical injury.
Indeed, Defendant's interpretation runs contrary to the statute's language and Colorado precedent. Subsection (2) of the CPLA states: “In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.” C.R.S. § 13-21-115(2) (emphasis added). The Colorado Supreme Court has determined that the plain language of the CPLA preempts all prior common law theories of liability and thus “establishes the statute as the sole codification of landowner duties in tort.” Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004).
The CPLA therefore “abrogate[s] the common law of landowner duties.” Id. at 329. Courts in this district have interpreted the statute to preclude all claims in tort against landowners for injuries related to conditions or activities on a landowner's property, finding that those claims must be brought under the CPLA. See e.g., Collins v. Westin Dia Operator, LLC, 20-cv-1088-WJM-KLM, 2021 WL 130659, at *5 (D. Colo. Jan. 14, 2021) (dismissing all of Plaintiff's tort claims, including an intentional infliction of emotional distress claim, as precluded by the CPLA); Traynom v. Cinemark USA, Inc., 940 F.Supp.2d 1339, 1358 (D. Colo. 2013) (applying Colorado law and holding the CPLA precludes claims of negligent training and supervision filed against movie theater's owner).
Defendant has not presented evidence or argument contradicting Plaintiff's claim that he suffered emotional injuries from the employees' actions occurring within the store. Accordingly, the Court RECOMMENDS Defendant's motion be DENIED as to Plaintiff's claim for emotional injuries under the CPLA.
The Court next turns to Plaintiff's motion. As noted above, Defendant does not contest its status as landowner inside the store. [#326 at 30] Plaintiff therefore must show that there is no genuine factual dispute as to the remaining elements of a CPLA claim: (1) an injury occurring by reason of the property's condition, activities conducted on the property, or circumstances existing on the property, which was (2) caused by Defendant's breach of its duty of care under the statute. Larrieu, 303 P.3d at 562.
The CPLA defines the duty of care owed to persons under the statute's classifications of trespasser, licensee, or invitee. Id.; Traynom, 940 F.Supp.2d at 1343. Plaintiff argues that he was an invitee under the statute. [#317 at 12] Per the statute, “an invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” C.R.S. § 13-21-115(3)(c).
Although not entirely clear, the Court understands Plaintiff to be identifying the “danger” as racially motivated discrimination and “aggression” by Defendant's employees. [#317 at 11] Beyond that, however, Plaintiff provides no evidence to suggest that Defendant was aware of the potential for “danger” to customers in its store as a result of employee discrimination or aggression. He further neglects to provide evidence establishing an unreasonable failure to exercise reasonable care on the part of Defendant. Accordingly, this Court RECOMMENDS that Plaintiff's motion be DENIED as to his claim for emotional injuries under the CPLA.
2. Outside the Store
Defendant next argues there is no evidence that Plaintiff's remaining injuries- occurring in a parking lot and at a nearby apartment complex-occurred on Defendant's property. [#290 at 20-24] The CPLA only creates liability for landowners, as defined under the statute. C.R.S. § 13-21-115(1); Vigil, 103 P.3d at 330. The CPLA defines a landowner as “a person in possession of real property” or “a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” C.R.S. § 13-21-115(1). “The focus in this context is ‘whether the defendant is someone who is legally entitled to be on the real property and whether that defendant is responsible for creating a condition on real property or conducting an activity on real property that injures an entrant.'” Lopez v. Trujillo, 399 P.3d 750, 756 (Colo.App. 2016) (quoting Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo. 2002)).
Colorado courts regularly distinguish between the actual owner of land and other entities, such as tenants, in determining whether they are “landowners” under the statute, including by determining which entity maintains control of common areas, such as parking lots. See e.g., Lopez, 399 P.3d at 757 (“public sidewalks adjacent to a landowner's property are not property of the landowner pursuant to the [CPLA]”); Jordan v. Panorama Orthopedics & Spine Center, PC, 350 P.3d 863, 869 (Colo.App. 2013) (finding no CPLA liability where Defendant's lease did not include the sidewalk or parking lot and Defendant had no obligation to maintain common areas); Pierson, 48P.3d at 1220 (“[W]hen a landowner transfers complete control of the premises to a lessee, that landowner is no longer a person in possession for purposes of the statute.”).
