Full opinion text
OPINION AND ORDER GRANTING, IN PART, MOTIONS TO DISMISS MARCIA S. KRIEGER, District Judge. THIS MATTER comes before the Court pursuant to Defendant Sparaco’s Motion to Dismiss (# 27), the Plaintiffs response (# 35), and Defendant Sparaeo’s reply (# 39); and Defendants Dasko’s Motion to Dismiss (# 29), the Plaintiffs response (# 36), and Defendant Dasko’s (# 43). FACTS According to the Amended Complaint (# 22), the Plaintiff was employed as a Pre-School Teacher’s Assistant in a school operated by Primero Reorganized School District No. 2’s (“the District”). In 2004, the Plaintiff confided in Defendant Dasko, a school Counselor, regarding personal matters. Although the Plaintiff believes she shared the information with Defendant Dasko in confidence, Defendant Dasko thereafter conveyed some or all of that personal information to Defendant Nuschy, the school’s Principal. Defendant Nuschy later entered into a wager with another District employee as to whether or not Defendant Nuschy would have sex with the Plaintiff before the end of the school year. Using the information gleaned from Defendant Dasko, Defendant Nuschy “prey[ed] upon the emotions” of the Plaintiff, and the two began a sexual relationship. At first, the Plaintiff enjoyed the benefits of the relationship, which included positive attention from Defendant Sparaco, and an indication that, contrary to earlier representations, Defendant Nuschy might be able to arrange for the Plaintiff to teach her own pre-school class. However, when the Plaintiff learned in March 2005 of Defendant Nuschy’s wager, she ended the relationship. Defendant Nuschy did not willingly surrender the relationship, and made several unwelcome phone calls, emails, and visits to the Plaintiffs house. The Plaintiff ultimately obtained a Restraining Order against Defendant Nuschy. Thereafter, the Plaintiff observed that Defendant Sparaco’s treatment of her deteriorated, and Defendant Sparaco advised the Plaintiff that she would no longer enjoy the same unfettered presence at the school that she enjoyed during her relationship with Defendant Nuschy; instead, Defendant Sparaco instructed the Plaintiff that she was limited to being in her immediate work area, the gym, the cafeteria, and, if necessary, the office. In May 2005, the Plaintiff was advised that her annual employment with the District would not be renewed. The Plaintiff alleges five causes of action: (i) wrongful discharge in violation of public policy against the District; (ii) hostile environment sexual harassment under Title VII against the District; (iii) quid pro quo sexual harassment under Title VII against the District; (iv) invasion of privacy against Defendant Dasko, arising from her disclosure of the Plaintiffs confidential communications; and (v) outrageous conduct against Defendants Sparaco, Nuschy, and Dasko. Defendant Sparaco moves to dismiss (# 27) the sole claim against him, for outrageous conduct, arguing that the allegations in the Amended Complaint fail to identify conduct that rises to an actionable level. Defendants Dasko moves to dismiss (# 29) the invasion of privacy claim against her, alleging that the Plaintiff did not adequately allege that the Plaintiff disclosed facts that were “private in nature,” that Defendant Dasko’s disclosure was made to the public; that the disclosure would be highly offensive to a reasonable person, that the material disclosed was not of public concern, or that Defendant Dasko disclosed with information with willful or wanton intent. In addition, Defendant Dasko also moves to dismiss the outrageous conduct claim for failure to identify sufficiently outrageous conduct. ANALYSIS A. Standard of review In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir.2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). The Complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir.2001); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997); but see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (factual basis for the allegations in the complaint must be concrete enough to rise above a speculative level, and conclusory assertions are insufficient to satisfy the plaintiffs burden of pleading adequate facts to support each claim). The Court must limit its review to the four corners of the complaint, plus exhibits attached to the complaint or material referenced in the complaint and upon which the plaintiffs claims arise, so long as the authenticity of such material is not disputed. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir.2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002). B. Outrageous conduct Both Defendants Sparaco and Dasko challenge the sufficiency of the Plaintiffs allegations supporting the fifth cause of action; sounding in outrageous conduct. Specifically, the Amended Complaint alleges that Defendant Dasko engaged in outrageous conduct by “publicizing private facts about the Plaintiffs personal life and invading Plaintiffs privacy — which led to a ‘bet’ on who would sleep with Plaintiff.” As to Defendant Sparaco, the Plaintiff alleges that he engaged in outrageous conduct by “[changing his] attitude towards Plaintiff ... depending on whether Plaintiff was having sex with Defendant Nuschy[ ] or not”; by “placing limitations on where Plaintiffs presence at school was welcome” as a result of her terminating the relationship with Defendant Nuschy; and by terminating the Plaintiffs employment in response to her ending her relationship with Defendant Nuschy. Under Colorado law, the elements of the tort of outrageous conduct are: (i) that the defendant engaged in extreme and outrageous conduct; (ii) that it did so recklessly, or with the intent to cause the plaintiff severe emotional distress; and (iii) that the conduct caused the plaintiff to suffer such distress. Riske v. King Soopers, 366 F.3d 1085, 1089 (10th Cir.2004), citing Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo.App.2002). To satisfy the first element, the plaintiff must allege conduct that “goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community.” Id., citing Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970) and Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988). The tort is intended to reach “a very narrow” type of conduct. Green v. Qwest Services Corp., 155 P.3d 383, 386-87 (Colo.App. 2006) (collecting cases). The type of conduct actionable under this claim is that which “the recitation of facts to an average member of the community would ... lead him to exclaim ‘Outrageous!’ ” Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970), citing Restatement (Second) Torts, § 46, comment d. The outcome of several cases involving similar facts is helpful in assessing the sufficiency of the Plaintiffs allegations. In Riske, the 10th Circuit held that allegations that an employee had been subjected to nearly three years of unwanted gifts and disturbing notes from an anonymous suitor (later shown to be her manager), coupled with her manager “stalk[ing] her and following] her around the store” for several months, “presents a close question,” but “comes so close to the bounds of decency that reasonable people could disagree about whether it constitutes actionable conduct.” 