Free Objection to Report and Recommendations - 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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______________________________________________________________________________ OBJECTION TO RECOMMENDATION OF UNITED 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, THOMAS S. RICE and BRETT A. McDANIEL of the law firm of SENTER GOLDFARB & RICE, L.L.C., and in support of their Objection to Recommendation of United States Magistrate Judge ("Recommendation") Pursuant to Fed.R.Civ.P. 72(b) hereby state as follows: INTRODUCTION Defendants filed their Motion for Partial Summary Judgment (hereinafter "Defendants' Motion) on August 15, 2005 requesting dismissal of Plaintiffs'claims for illegal use of excessive force under the Fourth Amendment to the United States Constitution against Defendants Nick Sagan (hereinafter "Sagan"), Richard Blea (hereinafter "Blea") and Josh Vasconcellos

(hereinafter "Vasconcellos") brought pursuant to 42 U.S.C. § 1983, and Plaintiff' claim for s malicious prosecution against Defendants Sagan, Blea, Vasconcellos, J. Wallace Wortham, Jr. (hereinafter "Wortham"), Rudy Sandoval (hereinafter "Sandoval") and Gerald Whitman (hereinafter "Whitman") brought pursuant to 42 U.S.C. § 1983, among other matters.1 2 Plaintiff
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Pursuant to Fed.R.Civ.P. 10(c), Defendants adopt by reference their Motion for Partial Summary Judgment, Brief in Support of Motion for Summary Judgment, and Reply Brief in Support of Motion for Partial Summary Judgment as if fully set forth herein. 2 For the Court' reference, the general facts of this case are that on February 24, 2002, Plaintiff was contacted via s 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

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filed her Response to Defendants' Motion on September 1, 2005 in which she did not dispute any factual allegations or legal arguments proffered by Defendants in support of their Motion.3 This notwithstanding, Magistrate Judge Coan has found the actions of the subject officers are properly divided into two distinct seizures. As to the first seizure, she recommends there are genuine issues of material fact to preclude summary judgment on Plaintiff' claim of excessive s force. Specifically, Magistrate Judge Coan has found the character of the detention as an arrest or investigatory stop is a question of fact to be determined by the jury. Should the jury find this detention to be an investigatory stop, the Magistrate Judge recommends Plaintiff' claim of s excessive force in violation of the Fourth Amendment may properly be considered.

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 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 Offiers 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' business and that she was not responsible as she was only there to pick s 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. Mr. Gomba was issued a citation for Unlawful Dumping in violation of Municipal Ordinance 48-44. The charge against Plaintiff was eventually dismissed by Denver County Court Judge Mary Celeste. Similarly, the charge against Gomba was also dismissed.
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Instead, Plaintiff disputed only Defendants' use of her uncertified "four to a page" deposition transcript, as opposed to the original copy, in support of their Motion. However, as the deadline for filing dispositive motions preceded Plaintiff' time period for review, signature, and certification Defendants were required to file those s relevant portions of her transcript unsigned. As noted by the Magistrate Judge in her Recommendation, Plaintiff "(did) not claim that any of the testimony recorded was inaccurate."

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Likewise, Magistrate Judge Coan has recommended that summary judgment on Plaintiff' claim against Blea and Sagan for malicious prosecution in violation of the Fourth s Amendment should be denied. In support of her finding, Magistrate Judge Coan states material issues of fact remain as to the veracity of statements made by Blea and Sagan in support of the charge against Plaintiff. As to each of the above findings, Defendants object and respectfully request this Court review the Magistrate Judge' Recommendations. Addressed respectively below, Defendants s state: ARGUMENT I. PLAINTIFF' CLAIM OF EXCESSIVE FORCE IN VIOLATION OF THE S FOURTH AMENDMENT AGAINST DEFENDANTS BLEA, SAGAN, AND VASCONCELLOS A. First seizure of Plaintiff constitutes an arrest.

In her Recommendation, Magistrate Judge Coan recommends there are genuine issues of material fact to preclude summary judgment on Plaintiff' claim of excessive force. Specifically, s Magistrate Judge Coan has found the character of the detention as an arrest or investigatory stop is a question of fact to be determined by the jury. [See, Recommendation at p. 11]. However, as she notes "speculation, supposition, and unsupported factual allegations will not establish an issue of material fact necessitating trial. [See, Recommendation at p. 7, citing Handy v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993)]. Indeed, Plaintiff has made no allegation other than the first seizure constituted an arrest and has consistently maintained that position throughout discovery. [See, Consolidated

Complaint and Jury Demand, ¶¶ 36, 39, 68; see also, e.g., Exhibit A to Defendants Motion (deposition of Lillian Barton), p. 137, l. 11; p. 140, l. 23; p. 165, l. 7; p. 198, ll. 4-25; p. 228, l.

