Free Objection to Report and Recommendations - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-791-WYD-BNB

STEPHEN H. ADAMS, Plaintiff, v. LANCE DYER, Aurora Police Department, MICHAEL GASKILL, Aurora Police Department, CHRISTOPHER STINE, Aurora Police Department, GERALD JOHNSGUARD [sic], Aurora Police Department, RICHARD DAY, Aurora Police Department, DAVID ORD, Aurora Police Department, WILLIAM HELLER, Aurora Police Department, JUSTIN THULL, Aurora Police Department, JULIE STAHNKE, Aurora Police Department, LIEUTENANT STEPHENSON [sic], Aurora Police Department, CAPTAIN CLOYDE [sic], Chief/Captain of Aurora Police Department in Supervisory, City of Aurora Police Department, and CITY OF AURORA, COLORADO, Defendants.

DEFENDANTS DYER'S, GASKILL'S, STINE'S AND THE CITY OF AURORA'S OBJECTIONS TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (DOCKET NO. 95)

COME NOW, Defendants Lance Dyer, Michael Gaskill, Christopher Stine, and the City of Aurora, by and through their respective counsel of record, who would herewith submit the following Objections to "Recommendation of United States Magistrate Judge," Docket No. 95, issued on January 27, 2006 by Magistrate Judge Boyd N. Boland and AS GROUNDS THEREFOR STATE UNTO THE COURT THE FOLLOWING:

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1.

Pursuant to F.R.C.P. 72(b), a District Judge reviewing a Magistrate Judge's

recommendation on dispositive motions may, in the course of such review, "receive further evidence" on the recommendation as appropriate. See F.R.C.P 72(b), ¶2. In this matter, the abovenamed Defendants request that the District Judge accept further evidence in the form of affidavits attached to the instant Objections,1 and review the Magistrate Judge's recommendation in light of such further evidence as more specifically detailed below. 2. In the clearest relevant terms, Plaintiff alleges in this case that in the very late hours

of January 30, 2003, he was: 1) taken into custody in the bedroom of his common-law wife's apartment following a struggle with police; 2) taken from the bedroom along a hallway and into the apartment building parking lot; 3) thrown into the back of a police car; 4) transported to jail; 5) removed from the police car; 6) taken into the jail; and 7) transported to the hospital. Plaintiff alleges that various City of Aurora Police Officers violated his constitutional rights by using excessive force against him in the following areas: 1) in the apartment bedroom; 2) in the apartment hallway; 3) in the apartment parking lot; 4) while placing him into the police car in the apartment parking lot; and 5) while he was being removed from the police car at the jail. See Complaint at 4-5; Magistrate's Recommendation at 9, ¶1. Plaintiff's First Claim for Relief is based on the events

For purposes of clarity and continuity, the affidavits attached to this brief as exhibits are marked concurrently with those attached to Defendants' Memorandum Brief in Support of Motion for Summary Judgment. Therefore, the three affidavits attached hereto are marked as Exhibits N, O, & P. -2-

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which allegedly took place in the bedroom.2 Plaintiff's Second Claim for Relief is based on the events which allegedly took place in the hallway, in the apartment parking lot, while being placed into the police car, and while being removed from the police car at the jail.3 Id. All Defendants moved for summary judgment on all claims on April 18, 2005. 3. On January 27, 2006, Magistrate Judge Boyd N. Boland issued his Recommendation

regarding Defendants' Motion for Summary Judgment. The Magistrate's Recommendation proposes that summary judgment be granted in favor of the following Defendants: A) Jonsgaard, Day, Heller, Thull, Stahnke, Stevens, and Cloyd with respect to all claims; B) C) Gaskill, on Plaintiff's First Claim for Relief; Gaskill, on Plaintiff's Second Claim for Relief, but only as to that Claim's allegations regarding Plaintiff's placement into the police car by Gaskill. 4. Defendants do not have any objection to the foregoing recommendations of the

Magistrate Judge.