366 F.3d at 1089. Among the factors that the court found important were the length of time over which the conduct occurred, and the managerial relationship involved. Id. In Donohue v. Hoey, 109 Fed.Appx. 340, 369-70 (10th Cir.2004) (unpublished), the defendant was a police officer to whom the family of a crime victim had related in confidence “several sensitive details” about their lives, in order to advance the criminal investigation. When the family members later became vocal critics of the police, the officer disclosed the family’s confidences to a reporter. Id. at 350-51. Without engaging in extended discussion, the 10th Circuit affirmed a grant of summary judgment on an outrageous conduct claim stemming from this allegation, merely observing that “[w]e cannot conclude that the conversation with [the reporter], though probably mean-spirited and unkind, rose to the level of outrageous conduct contemplated by this tort.” Id. at 370. In Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo.1999), the Colorado Supreme Court found that an employee’s claim that he was fired by his employer as a scapegoat to conceal illegal conduct by the employer did not allege sufficiently outrageous conduct to state a claim. This Court finds that the Plaintiffs allegations against both Defendants Dasko and Sparaco fail to assert sufficiently outrageous conduct. Turning first to Defendant Dasko, the Plaintiff alleges a single instance of conduct in which the Plaintiff told Defendant Dasko certain personal information in confidence, and Defendant Dasko failed to keep the information secret. Although these facts are quite similar to those found insufficient to state a claim in Donohue, the Court need not draw upon caselaw to conclude that such conduct does not rise to the level of “atrocious” and “utterly intolerable in a civilized community.” To the contrary, a breach of trust by a supposed confidant is so common in every individual’s experience that it has become a standard element of countless examples of popular entertainment. Accordingly, the Court finds that the Plaintiff has failed to state a claim for outrageous conduct against Defendant Dasko. With regard to Defendant Sparaco, the Plaintiff alleges three types of conduct: Defendant Sparaco treating her better when she was dating Defendant Nuschy; withdrawing such positive treatment and restricting her authority to move about the school after the relationship ended; and terminating her employment, ostensibly in retaliation for ending the relationship. Although the allegations against Defendant Sparaco do allege an abuse of managerial authority — one of the factors favoring a finding of outrage in Riske — that factor alone is insufficient to convert otherwise unactionable conduct into that sufficient to support a claim. For example, the termination of the employee in Floyd certainly carried the imprimatur of management action, yet the allegations that management terminated him as a scapegoat to cover up the employer’s extensive criminal conduct nevertheless failed to state a claim. Indeed, a useful comparison can be drawn between the allegation in Floyd — that the employee was terminated to cover up criminal conduct by the employer — and the comparatively benign allegation here — that Defendant Sparaco terminated the Plaintiff in retaliation for her breaking off a romantic relationship with Defendant Nuschy. As in Floyd, this Court finds that the Plaintiffs allegation of unjust termination does not allege sufficiently outrageous conduct. Likewise, the remaining allegations — an individual’s receipt of positive attention and benefits from the friends of their paramour during a relationship, or the loss of that attention and benefits when the relationship ends — are events so common in everyday society that no reasonable person could find such behavior to be “utterly intolerable.” The fact that such attention and benefits were received from one’s manager at work might add some additional taint of impropriety to the conduct, but not nearly enough to rise to the level of rendering the conduct “utterly intolerable in a civilized society.” Accordingly, Defendant Sparaeo is entitled to dismissal of the claim against him as well. C. Invasion of Privacy To state a claim for invasion of privacy under Colorado law arising from the disclosure of private facts, the Plaintiff must allege: (i) that the fact disclosed was private in nature; (ii) that the disclosure was made by Defendant Dasko to the public; (iii) that the disclosure was one which would be highly offensive to a reasonable person; (iv) the disclosed fact was not of legitimate concern to the public; and (v) that Defendant Dasko disclosed the fact with reckless disregard of the private nature of the fact disclosed. Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1065 (Colo.App.1998). The Plaintiffs response to Defendant Dasko’s argument relies not specifically on the allegations in the Amended Complaint, but on an affidavit by the Plaintiff adding new details not found in the Amended Complaint. Because this Court’s review on a Motion to Dismiss is limited to those facts asserted in the Amended Complaint, the Court disregards the Plaintiffs affidavit, and examines only that which is alleged in the Amended Complaint. On this issue, the Amended Complaint is quite brief: it alleges that the Plaintiff met with Defendant Dasko “privately and in confidence, to discuss issues going on in Plaintiffs life,” Docket # 22, ¶ 9; and that “Defendant Dasko breached confidences and informed Defendant Nuschy [ ] of the material aspects discussed” with the Plaintiff, id. at ¶ 10. The Court finds that the Amended Complaint fails to adequately allege that the information revealed by the Plaintiff to Defendant Dasko was “private in nature.” The Amended Complaint describes the subject matter of the conversation as being only “issues going on in Plaintiffs life,” but does not suggest that those issues were not otherwise public knowledge. One might argue that paragraph 9 of the Amended Complaint alleges that the Plaintiffs communication to Defendant Dasko was “privately and in confidence,” but that allegation merely describes the manner of communication, while the first element of the claim examines the content. Because the Amended Complaint does not adequately allege that the content of the information disclosed by Defendant Dasko was private in nature, the Plaintiff has failed to adequately state a claim for invasion of privacy. However, dismissal is inappropriate if the pleading defect is one that can be cured by amendment. Although the Court has not considered the substance of the Plaintiffs affidavit, the affidavit itself suggests that the Plaintiff might be able to plead additional facts in support of the claim. Accordingly, the Plaintiff will be granted 10 days in which to file a Second Amended Complaint that adequately pleads an invasion of privacy claim against Defendant Dasko. CONCLUSION For the foregoing reasons, Defendant Nuschy’s Motion to Dismiss (# 4) is DENIED AS MOOT. Defendant Sparaco’s first Motion to Dismiss (# 8) is DEEMED WITHDRAWN. Defendant Sparaco’s second Motion to Dismiss (# 27) is GRANTED, and the Plaintiffs claim for outrageous conduct against Defendant Sparaco is DISMISSED. There being no other claims asserted against Defendant Sparaco, the caption of