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-00701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant. ______________________________________________________________________________ REPLY BRIEF IN SUPPORT OF 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 submits his Reply Brief in Support of Motion for Summary Judgment (Doc. # 52 and 53) as follows: INTRODUCTION Pursuant to Fed.R.Civ.P. 56(c), the burden has shifted to Plaintiff "to produce evidence creating a genuine issue of material fact to be resolved at trial." Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). In his Memorandum in Opposition to Motion for Summary

Judgment (Doc. # 58) (hereinafter "Response"), Plaintiff fails to dispute the material facts set forth in Defendant' Statement of Undisputed Facts. Rather, Plaintiff' Response asserts "facts" s s that are: (1) not relevant and/or immaterial to the issues at hand;1 (2) based upon testimony of

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For example, Plaintiff sets forth a description of the "gag" T-shirt Defendant was wearing at the time of the incident [see, Response at p. 3], which has absolutely no bearing on whether or not there was a constitutional violation in this case.

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Defendant that Plaintiff has mischaracterized;2 or (3) based upon documents and other materials that are not properly before the Court as they are inadmissible hearsay.3 Significantly, during the pretrial proceedings in this case, Plaintiff served no written discovery upon Defendant and did not take his deposition. In fact, Plaintiff did not take any deposition in this case. Now, without having any competent evidence to rely upon, Plaintiff attempts remedy his failure to properly prosecute this case by relying upon materials that would not necessarily be admissible in evidence.4 Plaintiff relies upon Olson v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002), and Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003), to argue that the Court may not grant summary judgment if it accepts the facts most favorable to the Plaintiff in this case. [See, Response at pp. 2 ­ 3.] However, the present case is distinguishable from Olson and Carr in that here, the material facts cannot genuinely be disputed, whereas in those two cases, there were concrete factual disputes. Here, Plaintiff does not set forth admissible evidence in support of his argument, but rather, relies upon speculation and hearsay in an attempt to create an issue of material fact. Plaintiff has failed to set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which he carries the burden of proof. See, Applied Genetics Int' Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). "[W]hen a movant l, claims that there is no genuine issue for trial because a material fact is undisputed, the nonmovant must do more than refer to allegations of counsel contained in a brief to withstand
As an example, Plaintiff asserts as fact the proposition that Defendant "displayed no objective concern over any danger posed by the man he had earlier seen" [see, Response at p. 4]. However, this is wholly inconsistent with and mischaracterizes Defendant' sworn statements and previous testimony. s 3 These documents and materials include the November 18, 2003 letter to the Chief of Police for the City of Westminster, Daniel Montgomery, from Denver District Attorney Bill Ritter, and the Affidavit for Search Warrant. 4 This is further supported by Plaintiff' filing a motion under Fed.R.Civ.P. 56(f) for a continuance to conduct s discovery (Doc. # 59), which is responded to separately.
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summary judgment." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). "Rather, sufficient evidence (pertinent to the material issue) must be identified by

reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Id. As set forth below, Plaintiff has not met this burden of showing a genuine issue of material fact and, accordingly, this Court should apply the applicable law to the undisputed facts and grant summary judgment in favor of Defendant as a matter of law. RESPONSE TO "FACTUAL BACKGROUND" Plaintiff places much emphasis on the "gag" T-shirt Defendant was wearing at the time of the incident. [See, Response at p. 3.] However, Plaintiff' reliance on the T-shirt evidences the s weakness in his case. Plaintiff seems to assert that because Defendant was wearing this T-shirt, it can somehow be inferred that the force used was unreasonable. Such a deduction cannot be reasonably made and, as such, the T-shirt is not material to these controversies. Plaintiff repeatedly characterizes Defendant' statements as referring to the decedent as a s "Hispanic male." [See, Response at pp. 3 ­ 7.] The reason for this mischaracterization is unknown, but it is simply unfounded in the record. A review of Defendant' previous statements s shows he did not use this phrase in any of the cited passages, with one exception (when he was asked to describe the subject, see, Exhibit A attached to Plaintiff' Response at p. 5, l. 26), but s instead referenced Sergio Medrano as "Mr. Medrano," "him," the "same guy," the "guy," the "suspect," the "male party," "Medrano," and "he." Plaintiff also focuses on the "quite different" story he claims Defendant told the officers responding to the scene (the "original statements") as opposed to what is contained on the tape of the 911 call Defendant made. [See, Response at pp. 5 ­ 6.] In fact, the "original statements" are

