Free Reply to Response to 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-0020-MSK-BNB DANA MARTINEZ, individually and on behalf of the minor children as next of kin and parent, JACOB MARTINEZ, a minor, ADAM MARTINEZ, a minor, MICHAEL MARTINEZ, a minor, SAMUEL MARTINEZ, a minor, ISAIAH MARTINEZ, a minor, PATRICE GOMEZ, a minor, GABRIELLE GOMEZ, a minor, ROMAN GOMEZ, a minor, Plaintiffs, v. THE LOCHBUIE POLICE DEPARTMENT, LOCHBUIE POLICE CHIEF JOE SISKAR, in his official and individual capacity, LOCHBUIE POLICE OFFICER MATT CLARK, in his official and individual capacity, LOCHBUIE POLICE OFFICER CONRAD VANEGAS, in his official and individual capacity, LOCHBUIE POLICE OFFICER TOM BACKER, in his official and individual capacity, Defendants.

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants, THE LOCHBUIE POLICE DEPARTMENT, JOE SISKAR, MATT CLARK, CONRAD VANEGAS, and TOM BACKER, by their attorneys, ERIC M. ZIPORIN and GILLIAN FLENER of the law firm SENTER GOLDFARB & RICE, L.L.C., hereby submit the following Reply Brief in Support of Motion for Summary Judgment as follows:

I. INTRODUCTION
Plaintiffs make the following concessions in Plaintiffs' Response to Defendants' Motion

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for Summary Judgment (hereinafter "Response") and Plaintiffs' Brief in Support of Their Response to Defendants' Motion for Summary Judgment (hereinafter "Response Brief"): · There are no claims concerning contacts amongst Plaintiffs and Defendants that occurred on or before January 7, 2002. [See, Response at pp. 2-3; Response Brief at p. 4.] · There are no viable claims against Defendant Vanegas. [See, Response at pp. 3-4; Response Brief at p. 4.] · There was not an illegal search of Plaintiffs' residence on January 22, 2002. [See, Response at pp. 5-6.] · There were no claims pled for contacts on October 18, 2002. [See, Response at p. 9; Response Brief at p. 8.] · Plaintiffs do not have any viable Eighth Amendment claims. [See, Response at p. 11; Response Brief at p. 8.] · The Lochbuie Police Department is not a proper party amenable to being sued. [See, Response at pp. 11-12; Response Brief at p. 9.] · No claims have been asserted against the Town of Lochbuie. [See, Response at p. 12; Response Brief at p. 9.] Based on the foregoing, the Court may dismiss any and all claims asserted by Plaintiffs against Defendant Lochbuie Police Department, any and all claims asserted against Defendant Vanegas, and the entirety of Plaintiffs' Third Claim for Relief for "Outrageous Conduct in Violation of the Eighth Amendment" as set forth in their Complaint. Defendants' Reply Brief, therefore, solely addresses the false arrest, malicious prosecution, abuse of process, and supervisory liability claims stemming from the contact with Plaintiffs on January 22, 2002.

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II. ARGUMENT A. Defendants Are Entitled To Summary Judgment On The False Arrest Claim. Other than Plaintiff Dana Martinez, none of the Plaintiffs claim they were falsely arrested on January 22, 2002.1 Furthermore, Plaintiffs do not dispute the living conditions the officers encountered when they searched Plaintiffs' residence, nor do they dispute that marijuana was located in Plaintiffs' van behind the seat, both of which factored into the officers' determination of probable cause to arrest Plaintiff Dana Martinez. testimony is illustrative: Q: A: Q: A: Q: A: Q: A: What happened then? Then Officer Clark and Sandoval a little while later come out and telling me that I'm facing ­ getting charged with child abuse. Who told you that? Officer Clark. That was the first time anyone informed you why you were in custody? Yes. And did you say anything in response to that? I said, "What for?" And he said for the drugs they found in the van and for how dirty my house was." Plaintiff Dana Martinez's deposition

[Exhibit A-8 at p. 246, ll. 6-19.] Plaintiff Dana Martinez argues that there are disputed issues of fact as to whether there was probable cause to arrest her because there is a dispute as to whether there was marijuana smoke present at the time of the arrest. [See, Response Brief at p. 7.] Irrespective of the presence or absence of smoke or the odor of burned marijuana, based on the totality of the circumstances, the officers had probable cause to arrest Plaintiff Dana Martinez for child abuse without injury. The living conditions of the home and the presence of drugs in the
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Thus, as is the case with all of the remaining claims, the Court can dismiss all claims made by Plaintiffs Jacob Martinez, Adam Martinez, Michael Martinez, Samuel Martinez, Isaiah Martinez, Patrice Gomez, Gabrielle Gomez, and Roman Gomez against Defendants.

