Free Brief in Support of Motion - 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-2633-PSF-PAC LILLIAN BARTON , Plaintiff, vs. 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 Case No 04-F-319 (PAC) LILLIAN BARTON, Plaintiff, vs. 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' MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants, the CITY AND COUNTY OF DENVER (hereinafter "the City"), 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 RAMSAY (incorrectly designated as "Ramsey") (hereinafter "Defendants"), by their attorneys, THOMAS S. RICE, ESQ. and SETH A. RIDER, ESQ. of the law firm of SENTER GOLDFARB & RICE, L.L.C., and pursuant to Fed.R.Civ.P. 56, hereby submit their Memorandum Brief in Support of Motion for Partial Summary Judgment as follows: I. STATEMENT OF THE CASE

This case arises out of claims made by Plaintiff, Lillian Barton (hereinafter "Plaintiff"), related to her arrest on February 24, 2002, as well as subsequent events thereafter. Plaintiff's First Claim for Relief appears to be brought pursuant to 42 U.S.C. § 1983 and alleges illegal search, illegal arrest1 and 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"). Plaintiff's Second Claim for Relief is brought pursuant to 42 U.S.C. § 1983 and alleges malicious prosecution against Defendants Sagan, Blea, Vasconcellos, J. Wallace Wortham, Jr. (hereinafter

Due to disputed material facts, this motion does not seek the dismissal of Plaintiff's illegal search and illegal arrest claims.

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"Wortham"), Rudy Sandoval (hereinafter "Sandoval") and Gerald Whitman (hereinafter "Whitman"). Plaintiff's Third Claim for Relief is brought pursuant to 42 U.S.C. § 1983 and alleges an unconstitutional custom and practice against Defendants Webb, Whitman, Wortham, Sandoval and Chris Ramsay (hereinafter "Ramsay"). Plaintiff's Fourth Claim for Relief alleges the common law claim of malicious prosecution and appears to be against Defendants Wortham and Ramsay. Plaintiff's Fifth Claim for Relief alleges the tort claim of intention infliction of emotional damages against Defendants Sagan, Blea, Vasconcellos2, Wortham, Whitman, Sandoval and Ramsay. Plaintiff's Sixth Claim for Relief appears to seek an injunction against the City, Hickenlooper and Whitman.3 Since Defendants recognize that there exists some issues of disputed material fact relating to some of Plaintiff's claims for relief, Defendants do not seek the dismissal of each and every on of the above-referenced claims. Specifically, Defendants seek the dismissal of the following claims for relief pursuant to Fed.R.Civ.P. 56: Plaintiff's First Claim for Relief against Defendants Sagan, Blea and Vasconcellos brought pursuant to 42 U.S.C. § 1983 for illegal use of excessive force; The entirety of Plaintiff's Second Claim for Relief brought pursuant to 42 U.S.C. § 1983 alleging malicious prosecution against Defendants Sagan, Blea, Vasconcellos, Wortham, Sandoval and Whitman; The entirety of Plaintiff's Third Claim for Relief alleging an unconstitutional custom and practice against Defendants Webb, Whitman, Wortham, Sandoval and Ramsay;

Due to disputed material facts, this motion does not seek the dismissal of Plaintiff's intentional infliction of emotional distress as brought against Defendants Blea, Sagan and Vasconcellos. 3 Although unclear, the Sixth Claim for Relief in Plaintiff's Consolidated Complaint and Jury Demand alleges an injunction against Defendant Webb. However, since Defendant Webb is no longer the Mayor of the City and County of Denver, such a request for relief is inappropriate and non-sensical.

