Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00791-WDM-BNB

STEPHEN H. ADAMS, Plaintiff, v. MICHAEL GASKILL, Aurora Police Department, CITY OF AURORA, COLORADO, a municipal corporation, Defendants.

DEFENDANTS' SUPPLEMENTAL MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (ON REMAND)

COME NOW, Defendants above named by and through their attorneys of record, and pursuant to Fed.R.Civ.P. 56 and the decision of the 10th Circuit Court of Appeals in Adams v. Dyer, et al., 2007 WL 431511 (10th Cir. 2007), hereby submits the following Supplemental Memorandum Brief in Support of Motion for Summary Judgment, AS FOLLOWS: I. Introduction and Procedural Posture Plaintiff Adams originally filed suit against twelve Defendants in this matter, alleging two claims for excessive force. The specific factual basis of the Complaint is set forth in Defendants' Memorandum Brief in Support of Summary Judgment, Docket #66, and Objection to Report and Recommendations of Magistrate Judge, Docket #101, and are adopted herein by reference. All twelve Defendants moved for either dismissal or summary judgment, and following extensive briefing, this Court granted dismissal and summary judgment in favor of all twelve

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 2 of 7

defendants. Plaintiff Adams then appealed only the summary judgments granted in favor of Defendants Lance Dyer, Christopher Stine, Michael Gaskill, and the City of Aurora. See Adams v. Dyer, 2007 WL 431511 at *1, n.1. The 10th Circuit Court of Appeals affirmed this Court's grant of summary judgment with respect to all Defendants except Michael Gaskill and, by extension, the City of Aurora. The caption of the instant pleading therefore reflects the current posture of the case, i.e., the only remaining Defendants in this matter are Aurora Police Officer Michael Gaskill, and the City of Aurora itself. With respect to these Defendants, the only issue remaining is whether Defendant Gaskill is entitled to summary judgement regarding his alleged use of excessive force "in the hallway, in the parking lot, or when removing Adams from the police car." Adams, 2007 WL 431511 at *5. Further, in light of the Court of Appeals' recognition that this case remains in "summary judgment proceedings" by virtue of its remand, the instant brief is submitted as a supplement to Defendants' original Memorandum Brief in Support of Summary Judgment. See Adams, 2007 WL 431511 at *5, n.7. It is to the sole remaining issue on remand that this Brief now turns. II. Argument As noted above, the sole remaining issue on remand is whether Defendant Gaskill is entitled to summary judgment on the allegation that he used excessive force during three specific instances in which Plaintiff Dyer was in his custody: 1) while being escorted through the apartment hallway; 2) while in the apartment parking lot prior to being placed into Defendant Gaskill's police car; and 3) while being removed from Defendant Gaskill's police car at the jail. Id. For the following reasons, Defendant Gaskill is entitled to summary judgment because Plaintiff Adams has failed to 2

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 3 of 7

present any evidence that Defendant Gaskill violated his constitutional rights. Indeed, the entirety of the evidence presented by Plaintiff Adams on these three factual allegations consists of otherwise unsupported statements contained in his Verified Complaint, a true and correct copy of which is attached hereto as Exhibit A. The specific allegations will be dealt with in order as follows. A. Actions in the apartment hallway.

With respect to the allegation that Defendant Gaskill used excessive force against Plaintiff Adams while in the apartment hallway, Plaintiff Adams asserts: ". . . after the arrival of all officers, (Def's 1-9) - upon leaving Plaintiff's/common-law wife's apartment (172 Kenton st) - Handcuffed and under arrest, these officers again, unjustifiably, without cause - used excessive force. (Plaintiff' was thrown into the hallway wall, knocking off a fire-extinguisher off the wall, hit by officers)." Exhibit A at 5. Notably, nowhere in this allegation does Plaintiff allege that Defendant Gaskill was the officer that used excessive force against him. Rather, Plaintiff generally asserts that "these officers" used excessive force. It is important to note that the 10th Circuit affirmed the dismissal of this specific claim against Defendants Dyer and Stine precisely because "[a]t no point in the pleadings . . . does Adams aver that Dyer or Stine was personally involved in transporting him from the bedroom to the police car. Nor does Adams present any evidence on this point." Adams, 2007 WL 431511 at *5. Based on the foregoing allegation from the Complaint, the same lack of personal participation supports summary judgment in favor of Defendant Gaskill as well. Indeed, at no time does Plaintiff Adams aver the personal involvement of any specific officer in his transport from the bedroom through the hallway, and as such, Defendant Gaskill is entitled to the same dismissal as that granted to 3

