Free Proposed Pretrial Order - District Court of Colorado - Colorado

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

Document 61

Filed 04/17/2006

Page 1 of 16

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.

FINAL PRETRIAL ORDER 1. DATE AND APPEARANCES The Pretrial Conference in this matter was held at 8:30 a.m. on April 21, 2006. Plaintiff was represented by William D. Meyer, Hutchinson Black and Cook, LLC, 921 Walnut Street, Suite 200, Boulder, Colorado 80302, (303) 442-6514. Defendant was represented by Gillian M. Fahlsing, Senter Goldfarb & Rice, L.L.C., 1700 Broadway, Suite 1700, Denver, Colorado 80290, (303) 320-0509, and David J. Bruno, Bruno, Colin, Jewell & Lowe, P.C., 1560 Broadway, Suite 1099, Denver, Colorado 80202, (303) 831-1099. 2. JURISDICTION This action arises under 42 U.S.C. § 1983 and the Constitution and the laws of the United States of America. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §1331. 3. CLAIMS AND DEFENSES a. Plaintiff: Plaintiff claims that Defendant negligently shot and caused the death of

Pa tf snSri Ae nr Mer oo Sp m e 2,03 T ic i w s i i e b ln fs o, e o lado da ,n et br 220. h lm a d m s d y i i' g j n e sa s s

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

Document 61

Filed 04/17/2006

Page 2 of 16

the Court on September 26, 2005. Alternatively, Plaintiff claims that Defendant shot and killed Sergio Alejandro Medrano under the authority of the laws of the state of Colorado. Plaintiff further alleges that, at the time of the shooting, Sergio Alejandro Medrano was unarmed, and posed no significant threat of death or serious physical injury either to Defendant or public. Plaintiff further alleges that the use of deadly force on the decedent was unreasonable, totally without justification, reckless, grossly negligent, and displayed a reckless indifference to risk created. As set forth below, Plaintiff seeks damages in an amount to be proved at trial. b. Defendant: At the time of the incident, Defendant, who was a police officer

employed by the City of Westminster, was home from work. After eating lunch, Defendant dc e t g t h m t r hue om w t l n A h apoce h m t r h ei d o o o i o e s os t o h a . s e prahd i o e s ouse he d s h' e w s h' sw am nw l f m na t bse a h m t r hue H w s w r t r hdbe a a a r k o erh uhs t i o e s os. e a a a h e a en e s h' e e svr brl i i t ni brodadh pr t huehdbe brl i do to ee l ug r s n h e hoho n i a n ' os a en ug r e n w a ae e g s es az occasions, both times while they were home. Defendant suspected that the man, later identified a Sri Ae nr Mer o m gt ecs gt ni brod seicl h m t r s e o lado da , i b ai h e hoho, pc i l i o e s g j n h n e g f ay s h ' house. Defendant decided to see where the stranger was going as he had lost sight of him. He saw no cars in the area nor did he see or hear a car leaving. Defendant was concerned that Sri Mer o i t ae rkn n a e ho'hm ,o e rs d h seto o ak o e o da m g hv boe i o ni br o es h c s t t et g bc t g n h t g s oe e r his house and get cell phone to call the police. As he was going home he saw Sergio Medrano standing at the home of the neighbors. Defendant knew the residents of this home and knew they were likely not home. Sergio Medrano was pulling on the door, or trying to pull the security door open, and looking in the window. Defendant returned home, told his wife that he thought