this case is AMENDED to omit Defendant Sparaco. Defendants Dasko’s Motion to Dismiss (# 29) is GRANTED IN PART, insofar as the Plaintiffs claim for outrageous conduct against Defendant Dasko is DISMISSED and insofar as the Court finds that the Plaintiff has failed to adequately state a claim for invasion of privacy, and DENIED IN PART, insofar as the Plaintiff may file a Second Amended Complaint within 10 days of the date of this Order, pleading a sufficient claim for invasion of privacy. If no such Second Amended Complaint is filed, the invasion of privacy claim against Defendant Dasko will be dismissed. ATTACHMENT United States Court of Appeals, Tenth Circuit. Michael Mason DONOHUE, Walter Rice and Bonnie Rice, Plaintiff-Appellants, v. Gerald HOEY, individually former chief of the City of Montrose Police Department; Thomas Chinn, individually; and City of Montrose, Colorado, Defendant-Appellees. No. 02-1405. Sept. 21, 2004. *343 J. Keith Killian, James P. Guthro, Grand Junction, CO, for Plaintiffs-Appellants. David L. Masters, The Masters Law Firm, L.L.C., Montrose, CO, Earl G. Rhodes, Michael Joseph Grattan, III, Michael Paul Forrest, Younge & Hockensmith, Grand Junction, CO, Christina M. Habas, Joseph Thomas Vanhorn, Bruno, Bruno & Colin, PC, Denver, CO, for Defendants-Appellees. Before KELLY, HARTZ, Circuit Judges, and CASSELL, District Judge. *344 ORDER AND JUDGMENT CASSELL, District Judge **1 Four days before Thanksgiving 1993, Buffy Rice Donohue disappeared. Eighteen months later her slain body was found abandoned in a wooded area in the neighboring county. During the time Buffy was missing, law enforcement officials in Montrose, Colorado, investigated her disappearance, but the investigation left much to be desired. Outraged by shortcomings and misconduct in the investigation, Buffy’s parents, Walt and Bonnie Rice, and her husband, Mason Donohue, (collectively “the Rices”) sued various members of the Montrose police force and the City of Montrose itself. Although the Rices did not blame the defendants for Buffy’s death, they alleged that the' investigation was so deficient that it violated their federal and state constitutional and statutory rights. After several years of litigation, the defendants moved for summary judgment, which the district court granted. On appeal, the Rices claim that summary judgment was improper in light of the evidence they offered. We agree with the district court and affirm. I. BACKGROUND Because this case is before us on appeal from a district court’s decision granting summary judgment, “we review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Applying this standard, we consider the facts of the case as follows. On Sunday afternoon, November 21, 1993, Buffy Rice Donohue left home to run a few errands. Several hours later, she had not returned home, and her family began to worry. They soon discovered Buffy’s locked car in a Wal-Mart parking lot. The Rices promptly filed a missing person report. The Rices’ biggest complaint about the subsequent investigation is that the police missed the most obvious suspects: Evonne Haley and David Middleton. In the Rices’ view, these individuals were the prime suspects right from the start. Months prior to Buffy’s disappearance, Buffy and Mason Donohue had worked with Haley at a local Sizzler’s and had socialized together outside of work. At some point, Haley moved in with a man named David Middleton, who had moved to Montrose from Florida. There he had been charged with the kidnaping and sexual assault of a teenage girl and was ultimately convicted for false imprisonment and aggravated assault. At the time of Buffy’s disappearance, he was a prime suspect in the investigation, although he would never face charges for her death. During the course of the investigation he moved to Reno, Nevada, where he was later convicted for the slaying of two girls. A. The Leads Beginning the day Buffy disappeared, leads started coming in that pointed to Haley and Middleton, but the police department was unresponsive. That afternoon *345 one of Buffy’s friends, Annie Bercillio, saw Buffy in a car with a woman whose description matched Haley’s. Bercillio told another friend, Noreen Cassidy that she had seen Buffy that day, and Cassidy relayed that lead to the police department. Cassidy spoke personally with Lieutenant Tom Chinn of the Mont-rose Police Department, the lead investigator and a defendant in this case. She informed Lieutenant Chinn that Bercillio had seen Buffy with Haley, but Lieutenant Chinn did not contact Bercillio or otherwise follow up on the lead. In fact, when Bercillio herself called the police department later that evening to report what she had seen, the police dispatcher responded that they were not taking calls on that case until after Buffy had been missing for twenty-four hours. Mrs. Rice also called the police that same evening, but in spite of these reports that Bercillio had information about Buffy’s disappearance, no one contacted Bercillio that evening to find out what she knew. **2 Around midnight that night, Cassidy witnessed another startling event that pointed to Haley and Middleton. She was working at a convenience store across the street from the Haley/Middleton apartment. From there she had a clear view of the apartment and saw Middleton and Haley moving bags to their car. The most startling detail was that one bag was so large and heavy that Middleton had to carry it with both arms wrapped around it. Cassidy reported that the bag was big enough to have held a body. The next morning, Monday, November 22, Cassidy called Bonnie to report what she had seen, and both of them called the police. Also that day, Haley’s daughter, Natasha Hunter, told the police that Buffy had been in her mother’s apartment the night before. Then, two women, Becky Dowden and Vicki Juliano Underwood, appeared at the police station to report that they had seen Buffy the day before at Wal-Mart with a blonde lady in a red sports car. These women were not questioned at that time; instead, they were asked to go home and prepare a written statement and then return their statements to the police department. They did this, but it is unclear from the record what happened to the statements. The record contains an undated, handwritten statement, signed by both women. Because the statement is undated, it is unclear when it was delivered to the police department, although the Rices claim it was not until December 10, 1993, which meant that the police would not have had the statement when they later administered inconclusive polygraph examinations to Haley and Middleton. Two days later, on the 24th, another girl, Holly Samples, called Crime Stoppers to report that she had seen Buffy at WalMart the day before. According to Samples, Buffy had just put some items into her car when a blonde woman approached her, and the two drove off in the woman’s red car. Two weeks passed before anyone followed up with Samples, and she made a statement at that time. Only after Buffy’s body was found a year later did Lieutenant Chinn call to say he had lost her statements and to ask her to make another statement. She added her written statement to the statement made by Dowden and Underwood. B. The Investigation In light of the undisputed leads, the Rices