Free Brief in Support of Motion - 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-1150-LTB-BWB BARBARA WALDRON; RICHARD SARRO; and ELIZABETH BROOKHART, Plaintiffs, vs. JAMES DRURY, individually; DAVID D. STONG, in his official capacity as the Sheriff of the County of Alamosa; CHARLES J. KALBACHER, individually, and in his capacity as former Investigator for the District Attorney for the 12th Judicial District; EUGENE L. FARISH, individually and in his official capacity as former District Attorney, 12th Judicial District, State of Colorado; DISTRICT ATTORNEY, 12th JUDICIAL DISTRICT, STATE OF COLORADO, a political subdivision of the State of Colorado; ALAMOSA COUNTY SHERIFF'S DEPARTMENT, a political subdivision of the State of Colorado; ALAMOSA COUNTY, a body corporate and politic; and ALAMOSA COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Colorado, Defendants. ______________________________________________________________________________ MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS DRURY AND KALBACHER, IN THEIR INDIVIDUAL CAPACITIES; FARISH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS ______________________________________________________________________________ APPLICABLE UNDISPUTED FACTS RELATIVE TO PLAINTIFFS' CLAIM AGAINST THESE MOVING DEFENDANTS. These Defendants adopt and incorporate by reference the statement of undisputed facts presented by the other Defendants identified herein, as set forth in the concurrent motion for

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summary judgment and brief filed by these co-defendants. To the extent that there are discrete separate, undisputed facts relevant to the motion of these moving Defendants, these undisputed facts are as follows: 1. Plaintiffs' First Amended Complaint alleges no personal participation or personal

involvement by Eugene Farish in the subject matter of this litigation. 2. At all time relevant to this matter, Eugene Farish was the elected District Attorney

of the Twelfth Judicial District. Eugene Farish, in fact, had no personal participation or involvement in this matter, played no role of any type in the investigation in the death of the Plaintiffs' decedent, the preparation of documents related to this death, decisions related to this death, the handling of involved evidence in this matter or contacts with the Colorado Bureau of Investigation regarding this death. The death of the Plaintiffs' decedent was never submitted to Mr. Farish for any decision regarding the cause of this death. (Affidavit of Eugene Farish, appended hereto.) 3. The Twelfth Judicial District is comprised of six counties. The division of

authority over criminal matters in this District involved Eugene Farish and two Deputy District Attorneys. Mr. Farish did not handle criminal matters in Alamosa County. Alamosa County criminal matters were handled by Douglas Primavera. (Affidavit of Eugene Farish) 4. Plaintiffs' First Amended Complaint does not identify any alleged custom or

policy of the Board of County Commissioners of Alamosa County or the County of Alamosa, relative to the issues and events presented herein. 5. The only personal involvement of Charles Kalbacher in this matter was his initial

interview of George Cottrell and his action in obtaining gunshot residue swabs from the hands of George Cottrell. (First Amended Complaint, ¶¶ 23, 25) In 1984, Mr. Kalbacher was an 2

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investigator for the District Attorney's Office of the Twelfth Judicial District. (Farish Affidavit, ¶ 5; First Amended Complaint) 6. The facts underlying Plaintiffs' claim took place in 1984. By at least 1992 or 1994

Plaintiffs were aware of George Cottrell's position that their mother did not commit suicide. PLAINTIFFS' CIVIL RIGHTS CLAIM IS BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS. The claim asserted by Plaintiffs accrued at least in 1992 or 1994. With respect to this defense, in the interest of economy of space and to avoid redundancy, these Defendants adopt and incorporate by reference the argument presented by the co-defendants on this issue. UNDER THE UNDISPUTED FACTS ESTABLISHED THROUGH DISCOVERY IN THIS MATTER, PLAINTIFFS' CLAIM AGAINST THESE DEFENDANTS FAILS TO STATE ANY CLAIM COGNIZABLE UNDER 42 U.S.C. § 1983. These moving Defendants assert that discovery accomplished in this matter has established that the investigation of the death of the Plaintiffs' decedent and all activities o these f Defendants related thereto do not constitute a cognizable violation of Plaintiffs' right of access to the courts. With respect to this assertion, these Defendants incorporate and adopt by reference the legal argument presented by the co-defendants on this issue in their brief concurrently filed in this matter. PLAINTIFFS' INDIVIDUAL CLAIMS AGAINST DEFENDANTS DRURY, FARISH AND KALBACHER ARE BARRED BY THE DOCTRINE OF QUALIFIED IMMUNITY. A. Qualified Immunity Principles.