Based on the struggle between Plaintiff and Defendants Dyer and Stine in the bedroom during Plaintiff's arrest, Plaintiff was tried by a jury and convicted of Second Degree Assault Upon a Peace Officer, for assaulting both Officer Dyer and Officer Stine. See Exhibit N, ¶10; Exhibit O, ¶10; Exhibit P, ¶4; Jury Verdict (attached to Defendants' Memorandum in Support of Motion for Summary Judgment (hereafter "Memorandum in Support") as Exhibit A). At that same trial, and on the same factual basis, Plaintiff was also convicted of Attempt to Disarm a Peace Officer and Resisting Arrest. Id. Plaintiff also brought a Third Claim for Relief against Aurora police supervisors for "condoning the unconstitutional actions of the other defendants." Magistrate's Recommendation at 10. The Magistrate has recommended that this Third Claim be dismissed, and Defendants do not challenge that recommendation. -33

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5.

In addition, the Magistrate Judge recommends that summary judgment be denied with

respect to the following Defendants: A) B) Dyer and Stine; Gaskill, insofar as the allegations of Plaintiff's Second Claim for Relief allege excessive force by Gaskill after Plaintiff entered the apartment hallway, while he was in the parking lot, and while he was being removed from the police car; C) 6. The City of Aurora.

In formulating the foregoing recommendations, it is important to note that the

Magistrate Judge interpreted Plaintiff Adams' Second Claim for Relief differently than Defendants had in formulating their motion for summary judgment. Defendants interpreted Claim Two as being brought solely against Defendant Gaskill. The Magistrate Judge interpreted Claim Two as being brought against all Defendants. Cf. Defendant's Memorandum in Support of Summary Judgment at 2; Magistrate's Recommendation at 9.4 It should be noted that Plaintiff's Complaint is handwritten and confusing, and makes generalized allegations against "officers" and "police" without specifying who those individuals might be. Defendants were therefore at a disadvantage in

A close reading of the Magistrate's Recommendation reveals a contradiction with respect to Claim Two. On page 9 of the Recommendation, the Magistrate states that "Claim Two alleges that Dyer, Stine, Gaskill, and others violated the plaintiff's constitutional rights . . . ." However, on page 10, the Magistrate states that "Claim Two alleges excessive force by Jonsgaard, Day, Heller, Thull, and Stahnke," without mentioning Dyer, Stine, or Gaskill, and suggests that Claim Two is brought only "against these Defendants." Magistrate's Recommendation at 10 (first full paragraph under "Personal Participation" heading). Out of an abundance of caution, the instant Objections are raised on behalf of Defendants Dyer and Stine with respect to Claim Two as well. -4-

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formulating the legal theories and record evidence to support their summary judgment motion. While Defendants made their best efforts to interpret the Complaint as liberally as possible, the Magistrate Judge arrived at a different interpretation, and the instant Objections are premised on the assumption that the Magistrate's interpretation is correct. In that regard, this brief will address the Magistrate's Recommendation regarding Plaintiff's First and Second Claims for Relief, in the order presented by the Magistrate Judge. Claim One 7. With respect to Plaintiff's First Claim for Relief, Defendants Dyer and Stine raised

the argument that Plaintiff's First Claim for Relief is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), which holds that a plaintiff's § 1983 claim must be dismissed if a judgment in plaintiff's favor would necessarily imply the invalidity of his underlying criminal conviction or the sentence imposed for that conviction. Heck, 512 U.S. at 487; Memorandum in Support at 10-11. More specifically, Defendants asserted and analyzed the Heck doctrine in detail, in light of both Plaintiff's conviction and sentence for Assault to a Peace Officer, as well as his conviction for Resisting Arrest. Memorandum in Support at 11-15. 8. The Magistrate Judge does not address the substance of Defendants' Heck arguments,

however, because although Defendants submitted the Jury Verdict Forms, Sentencing Minute Order, and Notice of Appeal from the underlying criminal case, "there is no supporting affidavit or other evidence to show that the convictions stemmed from the arrest on January 30, 2003."5 The

In the interest of efficiency, and because of this comment by the Magistrate Judge, Defendants offer affidavits rather than the transcript of Plaintiff Adams' criminal trial in support of -5-

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Magistrate Judge also notes that "there is no evidence as to whether the convictions address actions that occurred with respect to the back room, the hallway, the parking lot, the patrol car, or otherwise." Magistrate's Recommendation at 9. 9. These deficiencies are now cured, however, by the submission of affidavits from