argue police investigation was inadequate. They claim that the police did not contact Haley or Middleton during the earliest stages of the investigation, but the record contains undisputed evidence that Lieutenant Chinn actually spoke with Haley *346 on November 22. That same day someone at the Montrose Police Department ran a criminal background check on David Middleton through the National Crime Information Center (NCIC), but that search was not documented. Two days after Buffy’s disappearance, Tuesday, November 23, the police went to the Middleton/Haley apartment to investigate a potential lead. Donohue reported that a screen at the Middleton/Haley apartment had been pushed outward and that black and bloody marks were left. In response to this report, Lieutenant Chinn, and two other officers, Kevin Walters and Diana Curtis, went to the apartment. What happened next is disputed. Donohue and other witnesses report that they saw the officers taking photographs and scraping paint samples into a plastic bag. The normal procedure for handling such evidence would have been to place the photographs and paint samples into an evidence locker or with the case file. However, neither the evidence locker nor the case file contains any photographs or samples from the investigation of the Middleton/Haley apartment. **3 The police officers all explain this omission by claiming they did not collect evidence at the Middleton/Haley apartment. Officer Walters was at the patrol car talking to Donohue during the investigation and took neither samples nor photographs. Although he admits photographs might have been taken, he never saw them. Officer Curtis does not recall taking any photographs, and she states that the mark on the window did not look to her like blood. Lieutenant Chinn reports that his first impression was that the mark on the window was a bloodstain, but that upon closer inspection he realized the substance was not blood but paint. Lieutenant Chinn testified at the Coroner’s Inquest that he was so convinced that the substance was paint that it was not necessary to run a chemical test, so samples were not taken. Some time after December 1, 1993, Lieutenant Chinn followed up on the lead from Noreen Cassidy that Middleton and Haley had been seen taking bags to their car on the night of Buffy’s disappearance. He asked Middleton about the bags, and Middleton responded that they were laundry bags and showed them to Lieutenant Chinn. Lieutenant Chinn inspected the inside of the bags but did not see any blood or hair. He apparently did not search inside the car. The Rices claim that during this visit Lieutenant Chinn identified Cassidy as his informant and that as a result Cassidy felt threatened and had to move out of state. The only record evidence they offer in support of this fact is a newspaper article that quotes Cassidy for this information. *347 Because the article does not lay a foundation that Cassidy had personal knowledge of what Lieutenant Chinn said to Middleton, it is inadmissible hearsay and cannot be considered in reviewing the motion for summary judgment. Accordingly, there is no evidence to support the conclusion. C. The Waterdog Incident In the meantime, frustrated by their perception that the investigation was lacking, the Rices took their own steps to find Buffy. On Friday evening, November 27, 1993, the Rices received a tip that Middleton and Haley were holding Buffy in a cabin on Waterdog Mountain. The next morning Bonnie contacted Lieutenant Chinn and asked him to investigate the lead. Lieutenant Chinn responded that Waterdog Mountain was not within his jurisdiction and that the Rices should report the lead to the county sheriff. Lieutenant Chinn suggested that Walt follow the lead himself but refused to deputize him. He told Bonnie that at worst Walt could be charged with trespassing but that he would “take care of the charges.” With that assurance in mind, Walt, Donohue, another friend named Dan Slover, and a couple of other individuals went to Waterdog to follow up on the lead. It was after 11:00 p.m. when they went, and they saw an unidentified vehicle traveling with its lights turned off. A rifle was sticking out of the driver’s window. When the driver saw Walt and the others coming, he threw his vehicle into reverse and slid into a ditch. Suspicious, Walt and the others surrounded the car to investigate. The driver was a man named Mike McBride who apparently had been out hunting. He was clearly frightened but consented to a search of his vehicle. Satisfied that McBride was not connected with Buffy’s disappearance, Walt let him go. **4 Three months later, Walt would be charged with felony menacing and false imprisonment for this incident. The Mont-rose police department made no effort to “take care of the charges,” although the felony menacing charges were ultimately dropped. Since no one from the Montrose police department had intervened on his behalf, Walt followed his attorney’s advice and pled no contest to the false imprisonment charge. The record is silent about whether Walt was ever fined or incarcerated for the offense, nor does it explain what happened with the charges against Donohue. D. The Search and the Pictures A few days after the Waterdog incident, on December 1, 1993, the Rices hired Nelson Jennett as a private investigator. They did not realize at the time that he had close ties to the Montrose Police Department and that he was reporting back to the department without the Rices’ consent. When the Rices realized this, they fired him on December 20, 1993. That day, Jennett notified the police department by letter that he was no longer employed by the Rices but that “I would very much like to continue working with you in this extraordinary case.” This short-lived relationship would probably have gone without mention had the Rices’ dismissal ended Jennett’s investigation, but it did not. On January 2, 1994, Jennett got a call from a man named Ken Newman, who was manager of the trailer park where Buffy and Donohue had lived. Newman reported that during the previous *348 week, Buffy and Donohue’s trailer had been broken into. When he entered to investigate, he saw a roll of film just inside the door in a shoebox. Newman continued that the trailer had been broken into again that morning and that when he entered he saw another roll of film, which he took back to his office; he left the other roll of film in the trailer. Jennett relayed this information to Lieutenant Chinn, who told Jennett to go to the trailer park and get the film from Newman and have it developed that day. Motivated in part by a desire “to cooperate with the police department,” Jennett went to the trailer park to get the film. When Jennett arrived at the trailer park, Newman reported that the Donohues had moved out two or three months before and that he had been cleaning the place up to rent out again. Newman gave Jennett the roll of film he had taken from the trailer and suggested that Jennett enter the trailer with the maintenance man to retrieve the other roll. There is some dispute as to whether Newman had authority to let Jennett into the trailer. The Rices claim they owned the trailer at that time, but Jennett reports that Newman had told him he was cleaning the trailer to show it to