Free Order on Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-01107-REB-CBS

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Filed 07/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 04-CV-01107-REB-CBS ELIZABETH MEDINA, Individually as mother of and Personal Representative of the Estate of LUCAS de HERRERA, and MARGARITO de HERRERA, Individually as father of LUCAS de HERRERA, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS, ALAMOSA COUNTY, COLORADO, in both their individual capacities; SHERIFF DAVID STRONG, in his individual capacity; UNDERSHERIFF JOHN BIANCA, in his individual capacity; SGT. RON GOODMAN, in his individual capacity; FORMER DEPUTY RICK MARTINEZ, in his individual capacity; DEPUTY LISA BENEVIDEZ, in her individual capacity; CORPORAL GARY THOMAS, in his individual capacity, Defendants.

ORDER DENYING DEFENDANTS' MOTION TO RECONSIDER RULING ON DEFENDANT BOARD OF COUNTY COMMISSIONERS, ALAMOSA COUNTY, COLORADO' MOTION TO DISMISS S Blackburn, J. The matter before me is the Motion to Reconsider Ruling on Defendant Board of County Commissioners, Alamosa County, Colorado' Motion to Dismiss [#32], s filed June 29, 2005. I deny the motion. Initially, I note that defendant' motion contains no certificate of conference s pursuant to D.C.COLO.LCivR. 7.1A, which in itself is sufficient to warrant denial of the motion. See McCoy v. West, 965 F.Supp. 34, 35 (D. Colo. 1997). Moreover,

Case 1:04-cv-01107-REB-CBS

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defendant' motion does little more than disagree with my prior ruling. Although such s arguments may be appropriate when the court has committed clear error, see Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), no such error occurred here. Defendant appears to be under the impression that because it has not personally delegated final decision making authority to the sheriff with respect to the operation of the county jail, it cannot be liable for his acts or omissions in that regard. However, " [a]uthority to make municipal policy may b e granted directly b y legislative enactment[.]"Pembauer v. Cincinnatti, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (emphasis added).1 In this instance, the Colorado legislature has reposed final decision making authority for the county jail in the sheriff. Under such circumstances, the decisions of the sheriff with regard to the operation of the jail can be said to represent official policy of the county for which the county is potentially liable. Because the county must be sued in the name of its board of county commissioners, defendant' motion to dismiss was properly denied. s

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Def endant' attempt to distinguish Pembauer on its f acts is thoroughly unconv incing. s

Indeed, the v ery cases def endant cites in support of its motion f or reconsideration, neither of which is f actually apposite here, contain dicta supporting my decision. See Gonzales v. Martinez, 2005 WL 852709 at *2 n.7 (10th Cir. April 14, 2005) (" Had Plaintif f claimed the Sherif f set of f icial policy of the County or was f ollowing policy established by the County in the operation of the jail, we might hav e to reach a dif f erent conclusion." Bristol v. Board of County Commissioners of the County of ); Clear Creek, 312 F.3d 1213, 1221 (10th Cir. 2002) (distinguishing cases which " suggest that counties can be held liable f or the misdeeds of Sherif f s and their employ ees when the Sherif f is held to set ` f icial policy 'f or the county " of ).

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Case 1:04-cv-01107-REB-CBS

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THEREFORE, IT IS ORDERED that Motion to Reconsider Ruling on Defendant Board of County Commissioners, Alamosa County, Colorado' Motion to Dismiss s [#32], filed June 29, 2005, is DENIED. Dated July 25, 2005, at Denver, Colorado. BY THE COURT:

s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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