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. ______________________________________________________________________________ MEMORANDUM 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., and pursuant to Fed.R.Civ.P. 56, hereby submits his Memorandum Brief in Support of Motion for Summary Judgment as follows: I. STATEMENT OF THE CASE

This case arises out of an incident that occurred on September 22, 2003 in which Plaintiff' son, Sergio Alejandro Medrano, was fatally shot by Defendant in the course of a s burglary. Plaintiff initially brought suit pursuant to Colorado' wrongful death statute, C.R.S. § s 13-21-201(1)(a)(IV) and alleged negligence. On March 29, 2004, Plaintiff filed an Amended Complaint setting forth the following three claims for relief: (1) state claims for negligence and wrongful death; (2) deprivation of constitutional rights pursuant to 42 U.S.C. § 1983; and (3) a claim for "exemplary damages" on an unidentified theory. [See, First Amended Complaint at ¶¶

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4, 14, and 17.] On September 26, 2005, Chief Judge Babcock dismissed Plaintiff' first claim s for relief based upon lack of subject matter jurisdiction. [Doc. # 46.] Accordingly, Plaintiff' § s 1983 claim is the only claim remaining for trial. However, as set forth below, Defendant is entitled to summary judgment as a matter of law on Plaintiff' federal claims. s II. STATEMENT OF FACTS

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 decided to go to his mother' s house to mow the lawn. As he approached his mother' house he saw a man walk from near the s bushes at his mother' house. s He was aware there had been several burglaries in the

neighborhood and his parents' house had been burglarized on two occasions, both times while they were home. Defendant suspected that the man, later identified as Sergio Alejendro

Medrano, might be casing the neighborhood, specifically his mother' house. s 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 Sergio Medrano might have broken into a neighbor' home, so he crossed the street to go back to s 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 someone was attempting to break into a neighbor' home, grabbed his cell phone and his 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.

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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 garage. He observed the same man he saw in front of his mother' house about 8-10 feet away s 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. III. STATEMENT OF UNDISPUTED FACTS

The following facts are established by the pleadings filed in this case, the discovery undertaken in connection with this case, the affidavit submitted herewith, and the Court' s September 26, 2005 Order, which sets forth its factual findings from the evidentiary hearing held on that date. Although there are, of course, some factual disputes between the parties, the following material, dispositive facts are undisputed:

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1.

On September 22, 2003, Defendant was an off-duty police officer for the City of

Westminster. [See, Affidavit of Karl Scherck, appended hereto as Exhibit A, at ¶¶ 1 ­ 2; Court' s September 26, 2005 Order, appended hereto as Exhibit B, at p. 2.] 2. Defendant was on the way to mow the lawn at his mother' residence at 1402 s

South Lincoln Street, when he first witnessed Sergio Medrano suspiciously walk from near the bushes at his mother' house. [See, Exhibit A, at ¶¶ 4 ­ 5; Exhibit B, at pp. 2 ­ 3.] s 3. Defendant observed Sergio Medrano peering in the window and pulling on the

door or a security door at 1434 South Lincoln Street. [See, Exhibit A, at ¶ 6; Exhibit B, at p. 3.] 4. Defendant knew the residents at 1434 South Lincoln Street, and it was apparent

that they were not home. [See, Exhibit A, at ¶ 7.] 5. Defendant returned to his house, retrieved his cell phone and his handgun, and

returned to the area across the street from where he had last observed Sergio Medrano. [See, Exhibit A, at ¶¶ 8, 10; Exhibit B, at p. 3.] 6. Defendant contacted 911, reported the suspected burglary, and described the

suspect. [See, Exhibit A, at ¶¶ 11 ­ 12.] 7. Defendant crossed the street and entered the backyard at the location of the

incident, but he did not observe Sergio Medrano at that time; however, he noticed that the door to the garage was slightly ajar. [See, Exhibit A, at ¶¶ 15 ­ 17; Exhibit B, at p. 3.] 8. Defendant heard a noise from the garage and decided to check the garage. [See,

Exhibit A, at ¶¶ 19 ­ 21.]

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9.