prospective tenants. Once inside, Jennett observed that the trailer was completely empty, except for the roll of film which was sitting in the middle of the floor in a wicker basket. Jennett had the film developed and delivered the prints to Lieutenant Chinn; he kept the negatives in his own file. **5 The rolls of film turned out to contain photographs from Buffy and Mason’s honeymoon, including several nude photographs. To the extent the photographs were relevant to the investigation, they should have been put in an evidence locker, but instead, Lieutenant Chinn kept them in an unlocked drawer in his desk. The record is unclear exactly where the photographs went from Lieutenant Chinn’s desk, but it is undisputed that the photographs got out from time to time. Lieutenant Chinn claims he never “inappropriately displayed” the pictures, but admits he showed the nude photographs to others for “identification purposes” to eight or nine individuals connected with the investigation, ostensibly motivated by the hope that “they could point me in a different direction for this investigation.” In addition to these so-called “appropriate” displays, a number of disclosures had no ostensible relation to the investigation. For example, one officer, Steve Keep, whose office was near Lieutenant Chinn’s, testified that he once overheard Lieutenant Chinn and others in his office laughing. When he went in the office to see what was going on, he saw the nude photographs lying on Lieutenant Chinn’s desk. The situation left him with the impression that Lieutenant Chinn and the others were laughing at the photographs. Another woman, Crystal Black, who worked at the Montrose County Sheriffs Department, stated that two uniformed patrolmen from the Montrose Police Department came to the sheriffs office to see one of her coworkers. The officers held several nude photographs of Buffy and were laughing *349 and making crude comments about them, referring to them as if they were pornography, and making disparaging remarks about Buffy’s character. Lane Mills, a reporter, also claims to have spoken to confidential sources who claimed the pictures were inappropriately displayed. She reports that city manager Ted Barkley felt “relieved he never saw the photographs” and “that they were improperly handled.” On January 6, 1994, the Rices learned the police had these photographs. Mason promptly asked Lieutenant Chinn to return the pictures, but he refused, claiming they were evidence in the case. The pictures were finally returned, but it was not until October of 1995 that the Rices had some idea about what was being done with the photographs. It was then that reporter Lane Mills told Bonnie about what she had learned. The Rices did nothing about the disclosures until almost a year later, when on September 11, 1996, they filed a complaint with the Victim Rights Act Subcommittee of the Colorado Victims’ Compensation and Assistance Coordinating Committee. On January 21, 1997, the subcommittee issued its report, finding a number of ways that the Rices’ victims rights had been violated. Specific to the pictures, the committee concluded that the police department was at fault for not logging the pictures into evidence, which created “an opportunity for the pictures to be seen by personnel other than the officers investigating the case,” but it was “unable to determine what transpired regarding the allegations that the pictures were passed among Montrose Police Department officers and coworkers.” E.Bonnie’s Arrest **6 In the meantime, the police department took a number of steps that in hindsight may have been counterproductive. On February 21, 1994, Bonnie had gone with a friend named Ed Gullette to talk with Haley and Middleton at their apartment. Bonnie claims that the two stood in the doorway, talking with Haley, when Middleton came out with a shotgun and threatened them. It is unclear whether Bonnie was ever inside the house, but she was subsequently charged with criminal trespassing. The Rices note four troubling details about this trespassing charge that they claim are evidence of an improper motive. First, the officer who came to the apartment to investigate refused to take a statement from Bonnie that she had not gone inside the apartment but had been threatened by Middleton. Second, the police charged Bonnie but apparently did not charge Gullette. In a recorded phone conversation between Haley and Bonnie, Haley claims that the police asked her to bring charges against Bonnie but not Gullette. Third, although months had gone by without any legal action for the Water-dog incident, charges were filed against Walt and Bonnie within three days of each other in March of 1994. Finally, the Rices claim the charge against Bonnie was baseless because it was ultimately dropped on May 11,1994. F.Asking the Suspect to Leave The next troubling allegation is that, sometime after the encounter at the Middleton/Haley apartment, Lieutenant Chinn encouraged Middleton and Haley to leave *350 Montrose because the police department was receiving pressure to arrest Middleton. Bonnie and Haley both claim that Middleton told them he had been advised to leave town. However, the statements by Middleton recounting alleged statements by police officers are inadmissible hearsay and cannot be considered for summary judgment. Haley admits she was skeptical that Middleton was telling the truth. Nevertheless, Bonnie testified in deposition that Lieutenant Chinn and Officer Walters both admitted that Lieutenant Chinn had encouraged Middleton to leave town. G.The Reporters On May 24, 1995, Buffy’s bones were finally discovered in the mountains near Norwood, Colorado. The autopsy confirmed that she had been murdered. With all doubt eliminated about whether Buffy had been murdered, the Rices hoped the search for Buffy’s murderer would intensify. However, the Rices continued to be dissatisfied with the investigation and became increasingly vocal in their condemnation of the police department. On October 5, 1995, the Rices and other Montrose citizens voiced their concerns about the police department at a city council meeting. The defendants responded to the Rices’ criticisms by criticizing the Rices in the local media. On October 16, 1995, Police Chief Hoey, Lieutenant Chinn, and Officer Curtis met with Associated Press writer Robert Weller at a local restaurant, apparently at Weller’s request. Chief Hoey acknowledges that they talked about the Rices and their recent visit to the city council but also stated that they said nothing improper. Beyond Chief Hoey’s vague description of the interchange, however, no participant in that discussion has testified about what was said. The only direct evidence of what transpired is a phone call from an unidentified woman who overheard them talking about the Rices. Bonnie reports that the woman told her that the police officers said “they were just, like, really really tired of Walter criticizing the Montrose Police Department, and they were going to turn the tables on him.” **7 Besides these accounts of the meeting, Nelson Jennett offers some circumstantial evidence of what was said. The same day that Weller met with the police officers, he phoned Jennett to get more information. The call only lasted about five minutes, but Weller