Qualified immunity is an affirmative defense against the claim brought here by Plaintiffs. Once raised by these Defendants, Plaintiffs bear the burden of rebutting the presumption of qualified immunity. Medina v. Crum, 252 F.3d 1124, 1129 (10th Cir. 2001). In this respect, Plaintiffs must demonstrate that the conduct of these Defendants not only violated the law, but 3

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that the law was clearly established when the alleged violation occurred. Camfield v. City of Oklahoma City, 248 F.3d 1214, 1225 (10th Cir. 2001). While the right of access to the courts has been generally established for some time, to be clearly established the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right at the time of the actions in question. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The civil right in question must be clearly established in a "particularized sense." Anderson at

640. In this context, plaintiff must demonstrate a substantial factual correspondence between the events of this case and the contours of the right of access to the courts as that right existed in 1984. Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990). B. The Contours of Plaintiffs' Civil Rights Claim in This Case, As They Existed in 1984, Were Not Clearly Established So As To Apply To The Particular Facts Of This Case.

The chronological progression of the constitutional right of access to the Court is again outlined at length in the legal argument portion of the concurrent brief filed by the co-defendants. These Defendants adopt that portion of the co-defendants' brief with respect to the status of access to the courts as a recognized civil right since 1984. To the extent that the Plaintiffs in this matter appear to simply allege that their right of access to the courts has been violated by an inadequate investigation, allegedly negligent acts by these individual defendants or decisions as to the cause of death of Plaintiffs' decedent; these aspects of the right of access to the courts were not clearly established in 1984, nor do they constitute the state of the law on this issue as it exists today. The brief of the co-defendants on this issue amply illustrates this point. Under any circumstance, the challenged actions of these Defendants, to the extent that they had an personal involvement in this matter, do not in the first instance constitute a violation

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of the Plaintiffs' civil rights, but certainly were not clearly established in 1984 and for both of these reasons these individual Defendants are entitled to qualified immunity. PLAINTIFFS' INDIVIDUAL CAPACITY CLAIM AGAINST EUGENE FARISH IS ALSO BARRED BY THE ABSENCE OF ANY PERSONAL INVOLVEMENT OR PARTICIPATION BY MR. FARISH IN THIS MATTER. Plaintiffs suing a public official must establish and set forth specific facts indicating the personal involvement of that public official in the civil right at issue. Camfield, supra at 1225.

"Personal participation is an essential element in a § 1983 claim." Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1976). The concept of respondeat superior is not applicable to claims brought under 42 U.S.C. § 1983. McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979). Eugene Farish simply had no personal participation or involvement in this matter and for this additional reason is entitled to dismissal in this case. PLAINTIFFS' CLAIM AGAINST EUGENE FARISH IN HIS OFFICIAL CAPACITY AND AGAINST THE DEFENDANT IDENTIFIED AS "DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; IS BARRED BY THE ELEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Plaintiffs' official capacity claim against Eugene Farish is for all intents and purposes a suit against the entity for which Mr. Farish served. Kentucky v. Graham, 105 S.Ct. 3099 (1985). In this instance it would appear to be redundant for Plaintiffs to name both Mr. Farish in his official capacity and the District Attorney of the Twelfth Judicial District as separate defendants. Under any circumstance, it is established law of this Circuit that a claim against the Office of a Colorado District Attorney is barred by the Eleventh Amendment to the United States Constitution. Rozek v. Topolnicki, and the Office of the District Attorney for the Eighteenth Judicial District, et. al., 865 F.2d 1154, 1158 (10th Cir. 1989). As a consequence, Plaintiffs'