2

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

Document 61

Filed 04/17/2006

Page 3 of 16

sm oew sae p n t beki oani br hm , r bdh cl poeadh o en a tm t g o r t i a n t e ho' o e ga e i e hn n i g s b s l s handgun for his protection, and returned to an area across the street where he had last seen Sergio Medrano. From the yard of the house at that location, Defendant called 911. Defendant identified himself as an off-duty Westminster police officer and told the dispatch person that the house at 1434 South Lincoln Street was being burglarized. Defendant was giving the operator information, and when he saw a person in that backyard, he crossed the street and went into the backyard. When he reached the yard he did not see Sergio Medrano but noted the door to the unattached garage was slightly open. He then heard a noise from the garage and decided to check the garage. Defendant opened the door approximately 18 inches and stepped into the threshold of the gr e H osre t sm m nh sw i f n o h m t r hue bu 8 feet away a g. e be d h a e a e a n r t f i o e s os aot -10 a v e o s h' from him. Sergio Medrano had a long, sharp, one-inch by four-inch picket-type board in his right hand. Sergio Medrano looked at Defendant, squared off, and put his left hand in his coat pocket. Sergio Medrano advanced quickly, took two steps, and raised the board at Defendant in a threatening manner. Defendant thought the man had a knife or a gun, and in order to protect himself, he fired what he believed to be two shots at Sergio Medrano. Sergio Medrano later died from complications resulting from the gunshot wounds. As for affirmative defenses, Plaintiff lacks standing to assert certain of the claims pled. T iat n s o bogt y h r l a y ni e s Pa tf aee dm gsiay w r h co int ruh b t e pr i n r t ln fs lgd a ae,f n, e s i e a t t e . i i' l e cue b r sno Sri Mer osat adcnut nt yr sno ayt t u o asd y e o f e o da ' c n odc o b e o f n o i s r a g n s , a ro unconstitutional conduct of Defendant. Defendant was, at all times, exercising his legal rights in a e i i e anr D f dn s cos e a a t e l aypi l e o t bs o pr s b m ne e nat at n w r t l i se l r igd n h ai f m sl . e ' i e lm g l ve e s

3

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

Document 61

Filed 04/17/2006

Page 4 of 16

self defense and/or defense of others and/or use of reasonable force in effectuating an arrest or preventing an escape and/or privilege to detain for investigation and/or privilege to arrest without aw r n D f dn scnutw sa a t e bsd uo r snb ssio ad r a at e nat odc a t l i s ae pn e oal up i n/ r . e ' lm a e cn o probable cause. Defendant was lawfully exercising the powers conferred upon him pursuant to C.R.S. §§ 16-3-101, 16-3-102, 16-3-103, 16-3-110, and 18-1-707, and was further lawfully exercising his public duties as a law enforcement officer in accordance with the provisions of C.R.S. §18-1-71 Pa tf c 0. ln fs l are barred by C.R.S. § 13-80-119. Defendant was acting in i i' aims accordance with Westminster Police Department Directive #93-3. Defendant is entitled to

qaf d m ui bsd pn ioj t e r snb ,a flodc F r e D f dn s uli i m n y ae uo h b cvl e oal l u cnut ut r e nat ie t s ei y a e w . h, e ' conduct did not violate law that was clearly established on the date of the incident. 4. STIPULATIONS a. At the time of the shooting, Defendant was a police officer employed by the City

of Westminster, State of Colorado. b. c. Plaintiff did not witness the encounter between Sergio Medrano and Defendant. Plaintiff and Defendant did not know each other before this lawsuit was filed, and

Defendant had never previously met Sergio Medrano. 5. PENDING MOTIONS a. D f dn s t nfr u m r Jdm n adMe oadm B in Support e nat Mo o o S m a ug et n e ' i y m r u rief n

thereof (Doc. # 52 and 53) were filed on February 28, 2006. Pa tf Me oadm i O psi t Mo o fr u m r Jdm n ( o. ln fs m r u n poio o t n o S m a ug etD c# i i' n tn i y 58) was filed April 5, 2006.

4

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

Document 61

Filed 04/17/2006

Page 5 of 16

D f dn sR p i S pot f t nfr u m r Jdm n i deo o e nat el n upr o Mo o o S m a ug ets u n r e ' y i y before April 24, 2006. b. Pa tf Mo o fr ot uneP r atoF ... 6f ( o. 5) a ln fs t n o C n nac us n t . CP 5( D c # 9 w s i i' i i u R )

filed on April 5, 2006. D f dn s epneo a es u o o bfr A r 2,06 e nat R sos t sm ide n r e e pi 820. e ' o l Pa tf R p ide 5 as f rh fi o D f dn s ln fs el s u 1 dy a et in f e nat Response. i i' y t e lg e ' 6. WITNESSES a. Non-expert Witnesses: (1) Plaintiff: (A) Witnesses who will be present at trial: (i) Nicolas Medrano, 4054 West Kentucky Avenue, Denver,

Colorado 80219, no telephone, who will testify concerning his relationship with the decedent, and damages incurred in this action. It is anticipated that Mr. Medrano will testify in person. (B) Witnesses who may be present at trial if the need arises: (i) Officer Angelo Abeita, 2100 S. Clay St., Denver, CO

