Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02633-PSF-PAC LILLIAN BARTON, Plaintiff, v. CITY AND COUNTY OF DENVER OFFICER R. BLEY, Badge No. 99006 OFFICER N. SAGEN, Badge No. 96-021 OFFICER JOHN DOE MAYOR JOHN HICKENLOOPER, in his official capacity WELLINGTON WEBB, as former Mayor, in his official capacity GERALD R. WHITMAN, Chief of Police, City and County of Denver, in his office capacity only J. WALLACE WORTHAM, JR., former Denver City Attorney, in his official capacity only CHRIS RAMSEY, former Denver Deputy City Attorney, in his official capacity only Defendants. and Civil Action No. 04-cv-319-PSF-PAC LILLIAN BARTON, Plaintiff, v. CITY AND COUNTY OF DENVER RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS MAYOR JOHN HICKENLOOPER WELLINGTON WEBB GERALD R. WHITMAN RUDY SANDOVAL J. WALLACE WORTHAM, JR. CHRIS RAMSEY, Defendants.

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___________________________________________________________________________ DEFENDANTS' PROPOSED FINAL PRE-TRIAL ORDER ___________________________________________________________________________ 1. DATE AND APPEARANCES The Final Pretrial Conference was held on June 1, 2006. Plaintiff, Lillian Barton, 97 Soda Creek Road, Evergreen, CO, acting pro se, appeared on her own behalf. Brett A. McDaniel of Senter Goldfarb & Rice, L.L.C., 1700 Broadway, Suite 1700, Denver, Colorado 80290, appeared on behalf of all named Defendants, including, but not limited to, Richard Blea, Nick Sagan, Josh Vasconcellos (hereinafter "Denver Defendants"). 2. JURISDICTION A. and 1367. B. This is an action for damages brought pursuant to 42 U.S.C. § 1983 wherein Jurisdiction in this Court is invoked under the provisions of 28 U.S.C. §§ 1331

Plaintiff alleges that Defendants, by their misconduct, violated Plaintiff' constitutional s rights. C. The jurisdiction of this Court is not disputed. 3. CLAIMS AND DEFENSES A. PLAINTIFF: Plaintiff Lillian Barton makes the following claims: 1. False and Illegal Arrests: Lillian Barton was unlawfully arrested and

interrogated without probable cause; and without being given or informed of her Miranda Right during her first arrest. After Lillian Barton was released from the first arrest, she was stopped, unreasonably detained and rearrested. During the first illegal arrest Plaintiff Lillian Barton was coercively interrogated and arrested without probable cause, and without being

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informed of her Miranda rights.

Defendant officers, Blea, Sagen, and Vasconcellos

substantially deprived Plaintiff Barton of her right to be free from unreasonable search and seizure pursuant to the Fourth Amendment of the United States; and, in failing to Mirandize Plaintiff Barton prior to two coercive interrogations during the first arrest violated the "constitutional" requirements of the Miranda Doctrine under federal and state law. The officers arresting Lillian Barton without probable cause then failing to inform her of her Miranda Rights, an absolute prerequisite to an arrest, was a violation of her civil rights under the Fourth, Fifth, Sixth and Fourteenth Amendment of the United States. Miranda became a "Constitutional" decision and requirement on Monday, June 26, 2000, and was an established requirement two years prior to the interrogation and arrest of Lillian Barton on February 24, 2002. The Defendant officers stopped and detained and arrested Lillian Barton for a second time, searched and seized her purse and wallet for no probable cause, because she did not give them the same identification that she had given them during the first arrest (driver' s license). The second arrest was clearly made without probable cause and deprived Lillian Barton to be free from unreasonable search and seizure under the Fourth Amendment. 2. Malicious Prosecution: Criminal charges were instituted against Lillian

Barton by the defendants for two separate offenses at the time of her arraignment for no probable cause, i.e., a charge of Interference ­ Violation 38-31, and a charge as co-defendant to an alleged Unlawful Dumping ­ violation of Municipal Ordinance 48-41. The co-

defendant charge to an alleged Unlawful Dumping was never revealed to Plaintiff during or prior to arraignment by the prosecution. The concealed charge as a co-defendant was stated on the reverse side of alleged perpetrator, Lawrence D. Gomba, Summons and Complaint