“To survive summary judgment, a nonmoving party must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which he carries the burden of proof.” Christy v. Travelers Indem. Co. of Am., 810 F.3d 1220, 1233 (10th Cir. 2016) (quotation omitted). “Where, as here, ‘the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden on a motion for summary judgment by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.'” Young v. Walmart, Inc., No. 18-cv-1562-WJM-NRN, 2019 WL 4954644, *2 (D. Colo. Oct. 8, 2019) (quoting Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001)). The burden then shifts to the nonmoving party to go beyond the pleadings and set forth specific facts, supported by evidence, which demonstrate a genuine dispute of fact. Young, 2019 WL 4954644, at *2; Fed.R.Civ.P. 56(c)(1)(A).
Here, Defendant has identified a lack of evidence of an essential element of Plaintiff's claim: that his injuries occurred on Defendant's property. Plaintiff has not responded to the allegation, nor has he gone beyond the pleadings to identify specific evidence of Defendant's position as “landowner” of the parking lot or apartment complex where Plaintiff's injuries occurred. Thus, in the absence of evidence to suggest that Defendant was the “landowner” of the parking lot or apartment complex, Defendant is entitled to summary judgment in its favor regarding CPLA claims on those properties.
Indeed, Plaintiff seems to admit that at least the apartment complex was not Defendant's property. [#317 at ¶ 13]
The Court thus RECOMMENDS that Defendant's motion be GRANTED as to the CPLA claims for injury in the parking lot and the apartment complex and that Plaintiff's Motion as to those claims be DENIED.
C. Defamation of Character
Finally, both parties have moved for summary judgment on Plaintiff's defamation claim, in which Plaintiff alleges that Darwish and Garcia defamed him when they told the police that Plaintiff stole items from the store and pushed Darwish. [#77 at 17-18] Under Colorado law, “[d]efamation is a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damage.” Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). A successful defamation claim requires a plaintiff to prove:
(1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication.Lawson v. Stow, 327 P.3d 340, 345 (Colo.App. 2014).
Whether a statement is defamatory is a question of law. Zueger v. Goss, 343 P.3d 1028, 1034 (Colo.App. 2014). “[T]o account for the existence and importance of society's interest in free speech, the courts have imposed a number of modifications to the common law of defamation . . . .” Lawson, 327 P.3d at 345 (quotations omitted). One such modification is the imposition of a qualified privilege for statements relating to matters of public concern. Burke v. Greene, 963 P.2d 1119, 1122 (Colo.App. 1998) (“Colorado law recognizes a qualified privilege for communications by a party with a legitimate interest to persons having a corresponding interest and communications promoting legitimate individual, group, or public interests.”). And “courts in numerous jurisdictions, including Colorado, have held that a private individual's report to law enforcement authorities of possible criminal conduct is subject to the qualified privilege.” Lawson, 327 P.3d at 346 (collecting cases). Thus, “[t]o overcome qualified privilege, [Plaintiff] must prove (1) the falsity of the statement by clear and convincing evidence, (2) [Defendant] made the statement with actual malice, and (3) actual damages, even if the statement is defamatory per se.” MSC Safety Solutions, LLC v. Trivent Safety Consulting, LLC, 19-cv-00938-MEH, 2020 WL 7425874, at *20 (D. Colo. Dec. 18, 2020) (citing Lawson, 327 P.3d at 346).
In its motion, Defendant argues that the employees' statements to law enforcement were privileged and that Plaintiff has not overcome the privilege. [#290 at 12-13] Defendant further argues that even if the employees did defame Plaintiff, they were acting outside the scope of their employment and Defendant is therefore not liable. [Id. at 13-16] Plaintiff argues generally for summary judgment in his favor on these claims. [#317 at 13]
In accordance with Colorado law, this Court finds that the statements by Garcia and Darwish to law enforcement regarding “possible criminal conduct” are subject to a qualified privilege. Lawson, 327 P.3d at 346; Burke, 963 P.2d at 1122. The Court addresses below whether Plaintiff has met the necessary elements to overcome that privilege.
1. Statement at Issue: Plaintiff “pushed” Darwish
The Court first addresses whether the statement that “Plaintiff pushed Darwish” was materially false. “Where truth was once strictly a defense, now the plaintiff must shoulder the burden in his case-in-chief of proving the [material] falsity of a challenged statement if he is a public figure or the statement involves a matter of public concern.” Bustos v. A & E Television Networks, 646 F.3d 762, 764 (10th Cir. 2011) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986)). Substantial truth- or whether “the substance, the gist, the sting, of the matter is true”-is therefore an affirmative defense to a defamation claim. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1110 (10th Cir. 2017) (quoting Gomba v. McLaughlin, 504 P.2d 337, 338-39 (Colo. 1972)); see also Anderson v. Colorado Mountain News Media, Co., 18-cv-02934-CMA-STV, 2019 WL 6888275, at *4 (D. Colo. Dec. 18, 2019) (same).