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The entirety of Plaintiff's Fourth Claim for Relief alleging the common law claim of malicious prosecution against Defendants Wortham and Ramsay; Plaintiff's Fifth Claim for Relief alleging the tort claim of intention infliction of emotional damages against Defendants Wortham, Whitman, Sandoval and Ramsay; and The entirety of Plaintiff's Sixth Claim for Relief seeking an injunction against Defendants the City, Hickenlooper and Whitman. II. STATEMENT OF FACTS

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 hydroseeding liquid onto the parking lot. Mr. Gomba was eventually able to free his truck and leave the scene prior to Plaintiff's arrival. 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

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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. 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. III. STATEMENT OF UNDISPUTED MATERIAL FACTS

The following facts are established by the pleadings filed in this case, the discovery undertaken in connection with this case, and the affidavits submitted herewith. With regard to those facts set forth below pertaining to Plaintiff's arrest on February 24, 2002, while Defendants dispute the majority of Plaintiffs' version of those facts, Defendants accept Plaintiffs' version of those facts as undisputed for purposes of this Motion only. Although there are, of course, some

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other factual disputes between the parties, the following material, dispositive facts are undisputed: 1. On February 24, 2002, Plaintiff received a telephone call from Lawrence Gomba

requesting her assistance in giving him a ride back home to get a replacement tire. [See, Deposition of Lillian Barton appended hereto as Exhibit A at p. 34, ll. 2-5; p. 36, ll. 14-16; p. 37, ll. 5-21.] 2. Mr. Gomba told Plaintiff that he was at the Phillips 66 gas station on Federal

Boulevard right off of 6th Avenue. [See, Exhibit A at p. 38, ll. 1-17.] 3. ll. 15-18.] 4. Plaintiff observed Mr. Gomba's hydroseeder parked in the rear of the Phillips 66 Plaintiff went down to the Phillips 66 station right away. [See, Exhibit A at p. 42,

parking lot. [See, Exhibit A at p. 54, ll. 22-224.] 5. Plaintiff observed the hydroseeder leaking a fluid onto the parking lot. [See,

Exhibit A at p. 58, ll. 1-23.] 6. The liquid spill had a big green spot on it and was running down the adjacent

street, Short Place. [See, Exhibit A at p. 59, ll. 1-7.] 7. Officers Sagan, Vasconcellos and Blea questioned Plaintiff regarding the spill.

[See, Plaintiff's Updated and Supplemented Responses to Defendants First Set of Interrogatories as of July 29, 2005 appended hereto as Exhibit B at pp. 25-26.] 8. Plaintiff did not specifically know what was in the hydroseeder at the time Officer

Blea questioned her. [See, Exhibit A at p. 101, ll. 21-24.] 9. Plaintiff initially refused to provide the officers with her identification and stated

"I don't have to give you any identification." [See, Exhibit B at p. 26.]

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10.

Plaintiff told Officer Blea she was going home and proceeded to go into her car

and attempt to start it. [See, Exhibit B at p. 27.] 11. Officers Sagan and Vasconcellos removed Plaintiff from her vehicle. [See,

Exhibit A at p. 115, ll. 1-8.] 12. Plaintiff does not recall how she was removed from her vehicle and was not

injured during that process. [See, Exhibit A at p. 115, ll. 6- 17.] 13. Officers Sagan and Vasconcellos pulled Plaintiff's arms to her back and applied

handcuffs. [See, Exhibit B at p. 27.] 14. Plaintiff was pulled by the handcuffs to the patrol car and placed into the back of

the patrol car. [See, Exhibit B at p. 27.] 15. Plaintiff does not believe that the officers intentionally hurt her when they applied

the handcuffs. [See, Exhibit A at p. 131, ll. 16-17.] 16. 17. 18. The officers did not strike Plaintiff at any time. [See, Exhibit A at p. 132, ll. 5-6.] The officers did not kick Plaintiff at any time. [See, Exhibit A at p. 132, ll. 7-8.] Plaintiff was removed from the patrol car and the handcuffs were removed. [See,

Exhibit A at p. 139, ll. 6-11.] 19. Plaintiff believes that she was told she could leave and began walking towards her

car. [See, Exhibit B at pp. 27-28.] 20. On the way to her car, Plaintiff was stopped for a second time by Officer Blea and

asked for identification. [See, Exhibit B at p. 28.] 21. Officers Sagan and Vasconcellos grabbed Plaintiff from the rear, pulled her arms

back and held her while Officer Blea searched through her purse for her driver's license. [See, Exhibit B at p. 28.]