told Jennett he was working on a story about the Rices and that Chief Hoey and Lieutenant Chinn had told him to contact Jennett. Jennett could not talk at the moment, but on October 18, 1995, they spoke again at greater length. During this second conversation, Weller told Jennett a number of details about the Rices, presumably in an effort to “prime the pump” and persuade Jennett to reveal information that he knew about the Rices. Jennett’s notes reveal that Weller knew several sensitive details about the Rices, including (1) Walt and Buffy had used illegal drugs, (2) Walt took a lie detector test, (3) Buffy had attempted suicide once in the past, (4) Walt was arrested over ten years earlier for trespassing and assault, (5) Walt had been arrested in 1993 for domestic violence, and (6) Mason had brought another girl home the night Buffy disappeared. Of course, the fact that Weller knew these details does not by itself incriminate the defendants in this case. As will be *351 discussed more fully below, liability will turn on whether the defendants revealed information in violation of the Constitution. Jennett claims that he did not know where Weller got his information and that all of these details were news to him. Some of the information, such as the 1993 arrest, would have been matters of public knowledge, and Weller told Walt that he got this information through the Colorado Bureau of Investigation (CBI). However, Walt reports that the CBI has no record of Weller running a search that would have revealed this information. Other information, the Rices claim, could have been obtained only through the police. Furthermore, Walt told the police that he had used drugs with Buffy only because he thought it might help the investigation, and only because he believed the disclosure was confidential. Bonnie states that the reference to an alleged suicide attempt is an exaggerated reference to an incident that happened when Buffy was younger and that the only record of that incident is a sealed juvenile record. The reference to Donohue bringing a woman home is another exaggerated fact; Donohue returned home with a Mend that the Rices hoped would help in the investigation, another detail the Rices had told to the police. On October 21,1995, Weller’s article was published, repeating several of the details he had told Jennett. Although the article was similarly silent as to its sources for these details, it directly quoted Lieutenant Chinn as saying, “[The Rices] didn’t call us and tell us that she might be in David Middleton’s apartment. The question is why.” Besides the Weller article, one other consequence of the city council meeting was an independent assessment of the police department. This study was conducted by investigative consultant Terry A. Foulke, and the report of that study was issued in March 1996. In addition to the conclusions in the Foulke report, a number of city officials had misgivings about the police department. H. Procedural History **8 On May 23, 1996, the Rices filed their complaint in state court, which was subsequently removed to federal court. More than two years later, on October 9, 1998, they named Lieutenant Chinn for the first time in an amended complaint. One claim against Lieutenant Chinn-the outrageous conduct claim-was dismissed as untimely under the one year statute of limitations. On March 26, 2001, the district court quashed the deposition of two reporters-Robert Weller and Stacie Oulton, another reporter who wrote about the Rices-and limited discovery from the two reporters to written questions. As the grounds for this decision, the order cited a hearing held three days earlier. Almost a year later, on March 19, 2002, the court quashed discovery from the reporters, concluding that the reporters were protected by the reporter privilege. Finally, on *352 August 7, 2002, the court granted summary judgment on all remaining claims. The court concluded that the Rices had not supported their claims against Chief Hoey and Lieutenant Chinn for outrageous conduct and for violations of § 1983 and that they had likewise not established their § 1983 claims against the city. This appeal followed. II. ANALYSIS The Rices present four issues for our consideration: (1) whether it was error to quash the depositions of Robert Weller and Stacie Oulton and to deny the Rices relief under Rule 56(f); (2) whether it was error to grant summary judgment on all § 1983 claims against Chief Hoey and Lieutenant Chinn; (3) whether it was error to grant summary judgment on all § 1983 claims against the City of Mont-rose; and (4) whether it was error to grant summary judgment on the state law tort claims against Chief Hoey and Lieutenant Chinn. We consider each issue in turn. A. Reporter Issue The Rices first claim that the district court improperly denied their efforts to depose Robert Weller and Stacie Oulton, who, as mentioned above, were reporters who might offer evidence of the defendants’ unconstitutional and outrageous conduct. Defendants argue that this court may not review the district court’s orders of March 26, 2001, and March 19, 2002, because (1) the orders were not included in the notice of appeal and (2) this court may not rule on this issue without hearing from the reporters, who have a stake in the outcome. Neither argument is persuasive. First, since the Rices appealed from a final order, this court may review the related underlying orders. Defendants are correct that to appeal a district court order to this court, an appellant must file a notice of appeal with the district court clerk. Such notice must, among other things, “designate the judgment, order, or part thereof being appealed.” This requirement does not mean, however, that the notice must identify each discrete, underlying order, for “a notice of appeal which names the final judgment is sufficient to support review of all earlier orders that merge in the final judgment.” As we have previously explained: **9An appeal from a final judgment usually draws into question all prior non final orders and all rulings which produced the judgement. Thus, a failure of the notice of appeal to- specifically refer to a preliminary or interlocutory order does not prevent the review of that order on appeal. Having appealed from the judgment, the appellant is free to attack any nonfinal order or ruling leading up to it. Here, the Rices appealed from the district court’s final judgment, which was entered on August 7, 2002. Since that order was a final order, the appeal of that order includes an appeal of the March 26, 2001, and March 19, 2002, orders. *353 The defendants rely on our decision in Citizens for Responsible Government State Political Action Committee v. Davidson, in which we declined to review an underlying order that was not included in either the notice of appeal or the docketing statement. However, unlike this case, Davidson involved cross-appeals from four different cases rather than an appeal from a final order in a single case. This court concluded that the interlocutory order at issue there was not folded into any final order of dismissal. Accordingly, Davidson provides no basis for declining to review the orders the Rices challenge. Nor does the fact that the reporters are not parties to this appeal prevent this