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nothing more than the summary synopsis contained in the Affidavit for Search Warrant. [See, Exhibit D attached to Plaintiff' Response at p. 1.] The Affidavit does not even purport to quote s Defendant and is clearly shorthand for purposes of showing probable cause for a search warrant, not to serve as a detailed report of the occurrence. [See, id.] In fact, the recorded statement Defendant gave to Lieutenant Priest shortly after the incident is very consistent with the 911 tape, e.g., Defendant did not hold Sergio Medrano at gunpoint, but drew and fired his weapon in one fluid motion. [See, id. at pp. 28 ­ 29, l. 20 ­ 4.] The Affidavit for Search Warrant is hearsay to the extent that it summarizes what Defendant said versus the "party' own statement" required s under Fed.R.Evid. 801(d)(2)(A) and, accordingly, is inadmissible and should not be considered by the Court for purposes of this motion. See, Fed.R.Civ.P. 56(e). Perhaps more importantly, the suggestion that the Affidavit for Search Warrant contains "no mention" of certain facts is meaningless argument of counsel. [See, Response at p. 6.] The fact that the detective who drafted the affidavit chose not to include certain facts is not dispositive and in no way indicates that Defendant manifested his agreement to this rendition of the facts or the decision to include or not include certain items. In fact, Defendant included all of these facts in the recorded statement he gave to Lieutenant Priest only two hours after the incident.5 [See, Exhibit B attached to Plaintiff' Response at p. 10, ll. 19 ­ 26; p. 28, ll. 23 ­ 26.] s Even if the Court deemed the Affidavit for Search Warrant competent in some fashion, it in no way proves lack of imminent danger or the threat thereof. It is the Plaintiff' burden to s bring forth competent evidence to show that Defendant did not reasonably perceive himself to be

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Plaintiff also seems to impugn the recorded statement Defendant gave to Lieutenant Priest by stating that it was given "in the presence of his attorney." How the presence of an attorney is material to these disputes is unknown. This having been said, such does not in any way detract from the validity of the subject statement.

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in imminent danger. See, Vitkus, 11 F.3d at 1539; Applied Genetics, 912 F.2d at 1241. Mere argument of counsel is insufficient to carry this burden. See, Thomas, 968 F.2d at 1024. Moreover, Plaintiff' reference to the District Attorney' deductions, e.g., the fact that the s s officers did not search Sergio Medrano for a weapon suggest that Defendant did not tell them he might be armed, is not competent evidence.6 It is plain speculation or at best an opinion or conclusion on matters not subject to expert testimony. Even if it were, no expert testimony has been endorsed and no showing has been made that it meets the criteria set forth in Fed.R.Evid. 702. Plaintiff also places significant emphasis on the 911 tape. [See, Response at pp. 6 ­ 7.] However, the 911 tape shows exactly how quickly Defendant had to react and emphasizes the emergent nature of the threat, i.e., he opens the garage door and is instantly faced with a subject attacking him with a spear-like board and reaching into his pocket as though he might be retrieving a weapon. Defendant had no time to shout verbal commands, much less "show the male a badge." [Response at p. 7.] Plaintiff sets forth the coroner' descriptions of the wounds sustained by Sergio Medrano, s but these descriptions are in no way probative of unreasonable force. [See, Response at p. 7.] The descriptions merely show three bullets fired to the front of the subject, which is completely consistent with Defendant' description. There is no way to ascertain whether Sergio Medrano s

Plaintiff' statement concerning the use of the District Attorney' Report at the September 26, 2005 hearing [see, s s Response at p. 7, n.5] makes no sense. Simply because the report was admitted in one proceeding for one purpose does not thereby make it admissible for all purposes. It appears to be Plaintiff' view that he need not present s evidence from witnesses shown to have personal knowledge of the facts, but rather, that he can simply prove his case through the use of the District Attorney' report. This certainly does not comply with the procedures set forth s in Fed.R.Civ.P. 56.