Defendant opened the door approximately 18 inches, stepped into the threshold of

the garage, and observed Sergio Medrano approximately eight to ten feet away from him. [See, Exhibit A, at ¶ 22; Exhibit B, at p. 3.] 10. Sergio Medrano wielded in a threatening manner what appeared to be a long,

sharp, one-inch by four-inch pointed board in his right hand. [See, Exhibit A, at ¶¶ 23 ­ 24; Exhibit B, at p. 3.] 11. Sergio Medrano looked at Defendant, squared off, and reached his left hand into

his coat pocket as though he might be retrieving a weapon. [See, Exhibit A, at ¶ 25.] 12. Sergio Medrano quickly advanced toward Defendant by taking two steps, and

raised the board at Defendant. [See, Exhibit A, at ¶ 26.] 13. Defendant feared for his safety as he thought Sergio Medrano had a knife or a

gun, or that he would assault Defendant with the spear-like board. [See, Exhibit A, at ¶¶ 26 ­ 27.] 14. Defendant fired two or three shots at Sergio Medrano in self defense. [See,

Exhibit A, at ¶ 27; Exhibit B, at p. 3.] 15. Plaintiff did not witness the incident giving rise to this lawsuit. [See, Transcript

of Deposition of Nicolas Medrano, appended hereto as Exhibit C, at p. 15, ll. 17 ­ 19.] 16. Plaintiff' only knowledge of the circumstances of the death of the decedent is s

through second-hand accounts conveyed to him, which are factually inaccurate. [See, Exhibit B, at pp. 47 ­ 49, ll. 8 ­ 1; p. 52, ll. 4 ­ 8.]

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17.

Plaintiff does not know what business Sergio Medrano had in the neighborhood in

which he was shot, and he has no information that Sergio Medrano was not threatening Defendant at the time he was shot. [See, Exhibit C, at p. 47, ll. 15 ­ 20; p. 52, ll. 4 ­ 8.] 18. Plaintiff has never met Defendant, and he knows nothing about him. [See,

Exhibit C, at p. 35, ll. 4 ­ 9.] 19. Defendant states he does not know Plaintiff and had not met Plaintiff before this

litigation. [See, Exhibit A, at ¶ 37.] 20. Plaintiff does not know whether Sergio Medrano had ever met Defendant, and

Defendant states he had not previously met or known Sergio Medrano. [See, Exhibit A, at ¶ 3; Exhibit C, at p. 35, ll. 10 ­ 12.] 21. Defendant did not intend for his actions to impact Plaintiff, to interfere with

Plaintiff' relationship with his son, or to deprive him of his right of familial association. [See, s Exhibit A, at ¶¶ 35 ­ 36.] 22. An estate has not been established for Sergio Alejandro Medrano. [See, Exhibit

C, at p. 38, ll. 19 ­ 21.] 23. Plaintiff does not know how long Sergio Medrano worked at Discount Tire

Company, how much money he made, how frequently he received a paycheck, and does not have any information about any other income Sergio Medrano may have received. [See, Exhibit C, at p. 17, ll. 3 ­ 5, 15 ­ 20; p. 20, ll. 1 ­ 14.] 24. Sergio Medrano' funeral expenses paid to the Arvada Cemetery Association s [See, Plaintiff' Responses to Defendant' First Set of Combined s s

totaled $806.00.

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Interrogatories and Requests for Production of Documents, appended hereto as Exhibit D, at p. 3, response to interrogatory 4(a).] 25. Plaintiff does not know the total financial benefit he would have received from

Sergio Medrano had he lived, but states that he periodically received $30 to $50 from him with no set schedule or amount for these contributions. [See, Exhibit C, at p. 19, ll. 14 ­ 20; Exhibit D, at p. 7, response to interrogatory 10.] 26. Plaintiff does not know Sergio Medrano' monthly income at the time of the s

incident. [See, Plaintiff' Responses to Defendant' Second Set of Combined Interrogatories and s s Requests for Production of Documents, appended hereto as Exhibit E, at p. 1, response to interrogatory 2.] 27. Plaintiff does not know Sergio Medrano' total loss of earnings based upon the s

probable duration of his life if he had lived. [See, Exhibit D, at p. 2, response to interrogatory 3.] 28. After administrative review, the Chief of Police of the City of Westminster

determined that on September 22, 2003, Defendant acted lawfully and appropriately pursuant to Section I.A. of Westminster Police Department Directive No. 93-3 and that Defendant had assumed on-duty status at the time of the shooting. [See, Exhibit A, at ¶ 38; Exhibit B, at p. 4.] IV. STANDARD OF REVIEW

Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See, Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). Upon a motion for summary judgment, the

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moving party bears the burden of showing the absence of a genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d. 265, 273 (1986). The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. See, Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Id. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The non-movant "may not rest upon the mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d. 202, 212 (1986), but must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int' Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). l, V. A. ARGUMENT

DEFENDANT IS ENTITLED TO QUALIFIED IMMUNITY. 1. The concept of qualified immunity and Plaintiff' burden. s

The qualified immunity doctrine shields governmental officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. See, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). "[Q]ualified immunity not only shields a defendant from liability, but is also intended to protect the defendant from the burdens associated with trial." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). "These burdens include distraction of officials from their governmental responsibilities, the inhibition of

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discretionary decision making, the deterrence of able people from public service, and the disruptive effects of discovery on governmental operations." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). Where a Defendant seeks qualified immunity, "a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Once Defendant asserts qualified immunity, the burden shifts to Plaintiff to demonstrate (1) Defendant' actions violated a constitutional or statutory right, and (2) the right was clearly s established and reasonable persons in the Defendant' position would have known his conduct s violated that right. See, Garrett v. Stratman, 254 F.3d 946, 951 (10th Cir. 2001) (citing Cruz v. City of Laramie, 239 F.3d 1183, 1187 (10th Cir. 2001)); see also, Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). "If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity." Migneault, 158 F.3d at 1139 (citing Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). In order to overcome the defense of qualified immunity, Plaintiff must make a particularized showing that the law is sufficiently clear that Defendant would have known that his conduct was unconstitutional. See, Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir. 1992). Although the standard does not require an exact or precise factual correlation between existing law and the circumstances of the case at bar, it does require that the law be reasonably well-

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developed to inform the state official that his conduct would violate the law. See, Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). In order for the law to be sufficiently clear, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In order to be clearly established, the unlawfulness of the complained of conduct must be apparent. See, Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666, 678 (2002). With respect to the second part of the two-part qualified immunity burden, reasonableness is judged against the backdrop of the law at the time of the conduct, because the focus is on whether the officer had fair notice that his conduct was unlawful. See, Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583, 589 (2004). If the law at the time did not clearly establish that the conduct would violate the Constitution, the officer should not be subject to liability. Id. The inquiry must be in the specific context of the case rather than a broad general proposition. Id. Plaintiffs do not meet their burden by identifying "in the abstract" a right and claiming Defendants violated this right. See, Losavio, 847 F.2d at 645. Rather, Plaintiffs must articulate the clearly established constitutional right and the Defendants' conduct which violated the right with specificity, and demonstrate a substantial correspondence between the conduct in question and prior law establishing that the Defendants' actions were clearly prohibited. See, Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (alterations, "Unless such a showing is made, the Defendant

quotation marks and citations omitted).

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prevails," Losavio, 847 F.2d at 646, and "we need not address the other elements of the qualified immunity inquiry," Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). In the face of a summary judgment motion, Plaintiff must produce evidence that would allow a trier of fact to find that no reasonable person in the Defendant' position would have s thought the facts justified the Defendant' acts. See, Post v. City of Fort Lauderdale, 7 F.3d s 1552, 1557 (11th Cir. 1993). "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Saucier, 533 U.S. at 205, 121 S. Ct. at 2158, 150 L. Ed. 2d at 284. "If the officer' mistake as to s what the law requires is reasonable, however, the officer is entitled to the immunity defense." Id.; see also, Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th Cir. 2001). For the reasons set forth below, Plaintiff cannot meet either part of his two-part burden and Defendant is therefore entitled to qualified immunity. 2. No Fourth Amendment Violation.