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official capacity claim against Mr. Farish and their claim against the District Attorney of the Twelfth Judicial District, must be dismissed. PLAINTIFFS' CLAIM AGAINST ALAMOSA COUNTY AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS, AS A MATTER OF LAW, FAILS TO STATE ANY CLAIM COGNIZABLE UNDER 42 U.S.C. § 1983. Plaintiffs' claim against Alamosa County and the Alamosa County Board of Commissioners appears to be based on the allegation that the Alamosa County "Sheriff's Department is subject to the authority and control of the Alamosa County Board of Commissioners." (First Amended Complaint, ¶ 2) As will be illustrated in the remaining portion of this brief, this is incorrect as a matter of law. Moreover, Plaintiffs also fail to allege any purportedly unconstitutional custom or policy of Alamosa County or its Board of

Commissioners. A public entity may not be held liable under § 1983 under any concept of respondeat superior. Monell v. New York City Dept of Social Services, 436 U.S. 658 (1978). Rather, local governments can only be sued under § 1983 where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monell at 690. In this case, Plaintiffs make no allegation of any such policy or custom of the County of Alamosa. In point of fact there simply is none. For this reason alone, Plaintiffs have failed to state any cognizable civil rights claim against Alamosa County or its Board of Commissioners. This entity simply had nothing to do with this case. Rather, as noted above, Plaintiffs literally contend that the Alamosa County Sheriff's Department is subject to the authority of the County and its Board. This, too, is patently incorrect as a matter of law. Colorado law on the distinct and separate responsibilities of a Board of 6

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County Commissioners and a Sheriff is succinctly stated in Tunget v. Board of County Commissioners, 992 P.2d 650, 651 (Colo. App. 1999) in the following language: Under both the Colorado Constitution and applicable statutes, sheriffs and Boards of County Commissioners are treated as separate public entities having different powers and responsibilities....The sheriff, not the County or the Board, has the right of control with respect to the deputies. This concept was recently recognized by our Circuit in Bristol v. Board of County Commissioners for Clear Creek, 312 F.3d 1213, 1215 (10th Cir. 2002). Here, our Circuit specifically recognized that under the Colorado Constitution, the County Sheriff is a distinct position separate and apart from the Board of County Commissioners and any claim against a County or a Board with respect to the responsibility to supervise the conduct of a County Sheriff is simply not a valid premise under Colorado law. For these several reasons, Plaintiffs' claim against Alamosa County and its Board of County Commissioners must be dismissed as a matter of law. CONCLUSION In the first instance, the claim at issue here is barred by the applicable two-year Statute of Limitations. Further, the undisputed facts of this case do not establish a violation of Plaintiffs' constitutional right of access to the courts. These moving individual Defendants are not only entitled to qualified immunity, but in the instance of Mr. Farish, outright dismissal, because he had no personal role of any type in this matter. Plaintiffs' claims against the Office of the

District Attorney of this judicial district and their official capacity claim against Mr. Farish are barred by the Eleventh Amendment. Finally, Plaintiffs have utterly failed to state any cognizable claim against Alamosa County or its Board. For these several reasons, these moving Defendants

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are entitled to summary judgment or dismissal of Plaintiffs' claim against them. Respectfully Submitted,

s/ David R. Brougham David R. Brougham HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: (303)628-3300 Fax # (303) 293-3238 [email protected] ATTORNEY FOR DEFENDANTS DRURY and KALBACHER, in their individual capacities; FARISH, in his individual and official capacity; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and THE ALAMOSA COUNTY BOARD OF COMMISSIONERS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 31th day of January 2006, I electronically filed the foregoing MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS DRURY, KALBACHER, AND FARISH IN THEIR INDIVIDUAL CAPACITIES, THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO, ALAMOSA COUNTY, AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: Randall John Paulsen [email protected] [email protected] Scott Robert Armitage [email protected] [email protected] Josh Adam Marks [email protected] [email protected] Justin Colby Berg [email protected] [email protected]

s/ Marlene Wilson, Secretary to ______________________________ David R. Brougham HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: (303)628-3300 Fax # (303) 293-3238 [email protected] ATTORNEY FOR DEFENDANTS DRURY and KALBACHER, in their individual capacities; FARISH, in his individual and official capacity; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and THE ALAMOSA COUNTY BOARD OF COMMISSIONERS
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