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van are not disputed and, accordingly, there is no factual dispute that needs to be submitted to a jury. "Claims for false arrest focus on the validity of the arrest, not on the validity of each individual charge made during the course of the arrest." Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001). Thus, "if there was probable cause for any of the charges made . . . then the arrest was supported by probable cause, and the claim for false arrest fails." Id. Furthermore, even if the officers had reasonably but mistakenly concluded they had probable cause to arrest Plaintiff, they nevertheless are entitled to qualified immunity. See, Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). Without any specific citation to the record, Plaintiff Dana Martinez argues that the charges against her were dropped "because there was not enough evidence to support them [and t]here is a presumption that attaches with the failure to prosecute Dana Martinez for the child abuse charges." [See, Response at p. 7.] However, this is argument of counsel insufficient to create a genuine issue of material fact. "[W]hen a movant 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 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. Additionally, Plaintiffs do not cite to any case law in support of their argument concerning presumptions. With respect to the second prong of the qualified immunity analysis, specifically, whether reasonable persons in the Defendants' positions would have known their conduct violated a clearly established constitutional or statutory right, Plaintiffs assert that the subjective good faith

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of a defendant is not considered and the "reasonableness" element must be presented to a jury for resolution.2 [See, Response Brief at p. 5.] However, Defendants actually argued that the record is devoid of any evidence showing that the law was clearly established such that Defendants should have known that they unlawfully arrested Dana Martinez. [See, Motion for Summary Judgment at p. 7.] In this case, Plaintiffs have failed to set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which they carry the burden of proof. See, Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Again, the living conditions of the home and the presence of drugs in the van are not disputed and, accordingly, there is no factual dispute that needs to be submitted to a jury as these undisputed facts show that there was probable cause for the arrest.3 Plaintiff Dana Martinez has failed to demonstrate a violation of her Fourth Amendment rights and the record is devoid of any specific evidence showing that any Defendant knew his conduct violated Plaintiff's Fourth Amendment rights. Thus, Plaintiff cannot meet her two-part

burden under the qualified immunity analysis and Defendants are entitled to summary judgment as a matter of law. See, Garrett v. Stratman, 254 F.3d 946, 951 (10th Cir. 2001). B. Defendants Are Entitled To Summary Judgment On The Malicious Prosecution Claim. As was the case with the false arrest claim, other than Plaintiff Dana Martinez, none of
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What the Harlow Court actually stated was that "an official's subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury." Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Additionally, Garramone v. Romo, 94 F.3d 1446 (10th Cir. 1996) as cited by Plaintiffs in support of the proposition that "the reasonableness element must be presented to a jury for resolution," does not appear to hold what Plaintiffs are asserting. In Garramone, the Court held that two of the defendants were entitled to qualified immunity on the plaintiff's claims for right to counsel under the Due Process Clause and for violation of her rights under the SSCRA. See, Garramone, 94 F.3d at 1451-52. 3 This is what distinguishes the present case from the Sixth Circuit case cited to and relied upon by Plaintiffs, Fisher v. Memphis, 234 F.3d 312 (6th Cir. 2000).

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the Plaintiffs claim they were maliciously prosecuted based on the events of January 22, 2002. Plaintiffs argue that there are issues of fact about whether Defendants knowingly made false statements to the prosecutor regarding Dana Martinez's arrest [Response Brief at p. 7] and if no marijuana smoking occurred then there is a presumption that Defendants made false statements to the prosecutor [Response at p. 8]. However, a police officer cannot be sued for malicious prosecution under § 1983 because the "chain of causation is broken" between the arrest and the actual prosecution, with the exception being if there is evidence that the police officer exerted improper pressure or influence over the prosecutor or knowingly made false statements to the prosecutor. See, Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996); Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996); Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996); Eubanks v. Gerwen, 40 F.3d 1157, 1160-61 (11th Cir. 1994). In this case, Plaintiffs have made no genuine showing that any officer exerted improper pressure or influence over the prosecutor or knowingly made false statements to the prosecutor. Plaintiffs have merely made conclusory allegations and cite to no specific part of the record, which is insufficient to create a genuine issue of material fact. See, Thomas, 968 F.2d at 1024. "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). "[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). Irrespective of whether marijuana was smoked around the children on January 22, 2002,

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the living conditions of the home and the presence of drugs in the van are not disputed and, accordingly, there is no factual dispute that needs to be submitted to a jury. Furthermore, Plaintiffs do not cite to any case law in support of their argument concerning presumptions. Plaintiff Dana Martinez has failed to demonstrate a Fourth Amendment violation and the record is devoid of any specific evidence showing that any Defendant knew his conduct violated these rights. Thus, Plaintiff cannot meet her two-part qualified immunity burden and Defendants are entitled to summary judgment. See, Garrett, 254 F.3d at 951. C. Defendants Are Entitled To Summary Judgment On The Abuse Of Process Claim. Other than Plaintiff Dana Martinez, none of the Plaintiffs claim they were subject to abuse of process due to the events of January 22, 2002. Plaintiff Dana Martinez incorporates her argument regarding her malicious prosecution claim and simply states that "there are issues of material fact regarding the first two elements" of an abuse of process claim. Plaintiff has failed to identify precisely which facts are disputed with regard to the first two elements that must be established for a claim of abuse of process, in particular, (1) an ulterior purpose for the use of a judicial proceeding, and (2) willful action in the use of that process which is not proper in the regular course of the proceedings. See, James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994). Simply stating that "there are issues of material fact" is insufficient to create an issue of fact to be submitted to a jury. Plaintiffs may not rely on mere argument of counsel, conclusory allegations, or flimsy allegations, but must instead set forth specific facts as referenced in an affidavit, a deposition transcript or a specific exhibit incorporated therein, in order to withstand summary judgment. See, Thomas, 968 F.2d at 1024; Applied Genetics, 912 F.2d at 1241; Dart Indus., 704 F.2d at 498; Zampos, 206 F.2d at 173-74.