Plaintiff alleges that Defendant unlawfully used deadly force on Sergio Medrano in violation of 42 U.S.C. § 1983. [See, First Amended Complaint at ¶ 11.] This claim must be analyzed under the reasonableness standard articulated in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). In Graham, the United States Supreme Court stated the following: The reasonableness of an officer' conduct must be assessed "from the s perspective of a reasonable officer on the scene," recognizing the fact that the officer may be "forced to make split-second judgments" under stressful and dangerous conditions ... The Fourth Amendment standard requires inquiry into the factual circumstances of every case; relevant factors include the crime' s severity, the potential threat posed by the suspect to the officer' and others' s safety, and the suspect' attempts to resist or evade arrest ... s

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Graham, 490 U.S. at 396 ­ 97. Whether the use of force was excessive in a particular case requires the Court to consider the totality of the circumstances to determine whether the force used was objectively reasonable. See, Jiron v. City of Lakewood, 392 F.3d 410, 414-15 (10th Cir. 2004). The reasonableness of an officer' actions is evaluated "from the on-scene perspective, not with the advantage of 20/20 s hindsight." See, Jiron, 392 F.3d at 418; see also, Saucier, 533 U.S. at 205. Moreover, "it is well settled that the ` reasonableness standard does not require that officers use alternative, less intrusive means'when confronted with a threat of serious bodily injury." Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir. 2005) (citing Medina, 252 F.3d at 1133. "A police officer may reasonably use deadly force to apprehend a fleeing suspect if the officer has probable cause to believe that the suspect poses a serious threat of physical harm either to the officer or others and if, where feasible, the police warned the suspect." Blossom, 429 F.3d at 967 (citing Tennessee v. Garner, 471 U.S. 1, 11 ­ 12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)). The Tenth Circuit has previously rejected the argument that "only a suspect armed with a deadly weapon poses a physical threat sufficient to justify use of deadly force." Blossom, 429 F.3d at 968 (citing Ryder v. City of Topeka, 814 F.2d 1412, 1419, n.16 (10th Cir. 1987)). In Blossom, a case involving a shooting death, the plaintiffs brought a claim under 42 U.S.C. § 1983, alleging unnecessary and excessive force. See, Blossom, 429 F.3d at 964. In that case, the deputy defendant thought he saw a silver locking blade knife in the deceased' pocket. s See, Blossom, 429 F.3d at 965. The suspect attempted to evade the defendant and the defendant lost sight of the suspect. Id. The suspect suddenly appeared, ran at the deputy, reached for his weapon, and when he was approximately five to seven feet away, the deputy shot the suspect.

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Id. No weapon was found on the suspect. See, Blossom, 429 F.3d at 966. The Court found that the fact that the suspect was unarmed was not outcome determinative. See, Blossom, 429 F.3d at 968. The evidence indicated uncertainty in the mind of the deputy defendant as to whether the suspect was armed, and that the suspect advanced on the deputy in what reasonably appeared to be an effort to get his weapon. Id. The Court ruled that under the circumstances, the suspect posed an immediate threat to the safety of the officer, and that the use of deadly force, while tragic, was reasonable. Id. Similarly, in this case, the undisputed facts indicate that Sergio Medrano posed an immediate threat to Defendant' safety, and the amount of force used was reasonable under the s circumstances. Defendant opened the door approximately 18 inches, stepped into the threshold of the garage, and observed Sergio Medrano approximately eight to ten feet away from him. [See, Exhibit A, at ¶ 22; Exhibit B, at p. 3.] Sergio Medrano wielded in a threatening manner what appeared to be a long, sharp, one-inch by four-inch pointed board in his right hand. [See, Exhibit A, at ¶¶ 23 ­ 24; Exhibit B, at p. 3.] Sergio Medrano looked at Defendant, squared off, and reached his left hand into his coat pocket as though he might be retrieving a weapon. [See, Exhibit A, at ¶ 25.] Sergio Medrano quickly advanced toward Defendant by taking two steps, and raised the board at Defendant. [See, Exhibit A, at ¶ 26.] Defendant feared for his safety as he thought Sergio Medrano had a knife or a gun, or that he would assault Defendant with the spear-like board. [See, Exhibit A, at ¶¶ 26 ­ 27.] Furthermore, in this case, Plaintiff cannot muster any evidence that Defendant was not in legitimate fear of serious bodily injury or death. Plaintiff did not witness the incident giving rise to this lawsuit. [See, Exhibit C, at p. 15, ll. 17 ­ 19.] Plaintiff' only knowledge of the s

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circumstances of the death of the decedent is through second-hand accounts conveyed to him, which are factually inaccurate. [See, Exhibit B, at pp. 47 ­ 49, ll. 8 ­ 1; p. 52, ll. 4 ­ 8.] Plaintiff does not know what business Sergio Medrano had in the neighborhood in which he was shot, and he has no information that Sergio Medrano was not threatening Defendant at the time he was shot. [See, Exhibit C, at p. 47, ll. 15 ­ 20; p. 52, ll. 4 ­ 8.] Based on these undisputed facts, and using the objective reasonableness standard, this Court, like the Blossom Court, should rule that the use of force in this case reasonable and, thus, there was no Fourth Amendment violation. 3. No clearly established law.

