Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 189

Filed 10/13/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2633-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 189

Filed 10/13/2005

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______________________________________________________________________________ SUPPLEMENTAL REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ______________________________________________________________________________ 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 Motion for Partial Summary Judgment ("Defendants' Motion") hereby supplement their Reply to Plaintiff Lillian Barton's Supplemental Response and Objections to Defendants' Motion for Partial Summary Judgment Dated August 15th 2005 ("Plaintiff's Supplemental Response"), and state as follows: ARGUMENT As previously stated, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, she will be required to "go beyond the pleadings and `by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548 (1986), citing Fed.R.Civ.P. 56(e). As with Plaintiff's previous

Response, she has failed to establish the existence of material fact beyond the pleadings that would preclude summary judgment.

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In Plaintiff's Supplemental Response, she offers little substance in response to Defendants' arguments in support of their motion. Instead, Plaintiff simply submits that her lengthy "corrections" to her deposition testimony are sufficient in and of themselves to preclude summary judgment.1 See, Plaintiff's Supplemental Response at p. 2. For this proposition, Plaintiff offers no legal support. Moreover, Plaintiff fails to cite any portion within those "twenty-nine pages and 175 lines of corrections," that materially changes the portions of her deposition testimony referenced in support of Defendants' Motion. See, Id. Likewise, Plaintiff continues to avoid addressing those exhibits, in addition to her deposition testimony, proffered by Defendants in support of their Motion. Accordingly, Plaintiff has effectively conceded Defendants' arguments in support of their Motion and has failed to establish the existence of any material fact(s) that "show a genuine issue for trial." See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548 (1986). As such, and in light of those matters previously tendered for the Court's consideration, Defendants reassert the propriety of granting partial summary judgment in this matter. CONCLUSION For the reasons set forth herein and those pleadings previously filed in support of Defendants' Motion for Partial Summary Judgment, this Court should grant Defendants' requested relief of partial summary judgment against Plaintiff pursuant to Fed.R.Civ.P. 56.

For the Court's review and in response to Plaintiff's arguments surrounding the transcription of her deposition, Defendant's proffer the Certificate of Ms. Claudia R. Booten, RPR: [Exhibit D]

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

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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] [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 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of October, 2005, I electronically filed a true and correct copy of the above and foregoing REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 s/ Ronda Plock Ronda Plock E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

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