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Plaintiff Dana Martinez has failed to demonstrate a Fourth Amendment violation and the record is devoid of any specific evidence showing that any Defendant knew his conduct violated these rights. Thus, Plaintiff cannot meet her two-part qualified immunity burden and Defendants are entitled to summary judgment. See, Garrett, 254 F.3d at 951. D. Defendants Are Entitled To Summary Judgment On The Supervisory Liability Claim. Plaintiffs do not dispute that Defendant Siskar did not personally participate in the events of January 22, 2002, specifically, the arrest of Dana Martinez. Rather, the essence of Plaintiffs' argument regarding the supervisory liability claim is that Defendant Siskar knew that Defendant Backer allegedly made an inappropriate comment to Plaintiffs in 2001 and, therefore, when Defendant Siskar delegated supervisory duties to Defendant Clark for the search of Plaintiffs' residence on January 22, 2002, Defendant Siskar knowingly acquiesced to any wrongdoing by the Lochbuie Police Officers. [See, Response at p. 10; Response Brief at p. 8.]4 This argument is misguided. Plaintiffs cannot show and the record is devoid of any evidence of a direct causal link between something Defendant Siskar did and these specific alleged violations of Plaintiff's Fourth Amendment rights by the officer Defendants. "[S]upervisor liability requires an

affirmative link between the supervisor and the subordinate showing the supervisor's authorization or approval of such misconduct." Woodward v. Worland, 977 F.2d 1392, 1400 (10th Cir. 1992) (citing Rizzo v. Goode, 423 U.S. 362, 371, 96 S. Ct. 598, 46 L. Ed. 2d 561

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Because a claim for supervisory liability first requires a constitutional deprivation, and Plaintiffs have conceded all but the false arrest, malicious prosecution, and abuse of process claims, again, the Plaintiffs other than Dana Martinez cannot sustain a claim for supervisory liability (assuming for the sake of argument that she could demonstrate a Fourth Amendment violation).

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(1976)). Moreover, Plaintiffs may not rely on mere argument of counsel, conclusory allegations, or flimsy allegations, but must instead set forth specific facts as referenced in an affidavit, a deposition transcript or a specific exhibit incorporated therein, in order to withstand summary judgment. See, Thomas, 968 F.2d at 1024; Applied Genetics, 912 F.2d at 1241; Dart Indus., 704 F.2d at 498; Zampos, 206 F.2d at 173-74.5 Plaintiffs cannot meet their burden of demonstrating an affirmative link between the alleged constitutional deprivations and Defendant Siskar's actions, nor can they genuinely demonstrate that Defendant Siskar "acquiesced" in the alleged constitutional deprivations. See, Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1998). Accordingly, Defendants are entitled to summary judgment as a matter of law with respect to the supervisory liability claim. III. CONCLUSION For the reasons set forth herein, the Court should grant summary judgment against Plaintiffs and in favor of Defendants pursuant to Fed.R.Civ.P. 56.

Plaintiffs cite to the deposition transcript of Dana Martinez regarding the alleged comment by Defendant Backer. First, Plaintiffs cannot demonstrate that the alleged comment made by Defendant Backer in 2001 violated any of Plaintiffs' rights. Second, Plaintiffs cannot make a showing, based on this alleged comment, that Defendant Siskar would somehow have notice of the "obviousness" that Defendants might violate someone's constitutional rights in the future. Third, and finally, in context, the occasion in 2001 to which Plaintiffs refer involved Defendant Backer's "hot pursuit" of Daniel Pino, who had warrants for his arrest, was believed to have a weapon, and was a fleeing felon who went inside Plaintiff Martinez's home. Defendant Backer had exigent circumstances to enter Plaintiffs' home as there was a risk of danger to the police and the occupants of the residence, and had a conversation with Dana Martinez about evacuating the home for everyone's safety.

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Respectfully submitted,

s/ Gillian Flener Gillian Flener 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 Defendants

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of June, 2005, I electronically filed a true and correct copy of the above and foregoing REPLY BRIEF IN SUPPORT OF 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: [email protected] [email protected]

s/ Stephanie Nelson Stephanie Nelson E-mail: [email protected] Secretary for Attorney Gillian Flener

00186781

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