Even if Plaintiff could produce sufficient evidence to establish that Defendant' use of s force was objectively unreasonable, Plaintiff cannot satisfy the second prong in the qualified immunity analysis. Preliminarily, it is undisputed that Defendant was a police officer for the City of Westminster and had assumed on-duty status at the time of the shooting. [See, Exhibit A, at ¶¶ 1 ­ 2, 38; Exhibit B, at pp. 2, 4.] Under the second prong of the qualified immunity analysis, Plaintiff bears the burden of establishing that a reasonable officer would have known that using lethal force under these circumstances would be unlawful. See, Brosseau, 543 U.S. at 199 ­ 200. This requires that Plaintiff demonstrate some rule, regulation, or case law that instructed reasonable officers not to use lethal force in these circumstances, and Plaintiff cannot cite to any such authority. To the contrary, the Jiron case and the Blossom case suggest that the use of lethal force in these types of circumstances is lawful.

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Because Plaintiff cannot carry his burden with respect to either prong of the qualified immunity analysis, Defendant is entitled to qualified immunity. B. PLAINTIFF HAS NO VIABLE CLAIM UNDER 42 U.S.C. § 1983. "[S]ection 1983 imposes liability for violations of rights protected by the constitution or laws of the United States, not for violations of duties of care arising out of tort law." Archuleta v. McShan, 897 F.2d 495, 496 (10th Cir. 1990). A § 1983 claim "must be based upon the violation of plaintiff' personal rights, and not the rights of someone else. Archuleta, 897 F.2d at s 497 (citing Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982); Trujillo v. Board of County Comm' 768 F.2d 1186, 1187 (10th Cir. 1985)). Accordingly, irrespective of what happened to rs, a plaintiff' family member, the case turns upon whether plaintiff personally suffered any s deprivation of a constitutional right possessed by him individually. See, Archuleta, 897 F.2d at 497. In Archuleta, the court found that no state conduct was directed at the plaintiff and that he could not establish that defendants had the requisite intent to violate his rights. See, Archuleta, 897 F.2d at 498. Suits brought under 42 U.S.C. § 1983 alleging deprivation of one' right to familial s association fall within the category of rights protected under the Fourteenth Amendment. See, Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); but see, Trujillo, 768 F.2d at 1189 ­ 90 (familial association rights based upon the First Amendment). "The freedom of intimate

association is a substantive due process right, as is its subset, the familial right of association." Id. In order to sustain a claim under § 1983 for deprivation of one' right to familial association, s a plaintiff must demonstrate that the defendant intended to interfere with the particular relationship. See, Trujillo, 768 F.2d at 1190. "[T]o rise to the level of a constitutional claim, the

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defendant must direct his . . . conduct at the intimate relationship with knowledge that the . . . conduct will adversely affect that relationship." Griffin, 983 F.2d at 1548 (citing Trujillo, 768 F.2d at 1190) (emphasis added). See also, Hill v. Martinez, 87 F.Supp.2d 1115, 1119 (D. Colo. 2000) ("[A] Fourteenth Amendment claim based on familial association must be based on specific intent to interfere with that association.") In the present case, Plaintiff has never met Defendant, and he knows nothing about him. [See, Exhibit C, at p. 35, ll. 4 ­ 9.] Plaintiff does not know whether Sergio Medrano had ever met Defendant, and Defendant states he had not previously met or known Sergio Medrano. [See, Exhibit A, at ¶ 3; Exhibit C, at p. 35, ll. 10 ­ 12.] Defendant did not intend for his actions to impact Plaintiff, to interfere with Plaintiff' relationship with his son, or to deprive him of his s right of familial association. [See, Exhibit A, at ¶¶ 35 ­ 36.] Plaintiff cannot produce any evidence to the contrary and, therefore he cannot make the requisite showing that Defendant intended to interfere with his relationship with his son. Accordingly, Defendant is entitled to summary judgment on Plaintiff' § 1983 claim. 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. As a preliminary matter, the Court should be advised that Plaintiff' counsel has advised s that Plaintiff has not been appointed as personal representative of the Estate of Sergio Medrano. [See, October 19, 2005 letter to Flener from Meyer, appended hereto as Exhibit F.] Defendant' s counsel advised Plaintiff' counsel that Defendant would address this issue in his dispositive s motion if a personal representative was not appointed. [See, January 6, 2006 letter to Meyer