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22.

Plaintiff was issued a General Sessions Summons and Complaint for Interference.

[See, Exhibit A at p. 164, ll. 19-24.] 23. Plaintiff does not blame the police officers for any physical or emotional injuries

related to her arrest on February 24, 2002. [See, Exhibit A at p. 164, ll. 4-18.] 24. Plaintiff has no knowledge that Defendant Sandoval knew that the charges made

against her were false. [See, Exhibit A at p. 175, ll. 7-15.] 25. Plaintiff does not think that Officer Vasconcellos had anything to do with making

a false report. [See, Exhibit A at p. 201, ll. 12-22.] 26. Plaintiff has no information that Defendant Sandoval assisted in the prosecution

of her criminal case. [See, Exhibit A at p. 216, ll. 6-8.] 27. Plaintiff has no information that Defendant Whitman assisted in the prosecution

of her criminal case. [See, Exhibit A at p. 218, ll. 5-11.] 28. Plaintiff has no information that Defendant Hickenlooper was involved in

supporting alleged police misconduct in any way. [See, Exhibit A at p. 218, ll. 20-23.] 29. Other than letters written to them after the fact, Plaintiff does not have any

evidence or information supporting the allegation that Defendants Hickenlooper and Webb had personal knowledge or acquiescence into Plaintiff's arrest on February 24, 2002. [See, Exhibit A at p. 220, ll. 14-21.] 30. Plaintiff is not seeking an injunction related to this civil case. [See, Exhibit A at

p. 240, ll. 6-17.] 31. Upon review of the facts and circumstances surrounding Plaintiff's arrest by

members of the Denver Police Department, Assistant City Attorney Chris Ramsay made the

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decision to maintain the charge of Interference with Police Authority against Plaintiff. [See, Affidavit of Chris Ramsay, Esq. appended hereto as Exhibit C at ¶ 3.] 32. No member of the Denver Police Department attempted to exert improper

pressure or inappropriately influence the prosecution of charges against Plaintiff. [See, Exhibit C at ¶ 4.] 33. No member of the Denver Police Department made false statements to Assistant

City Attorney Ramsay or any member of the City and County of Denver's City Attorney's Office during Plaintiff's criminal case. [See, Exhibit C at ¶ 5.] IV. STANDARD OF REVIEW Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). Upon a motion for summary judgment, the moving party bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d. 265 (1986). The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Id. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The non-movant "may not rest upon mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d. 202 (1986), but must "set forth specific facts showing that there is a genuine issue for

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trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc., v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). V. ARGUMENT A. PLAINTIFF'S OFFICIAL CAPACITY CLAIMS MUST BE DISMISSED.

Plaintiff has alleged claims against all Defendants in their "individual and official capacities." The claims against the individual Defendants in their official capacities should be dismissed as a matter of law. Claims brought against individuals in their official capacity are "only another way of pleading an action against an entity of which an officer is an agent." Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)). As such, an official capacity suit is "to be treated as a suit against the entity, and not as a suit against the official personally, `for the real party in interest is the entity.'" Johnson, 85 F.3d at 489 (citing Kentucky, 473 U.S. at 166). Put simply, a suit brought pursuant to § 1983 against a municipality and a suit against a municipal official acting in his or her official capacity are the same. Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998); Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988); Brandon v. Holt, 469 U.S. 464, 471-72, 83 L.Ed.2d 878, 105 S.Ct. 873 (1985). In the present case, since Plaintiff has also named the City as a Defendant, all of her claims against the individual Defendants in their official capacities should be dismissed as a matter of law.

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B.

DEFENDANTS BLEA, SAGAN & VASCONCELLOS ARE ENTITLED TO QUALIFIED IMMUNITY. 1. Concept of Qualified Immunity and Plaintiff's Burden.