The plaintiff must not only show that the statement is false, but also that the falsity is material. Gomba, 504 P.2d at 338-39. “To qualify as material the alleged misstatement must be likely to cause reasonable people to think ‘significantly less favorably' about the plaintiff than they would if they knew the truth; a misstatement is not actionable if the comparative harm to the plaintiff's reputation is real but only modest.” Bustos, 646 F.3d at 765 (emphasis in original). In other words, “minor inaccuracies do not count.” Brokers' Choice, 861 F.3d at 1111 (quotation omitted). Whether a statement is materially false can be determined at the summary judgment stage. See Bustos, 646 F.3d at 767.
Here, video surveillance footage clearly shows Plaintiff attempt to strike Darwish on at least two occasions and use his arm to push both her and Garcia's arms away, all while wielding a knife. [#290-5 at 17:50:42-17:51:02] Darwish and Garcia testified to these actions in his criminal trial, [see ## 290-3; 326-3], and Plaintiff's own appellate brief states that “Yeiser swatted [Darwish's] hand away from him.” [#326-7 at 7] Plaintiff provides no evidence to refute these facts and supports his argument for defamation simply by stating that he was not criminally convicted of felony assault and menacing. [#317 at ¶¶ 25, 27, 29]
But material falsity in the defamation context does not rest on the strength of the government's case in a criminal trial-it is about Plaintiff's “standing in the public eye” as it relates to the statement at issue. See Bustos, 646 F.3d at 767-68. An example from the Tenth Circuit is illustrious here:
What's the difference between saying that the plaintiff sucker-punched an elderly man on St. Patrick's Day, when the truth is that he bashed the elderly man with a club on a different day in March? . . . If [the plaintiff] complained about the statement that he had sucker-punched the old man, the statement is surely a defamatory one. Yet the plaintiff still might not recover because the statement could be found substantially true-the report might have been wrong about how he went about beating the old man, but it isn't at all obvious that the difference is one that matters for purposes of the plaintiff's public reputationId. at 766-67. Here, it is not at all obvious that the difference between Plaintiff “pushing” Darwish and Plaintiff swatting her arm away, attempting to strike her, and wielding a knife at her is one that matters “for purposes of the plaintiff's public reputation.” Id. at 767. Plaintiff points to no evidence in the record to suggest that his public standing would be improved by Darwish having had distinguished more carefully Plaintiff's actions in her report to police. Id. (“Comparing the challenged defamatory statement (membership in the Aryan Brotherhood) to the truth (conspiring with and aiding and abetting the Aryan Brotherhood), we cannot see how any juror could find the difference to be a material one-that is, likely to cause a reasonable member of the general public to think significantly less favorably of Mr. Bustos.”) (emphasis omitted). Even when viewing the facts in the light most favorable to Plaintiff, as the nonmovant to Defendant's motion, the “gist” of Darwish's report is substantially and materially the same as the events that unfolded, as confirmed by video evidence.
Plaintiff has therefore not overcome the qualified privilege afforded to statements to law enforcement and the Court RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's claim that Darwish defamed him when she reported to police that he pushed her. Accordingly, the Court RECOMMENDS that Plaintiff's motion on this point be DENIED.
2. Statement at Issue: Plaintiff committed theft
The Court next turns to Plaintiff's assertion that Darwish and Garcia defamed him when they reported to police that he stole items from Dollar General. Defendant argues that Plaintiff has again not overcome the qualified privilege because he has not provided evidence satisfying either the falsity or actual malice elements. [#290 at 12] As stated above, Plaintiff bears the burden of proving the material falsity of the statement. Bustos, 646 F.3d at 764. Plaintiff also bears the burden of establishing actual malice.Examination Bd. of Prof'l Home Inspectors v. Int'l Ass'n of Certified Home Inspectors, 18-cv-01559-RBJ, 2021 WL 492482, at *9 (D. Colo. Feb. 10, 2021).