80210, (303) 937-4444, who will testify concerning witness statements taken during the investigation of the shooting. It is anticipated that Officer Abeita will testify in person. (ii) Detective Amy Alonzo, 2100 S. Clay St., Denver, CO

80210 (303) 937-4444, who will testify concerning statements made to her by Defendant subsequent to the shooting. It is anticipated that Detective Alonzo will testify in person. (iii) Betty Dozier, 1442 South Lincoln Street, Denver,

Colorado, who will testify concerning her observation of the events leading up to the shooting of

5

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

Document 61

Filed 04/17/2006

Page 6 of 16

Sergio Alejandro Medrano. It is anticipated that Ms. Dozier will testify in person. (iv) D w a " ls" D z r 14 S u Lno Sr t a n Mes i a oi , 42 ot i l t e e h c n e,

Denver, Colorado, who will testify concerning her observation of the events leading up to the shooting of Sergio Alejandro Medrano. It is anticipated that Ms. Dozier will testify in person. (v) Detective Kenneth Gurule, 1331 Cherokee Street Denver,

Colorado 80204, (720) 913-6050, who will testify regarding the investigation into the death of Sergio Alejandro Medrano, and the records maintained by the Denver Police Department regarding that investigation. It is anticipated that Detective Gurule will testify in person. (vi) Dr. Amy Martin, 660 Bannock St. Denver, Colorado

80204, (303) 436-7711, who will testify regarding her autopsy of Sergio Alejandro Medrano. It is anticipated that Dr. Martin will testify in person. (vii) Lorena Medrano, 4420 Josephine St., Denver, CO 80216,

who will testify regarding Sergio Alejandro Medrano and his relationship with his father and family members. It is anticipated that Ms. Medrano will testify in person. (viii) Detective David Neil, 1331 Cherokee Street Denver, Colorado 80204, who will testify regarding the drawing made of the scene of the death of Sergio Alejandro Medrano. It is anticipated that Detective Neil will testify in person. (ix) Lieutenant Jon Priest, 1331 Cherokee Street Denver,

Colorado 80204, who will testify regarding the investigation into the death of Sergio Alejandro Medrano, and the records maintained by the Denver Police Department regarding that investigation. It is anticipated that Lieutenant Priest will testify in person. (x) William Ritter, 1100 Bannock St., Denver, CO 80204,

6

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

Document 61

Filed 04/17/2006

Page 7 of 16

(303) 534-0660, to testify concerning the results of his investigation into the shooting of Sergio Alejandro Medrano. It is anticipated that Mr. Ritter will testify in person. (xi) Karl Scherck, 5110 Yates Street, Westminster, Colorado

80031, will testify concerning the prior shooting involving Michael Grimaldo, and the events leading up to the death of the decedent Sergio Alejandro Medrano. It is anticipated that Mr. Scherck will testify in person. (xii) Kimberly Scherck, 5110 Yates Street, Westminster,

Colorado 80031, will testify concerning the events leading up to the shooting of Sergio Alejandro Medrano. It is anticipated that Ms. Scherck will testify in person. (xiii) Officer Richard Tatar, 1331 Cherokee Street Denver, Colorado 80204, will testify concerning statements made to her by Defendant subsequent to the shooting. It is anticipated that Officer Tatar will testify in person. (xiv) One or more officers of the Denver Police Department

1331 Cherokee Street Denver, Colorado 80204, may testify to authenticate or establish the chain of custody of exhibits. In addition to these witnesses, Plaintiff reserve the right to call any witness (a) endorsed by Defendant, (b) necessary for impeachment or rebuttal, or (c) necessary to authenticate documents. (C) Witnesses where testimony is expected to be presented by means

of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None

7

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

Document 61

Filed 04/17/2006

Page 8 of 16

(2)