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16; p. 239, l. 18].

Plaintiff likewise failed to make this argument in Response to Defendants' See,

Motion and would have been appropriately estopped from doing so had she tried.

Fed.R.Civ.P. 15(a). Moreover, as set forth in the Scheduling Order approved by Magistrate Judge Coan on March 3, 2004, "Plaintiff believes (it to be) undisputed (that) on February 24, 2002, plaintiff was arrested by Officers Richard Blea, Nick Sagan, Josh Vasconcellos." [See, Section III of March 3, 2004 Scheduling Order at ¶ 1]. Indeed, the clarity of Plaintiff' allegation/stipulation of arrest and Defendants' justified s reliance thereupon are best exemplified through the introductory paragraph to Defendants' Statement of Undisputed Facts in their Brief in Support of Motion for Partial Summary Judgment (hereinafter "Defendants' Brief"). Specifically, Defendants state, "with regard to those facts set forth below pertaining to Plaintiff' arrest on February 24, 2002, while Defendants dispute the s majority of Plaintiffs' [sic] version of those facts, Defendants' accept Plaintiffs' [sic] version of those facts as undisputed for purposes of this Motion only." [See, Defendants' Brief at p. 5](emphasis added). Plaintiff offered no dispute to this prefatory and fundamental factual assertion. As noted by the Magistrate Judge, Plaintiff' failure to respond to Defendants' Motion constituted s "plaintiff' confession of facts asserted by defendants and properly supported in the summary s judgment motion." [See, Recommendation at p. 9, citing, Murray v. City of Tahlequah,

Oklahoma, 312 F.3d 1196, 1200 (10th Cir. 2002)]. Accordingly, Plaintiff has confessed, if not consistently alleged, that the first seizure constituted an arrest. See, e.g., Murray, 312 F.3d at 1200.4

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Indeed, the Magistrate Judge notes in her Recommendation that "Plaintiff claims that the defendant police officers used excessive force against her when she was twice ` arrested' on February 24, 2002." See, Recommendation at p. 10.

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Likewise, despite the precept that "the allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers," the Court must remain cognizant of Plaintiff' representation by able counsel, Mr. Brice A. Tondre, Esq. throughout a substantial s portion of litigation in this matter, including the initial pleading and scheduling order aspects of the case. See, Haines v. Kerner, 404 U.S. 519, 520 (1971)(emphasis added). Accordingly and in addition to those other matters set forth herein, Plaintiff must abide by her well-pled, judicially admitted, and consistently maintained allegation of an "arrest," in the full legal sense of the word. See, id.5 As such, it is not for the Court to speculate, suppose facts, or create issues not raised by Plaintiff in her pleadings, discovery responses, or Response to Defendants' Motion, i.e., the existence of an investigatory stop. See, Handy, 996 F. 2d at 1068. Where Plaintiff has

consistently maintained, if not conceded, the first detention to have been an arrest, the force utilized in effectuating it has already been determined reasonable.6 Therefore, Plaintiffs' claim of excessive force should properly be dismissed in its entirety on the basis of qualified immunity. See, e.g., Graham v. Connor, 490 U.S. 386, 396-397 (1989). B. Force utilized in effectuating investigatory detention was objectively reasonable.

Alternatively, as Magistrate Coan has found that a jury may construe the first seizure to have been an investigatory stop under Terry v. Ohio, 392 U.S. 1, 121 (1968), she likewise recommends that Blea, Sagan, and Vasconcellos be denied qualified immunity as the force utilized to effectuate Plaintiff' detention may be deemed unreasonable, i.e. "removing Plaintiff s
5

As noted by the Magistrate Judge, there are three types of police/citizen encounters: consensual, investigative stops, and arrests. [See, Recommendation at p. 11]. 6 Provided a jury finds the Plaintiff' arrest to have been lawful, "Plaintiff cannot succeed on her excessive force s claim because existing law would not have placed he Defendants on notice that their conduct was unreasonable under the circumstances." [See, Recommendation at p. 16, citing Saucier v. Katz, 533 U.S. 194, 502 (2001)].

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from her car, handcuffing her, and placing her in the back of a police car."

