Free Response to Objection to Report and Recommendation - District Court of Colorado - Colorado

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 1 of 10

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.

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 2 of 10

______________________________________________________________________________ RESPONSE TO PLAINTIFF' OBJECTION TO RECOMMENDATION OF UNITED S STATES MAGISTRATE JUDGE PURSUANT TO FED.R.CIV.P. 72(b) ______________________________________________________________________________ Defendants, the CITY AND COUNTY OF DENVER, OFFICER RICHARD BLEA (incorrectly designated as "Bley"), OFFICER NICK SAGAN (incorrectly designated as "Sagen"), OFFICER JOSH VASCONCELLOS, MAYOR JOHN HICKENLOOPER, WELLINGTON WEBB, GERALD R. WHITMAN, RUDY SANDOVAL, J. WALLACE WORTHAM, JR. and CHRIS RAMSEY (hereinafter "Defendants"), by their attorneys, SONJA S. McKENZIE and BRETT A. McDANIEL of the law firm of SENTER GOLDFARB & RICE, L.L.C., pursuant to Fed.R.Civ.P. 72(b), hereby respond to Plaintiff's Objection to Recommendation of United States Magistrate Judge (hereinafter "Plaintiff' s Objection") and request that the recommendation of March 21, 2006 be affirmed, save for those issues previously outlined in Defendants' Objection to Recommendation of United States Magistrate Judge Pursuant to Fed.R.Civ.P. 72(b) dated April 4, 2006. IN SUPPORT THEREOF, Defendants state the following: 1. In making her recommendation for dismissal of the applicable claims, the

Magistrate Judge was fully apprised of the basis to make such a determination. Prior to entry of the Magistrate Judge' Recommendation, Defendants' Motion for Partial Summary Judgment s (hereinafter "Defendants'Motion") had been briefed in its entirety. 2. However, in response to Defendants' Motion, Plaintiff Barton wholly failed to Indeed, Plaintiff presented no properly

rebut the facts and law presented by Defendants.

documented factual rebuttal or legal arguments to establish Defendants were not entitled to the

2

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 3 of 10

relief sought. Virtually the entirety of Plaintiff' response brief consisted only of her general s objection to Defendants' use of uncertified deposition testimony and use of "four-to-a-page" deposition materials as an exhibit. [See, Plaintiff' Response at p. 1 through 2].1 s Moreover, despite Plaintiff' failure to rebut Defendants' undisputed facts with s competent evidence, proper or improper, the factual assertions made by Defendants as undisputed, the Magistrate Judge in an abundance of fairness to Plaintiff, noted: "even though Plaintiff has declined to respond to the merits, I nonetheless must determine whether the evidence of record establishes that Defendants are entitled to judgment as a matter of law on those of Plaintiff' claims which Defendants s address in their motion." See, Fed.R.Civ.P. 56(c); Murray v. City of Tahlequah, Oklahoma, 312 F3d. 1196, 1200 (Tenth Circuit 2002) (holding that pro se plaintiff' failure to file timely response to defendant' summary judgment motion s s constituted plaintiff' concession of facts asserted by defendant and properly s supported in the motion for summary judgment, but ` not relieve the court of did its duty to make the specific determinations required by Fed.R.Civ.P. 56(c).' "(emphasis added). In light of the Court' reliance upon Fed.R.Civ.P. 56(c), Murray 312 F3d. at 1200, and s the pleadings filed, Plaintiff has not only conceded those facts proffered by Defendants as undisputed, but also those arguments made in support of their motion. [See, Recommendation at p. 9]. As such, while Plaintiff has attempted to introduce a number of facts which she asserts to be in dispute throughout her forty (40) pages of objections, Plaintiff' arguments and averments s are untimely. To permit Plaintiff to reargue Defendants'Motion would be unfair. As previously indicated, Plaintiff has submitted forty (40) pages of objections to the Magistrate Judge' Recommendation. However, a large majority of Plaintiff' arguments and s s

1

As the dispositive motion deadline of August 15, 2005 preceded the full time period for review and signature, Defendants were required to submit those relevant portions of Plaintiff' deposition transcript unsigned. While s Plaintiff contested Defendants' use of uncertified deposition testimony, she failed to reference any citations to her deposition which were not substantively accurate. [See also, Recommendation at p. 8, 9].