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from Fahlsing, appended hereto as Exhibit G.] The undersigned has received no indication or documentation indicating that a personal representative has been appointed. The Plaintiff in this case, unlike the plaintiffs in Hill, has neither established an estate on behalf of Sergio Medrano, nor has he been appointed the personal representative of same. See, Hill, 87 F.Supp.2d at 1121. [See, Exhibit C, at p. 38, ll. 19 ­ 21.] Thus, this case is

distinguishable from Hill. Even if an estate was established and Plaintiff was appointed the personal representative thereof, the record is devoid of any evidence that the estate is entitled to any damages. Federal courts have fashioned a remedy to be applied to § 1983 death cases, which is "a survival action, brought by the estate of the deceased victim, in accord with § 1983' express s statement that the liability is ` the party injured.' Berry v. City of Muskogee, 900 F.2d 1489, to " 1506-1507 (10th Cir. 1990). In other words, in federal death actions, damages are from the perspective of the deceased, and the estate, if one were established and Plaintiff was named as the personal representative, would only be entitled to relief and/or damages to which the decedent would have been entitled. "[A]ppropriate compensatory damages would include

medical and burial expenses, pain and suffering before death, loss of earnings based upon the probable duration of the victim' life had not the injury occurred, the victim' loss of consortium, s s and other damages recognized in common law tort actions." Berry, 900 F.2d at 1507. In this case, Plaintiff does not know how long Sergio Medrano worked at Discount Tire Company, how much money he made, how frequently he received a paycheck, and does not have any information about any other income Sergio Medrano may have received. [See, Exhibit C, at p. 17, ll. 3 ­ 5, 15 ­ 20; p. 20, ll. 1 ­ 14.] Sergio Medrano' funeral expenses paid to the Arvada s

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Cemetery Association totaled $806.00. [See, Exhibit D, at p. 3, response to interrogatory 4(a).] Plaintiff does not know the total financial benefit he would have received from Sergio Medrano had he lived, but states that he periodically received $30 to $50 from him with no set schedule or amount for these contributions. [See, Exhibit C, at p. 19, ll. 14 ­ 20; Exhibit D, at p. 7, response to interrogatory 10.] Plaintiff does not know Sergio Medrano' monthly income at the s time of the incident. [See, Exhibit E, at p. 1, response to interrogatory 2.] Plaintiff does not know Sergio Medrano' total loss of earnings based upon the probable duration of his life if he s had lived. [See, Exhibit D, at p. 2, response to interrogatory 3.] Moreover, Plaintiff has not produced any evidence that there were any medical expenses incurred by Sergio Medrano. Plaintiff seeks to recover the $806 in burial expenses, but the record lacks any evidence to establish that this expense was incurred by the "estate" of Sergio Medrano. In other words, there is no evidence that the "estate" owes monies to the person(s) who paid the $806 to the Arvada Cemetery Association. With respect to the remaining damages to which the estate might be entitled under Berry, Plaintiff is either unable to prove the extent of damages, or is not entitled to such damages at all. In assessing whether a damage award for pain and suffering is

applicable, it cannot be genuinely disputed that Sergio Medrano died almost immediately after being shot. Furthermore, any claim for loss of earnings is speculative at best. Thus, even if Plaintiff were to remedy his pleading deficiency to assert claims as personal representative of the Estate of Sergio Medrano, there are no damages to which the Estate would be entitled.

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

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VI. 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/ 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-mail: [email protected] Counsel for Defendant

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of February, 2006, a true and correct copy of the above and foregoing MEMORANDUM 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

00211965

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