The qualified immunity doctrine shields governmental officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity "not only shields a defendant from liability, but is also intended to protect the defendant from the burdens associated with trial." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). "These burdens include distraction of officials from their governmental responsibilities, the inhibition of discretionary decision making, the deterrence of able people from public service, and the disruptive effects of discovery on governmental operations." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). "Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant's conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred." Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). "If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity." Migneault, 158 F.3d at 1140 (citing Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). In order to overcome the defense of qualified immunity, Plaintiff must make a particularized showing that the law is sufficiently clear that the Defendant would have known

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that his conduct was unconstitutional. See, Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992). Although the standard does not require an exact or precise factual correlation between existing law and the circumstances of the case at bar, it does require that the law be reasonably welldeveloped to inform the state official that his conduct would violate the law. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). In order for the law to be sufficiently clear, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In the face of a summary judgment motion, a plaintiff must produce evidence that would allow a trier of fact to find that no reasonable person in the defendant's position would have thought the facts justified the defendant's acts. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001). "If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier, 121 S.Ct. at 2158; (see also, Holland ex rel. Overdorff v. Harrington, 268 F.3d 1178, 1196 (10th Cir. 2001)). For the reasons set forth below, Plaintiff cannot meet either part of her two-part burden with regard to many of her claims against Defendants Blea, Sagan and Vasconcellos and, as such, these Defendants are entitled to qualified immunity.

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2. Plaintiff's Excessive Force Claim.

Plaintiffs First Claim for Relief alleges excessive force against Defendants Blea, Sagan and Vasconcellos. This claim must be analyzed under the reasonableness standard articulated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In Graham, the United States Supreme Court stated the following: The reasonableness of an officer's conduct must be assessed "from the perspective of a reasonable officer on the scene," recognizing the fact that the officer may be "forced to make split-second judgments" under stressful and dangerous conditions .... The Fourth Amendment standard requires inquiry into the factual circumstances of every case; relevant factors include the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest .... Graham, 490 U.S. at 396 ­ 97. The United States Supreme Court has held that "not every push or shove, even if it may later seem unnecessary in the presence of the judge's chambers, violates the Fourth Amendment," Saucier, supra, 533 U.S. at 209, and that not "every instance of use of `unreasonable force' in effecting an arrest constitutes a violation of the Fourth Amendment." City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). De minimis uses of force are not "repugnant to the conscience of mankind" and are therefore not constitutionally prohibited. Goodman v. Town of Golden Beach, 988 F. Supp. 1450, 1457 (S.D. Fla. 1997) (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986)). A plaintiff need not prove significant injury to prevail on an excessive force claim, but must make a showing of some injury. Knight v. Caldwell, 970 F.2d 1430, 1432 ­ 1433 (5th Cir. 1992) (relying upon Hudson v. McMillan, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). Applying these factors to the

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present case, it is clear that Plaintiff cannot establish an excessive force claim against Defendants Blea, Sagan and Vasconcellos. a. Blea did not have physical contact with Plaintiff..

As to Plaintiff's claim of excessive force against Blea, the record is devoid of any evidence establishing that Blea had any physical contact with Plaintiff during the entire course of the incident. Since Blea did not use any force during the course of the incident, Plaintiff cannot establish an excessive force claim and he is therefore entitled to qualified immunity. As such, this claim should be dismissed as a matter of law. b. Sagan & Vasconcellos' use of force was de minimis.

It is undisputed that Sagan's and Vasconcellos' only physical contact with Plaintiff involved removing her from her car, applying handcuffs, placing her into a patrol vehicle and restraining her arms after the handcuffs were removed. [See, Section III of this brief at ¶¶ 11, 13, 14 & 21.] Additionally, Plaintiff does not blame the police officers for any physical or emotional injuries related to her arrest on February 24, 2002. [See, Section III of this brief at ¶ 23.] Relying upon the rationale in Knight, such use of force was de minimis and does not rise to the level of a constitutional violation and Sagan and Vasconcellos are entitled to qualified immunity. c. Law not clearly established.

Plaintiff will be unable to come forward with any case law showing that Blea, Sagan and Vasconcellos either knew or should have known that each was violating Plaintiff's civil rights with regard to the use of force employed during the incident. As such, Plaintiff cannot meet the second part of the two-part qualified immunity analysis and Defendants Blea, Sagan and Vasconcellos are entitled to qualified immunity as outlined above.

