Cortese v. Black

UNITED STATES COURT OF APPEALS
Filed 6/25/96
FOR THE TENTH CIRCUIT

DENNIS LEE CORTESE; DEBBIE DUZ
DONUTS, trade name for 3-D Donuts,
Corp.,

Plaintiffs-Appellants, No. 95-1429
(D.C. No. 92-B-209)
v. (D. Colo.)

JAMES L. BLACK, Ex-Sheriff of
Larimer County, Colorado; RONALD
PETITT; ANDREW JOSEY; CHARLES
NICHOLS, Deputy Sheriff of Larimer
County, Colorado; LARIMER COUNTY
SHERIFF’S DEPARTMENT; LARIMER
COUNTY BOARD OF COUNTY
COMMISSIONERS,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before PORFILIO, JONES,** and TACHA, Circuit Judges.

*
This order and judgment is not binding precedent, except under the doctrines of law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.
**
Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
 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.

Plaintiffs-appellants appeal from the district court’s entry of summary judgment in

favor of defendants on their claims that their constitutional rights were violated when

defendants attempted to prevent them from opening their business, and once opened, closed

the business pursuant to a state nuisance statute. Plaintiffs’ complaint is based on 28 U.S.C.

§ 1983. Our jurisdiction arises from 28 U.S.C. § 1291 and we affirm.

Plaintiffs owned and operated a topless doughnut shop that also sold sexually oriented

books and videotapes. After plaintiff Cortese sold illegal drugs to an undercover police

officer, the defendant police officers obtained arrest warrants for Cortese and Gary Petty, an

employee of the business. Also based on the illegal drug sales and pursuant to a state

nuisance statute, defendants sought and obtained a temporary restraining order from a state

court against conducting further business at the doughnut shop. Plaintiffs ultimately

abandoned their claims in the state court nuisance action.

Cortese entered an Alford plea to the criminal drug charges brought against him, thus

permitting him to maintain his claim that the drugs were planted by defendants as an excuse

to close the business. It was after he entered a plea to the criminal charges that he admitted

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that he had provided the drugs. Plaintiffs allege that defendants engaged in a course of action

to close plaintiffs’ business, thus violating various constitutional rights. For a complete

recitation of the facts, see Cortese v. Black, 838 F. Supp. 485 (D. Colo. 1993).

On appeal, plaintiffs claim (1) the police investigation of plaintiffs’ business was

motivated to close the business, not for a legitimate purpose; (2) the business was subjected

to an unconstitutional search and seizure during the execution of the arrest warrant on Gary

Petty; (3) the state nuisance statute under which the temporary restraining order was issued

resulted in the unconstitutional restraint of freedom of expression because defendants seized

constitutionally protected materials; (4) enforcement of the nuisance statute at plaintiffs’

business violated equal protection because the statute was not employed to close other

businesses; (5) seizure of the business was effected without affording plaintiffs

constitutionally required pre-seizure notice and an opportunity to be heard; (6) plaintiffs’

§ 1983 claims are not barred by either the doctrine of res judicata or the entry of an Alford

plea to the drug charges; and (7) summary judgment was inappropriate because there exist

disputed material facts.

We review the grant of summary judgment de novo, applying the same standard as the

district court. Applied Genetics Int’l, Inc., v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241

(10th Cir. 1990). “Summary judgment is appropriate when there is no genuine dispute over

a material fact and the moving party is entitled to judgment as a matter of law.” Russillo v.

Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). We view the record in the light most

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favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938

F.2d 1105, 1110 (10th Cir. 1991).

We first address plaintiffs’ argument that the police took action to close their business

in violation of their constitutional rights. They contend that the drugs Cortese was accused

of providing to an undercover police officer were planted by the police to provide an excuse

to arrest Cortese and close the business. During his deposition, however, Cortese admitted

that it was he who had provided the drugs to the undercover officer. Therefore, plaintiffs’

claim that the police investigation was unlawfully motivated must fail.

As a corollary to their argument that the police acted improperly, plaintiffs argue that

Cortese’s initial statement to the district court denying that he had provided the drugs was

not a “material lie.” See appellants’ brief at 16-21. The district court did not, however,

sanction plaintiffs because Cortese had lied about having provided the illegal drugs. Instead,

the court resolved the legal issues based on Cortese’s admission. Accordingly, we do not

address whether Cortese’s lie to the court was “material.”

We turn to plaintiffs’ claim that the business was subjected to an unlawful search and

seizure. They allege that defendants unlawfully seized a constitutionally protected videotape

during the arrest of Petty. It is undisputed that the police officers, believing the videotape

was a bootleg tape, removed it from plaintiffs’ business on April 4, 1990, and returned it on

April 13, 1990. It is also undisputed that the police served the temporary restraining order

on the evening of April 4, 1990, at which time they had the legal right to enter the business

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and inventory its contents, thus permitting them to have possession of the

videotape. Viewing the record in the light most favorable to the nonmoving party, as the

district court did, we assume that the videotape was seized without a search warrant or an

arrest warrant. Even so, we conclude that any Fourth Amendment violation was de minimis

in view of the facts that defendants seized only one item, and had possession of it illegally

for only a few hours. See Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir.