court from reviewing the March 26, 2001, and March 19, 2002, orders. The defendants cite no authority for their claim that this court must hear from the reporters before it can rule on the reporter privilege issue, which was fully briefed and argued below. Instead, they argue it is unsound policy to review such an order without giving the reporters a chance to be heard. Because this court affirms the orders protecting the reporters, we need not resolve the procedural questions of whether appearance by the reporters is necessary, but must only conclude that this court can review the merits of the district court’s orders. Having found that we can review the merits of the orders, the issue before us is whether the district court abused its discretion in deciding: (1) the March 26, 2001, ruling that limited the Rices to posing written questions to the reporters; (2) the March 19, 2002, ruling granting the reporters’ motion to quash the written questions; (3) and the March 19, 2002, ruling denying the Rice’s motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure for leave to gather more evidence in opposition to the pending summary judgment motions. We have repeatedly held that “[a]n abuse of discretion occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” The Rices first argue that the March 26, 2001, order was an abuse of discretion because the judge did not articulate any reason for his ruling. The difficulty we face in evaluating this claim is that the court makes it clear that its order was issued pursuant to reasoning developed at a hearing held three days earlier. settled that “when an appeal is based upon a challenge to any ruling or order, a copy of pages of the reporter’s transcript at which the ruling or order ... are recorded must be included.” Although the fact of the ruling was memorialized on March 26, 2001, the rationale underlying the ruling was explained at the March 23, *354 2001, hearing. The Rices have not certified the transcript of that hearing as part of the record on appeal, and without that transcript, we can only speculate as to the district court’s reasoning. The Rices cannot claim that the trial court abused its discretion without giving this court a chance to review the legal and evidentiary issues the district court considered. **10 The Rices’ second claim is that the district court erred in its finding that Oulton and Weller were entitled to the reporter’s privilege under Silkwood v. Kerr-McGee Corp. The difficulty with this argument is that the Rices seem to agree the district coxxrt applied the correct legal standard, arguing only that it erred in applying the standard. The applicability of Silkwood was extensively briefed, and the district court made the express “finding and conclusion that the plaintiffs have failed to make the showing necessary to overcome the privilege relied on by the motions.” The Rices never explain how the district court’s application ofSilkwood was an abuse of discretion, so we must affirm the court’s decision to quash the reporter subpoenas. Since the reporter depositions were the only basis for seeking relief under Rule 56(f), the district court properly denied that motion. Accordingly, we affirm that ruling as well. B. Section 1983 Claims The Rices argue next that the district court erred in concluding that Lieutenant Chinn and Chief Hoey’s conduct during the investigation of Buffy’s disappearance and murder did not violate the Rices’ constitutional rights. Although the Rices presented below a broad range of evidence in support of their constitutional claims, the district court granted summary judgment for the defendants because none of the facts established a constitutional violation. We review de novo and can affirm only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” In general, to establish a constitutional claim under § 1983, a plaintiff must prove four elements: “(1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a ‘person’ (4) who acted under color of [law].” However, even if a viable constitutional claim exists, a number of legal doctrines may preclude recovery for those violations. In this case, the relevant limiting principles are the statute of limitations, qualified immunity, and vicarious liability. First, a § 1983 claim is subject to a statute of limitations. Because Congress did not specify a statute of limitations on § 1983 claims, “the forum state’s personal injury statute of limitations should be applied to all § 1983 claims.” Because no Colorado statute of limitations expressly applies to personal injury actions, this court has previously looked to the Colorado residual statute of limitations, which provides for a two-year statute of limitations.*355 This court has stated that “[s]ection 1983 claims accrue when the plaintiff knows or has reason to know of the injury that is the basis of the action.” Accordingly, summary judgment is proper on § 1983 claims that the Rices had cause to know of more than two years before they filed their complaint. The Rices argue that this court cannot consider the statute of limitations in ruling on their claims because summary judgment was not granted below on this ground. However, this court can affirm for any reason that is supported by the record and the law. Thus, if we find that the Rices had reason to know of conduct more than two years before they filed their complaint, summary judgment must be affirmed. **11 Second, assuming the claims are timely, we must also determine whether they are barred by the doctrine of qualified immunity. Where a defendant police officer invokes the doctrine of qualified immunity (as Lieutenant Chinn and Chief Hoey do), the plaintiff must satisfy a “heavy two-part burden” to prove (1) “that the defendant’s actions violated a constitutional or statutory right” and (2) “that the right at issue was clearly established at the time of the defendant’s unlawful conduct.” This court has stated that for a right to be clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Nevertheless, we must be careful not to require “too strict a factual correspondence.” In short, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Third, in addition to qualified immunity, the court must consider an additional defense with regard to the claims against Chief Hoey. With one exception, he did not participate in the conduct at issue and is sued solely under a vicarious liability theory. To prevail against a supervisor on such a theory, the plaintiff must establish that an “ ‘affirmative link’ exists between the constitutional violation and either the [supervising officer’s] personal participation, his exercise of control or direction, or his failure to supervise.” Here, the Rices articulate six theories that could establish constitutional violations: (1) denial of access to the courts, (2) *356 false arrest, (3) illegal search, (4) violation of their right to privacy, (5) harm to reputation, and (6) retaliation. Thus, in order to impose liability for the alleged conduct, we must ask the following questions: (1) Did Chief Hoey or Lieutenant Chinn’s conduct violate a constitutional right? (2) Did the Rices have reason to know of the conduct more than two years before they filed them complaint (May 23, 1996, for Chief Hoey and October 9, 1998, for Lieutenant