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3. § 1983 Malicious Prosecution Claim. Plaintiff's Second Claim for Relief alleges that Officers Blea, Sagan and Vasconcellos maliciously prosecuted Plaintiff in violation of his civil rights. However, 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 v. Meachum, 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). Since the record is devoid of any evidence that Blea, Sagan and Vasconcellos attempted to influence the prosecutor or knowingly made false statements to the prosecutor, Plaintiff's malicious prosecution claim against these defendants should be dismissed as a matter of law. [See, Section III of this brief at ¶¶ 31-33.] Without attempting to influence the prosecutor or making false statements in the course of the investigation, Blea, Sagan and Vasconcellos could not have known that they were violating Plaintiff's civil rights and, as such, they are clearly entitled to qualified immunity. C. PLAINTIFF'S CLAIMS AGAINST DEFENDANTS WORTHAM & RAMSAY MUST BE DISMISSED AS A MATTER OF LAW. 1. Defendants Wortham and Ramsay are entitled to prosecutorial immunity.

Plaintiff's Second Claim for Relief against Defendant Wortham4 for malicious

Though not specifically stated in Plaintiff's Consolidated Complaint and Jury Demand, since Assistant City Attorney Ramsay was the prosecuting attorney for the prosecution of Plaintiff's criminal case, to the extent that Plaintiff brings a claim of malicious prosecution against Defendant Ramsay, he too is entitled to prosecutorial immunity.

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prosecution pursuant to 42 U.S.C. § 1983 must be dismissed as a matter of law. The Supreme Court of the United States has determined that "a prosecutor was absolutely immune from liability under section 1983 for actions taken within the scope of `prosecutorial duties.'" England v. Hendricks, 880 F.2d 281, 285 (10th Cir. 1989)(quoting Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128, 96 S.Ct. 984 (1976)). The Court determined that "[a]bsolute prosecutorial immunity attaches only to those activities `intimately associated with the judicial phase of the criminal process.'" England, 880 F.2d at 285 (quoting Imbler, 424 U.S. at 430-31). Plaintiff's claims against Wortham and Ramsay are made in their capacities as City Attorney and Assistant City Attorney who prosecuted her criminal case. [See, Consolidated Complaint and Jury

Demand at ¶¶ 10, 11.] As such, Defendant Wortham, as the former City Attorney, and Ramsay, as the former Assistant City Attorney, are entitled to prosecutorial immunity for Plaintiff's malicious prosecution claim under § 1983. 2. Common law claim of malicious prosecution must also be dismissed.

Plaintiff's Fourth Claim for Relief which alleges a claim pursuant to the common law for malicious prosecution against Defendants Wortham and Ramsay must be dismissed. Under Colorado law, it is well settled that the elements required in order to establish a malicious prosecution claim under § 1983 are synonymous with the common law requirements. Accordingly, since Defendants Wortham and Ramsay are absolutely immune from liability pursuant to Supreme Court precedent under section 1983, Plaintiff's common law claim of malicious prosecution must also fail as a matter of law. 3. No unconstitutional custom or policy claim.

Plaintiff's Third Claim for Relief which alleges an unconstitutional custom or policy against Defendants Wortham and Ramsay must also be dismissed. The record is completely

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devoid of any evidence establishing an unconstitutional custom or policy on the parts of Wortham or Ramsay. As such, Plaintiff's Third Claim for Relief against Defendants Wortham and Ramsay must fail as a matter of law. 4. Intentional infliction of emotional distress case must be dismissed.

Plaintiff's Fifth Claim for Relief alleges the tort claim of intentional infliction of emotional distress against Defendants Wortham and Ramsay. Since "[s]tate prosecutors are absolutely immune for their actions in initiating a prosecution," Plaintiff cannot state a viable claim against Wortham and Ramsay for intentional infliction of emotional distress. Scott v. Hern, 216 F.3d 897, 917 (10th Cir. 2000)(quoting Stepanek v. Delta County, 940 P.2d 364, 368 (Colo. 1997)). As such, this claim must be dismissed as a matter of law. D. SUPERVISORY CLAIMS AGAINST WHITMAN AND SANDOVAL MUST BE DISMISSED. 1. Malicious prosecution and custom and policy claims must be dismissed.