3

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 4 of 10

averments are either repetitive, irrelevant, or unintelligible. This notwithstanding, Defendants further respond as follows: a. Pages 1 through 8 of Plaintiff' Objection offer a lengthy recitation of s

Plaintiff' version of events on the date in question (and thereafter) which she failed to s proffer for the Magistrate Judge' consideration in ruling on Defendants' Motion. s Accordingly, she has conceded those facts as recited by Defendants. See, e.g. Murray, 312 F3d. at 1200. Additionally, Plaintiff reiterates her argument that "uncertified"

deposition testimony was utilized in support of Defendants'Motion. However, Plaintiff fails to address the Magistrate Judge' finding that despite s legal authority to support her position that Plaintiff' "does not claim that any of the s testimony recorded was inaccurate, nor has (she) since advised the Court of any inaccuracies." [See, Recommendation at p. 9]. Accordingly, the Magistrate Judge' s reliance upon the deposition transcript proffered by Defendants in support of their motion was appropriate. b. Pages 9 through 12 of Plaintiff' Objection contain the irrelevant argument s

that it was error for the Court to permit discovery to continue in light of Defendants' affirmative defense of qualified and/or absolute immunity. Plaintiff does not have a right to request a stay of discovery due to the assertion of this defense. Moreover, to the extent Plaintiff argues that Defendants should be denied immunity as a matter of law, Plaintiff is making an untimely motion for summary judgment.2

2

Notably, Plaintiff continues to assert that the first detention was an arrest and should be assessed on that basis. This argument is in accord with Defendants' Objection to the Magistrate Judge' Recommendation, in which she s ruled that the first detention of Plaintiff could be categorized as either an investigatory stop or an arrest. Plaintiff has

4

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 5 of 10

c.

Pages 11 through 12 of Plaintiff' Objection, are illustrative of her s

apparent misunderstanding of the Magistrate Judge' Recommendation regarding the s nature of her detentions. The Magistrate Judge specifically held that the nature of

Plaintiff' detentions and the lawfulness thereof are questions of fact for the jury. Indeed, s the Magistrate Judge did not rule on either the nature of the detentions or their legality. Despite Defendants' objections to the Magistrate Judge' analysis under multiple s scenarios, including an investigatory stop and an arrest, the Magistrate Judge' decision s not to make a recommendation on this ultimate issue is clear. [See, Recommendation at p. 11]. Accordingly, Plaintiff' objections are without merit. s d. Additionally, in pages 11 through 12 of Plaintiffs' Objection, Plaintiff

argues that the "willful and wanton" exception of the Colorado Governmental Immunity Act ("CGIA") precludes the Court' determination of qualified immunity issues. Plaintiff s misapprehends the applicability of the CGIA to her §1983 claims, as the CGIA only applies to state tort claims. Where it is undisputed that Defendants Wortham and Ramsey were acting within the scope of their prosecutorial duties, they are immune from liability. [See,

Recommendation at p. 32, citing Stepanek v. Delta County, 940 P. 2d 364, 368 (Colo. 1997)]. Furthermore, the Magistrate Judge correctly recognized the absence of competent evidence in the record to illustrate Defendants Whitman or Sandoval personally

consistently contended that the first detention was an arrest from the initial pleading stage of this case. Therefore, by Plaintiff' own admission, Defendants'are entitled to qualified immunity on Plaintiff' claim of excessive force. s s

5

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 6 of 10

participated in prosecuting Plaintiff, or that Webb, Whitman or Sandoval were personally involved in the alleged misconduct of February 24, 2002. Recommendation at p. 32, citing Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)]. e. Plaintiff also attributes error in the Court' dismissal of her §1983 claim s [See,

for malicious prosecution against Defendants Wortham and Ramsey (although Plaintiff did not plead such claim against Ramsey). Plaintiff' contention that the "issue" is not s the initiation of charges by these Defendants, but the maintaining of such charges, is largely irrelevant to the question of prosecutorial immunity. [See, Plaintiff' Objection at s p. 28, 34]. Instead, and as properly noted by the Magistrate Judge, "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. [See, Recommendation at p. 27, citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (emphasis added)]. f. Moreover, Plaintiff contends Defendants were improperly afforded

qualified immunity by the Magistrate Judge on her excessive force claim arising from the second detention. However, Plaintiff has again failed to offer any competent evidence supporting this argument. Where a non-moving party fails to make a counter-showing with respect to an element for which she bears the burden of proof, the moving party is entitled to judgment as a matter of law. Small v. Weekly, 749 F.Supp. 1952, 1059 (D. Colo. 1990). Notwithstanding Plaintiff' failure to timely make her argument, she still fails to s illustrate that Defendants actions were in dereliction of clearly established law. See,

6

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 7 of 10

Saucier v. Katz, 533 U.S. 194, 201-202 (2001). As noted by the Magistrate Judge, physically restraining Plaintiff while Defendant Blea searched Plaintiff' purse for her s driver' license did not violate clearly established law, in either the context of an arrest or s investigatory stop. [See, Recommendation at 21, citing Terry v. Ohio, 392 U.S. 1, 7 (1968)]. Indeed, a police officer may grab an individual' arm during the course of a s lawful investigatory stop without elevating a Terry stop to an arrest that must be justified by probable cause. See, id.3 g. As it relates to the malicious prosecution analyses, Plaintiff objects to the