[See,

Recommendation at 19, citing Cortez v. McCauley, 438 F.3d 980, 999-1000 (10th Cir. 2006)]. As noted by the Cortez Court however, in the context of an investigatory stop, officers may "handcuff the citizen and place him the back seat of a locked squad car." See, Cortez, 438 U.S. at *40, citing United States v. Perdue, 8 F.3d 1455, 1463. However, as there was no evidence to suggest Plaintiff Cortez "resisted seizure or attempted to evade seizure by flight," the officer' use of force in effectuating his detention may be determined unreasonable. See, id. at s *42 (emphasis added). As such qualified immunity, in the context of an investigatory stop, was denied. See, id. at *45. Assuming the propriety of the Cortez Court' decision, the facts of this matter are readily s distinguishable. As conceded by Plaintiff, she had "initially refused to provide the officers with her identification and stated ` don' have to give you any identification." [See, Section III of I t Defendants Brief at ¶ 9]. Moreover, she then told Blea "she was going home and proceeded to go into her car and attempt to start it." [See, Section III of Defendants Brief at ¶ 10]. Accordingly, unlike the circumstances of Cortez, facts are not in dispute that Plaintiff not only resisted seizure, but attempted to evade seizure by flight. [See, Section III of Defendants Brief at ¶¶ 9-10]. Likewise, at the time of the incident, there was no clearly established law that under such circumstances, Blea, Sagan, and Vasconcellos could not reasonably "handcuff the citizen and place (her) in the back seat of a locked squad car." See, e.g. Perdue, 8 F.3d at 1463; Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470 (2005). As such, and assuming that the first detention may properly be considered an investigatory stop, Blea, Sagan, and Vasconcellos are entitled to

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qualified immunity on Plaintiff' claim of excessive force. s

See, e.g., Graham v. Connor, 490

U.S. 386, 396-397 (1989); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158 (2001). Furthermore, Defendants specifically dispute Cortez' analytical framework that "while the nature of the inquiry (into what constitutes excessive force for purposes of qualified immunity) does not differ... the benchmark for what is reasonable does differ." See, Cortez, 438 F.3d at *28(citation omitted).7 This approach does not conform with Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 1470 (2005). As noted in Muehler, inherent in the right to detain is the authority to use reasonable force to achieve it. See, id., citing Graham, 490 U.S. at 396. 8 Where each form of seizure carries the right to detain, the use of reasonable force in its effectuation is analyzed under the single rubric of Graham, 490 U.S. at 396. To hold otherwise, leads to an illogical conclusion and unworkable standard for officers in the field. Indeed, Cortez and the Magistrate Judge' Recommendation would require an officer confronted with the exact s same level of threat or risk of flight to evaluate differently what amount of force he may use to protect his safety, prevent flight, and control the subject depending upon whether it is an arrest or a detention he is engaged in. Compare, e.g., Graham, 490 U.S. at 396, citing Terry v. Ohio, 392 U.S. at 20-22. Such dichotomy, if permitted, is entirely inconsistent with the inquiry of and protections afforded by qualified immunity. See, id; Mena, 125 S.Ct. at 1465, 1470.

While Perdue is clearly the touchstone of the Cortez Court' opinion, it neither stands for, nor suggests, a s differential standard or analyses of what constitutes proper use of force to effectuate an otherwise lawful detention. See, e.g. Perdue, 8 F.3d at 1463; see also, Cortez, 438 F.3d at *29. Instead, Perdue simply addresses the circumstance of when the investigatory stop, while retaining its character as such, becomes custodial for purposes of respecting a citizen' Miranda rights. See, id. at 1465. s 8 In announcing the analytical framework for determining the reasonability of a detention, the Muehler Court cites to Graham at 386 ("Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop carries with it the right to use some degree of physical coercion or threat thereof to effect it"). See, Muehler, 125 S.Ct. at 1470. Had the Supreme Court intended to create an analyses that varied depending upon the nature of the seizure, this would have been the appropriate time to do so. However, as no such distinction was made, the Supreme Court' intent in maintaining a single analytical framework is clear. See, id. s

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Accordingly, as Defendants' use of force in effectuating an arrest has been determined reasonable, so too must Defendants' use of force in achieving an otherwise lawful investigatory detention. [See, e.g., id.; Muehler, 125 S.Ct. at 1470; see also, Recommendation at p. 16]. As such, Blea, Sagan, and Vasconcellos are further entitled to qualified immunity. II. PLAINTIFF' CLAIM OF MALICIOUS PROSECUTION IN VIOLATION OF S THE FOURTH AMENDMENT AGAINST DEFENDANTS BLEA AND SAGAN A. No genuine issue of material fact exists to challenge the veracity of statements made by Defendants Blea and Sagan in support of their charge against Plaintiff.