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No. GD 419303. This misuse of process by the Prosecutor Ramsey and Wortham constitutes two separate torts under constitutional and common law, i.e., malicious prosecution and abuse of process. The false charges maliciously initiated against Lillian Barton, who has no criminal record, was not to bring her to justice but for the sole purpose to protect the Police and the City and County of Denver from a pending lawsuit for their unlawful, unreasonable search and seizure of Lillian Barton for no probable cause. The charge against Lillian Barton for Interference was dismissed against the Plaintiff by County Court Judge Mary Celeste "declaring the arrest illegal because under the totality of the circumstances it was not based on probable cause." In addition, the Court stated: "This Court finds that it is unreasonable to believe that the Defendant committed a crime." The Court also dismissed the case on the grounds that "there is uncontroverted testimony that her Miranda Rights were not given." The Defendant Officers, as well as the Defendant City Attorney Prosecutors, initiated a malicious prosecution without probable cause on both charges. The concealment of the second charge was a substantial violation of Lillian

Barton' right to know the charges to be made against under the Sixth and Fourteenth s Amendments. The initiation of a prosecution without informing an individual of the nature of the charges to be made against them is a substantial violation of Sixth and Fourteenth Amendments. As a result of Defendant Officers' failure to inform Lillian Barton prior to two separate coercive interrogations and first custodial arrest to inform her of the right to remain silent and right to counsel and failure to Mirandize, at the point where she was suspected of

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criminal activity, was a violation of her Fourth, Fifth, Sixth and Fourteenth Amendment Rights. The failure of Defendant Officers to inform Lillian Barton of her right to counsel prior to two intensive, coercive interrogations in which they attempted to obtain an admission from her through threats, violence and intimidation that she was involved in the criminal activity of covering up an alleged Illegal dumping was a violation of her Fifth Amendment Rights as well as a common law tort. 3. Intentional Infliction of Emotional Distress: The conduct of Blea, Sagan, and

Vasconcellos, in their attempt to coerce Plaintiff Barton to admit to complicity in a hazardous waste spill which never existed, constituted extreme outrageous conduct. The acts were done wanton and recklessly and the latter assault and battery was intended to terrorize and to cause severe emotional distress to deter Plaintiff Barton from suing the City and County of Denver. Plaintiff suffered severed emotional anguish and emotional stress as a result of the Defendant' almost year-long malicious prosecution to convict her of a crime for purposes s other than to bring her to justice, but for the sole purpose of protecting themselves and the City and County of Denver, et al., from a possible pending lawsuit. 4. Damages: Plaintiff incurred damages as a result of the malicious criminal

charges initiated against her as a result of attorney' fees, research, travel, computer time and s other related costs in the amount of $18,266.00, see (Exhibit N ­ Itemized statement of costs incurred as result of malicious prosecution). For actual damages incurred in her Malicious Prosecution Case No. 03-F-2633(PAC), Lillian Barton has incurred actual damages attorney fees, research, travel, computer expense,

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court costs, and hospital emergency care in the amount of $15,585 as itemized in: Exhibit O ­ Actual damages resulting from malicious prosecution. Plaintiff is entitled to both exemplary and punitive damages under State and Federal Law since Defendants actions were both willful and wanton and for evil intent. Punitive damages are based on the emotional distress and humiliation and injury to reputation resulting from the malicious prosecution and illegal arrest of Plaintiff for no probable cause. In addition, Plaintiff makes claim for actual damages for loss of time, loss of business, expense of travel to Denver, Colorado from Evergreen, Colorado and other damages incurred as a result of extensive research and computer expenses to answer an excessive amount of Motions and Court Orders as a result of Defendant' protracted litigation in this case s concerning Defendants abusive discovery procedures. 1 B. DENVER DEFENDANTS: On February 24, 2002, Plaintiff was contacted

via telephone by her ex-husband, Lawrence Gomba, who requested her assistance pertaining to a flat tire on his trailer mounted hydroseeder. Plaintiff left her home in Evergreen, Colorado and traveled to the Phillips 66 Gas Station located at 450 North Federal Boulevard to assist Mr. Gomba. While Plaintiff was en route, Mr. Gomba attempted to relieve some of the weight from the hydroseeder so that he could free the truck from the trailer by releasing some of the contents onto the parking lot. Due to the pressure placed on the release valve from the flowing substance, Mr. Gomba was unable to close the valve and stop the flow of liquid from the hydroseeder which resulted in the spilling of nearly 1,000 gallons of

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Denver Defendants have made reasonable efforts to accurately transcribe those claims and damages asserted by Plaintiff. However, to the extent Plaintiff has asserted claims never before alleged, i.e., assault and battery and conspiracy, Denver Defendants have omitted such claim notations. Additionally, Denver Defendants note without addressing the merits of Plaintiff' damages, the introduction of any evidence itemizing such fees is s inappropriate as such documents have never been disclosed by Plaintiff.