1994)(officer’s warrantless entry into plaintiff’s foyer, even if Fourth Amendment violation,

was de minimis); see also Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(in prison context,

de minimis uses of physical force are excluded from constitutional recognition); Artes-Roy,

31 F.3d at 962-63 (collecting cases). Accordingly, there was “no actionable constitutional

wrong.” Artes-Roy, 31 F.3d at 963 (quotation omitted).

Plaintiffs also maintain that the restraining order issued under the state nuisance

statute, Colo. Rev. Stat. § 16-13-303, deprived them of their First Amendment rights to

freedom of expression. They assert that the order to close the business deprived them of the

right to sell constitutionally protected books and videotapes. The business, however, was

closed because the owner/manager provided illegal drugs to an undercover policeman, not

because the business was sexually oriented. The drug activity “carried on in this case

manifests absolutely no element of protected expression.” Arcara v. Cloud Books, Inc., 478

U.S. 697, 705 (1986). Consequently, the First Amendment is not implicated by the

enforcement of the Colorado nuisance statute intended to prevent any building from being

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used for the unlawful sale, distribution or storage of illegal drugs. Colo. Rev. Stat.

§ 16-13-303; Arcara, 478 U.S. at 707; accord O’Connor v. City & County of Denver, 894

F.2d 1210, 1217 (10th Cir. 1990)(First Amendment not implicated by enforcement of

criminal code prohibiting public sex acts even though result was to close theater).

Plaintiffs also assert that they were selected for prosecution because of the nature of

their business. To maintain a claim of selective prosecution, plaintiffs must show that they

have been singled out for prosecution while others similarly situated generally have not been

prosecuted for similar conduct, and that the government selected them to prevent them from

exercising their constitutional rights or for other impermissible reasons. United States v.

Furman, 31 F.3d 1034, 1037 (10th Cir.), cert. denied, 115 S. Ct. 651 (1994). To support their

claim of selective prosecution, plaintiffs cite Cortese’s testimony that he knew of other

establishments that were not treated as harshly as plaintiffs’ in allegedly similar situations.

Inadmissible hearsay, however, cannot defeat summary judgment “because a third party’s

description of a witness’ supposed testimony is not suitable grist for the summary judgment

mill. Furthermore, generalized, unsubstantiated, non-personal affidavits are insufficient to

successfully oppose a motion for summary judgment.” Thomas v. International Business

Mach., 48 F.3d 478, 485 (10th Cir. 1995)(quotations omitted). Cortese’s generalized

references to what happened to other establishments is inadmissible hearsay, insufficient to

defeat summary judgment. See Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993)

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(appellate court may affirm district court’s judgment for reasons other than those relied on

by the district court).

Plaintiffs next allege that their constitutional rights to procedural due process were

violated when the police officers served the temporary restraining order without first

providing plaintiffs with notice and an opportunity for a hearing. The temporary restraining

order was based on Cortese’s illegal drug activity. Its purpose was not to forfeit the business,

even though defendants later requested a forfeiture to which plaintiffs did not object. The

temporary restraining order was authorized by state statute, and issued by a state district

court; it was not initiated by self-interested private parties. Furthermore, the temporary

restraining order provided plaintiffs an opportunity for an immediate hearing. Consequently,

we conclude that this case “presents an ‘extraordinary’ situation in which postponement of

notice and hearing until after seizure did not deny due process.” Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U.S. 663, 679-80 (1974); see Swoboda, 992 F.2d at 291 (appellate

court may affirm district court’s judgment for reasons other than those relied on by the

district court).

We dispose of plaintiffs’ argument that their § 1983 claims are not barred by the

doctrine of res judicata or by Cortese’s guilty plea by noting that the district court found that

the claims were not barred for either of those reasons. The district court addressed the merits

of plaintiffs’ § 1983 claims, concluding that defendants were entitled to summary judgment.

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 Finally, plaintiffs assert that summary judgment was inappropriate because there exist

genuine issues of material fact. See Fed. R. Civ. P. 56(c). Plaintiffs object to the district

court’s reliance on defendants’ affidavits because they refute plaintiffs’ allegations. Rule

56(c) provides that affidavits may support a summary judgment motion. See Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986)(it is from Rule 56(c)'s list of materials "that one would

normally expect the nonmoving party to make the [required] showing"). Plaintiffs also point

to various discrepancies in the parties’ statements. E.g., appellants’ brief at 19-21. We

determine that the disputed matters are not material to the legal issues presented, and do not

preclude summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986)(existence of some disputed facts will not defeat summary judgment; there must exist

genuine issue of material fact).

The judgment of the United States District Court for the District of Colorado is

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha
Circuit Judge

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