Defendant: (A) Witnesses who will be present at trial: i. Nicholas Medrano, 4054 West Kentucky Avenue, Denver, Colorado 80219. Mr. Medrano will be called to testify in person concerning his alleged damages, if any. ii. Karl Scherck, c/o Westminster Police Department, 9110 Yates Street, Westminster, Colorado 80031 (303) 4302400. Mr. Scherck will be called to testify in person

concerning the events giving rise to this litigation and Pa tf aee dm gsiany. ln fs lgd a ae, i i' l f (B) Witnesses who may be present at trial: i. Amy Alonzo, Detective, Denver Police Department, District Four Station, 2100 South Clay Street, Denver, Colorado 80219, (303) 937-4444. Detective Alonzo may be called to testify in person concerning the events giving rise to this litigation. ii. Chris Colwell, M.D., Denver Health Medical Center, 777 Bannock Street, Denver, Colorado 80204 (303) 436-6000. Dr. Colwell may be called to testify in person concerning the events giving rise to this litigation,s e a Pa tf a w l s ln fs l i i' alleged damages, if any.

8

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

Document 61

Filed 04/17/2006

Page 9 of 16

iii.

Betty Dozier, 1442 South Lincoln Street, Denver, Colorado 80210, (303) 722-2102. Ms. Dozier may be

called to testify in person concerning the events giving rise to this litigation. iv. D w a " ls" D z r 1442 South Lincoln Street, a n Mes i a oi , e Denver, Colorado 80210, (303) 722-2102. Ms. Dozier may be called to testify in person concerning the events giving rise to this litigation. v. Vincent Herrera, 12662 East Warren Avenue, Aurora, Colorado 80014, (303) 369-2479. Mr. Herrera may be

called to testify in person concerning the events giving rise t t s igt n a w la Pa tf aee dm gsi o h li i , s e s ln fs lgd a ae,f i t ao l i i' l any. vi. Dr. Amy Martin, oes Pt l i, evr ooe s F r i a o g tD ne C rnr nc h o s ' Office, 660 Bannock Street, Denver, Colorado 80204, (303) 436-7711. Dr. Martin may be called to testify

concerning the events giving rise to this litigation, as well a Pa tf aee dm gsiay s ln fs lgd a ae, n. i i' l f vii. Dan Montgomery, Chief of Police, Westminster Police Department, 9110 Yates Street, Westminster, Colorado 80031 (303) 430-2400. Chief Montgomery may be called

9

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

Document 61

Filed 04/17/2006

Page 10 of 16

to testify in person concerning the events giving rise to this litigation. viii. Dave Neil, Detective, Denver Police Department,

Homicide Unit, 1331 Cherokee Street, Denver, Colorado 80204, (720) 913-6050. Detective Neil may be called to testify in person concerning the events giving rise to this litigation. ix. Tim Read, Investigator, Westminster Police Department, 9110 Yeats Street, Westminster, Colorado 80031 (303) 430-2400. Investigator Read may be called to testify in person concerning the events giving rise to this litigation. x. Kimberly Scherck, c/o Westminster Police Department, 9110 Yates Street, Westminster, Colorado 80031 (303) 430-2400. Ms. Scherck may be called to testify in person concerning the events giving rise to this litigation. xi. Richard Tartar, Officer, Denver Police Department, District Four Station, 2100 South Clay Street, Denver, Colorado 80219, (303) 937-4444. Officer Tartar may be called to testify in person concerning the events giving rise to this litigation. xii. Any witness necessary for rebuttal, impeachment, and/or to lay a foundation. 10

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

Document 61

Filed 04/17/2006

Page 11 of 16

(C)

Witnesses where testimony is expected to be presented by means

of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None. b. Expert Witnesses: (1) (2) Plaintiff: None. Defendant: None. 7. EXHIBITS a. Exhibits (1) Plaintiff: See attached Appendix A. Plaintiff reserves the right to

introduce any exhibit listed by Defendant, or necessary for impeachment, rebuttal or to refresh the memory of any witness By listing a document on this list, Plaintiff does not concede the relevance or admissibility of such exhibit to this case. If future motions relating to the allegations and claims o t pre, n m t n adoj t n t D f dn s v ec, r gat ,o e fhs fh a i ad o os n b coso e nat ei ne a r e sm o t e e ts i ei e ' d e nd e documents may be irrelevant and inadmissible. However, at this time, Plaintiff understands the procedures of this Court to require a listing of all exhibits that might be offered, based on the pr ' udrad go t c i speet p d adpi t ayrl g o t soeo a ys ne t i f h lm r n y l , n r r o n u ns n h cp f t sn n e a s l e o i e claims and evidence. Plaintiff accordingly reserves the right to withdraw, and to object to the admissibility of, any exhibit on the list.