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hydroseeding liquid onto the parking lot. Mr. Gomba was eventually able to free his truck and leave the scene prior to Plaintiff' arrival. s Gas Station Attendant Tahnee Castaneda contacted the police dispatch center and reported the illegal dumping which was occurring in the rear parking lot of the Phillips 66 Gas Station. Denver Police Officers Blea, Sagan and Vasconcellos were dispatched to the scene on an illegal dumping call. Upon their arrival, the officers observed an unknown greenish substance spilling onto the ground from the hydroseeder and spreading across the rear of the parking lot and onto the adjacent public street. The spill ran approximately one block east on Short Place into a residential area where there were children playing. Officer Blea questioned Plaintiff regarding the spill, wherein she stated that it was her husband' s business and that she was not responsible as she was only there to pick him up. After refusing to cooperate with the officers'investigation and provide them with any identification, Plaintiff attempted to leave the premises in her vehicle. In doing so, she repeatedly slammed her driver-side door into Officer Blea and began screaming. Based upon these actions and her refusal to cooperate with the officers, she was removed from her vehicle, handcuffed and placed into a patrol car. In the meantime, due to the unknown nature of the green substance spilling onto the ground, the Denver Fire Department was called to evaluate the situation for a potential hazardous spill. Once Plaintiff stopped yelling, she was removed from the patrol car, her handcuffs were removed and she was issued a General Session Summons and Complaint for a violation of Municipal Ordinance §38-31 for Interfering with Police Authority. Plaintiff then left the scene of the spill without further incident. Shortly thereafter, Lawrence Gomba returned to scene and provided the Fire Department with information relating to the contents of the spill.

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Mr. Gomba was issued a citation for Unlawful Dumping in violation of Municipal Ordinance §48-44. Subsequently, on December 26, 2003, Plaintiff filed the present lawsuit which was eventually consolidated into Plaintiff' Consolidated Complaint and Jury Demand s (hereinafter "Plaintiff' Complaint") filed on March 12, 2004. s The Denver Defendants deny the substantive allegations of Plaintiff' Complaint and s further deny that they violated Plaintiff' civil rights under the Fourth and Fourteenth s Amendments to the United States Constitution. Defendants further deny that Plaintiff was maliciously prosecuted. Additionally, the Denver Defendants deny that they committed any torts, including intentional infliction of emotional distress.2 The Denver Defendants

affirmatively assert that at all times they acted in good faith and without the intent to injure or deprive Plaintiff of her civil rights. As for defenses, the Denver Defendants are entitled to qualified immunity. Plaintiff's Complaint fails to state a claim for which relief may be granted as to some of the claims against the Denver Defendants. Plaintiff' claims are barred in whole or in part by the s doctrine of issue preclusion ("collateral estoppel"). The Denver Defendants' actions at all times were objectionably reasonable under the circumstances and not in violation of any clearly established law on the date of the subject incident. Further, the Denver Defendants were lawfully exercising the powers conferred upon them pursuant to C.R.S. §§ 16-3-101, 16-3-102, 16-3-103, and 18-1-707, and were further lawfully exercising their public duties as law enforcement officers in accordance with the provisions of C.R.S. § 18-1-701. The Denver Defendants are not liable for exemplary or punitive damages pursuant to Colorado

Denver Defendants reserve the rights to amend their statement of facts and defenses in the event Plaintiff' s Objections to Recommendation of United States Magistrate Judge Pursuant to Fed.R.Civ.P. 72(b) are sustained in whole or in part.

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and/or Federal law. Finally, the Denver Defendants'activities were at all times supported by probable cause. Further, Plaintiff' claims are subject to the applicable provisions of the Colorado s "Governmental Immunity Act" ("CGIA"), § 24-10-101, et seq. (2005). Plaintiff has further failed to reasonably mitigate her alleged damages and her claims are barred and/or diminished by her own comparative negligence/fault and/or assumption of the risk. Plaintiff' damages, if any, are not of the nature and extent as alleged in the Complaint. s Plaintiff' damages, if any, may have been caused in whole or in part by third parties over s which the Denver Defendants have no control or right of control. Plaintiff' claims are such s that the Denver Defendants are entitled to their costs and attorneys' fees.3 4. STIPULATIONS Agreed Stipulations: 1. Plaintiff Lillian Barton is a resident of Evergreen, Colorado.4

Denver Defendants'Proposed Stipulations: 1. On February 24, 2002, Plaintiff was handcuffed and placed in a patrol car.

