Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01150-LTB-BNB

Document 60

Filed 01/31/2006

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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. ______________________________________________________________________________ MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS JAMES DRURY, INDIVIDUALLY; CHARLES KALBACHER, INDIVIDUALLY; EUGENE FARISH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FORMER DISTRICT ATTORNEY OF THE TWELFTH JUDICIAL DISTRICT; DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; AND ALAMOSA COUNTY BOARD OF COMMISSIONERS ______________________________________________________________________________ The above named Defendants move this Honorable Court for an order dismissing Plaintiffs' claim presented against them or, in the alternative, for an order granting summary judgment in their favor, and as grounds for this Motion, state and allege as follows:

Case 1:04-cv-01150-LTB-BNB

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Filed 01/31/2006

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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. 2. limitation. 3. Plaintiffs' individual claims against Defendants Drury, Kalbacher and Farish are Plaintiffs' claim against these Defendants is barred by applicable statutes of

barred by the doctrine of qualified immunity. 4. Plaintiffs' claim against Eugene Farish is barred by the lack of any personal

participation or personal involvement of Eugene Farish in this matter. 5. Plaintiffs' official capacity claim against Eugene Farish and their claim asserted

against the District Attorney, Twelfth Judicial District, State of Colorado are barred by the Eleventh Amendment to the United States Constitution. 6. 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. WHEREFORE, these Defendants respectfully move this Court as aforesaid. 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] ATTORNEYS FOR JAMES DRURY, individually; CHARLES KALBACHER, Individually; EUGENE FARISH, Individually and in his Official Capacity as Former District Attorney of the Twelfth Judicial District; DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and ALAMOSA COUNTY BOARD OF COMMISSIONERS

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Case 1:04-cv-01150-LTB-BNB

Document 60

Filed 01/31/2006

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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 MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS JAMES DRURY, INDIVIDUALLY; CHARLES KALBACHER, INDIVIDUALLY; EUGENE FARISH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FORMER DISTRICT ATTORNEY OF THE TWELFTH JUDICIAL DISTRICT; DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; AND 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] ATTORNEYS FOR JAMES DRURY, Individually; CHARLES KALBACHER, Individually; EUGENE FARISH, Individually and in his Official Capacity as Former District Attorney of the Twelfth Judicial District; DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and ALAMOSA COUNTY BOARD OF COMMISSIONERS
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