Defendants Dyer, Stine, and Gaskill, attached hereto as Exhibits N, O, & P. All three of these Defendants testified at Plaintiff's criminal trial (Case No. 03CR314 (Arapahoe Dist. Ct.)), and have sworn under oath that Plaintiff's convictions for Assault to Peace Officer, Resisting Arrest, and Attempt to Disarm a Peace Officer were based on Plaintiff's assaults against Officers Dyer and Stine which occurred in the apartment bedroom on January 30, 2003. Exhibit N, ¶10; Exhibit O, ¶10; Exhibit P, ¶4. Therefore, the Heck doctrine bars Plaintiff's First Claim for relief against the remaining two Defendants on that claim, Officers Dyer and Stine, as more specifically set forth in Defendants' Memorandum in support of Motion for Summary Judgment, at 10-15. As noted above, Defendants request that the District Court accept the foregoing sworn statements as additional

summary judgment as to Claim One. As officers of the Court, undersigned counsel represent that they have made extensive efforts to retrieve a transcript copy of People v. Adams, Case No. 03CR314 (Arapahoe Dist. Ct.), but have been unable to do so for the following reasons. Plaintiff's criminal case is currently on appeal, and has been now for well over two years. There is only one copy of the trial transcript, which runs to some six volumes and thousands of pages. That copy is currently in the possession of Andrea Manning, Esq., the public defender handling Plaintiff's criminal appeal, as part of the formal appellate record. Undersigned counsel cannot retrieve the transcript until Ms. Manning releases it back to the Court of Appeals. Moreover, copying the transcript, or producing a second copy from the Arapahoe Court reporter, would likely take many months and cost thousands of dollars. However, Ms. Manning has represented that she plans on being finished with the transcript during the first week of March, 2006. Should this Court be of the opinion that the trial transcript would better illuminate the Heck issues raised by Defendants in this matter, Defendants would hereby request an Order allowing Defendants' counsel sufficient time to procure the transcript and provide it to the Court. -6-

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evidence pursuant to F.R.C.P. 72(b), and give them appropriate consideration when reviewing the Magistrate's Recommendation in this matter. Such consideration is particularly critical in light of the fact that the Heck doctrine is entirely dispositive of Plaintiff's First Claim for Relief, and complete review at this stage of the proceeding will serve the interests of judicial efficiency by preventing the need for further pleadings and proceedings before, during, and after trial. 10. It should also be noted that the Magistrate Judge incorrectly indicates on two

occasions that Plaintiff's conviction for Assault to a Peace Officer was for the assault against Officer Dyer alone. Magistrate's Recommendation at 7 & 9. This finding suggests that even if the Heck doctrine were applicable to Defendant Dyer, it would not be applicable to Defendant Stine. However, a review of the Jury Verdict Form submitted as Exhibit A to Defendant's Memorandum in Support indicates that the assault conviction was founded on Plaintiff's assault of both Defendants Dyer and Stine. See Memorandum in Support at Exhibit A. Thus, again, the Heck doctrine is applicable to both Defendants Dyer and Stine, and bars Plaintiff's First Claim for Relief as more specifically indicated above and in Defendants' Memorandum Brief in Support of Motion for Summary Judgment. Claim Two 11. As noted above, the Magistrate Judge interpreted Plaintiff's Second Claim for Relief

as being brought against all Defendants, rather then merely against Defendant Gaskill as understood by Defendants.6 Magistrate's Recommendation at 9. It was for this reason that Defendants did not

6

But see, footnote 4, supra. -7-

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present affidavits on behalf of Defendants Dyer and Stine (or any other Defendant) with respect to Claim Two, since the only officer specifically named in Claim Two is Defendant Gaskill. See Complaint at 5. Moreover, Defendant Gaskill is only named in connection with the allegation that he used excessive force when placing Plaintiff into the police car following his arrest. Id. 12. However, based on their affidavits that they had no participation in the events

occurring after Plaintiff was placed in custody, Defendants Jonsgaard, Day, Heller, Thull, Stahnke, Stevens, and Cloyd are recommended for dismissal by the Magistrate Judge. Magistrate's Recommendation at 10. Furthermore, the Magistrate recommends summary judgment for Defendant Gaskill as to the claim that he used excessive force placing Plaintiff in the police car, again based on Gaskill's affidavit denying any such use of force. Id. at 14. 13. However, in order to address the Magistrate's interpretation of Claim Two as being