Whether there is sufficient evidence to support a finding of actual malice is a question of law, which may be determined at the summary judgment stage. Id. at *9; Lockett v. Garrett, 1 P.3d 206, 210 (Colo.App. 1999). To establish actual malice a plaintiff must show by clear and convincing evidence that the defendant published the statement at issue “with knowledge of its falsity or in reckless disregard of the truth.” Lewis v. McGraw-Hill Broad. Co., 832 P.2d 1118, 1122-23 (Colo.App. 1992). This standard requires the plaintiff to demonstrate that the defendant “in fact entertained serious doubts as to the truth of the statement, ” or “acted with a high degree of awareness of its probable falsity.” Id. at 1123.
Defendant has presented video evidence showing Plaintiff taking items from a shelf and concealing them from view. [#290-2 at 17:48:15-48:21] It has further presented testimonial evidence that Garcia saw this action by Plaintiff [#290-6 at 10(79:20)-11(80:8)] and that despite Darwish observing the items on Plaintiff's person, Plaintiff denied possessing the items [290-3 at 11(67:15)-12(68:14)]. Plaintiff, by contrast, admitted to having items on his person, [#317 at ¶ 23; id. at 10], engaged in hostile interaction with Darwish after being confronted, [see generally #290-5], and has presented no evidence to suggest that Darwish and Garcia did not actually believe Plaintiff had stolen store merchandise.
While Plaintiff's testimony that he intended to purchase the items despite concealing them on his person is sufficient to create a material dispute of fact as to whether Plaintiff did in fact intend to purchase the items, see supra Part III.A.2, such testimony does nothing to negate Darwish's and Garcia's reasonable belief that Plaintiff intended to steal the items.
Plaintiff does assert that Darwish told police he had stolen “whatever [amount would] put [Plaintiff] in jail” [#317 at 9-10] and that Darwish used racial slurs against Plaintiff [id. at 9]. But both interactions took place after Plaintiff had been confronted for shoplifting. These facts, even in the light most favorable to Plaintiff, do not present clear and convincing evidence that when Darwish and Garcia reported Plaintiff's alleged theft to the police they “entertained serious doubts as to the truth of the statement, ” or “acted with a high degree of awareness of its probable falsity.” Lewis, 832 P.2d at 1123. Moreover, to the degree that the amount stolen constitutes the defamatory statement, Plaintiff has presented no evidence to support the argument that the difference in amount stolen would substantially impact his standing in the community. Bustos, 646 F.3d at 767.
The Court therefore finds that Plaintiff has not offered evidence upon which a reasonable jury could find that he has overcome the qualified privilege as to Darwish's and Garcia's reports to the police that Plaintiff committed theft. Accordingly, this Court RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's defamation claim and that Plaintiff's motion be DENIED.
Because Plaintiff has not carried his burden as to the elements of a defamation claim, the Court does not reach Defendant's argument that the employees were not acting within the scope of their employment when they made their reports to police.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS:
1. Defendant's Motion for Summary Judgment [#290] be GRANTED as to Plaintiff's CPLA claim for injuries Plaintiff suffered outside the store and GRANTED as to Plaintiff's defamation of character claim;
2. Defendant's Motion for Summary Judgment [#290] be DENIED as Plaintiff's §§ 1981 and 1982 claims and DENIED as to Plaintiff's CPLA claim for emotional injuries arising from actions that occurred inside the store; and
3. Plaintiff's Motion for Summary Judgment [#317] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and 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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.Park Lake Res. Ltd. Liab. v. U.S. Dep't Of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004). Here, the Court is not convinced that the issue previously decided in the criminal trial is identical with the one presented in the instant action. In the criminal trial Plaintiff was convicted of actually taking store items. Here, by contrast, the Court must determine whether there is evidence that Plaintiff intended to purchase items prior to the interference by Defendant's employees. A hypothetical helps to explain the difference between these two questions. Assume a shopper enters a store intending to purchase an item and, indeed, removes the item from a shelf with the intent to purchase it. A store clerk, wrongfully assuming the shopper was planning to steal the item, confronts the shopper, calls the shopper a racist slur, and then tells the shopper to immediately leave the store. The shopper, now angry from the confrontation, decides to exact revenge by stealing the item. In this scenario, the store clerk interfered with the shopper's protected activity despite the fact that the shopper later committed a theft. Here, too, Plaintiff was confronted prior to leaving the store and therefore his theft conviction does not necessarily have a preclusive effect.