11

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

Document 61

Filed 04/17/2006

Page 12 of 16

(2)

Defendant:

EXHIBIT EXHIBIT NO. Westminster Police Department Directive No. 93-3. A-1 A-2 A-3 A-4 A-5 A-6 A-7 A-8 A-9 Color photographs of white picket style board. Copy of invoice from Arvada Cemetery Association. Westminster Police Department News Release Prepared by Tim Read. Crime Scene Map prepared by Detective David E. Neil. Written Statement of Betty F. Dozier. Wrt Sa m no D w a Mes " oi . ie te etf a n " ls D z r tn t ia e Written Statement of Vincent Herrera. Written Statement of Kimberly A. Scherck. Any document needed for impeachment purposes (including but not limited to, deposition transcripts and exhibits thereto, responses to written discovery and supplements thereto, and transcripts of prior testimony). Any document needed for rebuttal purposes. Any exhibit needed for demonstrative purposes.

STIPULATED

A-10

A-11 A-12

b.

Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.

12

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

Document 61

Filed 04/17/2006

Page 13 of 16

8. DISCOVERY Discovery has been completed. However, Plaintiff has filed a Motion for Continuance Pursuant to F.R.C.P. 56(f) (Doc. # 59) seeking additional time to obtain affidavits, take certain limited depositions, and utilize other discovery procedures to obtain the following evidence for ue ncnet nwt D f dn s t nfr u m r Jdm n D f dn oj tt t s s i onco i e nat Mo o o S m a ug et e nat b c o h i h e ' i y . e es i motion. 9. SPECIAL ISSUES Plaintiff contends that the court may wish to consider the following evidentiary issues before trial: a. b. The admissibility of evidence relating to the shooting of Michael Grimaldo. T e d i i ly f v ec o D f dn s cv i sbeun t t sot g h am s b i o ei ne f e nat at ie usqeto h ho n s it d e ' i ts e i

of Mr. Medrano as outlined in Case No. in Case No. 2003M 006160, and his subsequent resignation from the Westminster Police Department. Defendant contends that this subject matter is inadmissible at trial as it is not relevant to the claims asserted. 10. SETTLEMENT a. Counsel for the parties communicated on April 13, 2006 to discuss in good faith

the settlement of this case. b. Plaintiff, through his undersigned counsel of record, made a formal settlement

demand on April 17, 2006. c. The parties were promptly informed of all offers of settlement.

13

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

Document 61

Filed 04/17/2006

Page 14 of 16

d. conferences. e.

At this time, counsel for the parties do not intend to hold future settlement

It appears from the discussion thus far by all counsel that there is no possibility of

settlement at this time. f. There is no settlement conference before the magistrate judge or other alternative

dispute resolution method currently scheduled. Should the parties desire to conduct a settlement conference, they will immediately schedule same with the magistrate judge. g. 16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. Counsel for the parties considered ADR in accordance with D.C.COLO.LCivR

14

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

Document 61

Filed 04/17/2006

Page 15 of 16

13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. The Court vacated the previously scheduled trial date of December 5, 2005 (Doc. # 42). The Court has not re-set a trial date in this matter. 2. 3. The parties estimate the trial in this matter will take three (3) days. Trial will be held at the United States District Court for the District of Colorado, in Denver, Colorado. 4. The Court vacated the Final Trial Preparation Conference previously scheduled for November 4, 2005 (Doc. # 42), and has not reset same.

DATED this ______ day of April 2006. BY THE COURT:

_______________________________ United States Magistrate Judge Watanabe

15

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

Document 61

Filed 04/17/2006

Page 16 of 16

APPROVED: s/ William D. Meyer William D. Meyer Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 200 Boulder, Colorado 80302 Telephone: (303) 442-6514 FAX: (303) 442-6593 E-mail: [email protected] Attorney for Plaintiff

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

s/ David J. Bruno David J. Bruno Bruno, Colin, Jewell & Lowe, P.C. One Civic Center Plaza, Suite 1099 1560 Broadway Denver, Colorado 80202 Telephone: (303) 831-1099 FAX: (303) 831-1088 E-mail: [email protected] Attorney for Defendant

16