While handcuffed and in a patrol car, Plaintiff was under arrest. 2. Defendants Richard Blea, Nick Sagan, and Josh Vasconcellos were employees

of the City and County and Denver at all times relevant to this matter. 3. On February 24, 2002, Plaintiff was issued a General Sessions Summons &

Complaint for violation of Municipal Ordinance 38-31 for interfering with police authority.

Denver Defendants have omitted from the proposed Final Pre-Trial Order Plaintiff' responses to their s defenses as such as statement is not required in a pretrial order. 4 Denver Defendants do not agree to the remaining "stipulations" filed by Plaintiff with her proposed Final PreTrial Order.

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5. PENDING MOTIONS Motions pending before the Court include: ? Defendants' Objection to Recommendation of United States Magistrate Judge Pursuant to Fed.R.Civ.P. 72(b) filed on April 4, 2006; ? ? Plaintiff' Objections to Court Recommendations filed on April 4, 2006; s Plaintiff' Objections to Recommendations of United States Magistrate Judge Filed s on April 10, 2006; and ? Defendants' Response to Plaintiff' Objection to Recommendation of United States s Magistrate Judge Pursuant to Fed.R.Civ.P. 72(b) filed on May 5, 2006. 6. WITNESSES a. List the nonexpert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); Plaintiff: (a) Lawrence D. Gomba, 97 Soda Creek Road, Evergreen, CO; Telephone: (303) 674-7214. Purpose of testimony: To reveal nature and cause of spill, and Lillian Barton' involvement in same; and to reveal during testimony what was s discussed when the Fire Dept. arrived at the scene of the incident concerning the existence of a "hazardous waste release, and to give evidence that Officer Blea never inquired of the Fire Dept. or voiced any concerns of a hazardous waste spill during the conversation among L.D. Gomba, Fire Officer Southern and Officer Blea.

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(b)

Fire Dept. Officer George A. Southern of the Denver Fire

Dept. Apparatus 9 Unit: business address only: Denver fire Dept., Station 12, 745 W. Colfax Avenue, Denver, CO, Business Phone: 720-913-0473. Purpose of testimony: What was relayed to Officer Blea on the day of the incident, February 24, 2002 and whether a hazardous substance release had ever been discussed during the thirty (30) second conversation among George A. Southern, Officer Blea and Mr. Gomba. To assert whether the HAZ MAT UNIT NO. 7 had ever been called to determine whether a probable HAZ MAT RELEASE had occurred. (c) Tahanni Castaneda, 549 Galapago St., Denver, CO, Phone

(303) 629-554)(sic). Purpose of testimony: To assert what she had told the Officers prior to their interrogation of Lillian Barton. To testify whether she was the employee interviewed during the Public Safety Review Commission' Investigation. In s addition, to truthfully testify to the actions of Lillian Barton during her interrogations and subsequent arrest at the Phillip' 66 station. s (d) Roxanne D. Baca, PSRC Chair, known work address: Public

Safety Review Commission of the City and County of Denver; Wellington Webb Bldg., Denver, CO

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Purpose of testimony: To assert the names of the employees of the Phillips 66 Station who were mentioned in her letter of March 29, 2004, and who participated in the investigation and what they revealed to her or other parties of SRC investigation concerning what the employees of the Phillip' s 66 station had revealed to the Police Officers prior to the arrest of Lillian Barton. Denver Defendants: (a) Richard Blea, Denver Police Department, 1331 Cherokee Street, Room 504, Denver, Colorado 80204; Telephone No.: (720) 913-6013. Officer Blea was involved in the investigation leading to Plaintiff' arrest and will be called to testify s regarding the allegations in Plaintiff' Complaint and Jury s Demand, specifically, but not limited to, the facts and information relied upon to support the probable cause for Plaintiff' arrest and citation. s (b) Nick Sagan, Denver Police Department, 1331 Cherokee Street, Room 504, Denver, Colorado 80204; Telephone No.: (720) 913-6013. Officer Blea was involved in the investigation

leading to Plaintiff' arrest and will be called to testify s regarding the allegations in Plaintiff' Complaint, specifically, s but not limited to, the facts and information relied upon to support the probable cause for Plaintiff' arrest and citation. s