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flinched upon seeing the gun. The description of the wounds again amounts to pure speculation without any expert testimony to support it. ARGUMENT A. DEFENDANT IS ENTITLED TO QUALIFIED IMMUNITY. Plaintiff' argument seems to focus on Defendant' perception of Sergio Medrano before s s he encountered him in the garage. However, this is immaterial to the issue at hand. The material question is whether or not Defendant perceived Sergio Medrano as posing a threat to his safety when he encountered him in the garage. See, Graham v. Connor, 490 U.S. 386, 397-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Plaintiff does not and cannot dispute that Sergio Medrano wielded in his right hand a spear-like board in a threatening manner, that Sergio Medrano squared off with Defendant, that Sergio Medrano reached into his coat pocket with his left hand as though he was retrieving a gun or a knife, that Sergio Medrano advanced toward Defendant, and that Sergio Medrano raised the board at Defendant as though he would assault him. [See, Statement of Undisputed Facts at ¶¶ 10-12.] These are the material facts for the purpose of analyzing whether or not Defendant' s actions were objectively reasonable under the circumstances under Graham v. Connor, supra. Plaintiff cannot dispute these facts and he does not attempt to in his Response. [See, Response at p. 6.] These facts are consistent with: (1) Defendant' recorded statement given at the Denver s Police Department shortly after the shooting [Exhibit B attached to Plaintiff' Response, p. 10. ll. s 12 ­ 26; p. 26, ll. 8-11; p. 28, l. 23 ­ p. 29, l. 2; p. 30, l. 17 ­ p. 32, l. 1; p. 46, l. 6 ­ p. 47, l. 14]; (2) Defendant' testimony given before this Court at the September 26, 2005 hearing [Exhibit A s attached to Plaintiff' Response, p. 26, ll. 3 ­ 13]; (3) Defendant' sworn Affidavit [Exhibit A s s

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attached to Defendant' Memorandum Brief in Support of Motion for Summary Judgment, ¶¶ 22 s ­ 27]; and (4) the Court' factual findings as set forth in its September 26, 2005 Order (Doc. # s 46). Rather, in an attempt to create an issue of fact, Plaintiff speculates about Sergio Medrano' and Defendant' actions based upon the District Attorney' report, the audio taped s s s 911 call, and the Affidavit in Support of Search Warrant. [See, Response at pp. 6 ­ 7.]

Irrespective, the issue again is whether or not Defendant objectively and reasonably perceived Plaintiff to be a threat to his safety, and none of this hearsay is material to the Graham v. Connor analysis. In his Response, Plaintiff asserts that Defendant' actions were not objectively s

reasonable, and Plaintiff is clearly attempting to analyze the events in a manner that contradicts the clear language of Graham v. Connor, supra. [See, Response at pp. 8 ­ 13.] 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 F.3d 410, 414-15, 418 (10th Cir. 2004); Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Finally, any overlap in the reasonableness inquiry with the qualified immunity analysis does not transform legal standards applied to undisputed material facts into factual questions. Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001). Plaintiff also improperly references a prior shooting in which Defendant was involved and asserts that evidence regarding same pertains to whether or not Defendant' actions were s objectively reasonable in this case. [See, Response at pp. 13 ­ 14.] This evidence is not material, not relevant, and clearly inadmissible under Fed.R.Evid. 404(b). Pursuant to Rule See,

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404(b) of the Federal Rules of Evidence, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith." Fed.R.Evid. 404(b). However, such evidence may be admissible to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . .." Id. Evidence of other crimes, wrongs, or acts may be properly admitted under Rule 404(b) if the following four requirements are met: (1) the evidence was offered for a proper purpose under Fed.R.Evid. 404(b); (2) the evidence was relevant under Fed.R.Evid. 401; (3) the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice under Fed.R.Evid. 403; and (4) the District Court, upon request, instructed the jury pursuant to Fed.R.Evid. 105 to consider the evidence only for the purpose for which it was admitted. See, United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000). Plaintiff claims this evidence is admissible to prove absence of mistake or accident as Defendant "shot an unarmed man" who did not have a knife or a gun. [See, Response at p. 14.] This argument is specious as the undisputed facts show that Sergio Medrano did, in fact, wield a spear-like board in a threatening manner. [See, Statement of Undisputed Facts at ¶¶ 10 ­ 13.] Furthermore, the evidence is not proffered for a proper purpose, it is not relevant, and the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to Defendant. See, Becker, 230 F.3d at 1232 (referring to Huddleston v. United States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988)). Accordingly, any reference to

Defendant' prior shooting is inadmissible and certainly is not material to the objective s reasonableness standard set forth in Graham v. Connor, supra. In fact, Plaintiff' reference to s this shooting amounts to nothing more than a diversion from the issue presented here. It would