Magistrate Judge Coan has recommended that summary judgment on Plaintiff' claim s against Blea and Sagan for malicious prosecution in violation of the Fourth Amendment be denied. In her Recommendation, Magistrate Judge Coan states material issues of fact remain as to the veracity of statements made by Blea and Sagan in support of the charge against Plaintiff. [See, Recommendation at p. 14]. Specifically, Magistrate Judge Coan notes Plaintiff' argument in her deposition and s responses to interrogatories that certain statements by Blea and Sagan are inaccurate. Accordingly, as stated by Magistrate Judge Coan, as Defendants have not specifically challenged Plaintiffs' averments, they are presumed accurate. [See, Recommendation at p. 24]. However, where the statements by Blea and Sagan are precisely the facts upon which Plaintiff was ultimately cited, they have challenged Plaintiffs'version of events from this matter' inception.9 s Second, where the officers swore to this version of events under penalty of perjury, Plaintiffs' simple averment of inaccuracy, coupled with her concession of Defendants' statement
Moreover, simply as a practical matter, Defendants were unable to rebut Plaintiffs' allegations as she failed to cite to them or rely upon them in response to Defendants' Motion. Instead, Defendants were appropriately permitted to rely upon Plaintiffs' clear concession that "no member of the Denver Police Department attempted to exert improper pressure or inappropriately influence the prosecution of charges against Plaintiff" and that "no member of the Denver Police Department made false statements to... (the) City Attorney' Office during Plaintiff' criminal case. s s [See, Section III of Defendants'Brief at ¶¶ 31-33.; see also, Murray, 312 F.3d at 1200].
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of undisputed facts, is wholly insufficient to preclude summary judgment.10 Indeed, Plaintiff presents "no evidence" beyond mere allegation that even suggests Defendants included allegedly false statements, omitted any facts, or knowingly or recklessly disregarded the truth. See, Taylor v. Meacham, 82 F.3d 1556, 1563, 1564 (fn. 9) (10th Cir. 1996). Indeed, as a practical consideration, where malice may be inferred through a lack of probable cause, a criminal suspect' unsurprisingly different version of events would virtually s always preclude qualified immunity in the instance where a Court fails to bind a criminal matter over for trial. [See, Recommendation at p.25]. Without more, such wholesale circumstances are not sufficient to establish willful misrepresentation or negate the protection of qualified immunity. In accord, many federal circuits, including the Tenth Circuit, have held that because a prosecutor initiates charges against the criminal defendant, 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. See, Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996); Taylor, 82 F.3d 1556 (10th Cir. 1996); Reed v. City of Chicago, 77 F.2d 1049 (7th Cir. 1996). The exception being if there is evidence that the police officer exerted pressure or influence over the prosecutor or knowingly made false statements to the prosecutor. See, Reed, supra; Eubanks v. Gerwen, 40 F.2d 1157, 1160 ­ 61 (11th Cir. 1994)(emphasis added). Since Plaintiff has effectively conceded neither Blea nor Sagan attempted to influence the prosecutor or knowingly made false statements to the prosecutor, and the record is further devoid of evidence to the contrary, the Magistrate Judge' Recommendation should be reversed and s Plaintiff' malicious prosecution claim against these defendants should be dismissed as a matter s
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Where the Magistrate Judge has noted the recitation of facts in support of the General Session Summons and Complaint are illegible, a substituted legible copy is provided for the Court' reference. [See, General Session s Summons and Complaint appended hereto as Exhibit A].

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of law. [See, Section III of Defendants' Brief at ¶¶ 31-33; see also, Taylor, 82 F.3d at 15641565]. Without attempting to influence the prosecutor or making false statements in the course of the investigation, Blea and Sagan could not have known that they were violating Plaintiff' s civil rights and, as such, they are clearly entitled to qualified immunity. CONCLUSION For the reasons set forth herein, as well as in Defendants' Motion for Partial Summary Judgment, Memorandum Brief in Support of Motion for Partial Summary Judgment, and Reply Brief in Support of Motion for Partial Summary Judgment, Defendants respectfully request this Court review and reverse the above enumerated Recommendations of United States Magistrate Judge pursuant to Fed.R.Civ.P. 56 and Fed.R.Civ.P. 72(b). Respectfully submitted,

s/ Thomas S. Rice Thomas S. Rice

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-mail: [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 Vasconsillas

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 4th day of April, 2006, I electronically filed a true and correct copy of the above and foregoing OBJECTION TO 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 _________________ Kathleen Bertz Secretary for Brett A. McDaniel

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