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(c)

Josh Vasconcellos, Denver Police Department, 1331 Cherokee Street, Room 504, Denver, Colorado 80204; Telephone No.: (720) 913-6013. Officer Blea was involved in the investigation leading to Plaintiff' arrest and will be called to testify s regarding the allegations in Plaintiff' Consolidated Complaint s and Jury Demand, specifically, but not limited to, the facts and information relied upon to support the probable cause for Plaintiff' arrest and citation. s

(d)

Tahnee Castaneda, 549 Galapago, Denver, Colorado 80204; Telephone No. (303) 623-0628. Ms. Castaneda may be called to testify regarding observations that she made on February 24, 2002 during Plaintiff' encounter with the Denver Defendants. s

(2)

Witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)): Plaintiff: See above. Denver Defendants: (a) Chris Ramsey, address and telephone number unknown. Mr. Ramsey will be called to testify regarding his role in the prosecution of Plaintiff, his opinions on the investigation conducted by the Denver Defendants, as well as his decision to pursue such charge.

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(b)

Vivian Cortez, 432 Gallapegos, Denver, Colorado 80204; Telephone No. (303) 623-0944. Ms. Cortez may be called to testify regarding observations that she made on February 24, 2002 during Plaintiff' encounter with the Denver Defendants. s

(c)

George Southern (Denver Fire Department), 745 W. Colfax Avenue, Denver, CO 80204; Telephone No. (720) 913-3473. Mr. Southern may be called to testify regarding observations that he made on February 24, 2002 while responding to the subject spill.

(d)

Rudy Sandoval, Denver Police Department, 1331 Cherokee Street, Room 504, Denver, Colorado 80204; Telephone No.: (720) 913-6013. Officer Sandoval may be called to testify regarding the internal affairs investigation that was conducted surrounding the subject incident and the results thereof.

(e) (f) (3)

Any witness needed for impeachment or rebuttal purposes. Any witness endorsed by Plaintiff.

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. See Fed. R. Civ. P. 26(a)(3)(B). Plaintiff: None.

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Denver Defendants: None. b. List the expert witnesses to be called by each party. List separately: (1) (2) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and (3) 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. See Fed. R. Civ. P. 26(a)(3)(B). Plaintiff: None. Denver Defendants: None. 7. EXHIBITS a. (1) (2) b. Plaintiff(s): See, Joint Exhibit List attached hereto. Defendant(s): See, Joint Exhibit List attached hereto.

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.

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8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES Denver Defendants request a filing deadline for motions in limine. 10. SETTLEMENT a. Counsel for the parties and any pro se party met by telephone on May 23,

2006, to discuss in good faith the settlement of the case. b. The participants in the settlement conference, included counsel for the Denver

Defendants and any pro se party. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party (do) (do not) intend to hold future

settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there is little possibility of settlement. f. Currently no Settlement Conference before the Magistrate Judge has been set. However, the Denver Defendants are amenable to, and request, a Settlement Conference before a Magistrate Judge. g. Per the ADR requirement of D.C.COLO.LCivR.16.6, the Denver Defendants restate their request for a settlement conference before a Magistrate Judge. 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.

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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. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. Trial is to a jury. Trial is estimated to be four (4) days in duration. Trial is to be held at the Alfred A. Araj U.S. Courthouse, 901, 19th Street, A602, Denver, Colorado 80294-3589.

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DATED this _____ day of _____________ 200__.

BY THE COURT:

_______________________________________ United States Magistrate Judge Patricia A. Coan

APPROVED:

Lillian Barton 97 Soda Creek Road Evergreen, CO 80439 Telephone No.: (303) 674-7214 303 Plaintiff, Pro Se

Sonja S. McKenzie Brett A. McDaniel Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone No.: (303) 320-0509 Facsimile: (303) 320-0210 e-mails: [email protected] [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of May, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' PROPOSED FINAL PRE-TRIAL ORDER with the Court via CM/ECF system and served via the U.S. mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Road Evergreen, CO 80439 John Eckhardt Denver City Attorney' Office s 201 West Colfax Avenue - Dept 1108 Denver, Colorado 80202

s/ Kathleen Bertz Kathleen Bertz E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

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