Chinn)? (3) Was that right clearly established? (4) With respect to defendant Chief Hoey, was there an “affirmative link” between him and any violation? The liability of each defendant for each of the Rices’ six theories will be considered in turn. 1. Denial of Access to the Courts The Rices’ first constitutional claim is that improprieties during the investigation denied them their right of access to the courts. The Rices maintain that defendants denied them access in four primary ways: (1) by Lieutenant Chinn’s refusing to gather evidence, pursue leads, or interview key witnesses; (2) by labeling key witnesses (Noreen Cassidy, Dan Slover) as liars; (3) by destroying evidence gathered at the Middleton/Haley apartment; and (4) by telling Middleton and Haley to leave town without aggressively interrogating them. **12 The district court rejected this claim, concluding that the officers’ conduct did not amount to a denial of access to the courts and that, even if it did, the claim would be barred by qualified immunity as the right of access to the courts was not clearly established. We agree with the district court that the Rices have not established a denial of access in this case. At the outset, except for the alleged destruction of evidence at the Middleton/Haley apartment discussed below, the denial of access claims are barred as to all defendants by the statute of limitations. All of the other conduct alleged in support of this claim happened before May 23, 1994, which is the earliest date that would allow the Rices to proceed against any party, and nothing indicates that the Rices did not know of those alleged violations at or around the time they happened. Unlike the Rices’ other denial of access claims, however, their claim arising out of the investigation at the Haley/Middleton apartment is not barred by the statute of limitations. Until July 1998, when Lieutenant Chinn testified at the coroner’s inquest, the Rices had no reason to know that anything unusual had happened to the evidence gathered at the Middleton/Haley apartment on November 23, 1993. Accordingly, the statute of limitations does not bar this claim. On the merits of the claim, this court has long recognized a right of access to the courts. In 1984, we declared: “The right of access to the courts is constitutionally protected. Thus, conduct under color of law which interferes with that right gives rise to a cause of action under section 1983.” Although the “right of access to the courts is neither absolute nor unconditional,” it is unnecessary to explore *357 every contour of this right here. We need only recount two principles. First, intentional, bad-faith destruction or concealment of evidence that burdens a plaintiffs ability to access the courts is an unconstitutional denial of access; and, second, allegations that police were negligent in an investigation or that they negligently lost or destroyed evidence will not support a denial of access claim. Several of our opinions are instructive on these two principles. In Wilson v. Meeks, the family of a man who was shot by police sued under § 1983. The plaintiffs claimed that the police denied them access to the courts by destroying incriminating evidence that would have helped their wrongful death claim, including photographs. Although the Wilson court recognized that destroying evidence could establish a denial of access claim, none of the facts before it did. Wilson’s analysis of the lost photographs is particularly instructive here. In Wilson, during the investigation of the shooting, the defendants took a number of potentially incriminating photographs. The film was sent to a developer but allegedly did not turn out. The pictures were then discarded. The family sued on the theory that loss of the incriminating photographs denied them access to the courts. This court agreed that the police may have negligently handled the pictures but noted that “plaintiffs do not allege they were purposefully destroyed.” We then said, “It may be that the Haysville Police were careless in their photography, but such behavior does not rise above negligence. It is well settled that merely negligent acts or omissions will not support a cause of action under section 1983.” Because the family had no evidence that the photographs had been purposefully destroyed, they could not prevail on this claim. **13 Under Wilson the defendants did not deny the Rices’ right of access to the courts because there is no evidence that the defendants intentionally destroyed evidence gathered at the Haley/Middleton apartment. To be sure, the parties legitimately dispute whether evidence was taken that day. The Rices offer testimony from witnesses who claim they saw Lieutenant Chinn and Officer Curtis at the apartment collecting samples of something that looked like blood and taking photographs of the scene. On the other hand, none of the police officers who participated in the investigation remember taking any samples. Lieutenant Chinn and Officer Curtis, the only two who actually saw the suspicious stains, testified that they had concluded the stain was paint, not blood, and that testing was unnecessary. The Rices argue that, taking the evidence in a light favorable to them, we must infer that the evidence was gathered; and if the evidence was gathered but now cannot be found, we must infer that the evidence was destroyed. However, even if we resolve all factual disputes in the Rices’ favor, the evidence does not support their assertion that Lieutenant Chinn intentionally destroyed evidence gathered that day. The only disputed fact here is whether samples or photographs were taken at the Middleton/Haley apartment. Resolving that dispute in favor of the Rices, we must conclude that samples and photographs were, in fact, taken. However, as to what happened to that evidence, the record is silent. Under Wilson, the lone fact that the missing evidence would have incriminated *358 the defendants does not support an inference that the defendants intentionally destroyed the evidence. Of course, evidence collected that day might have been destroyed. But it just as easily could have been lost or misplaced. Under Wilson, we cannot infer that the samples and photographs were deliberately destroyed from the mere fact that they cannot be found. At most, the Rices can establish that the evidence was effectively destroyed through police negligence, but under the cases cited above such a showing is inadequate to establish a denial of access claim. Without evidence that the defendants intentionally destroyed photographs and stain samples collected at the apartment, summary judgment on this claim was appropriate. 2. Arrest for Improper Purpose The Rices’ second § 1988 claim is that the defendants wrongly arrested and charged Walt with felony menacing and false imprisonment on March 4 and charged Bonnie with criminal trespassing on March 7, 1994. The district court concluded that the arrests were not a denial of access but did not consider whether they were unconstitutional false arrests. However, both arrests happened more than two years before the Rices filed their initial complaint on May 23, 1996. Thus, both claims for false arrests are outside the statute of limitations for all defendants, and we affirm summary judgment o