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seem that Plaintiff implies that because Defendant was involved in another shooting makes it more likely that this shooting was not objectively reasonable. Not only is such a conclusion illformed, but Plaintiff offers no evidence to show that Defendant' prior shooting was not lawful s and justified. Plaintiff also unsuccessfully attempts to distinguish this case from Blossom v. Yarbrough, 429 F.3d 963 (10th Cir. 2005), and liken this case to Carr v. v. Castle, 337 F.3d 1221 (10th Cir. 2003). [See, Response at pp. 15 ­ 18.] But again, Plaintiff fails to create a genuine issue of material fact based on concrete and admissible evidence as opposed to unsupported speculation. "[F]limsy allegations which are transparently not well founded facts are insufficient to state a justiciable controversy requiring the submission thereof for trial." Zampos v. United States Smelting, Refining and Mining Co., 206 F.2d 171, 173-74 (10th Cir. 1953). "A party resisting a motion for summary judgment must do more than make conclusory allegations, it ` must set forth specific facts showing that there is a genuine issue for trial.' Dart Indus., Inc. v. Plunkett Co. of " Okla., Inc., 704 F.2d 496, 498 (10th Cir. 1983). Because Plaintiff cannot meet his burden of showing there is a genuine issue of material fact, this Court should grant summary judgment on all of Plaintiff' claims. s B. PLAINTIFF HAS NO VIABLE CLAIM UNDER 42 U.S.C. § 1983. In his Response, Plaintiff concedes that he cannot make a showing that Defendant intended to interfere with his relationship with Sergio Medrano. [See, Response at p. 18.] Accordingly, Plaintiff has absolutely no viable claim under 42 U.S.C. § 1983, and because the only claim remaining in this case is the Section 1983 claim, this Court can dismiss this case with prejudice without further analysis.

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Plaintiff instead asserts that this Court should rule inconsistently with Trujillo v. Board of County Comm' 768 F.2d 1186 (10th Cir. 1985) and find that Plaintiff need not show an intent rs, to interfere with familial association, but rather, that Plaintiff can establish a claim under Section 1983 if he shows that Defendant acted recklessly in disregard of a known risk to Sergio Medrano. [See, Response at pp. 18 ­ 19.] However, this contradicts well established law of the Tenth Circuit as well as this District, and this Court, in particular, none of which has been overruled. See, Trujillo, supra; Griffin v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993); Hill v. Martinez, 87 F.Supp.2d 1115, 1119 (D. Colo. 2000). Because Plaintiff has admitted that he cannot show any intent on Defendant' part to s interfere with his relationship with Sergio Medrano, this Court should grant summary judgment in Defendant' favor. s C. PLAINTIFF MAY NOT RECOVER DAMAGES ON BEHALF OF SERGIO MEDRANO AND, EVEN IF AN ESTATE WAS ESTABLISHED, THE RECORD IS DEVOID OF ANY EVIDENCE THAT THE ESTATE IS ENTITLED TO ANY DAMAGES. Plaintiff argues that this Court should apply the law of an Eleventh Circuit case, Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003), because the Tenth Circuit "incorrectly applie[d] federal law" when it decided Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). [Response at p. 19.] However, Carringer in no way overrules Berry, and Berry remains the law in the Tenth Circuit. That notwithstanding, an estate still has not been established despite the passage of some two and one-half years, and Plaintiff provides no documentation to the contrary, but simply states he is "in the process" of dealing with this issue. [See, Response at p. 20.]

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Even if Plaintiff established an estate in this matter and he was appointed the personal representative, the facts remain undisputed that the estate is not entitled to any damages. Plaintiff sets forth no evidence that the "estate" incurred any damages and the record is completely devoid of any evidence that the "estate" incurred any medical or burial expenses. Defendant does not argue in his motion that Plaintiff must have "personally paid the expenses," as Plaintiff incorrectly states [Response at p. 21], but rather, that there must be some showing that the "estate" actually incurred damages before they can be recoverable. Plaintiff also makes conclusory allegations that he is entitled to recover damages for Sergio Medrano' pain and suffering, for loss of consortium, and for punitive damages. s However, Plaintiff points to nothing in the record evidencing such damages, and Plaintiff does not dispute any of the facts set forth in Defendant' Statement of Undisputed Facts pertaining to s Plaintiff' alleged damages. [See, Statement of Undisputed Facts at ¶¶ 22 ­ 27.] s Accordingly, even if Plaintiff were to cure his pleading deficiency to assert claims as a personal representative of the "estate," there are no damages to which it would be entitled.

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CONCLUSION For the reasons set forth herein, the Court should grant summary judgment against Plaintiff and in favor of Defendant pursuant to Fed.R.Civ.P. 56.

Respectfully submitted,

s/ Thomas S. Rice Thomas S. Rice

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

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of April, 2006, a true and correct copy of the above and foregoing REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was electronically filed 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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