prima facie elements set forth by the Magistrate Judge. This argument ignores Colorado case law spanning fifty (50) years as recently enunciated in Thompson v. Maryland Cas. Co., 84 P.3d 496, 503 (Colo. 2004). Instead, Plaintiff simply cites to Black' Law s Dictionary and the Restatement (2nd) of Torts, which are not binding authority. Therefore, Plaintiff' arguments fail. s Moreover, Plaintiffs Objection of page 23 that the Magistrate Judge improperly used the Fourth Amendment as the proper analytical framework for her malicious prosecution claim under 42 U.S.C. § 1983 is without merit. As stated by the Magistrate Judge, the law is clear that "malicious criminal prosecution, if actionable in constitutional law, is governed by the Fourth Amendment rather than the Fourteenth Amendment Substantive Due Process Clause. [See, Recommendation at 22, citing Wolford v. Lasater, 78 F.3d 484, 489-490 (10th Cir. 1996)(citing Albright v. Oliver, 510 U.S. 266 (1994))].
3

Because Plaintiff has reiterated numerous arguments, Defendants adopt by reference herein their pleadings in support of Defendants' Motion for Summary Judgment and Objection to Magistrate Judge' Recommendation s Pursuant to Fed.R.Civ.P. 72(b). To the extent the Court finds substantive certain matters which are not addressed herein, Defendants cite the Court to those referenced pleadings pursuant to Fed.R.Civ.P. 10(c).

7

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 8 of 10

h.

Additionally, Plaintiff objects to the Magistrate Judge' recommendation s

that Plaintiff' claim of malicious prosecution against Defendant Vasconcellos be s dismissed. [See, Plaintiff' Objection at p. 27]. As previously stated, Plaintiff made no s such objection at a time when it would have been appropriate to have done so. Accordingly, the Magistrate Judge' Ruling on the record before her was, and continues s to be, appropriate. Moreover, Plaintiff still offers no evidence from which a jury could find Defendant Vasconcellos made any false statements in support of the criminal citation issued to her. [See, Recommendation at 27, citing Barton Deposition ("Exhibit A"), p. 201]. Indeed, Plaintiff testified, "I don' think that Vasconcellos had anything to do with t the false reports because his name wasn' on anything that I know of." [See, Exhibit A, t p. 201, ll. 4-18]. Thus, Defendant Vasconcellos is properly entitled to qualified immunity on this claim. See, Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004). i. Plaintiff also contends the Magistrate Judge' Recommendation that any s

alleged constitutional deprivation was not representative of an official policy or custom of Defendants in their official capacity, is in error. [See, Plaintiff' Objections at p. 29]. s In response to the absence of evidence to establish such custom, policy, or personal participation, Plaintiff cites to the Court' denial of her motion to compel admissions. s [See, id.]. This is not competent evidence under Fed.R.Civ.P. 56(c) to defeat a motion for summary judgment and does not constitute error on the part of the Magistrate Judge in making her Recommendation on the record presented. [See, e.g., Recommendation at p. 29-31].

8

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 9 of 10

Indeed, the record is devoid of evidence to support Plaintiff' claim. s

For

example, Plaintiff asserts that her claims against Defendants Whitman and Sandoval are based on their own "vicarious liability" for the conduct of their subordinate officers. [See, Plaintiff' Objections at p. 37]. Vicarious liability is not a proper legal basis for imposing s liability on Defendants Whitman and Sandoval. Thus, Magistrate Judge' s

recommendation of dismissal was proper. See, Camfield v. City of Oklahoma City, 248 F.3d 1214, 1229 (10th Cir. 2001) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).4 WHEREFORE, Defendants respectfully request that Plaintiff' Objections to the s Magistrate Judge' Recommendation of March 21, 2006 be overruled in their entirety and the s Magistrate Judge' Recommendation be upheld, save for those objections specifically briefed in s Defendants Objection to Magistrate Judge' Recommendation Pursuant to Fed.R.Civ.P. 72(b) s filed on April 4, 2006.

4

Plaintiff' objection to dismissal of her claims against various Defendants in their official capacity is difficult to s reconcile with her apparent concession of the propriety of the Magistrate Judge' finding that because "Denver is a s named defendant, the official capacity claims against the individual defendants are duplicative and should be dismissed." [See, Recommendation at p. 29].

9

Case 1:03-cv-02633-PSF-PAC

Document 220

Filed 05/05/2006

Page 10 of 10

Respectfully submitted,

s/ Sonja S. McKenzie Sonja S. McKenzie

s/ Brett A. McDaniel Brett A. McDaniel Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mails: [email protected] [email protected] Attorneys for Defendants Gerald Whitman, City and County of Denver, Officer Richard Blea, Officer Nick Sagan, Chris Ramsey, Mayor John Hickenlooper, Rudy Sandoval, Wellington Webb, J. Wallace Wortham, Jr. and Officer Josh Vasconcellos CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 4th day of May, 2006, I electronically filed a true and correct copy of the above and foregoing RESPONSE TO PLAINTIFF' OBJECTION TO S RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO FED.R.CIV.P. 72(b) 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

10
00220461