Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-00023-LTB

Document 57

Filed 01/29/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00023-LTB-CBS THOMAS MINK and THE HOWLING PIG, an unincorporated association, Plaintiffs, v. JOHN SUTHERS, et al. Defendants. ______________________________________________________________________________ NOTICE OF DENIAL OF PETITION FOR WRIT OF CERTIORARI AND RENEWAL OF MOTION TO DISMISS PLAINTIFFS' THIRD CLAIM FOR RELIEF AGAINST SUSAN KNOX ______________________________________________________________________________ On January 22, 2008, the United States Supreme Court denied Susan Knox`s Petition for Writ of Certiorari in this matter. As a consequence, it is now appropriate for this Court to address the issue of whether Plaintiffs' monetary claim against Ms. Knox is barred by the doctrine of qualified immunity. Specifically, this appears to be the sole remaining issue in this matter and as stated by the Circuit in its decision in this case, "The district court did not address the application of qualified immunity in these circumstances and we decline to do so in the first instance. Accordingly, we remand that issue to the district court." Mink, et al. v. Suthers, et al., 482 F.3d 1244, 1263 (10th Cir. 2007). In her motion to dismiss this monetary damage claim, filed April 9, 2004, as an alternative ground to the dismissal of this claim, Ms. Knox asserted the defense of qualified immunity and provided authority for that position at page 12 of this motion. As noted in her

Case 1:04-cv-00023-LTB

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reply brief on this issue filed June 7, 2004, at page 48, Ms. Knox argued that Plaintiffs had failed to meet their burden of establishing the violation of a clearly established right with respect to the basis of their damage claim against Ms. Knox. Initially, Ms. Knox reincorporates the arguments presented by her on this issue as referenced above. More significantly, subsequent to the initiation of an appeal by the Plaintiffs in this matter, the Tenth Circuit issued a decision on this qualified immunity issue which is reported as Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005). In Douglas, the Circuit expressly rejected an argument almost identical to that presented by Plaintiffs here. In Douglas, the facts involved an Assistant District Attorney's actions in reviewing and approving a motion and proposed order to search pharmacy records prior to submission by a peace officer to a magistrate judge. (419 F.3d at 12) The plaintiff there argued that the motion and proposed order lacked sufficient indicia of of probable cause and by approving its submission to a magistrate judge, the Assistant District Attorney approved an illegal search. In rejecting plaintiffs' claim in that matter against the Assistant District Attorney on the grounds of qualified immunity, the court stated: Douglas cites to no statutory or case law to support her claim that the Fourth Amendment is implicated when district attorneys advise law enforcement officers about proposed motions or orders submitted to judges to obtain authorization to conduct searches. (Id. at 13) Incorporating the earlier argument presented by Ms. Knox on her entitlement to qualified

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Case 1:04-cv-00023-LTB

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immunity and the decision of our Circuit in Douglas, Susan Knox is entitled to dismissal of the sole remaining claim against her. Respectfully Submitted,

s/ David R. Brougham David R. Brougham, Esq. HALL & EVANS, L.L.C. 1125 17th St., Suite 600 Denver, CO 80202-2037 Phone: (303) 628-3300 Fax: (303) 628-3368 [email protected] ATTORNEYS FOR DEFENDANT SUSAN KNOX

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Case 1:04-cv-00023-LTB

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Filed 01/29/2008

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 29th day of January, 2008, I electronically filed the foregoing NOTICE OF DENIAL OF PETITION FOR WRIT OF CERTIORARI AND RENEWAL OF MOTION TO DISMISS PLAINTIFFS' THIRD CLAIM FOR RELIEF AGAINST SUSAN KNOX with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: A. Bruce Jones, Esq. Holland & Hart, L.L.P. [email protected] Will V. Allen, Esq. Colorado Attorney General's Office [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: Mark Silverstein, Esq. ACLU 400 Corona St. Denver, CO 80218 s/ Marlene Wilson, Secretary to David R. Brougham, Esq. HALL & EVANS, L.L.C. 1125 17th St., Suite 600 Denver, CO 80202-2037 Phone: (303) 628-3300 Fax: (303) 628-3368 [email protected] ATTORNEYS FOR DEFENDANT SUSAN KNOX

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