brought against all Defendants, and the further interpretation that all Defendants were involved in the allegedly excessive force used in the hallway, parking lot, etc., Defendants Dyer, Stine, and Gaskill offer as additional evidence their respective affidavits attached hereto. Specifically, Defendants Dyer and Stine state that once Plaintiff was placed into custody in the bedroom, control of Plaintiff was passed to Officer Gaskill. Defendants Dyer and Stine then had no further contact with Plaintiff as he was escorted by Officer Gaskill out of the bedroom, down the hallway, into the apartment parking lot, into the police car, and transported to the jail. Exhibit N, ¶¶8-9; Exhibit O, ¶¶8, 9, 10. Thus, the undisputed evidence shows that Defendants Dyer and Stine had no personal participation in the allegedly unconstitutional actions occurring in the hallway, parking lot, police car, or jail. As the Magistrate Judge found, "An individual cannot be held liable in a section 1983 -8-

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action unless he caused or participated in an alleged constitutional violation." Magistrate's Recommendation at 10 (citing McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983)); see also Memorandum in Support at 7 (citing Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996)). Defendants Dyer and Stine are therefore entitled to summary judgment on Plaintiff's Second Claim for Relief. 14. With respect to Defendant Gaskill's alleged use of excessive force in the hallway and

other areas during Plaintiff's escort from the bedroom, transport from the scene, and removal of Plaintiff from the police car at the jail, Defendant Gaskill states that at no time while Plaintiff was in his custody or control did he engage in any excessive force or otherwise unlawful conduct. Exhibit P, ¶¶5-6. Just as Defendant Gaskill's prior affidavit "establishes that Gaskill did not use excessive force when placing plaintiff into the patrol car," Magistrate's Recommendation at 14, so now does Officer Gaskill's second affidavit establish that he did not use excessive force against Plaintiff in the apartment hallway, in the parking lot, while removing Plaintiff from the police car at the jail, nor at any other time. Exhibit P, ¶¶5-6; see also Memorandum in Support at Exhibit E, ¶¶10. Because Plaintiff cannot produce any evidence to create a factual dispute regarding Gaskill's alleged use of force in these areas, Defendant Gaskill is also entitled to summary judgment on Plaintiff's Second Claim for Relief. 15. In light of the foregoing, Defendants Dyer, Stine, and Gaskill respectfully request that

the District Court accept their affidavits attached hereto as further evidence pursuant to F.R.C.P. 72(b), and review the Magistrate Judge's recommendation in light of such further evidence as more specifically detailed above and in Defendant's Memorandum in Support of Motion for Summary Judgment. -9-

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16.

Furthermore, because the foregoing demonstrates that Defendants Dyer, Stine, and

Gaskill did not engage in any unconstitutional conduct toward Plaintiff, Defendant City of Aurora also reiterates that it must be dismissed as well, since a "municipality may not beheld liable under § 1983 if the officer in fact inflicted no constitutional harm." City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Memorandum in Support at 19. DATED this 17th day of February 2006. Respectfully submitted, BRUNO, COLIN, JEWELL & LOWE, P.C. s/ Michael T. Lowe Marc F. Colin Michael T. Lowe One Civic Center Plaza 1560 Broadway, Suite 1099 Denver, Colorado 80202-5143 Telephone: (303) 831-1099 Facsimile: (303) 831-1088 [email protected] [email protected]

AURORA CITY ATTORNEY'S OFFICE s/ Peter Ruben Morales Charles H. Richardson Peter Ruben Morales 15151 East Alameda Parkway, 5th Floor Aurora, Colorado 80012-1553 Telephone: (303) 739-7030 Facsimile: (303) 739-7042 [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of February, 2006, I electronically filed the foregoing DEFENDANTS DYER'S, GASKILL'S, STINE'S AND THE CITY OF AURORA'S OBJECTIONS TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (DOCKET NO. 95) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Charles H. Richardson, Esq.: [email protected] Peter Ruben Morales, Esq.: [email protected] s/ Lisa Beamer E-mail: [email protected] Paralegal for Attorneys Marc F. Colin and Michael T. Lowe And I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner (mail, hand-delivery, facsimile) indicated by the nonparticipant's name: By Mail: Stephen H. Adams #86319 Unit 1-C-1-12 Sterling Correctional Facility P.O. Box 6000 Sterling, CO 80751 By Mail: Case Manager for Stephen H. Adams Reg. No. 86319 Unit 1-C-1-12 Sterling Correctional Facility P.O. Box 6000 Sterling, CO 80751

/s/ Lisa Beamer

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