Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

Document 80

Filed 05/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant.

RESPONSE TO PLAINTIFF' REQUEST FOR LEAVE TO FILE SUPPLEMENTAL S EVIDENTIARY MATERIAL IN RESPONSE TO DEFENDANT' S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, KARL SCHERCK, by his attorneys, THOMAS S. RICE and GILLIAN M. FAHLSING of the law firm SENTER GOLDFARB & RICE, L.L.C., hereby responds to Plaintiff' Request for Leave to File Supplemental Evidentiary Material in Response to s Defendant' Motion for Summary Judgment (Doc. # 74) as follows: s 1. Plaintiff filed his original Complaint in state court on December 8, 2003.

Defendant removed this case to federal court on April 8, 2004 (Doc. # 1 ­ 3). On April 14, 2005, Defendant moved the Court to dismiss Plaintiff' case for lack of prosecution and failure to s cooperate in discovery (Doc. # 31). On August 12, 2005, the Court granted in part and denied in part Defendant' motion and ruled that Defendant was excused from giving a deposition (Doc. # s 42). On October 14, 2005, the parties attended a status conference with the Court and the Court re-set a discovery cutoff date of January 30, 2006 and a dispositive motion deadline of February 28, 2006 (Doc. # 47). The discovery deadline in this case came and went, and on February 28,

Case 1:04-cv-00701-LTB-MJW

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Filed 05/19/2006

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2006, Defendant filed his Motion for Summary Judgment and Memorandum Brief in Support thereof (Doc. # 52 and 53). Plaintiff filed his Response to Defendant' Motion for Summary s Judgment and "Motion for a Continuance Pursuant to F.R.C.P.(f)" on April 5, 2006 (Doc. # 58 and 59). On April 26, 2006, Defendant filed his Reply Brief in Support of Motion for Summary Judgment (Doc. # 69). On May 5, 2006, Magistrate Judge Watanabe denied the "Plaintiff's Motion for Continuance" finding that good cause had not been shown to allow discovery after the deadline for completion of discovery had passed (Doc. # 73). Plaintiff filed the present motion on the next business day, May 8, 2006 (Doc. # 74). This appears to be yet another attempt by Plaintiff to get additional material in front of the Court after the close of discovery and completion of the briefing concerning Defendant' pending dispositive motion. s 2. Plaintiff contends that the 911 tape supports his position that Defendant made no

meaningful effort to identify himself as a police officer, to give Mr. Medrano any verbal warning or command, or order Mr. Medrano to surrender or take any other action. See, Motion at ¶ 4. To the contrary, the 911 tape demonstrates how quickly Defendant had to react and emphasizes the emergent nature of the threat posed by Mr. Medrano as he advanced upon Defendant with a spear-like board and reached into his pocket as though he might be retrieving a gun or a knife. Irrespective, Plaintiff is clearly attempting to analyze the events in a manner that contradicts the clear language of Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). It is well established that the analysis must be assessed from the perspective of a reasonable officer on scene, and reasonableness may not be evaluated with the advantage of 20/20 hindsight. See, Graham v. Connor, 490 U.S. at 396-97; Jiron v. City of Lakewood, 392

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Case 1:04-cv-00701-LTB-MJW

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F.3d 410, 414-15, 418 (10th Cir. 2004); Saucier v. Katz, 522 U.S. 194, 205, 121 S. Ct. 2151, 150 L. Ed. 2d. 272 (2001). 3. Defendant also objects to Plaintiff' submission of an unofficial transcript of the s Specifically, the transcript would be inadmissible at trial based upon

recorded 911 call.

Fed.R.Evid. 403, 802, 901, and 1002. The transcript is cumulative of the 911 tape and its prejudicial nature outweighs any prohibitive value, as the transcript could be taken out of context and therefore could be misleading to the jury. Further, it constitutes hearsay, is not necessarily authentic, and does not constitute the original recording. It should be emphasized that Defendant did not object to the authenticity of the actual recording of the 911 call. 4. For the foregoing reasons, Defendant respectfully requests that this Court deny

Plaintiff' Request for Leave to File Supplemental Evidentiary Material in Response to s Defendant' Motion for Summary Judgment. s Respectfully submitted,

s/ Gillian M. Fahlsing Gillian M. Fahlsing Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Attorney for Defendant

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Case 1:04-cv-00701-LTB-MJW

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Filed 05/19/2006

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 19th day of May 2006, a true and correct copy of the above and foregoing RESPONSE TO PLAINTIFF' REQUEST FOR LEAVE TO FILE S SUPPLEMENTAL EVIDENTIARY MATERIAL IN RESPONSE TO DEFENDANT' S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses: William D. Meyer, Esq. [email protected] David J. Bruno, Esq. [email protected] s/ Kathleen Bertz Kathleen Bertz

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