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 4 of 7

Defendants Dyer and Stine, because an individual cannot be held liable in a § 1983 action unless he directly participated in the alleged constitutional violation. See McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). In addition, just as Defendants Dyer and Stine did, Defendant Gaskill filed affidavits in connection with his summary judgment motion directly responding to the allegations of Plaintiff's Complaint. Specifically, Defendant Gaskill states under oath that at no time during his escort of Plaintiff down the hallway, in the parking lot, or at the jail, did he ever utilize any excessive force against Plaintiff. Indeed, Defendant Gaskill states unequivocally that Plaintiff was not subject to any mistreatment at all during the entire time that he was in Defendant Gaskill's custody. See Affidavit of Defendant Michael Gaskill at 1, ¶¶5-6 (a true and correct copy of which is attached hereto as Exhibit B). Just as Defendant Gaskill's affidavit indisputably establishes that he used no excessive force in placing Plaintiff into the police car, so too does his sworn affidavit establish that he used no excessive force against Plaintiff at any time that Plaintiff was in his custody or control. See Adams, 2007 WL 431511 at *5 (finding that because Adams is unable to challenge the Magistrate's finding of fact, "Adams' claim against Gaskill based on what occurred as he was placed in the police car fails.") B. Actions in the parking lot.

With respect to the allegation that Defendant Gaskill used excessive force against Plaintiff Adams while in the parking lot prior to placing in his police car, Plaintiff asserts only that "Such excessive force continued in the parking lot, where after more hitting and pushing - Officer Gaskill throws Plaintiff into the rear of the police car, excessively using force . . ." Exhibit A at 5. Again, 4

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 5 of 7

Plaintiff Adams only asserts that Defendant Gaskill used excessive force against him while being placed into the police car, a claim which has already been dismissed by the 10th Circuit. With respect to the excessive force "continued in the parking lot," Plaintiff does not allege with any specificity which of the nine officers he claims were present committed the alleged use of force. Again, Defendant Gaskill is entitled to summary judgment on this claim as well, because Plaintiff has not sufficiently alleged Defendant Gaskill's personal participation in any acts of excessive force in the parking lot, and has failed to present any evidence to contravene Defendant Gaskill's sworn statement that no such excessive force ever occurred while Plaintiff was in his custody and control. C. Actions at the jail.

Even more vague than the allegations regarding the use of force in the hallway are Plaintiff's allegation that excessive force was used while removing him from the police car at the jail. Indeed, the only statement regarding the use of force at the jail is: "Once at the Jail in Aurora - removing plaintiff from car, Police again using excessive force - and refusing to obtain medical care - when Plaintiff informed them that he could not walk - forcing + dragging him into the station . . ." Exhibit A at 5. And for the same reasons, Plaintiff's allegations must fail. Indeed, in this claim, Plaintiff Adams does not even state what exactly the excessive force consisted of, only that "Police again used excessive force." What this use of force was, who committed it, or who was present is not even mentioned. Such vague allegations are simply insufficient to support a claim of a constitutional violation in the first instance. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir. 1987) (conclusory allegations will not establish issues of fact sufficient to defeat summary judgment). 5

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 6 of 7

In short, Defendant Gaskill is entitled to summary judgment on the sole remaining claim against him because Plaintiff Adams' unsupported, conclusory allegations of misconduct contained in his Complaint are insufficient, without further supporting evidence, to establish a claim for a constitutional violation in the first instance. Moreover, because Plaintiff has failed to establish that Defendant Gaskill committed a constitutional violation in the first instance, the City of Aurora is also entitled to dismissal because "a municipality may not be held liable under § 1983 if the officer in fact inflicted no constitutional harm." City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). DATED this 7TH day of May, 2007. Respectfully submitted, BRUNO, COLIN, JEWELL & LOWE, P.C. s/Michael T. Lowe Michael T. Lowe 1560 Broadway, Suite 1099 Denver, Colorado 80202-5143 Telephone: (303) 831-1099 [email protected] Counsel for Defendant Gaskill Charles Richardson, Esq. Peter Morales. Esq. AURORA CITY ATTORNEY'S OFFICE 15151 E. Alameda Parkway Aurora, Colorado 80012-1553 Telephone: (303) 739-7030 [email protected] Counsel for Defendant the City of Aurora

6

Case 1:04-cv-00791-WDM-BNB

Document 122

Filed 05/07/2007

Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that on the 7th day of May, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Charles Richardson, Esq. Peter Morales. Esq. AURORA CITY ATTORNEY'S OFFICE 15151 E. Alameda Parkway Aurora, Colorado 80012-1553 [email protected] and by U.S. Mails, postage prepaid to: Stephen H. Adams Reg No 86319 Unit: 7 C.T.C.F. P.O. Box 1010 Canon City, CO 81215 s/Linda E.Yeros __________________________________________

7