Plaintiff appears to have brought her Second and Third Claims for Relief against Defendants Whitman and Sandoval in their supervisory capacities as Chief of Police and Commander of District 4. The Tenth Circuit has held that there is no concept of strict supervisor liability for claims brought pursuant to 42 U.S.C. § 1983. Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1991). Rather, the proper articulation of the test for supervisory liability under § 1983 requires "allegations of personal direction or of actual knowledge and acquiescence" on the part of the supervisor. Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992) (citing Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990)). It is well settled that in order for a plaintiff to satisfy the above elements, she must establish that an "affirmative link" exists between the alleged constitutional deprivation and either the supervisor's personal participation,

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his exercise and control or direction, or his failure to supervise. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). In this case, the record is devoid of any evidence establishing Whitman's or Sandoval's personal participation in the allegations giving rise to Plaintiff's claim of malicious prosecution. In fact, Plaintiff has no information that either Whitman or Sandoval even participated in the prosecution of her criminal case. [See, Section III of this brief at ¶¶26, 27.] The record is further devoid of any evidence suggesting that Whitman's or Sandoval's direction, control, or failure to supervise was the direct causal link to this alleged violation. Further, Plaintiff cannot establish any custom, policy or practice on the part of these Defendants that was the moving force behind any alleged violation. Accordingly, Plaintiff's Second and Third Claims for Relief against Whitman and Sandoval should be dismissed as a matter of law. 2. Intentional infliction of emotional distress must also be dismissed.

Plaintiff's Fifth Claim for Relief against Defendants Whitman and Sandoval for intentional infliction of emotional distress must be dismissed. In order to establish a claim of intentional infliction of emotional distress, Plaintiff must prove that: 1) Defendants engaged in extreme or outrageous conduct; 2) The Defendant did so recklessly or with the intent of causing the Plaintiff severe emotional distress; and 3) The Defendant's conduct caused the Plaintiff severe emotional distress. Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)(citing Restatement (Second) of Torts § 46 (1965)). In this case, there is no evidence in the record establishing that Defendants Whitman or Sandoval engaged in extreme or outrageous conduct, or that such was done with the intent of causing Plaintiff severe emotional distress. In fact, there is no evidence that Whitman or

Sandoval even participated in the incident which is the subject matter of this litigation. To the

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contrary, Plaintiff has no information that either Whitman or Sandoval assisted in the prosecution of her criminal case. [See, Section III of this brief at ¶¶26, 27.] Therefore, Plaintiff's claims for intentional infliction of emotional distress against Whitman and Sandoval must be dismissed. E. PLAINTIFF'S CLAIMS AGAINST HICKENLOOPER & WEBB MUST BE DISMISSED.5

Plaintiff's Third Claim for Relief alleges an unconstitutional custom and policy claim against Defendants Hickenlooper and Webb. Such claims must be dismissed as the record is devoid of any evidence establishing an unconstitutional custom or policy. The Tenth Circuit has held that "to establish municipal liability under 42 U.S.C. § 1983, a plaintiff must show (1) the existence of a municipal custom or policy, and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood, et. al., 81 F.3d 988, 993 (10th Cir. 1996)(citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1202, 103 L.Ed.2d 412 (1989); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Plaintiff must show not only that a constitutional violation occurred, but also that some municipal policy was the moving force behind the violation. City of Canton, 489 U.S. at 385. It is well settled that "[m]unicipalities may be held liable for violations of civil rights under § 1983 if such violations result from the `execution of a government's policy or custom.'" Faustin v. City and County of Denver, 268 F.3d 942, 951 (10th Cir. 2001)(citing Monell v. Dept. of Soc. Serv. City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "The policy need not be codified and may be evidenced by widespread practice so permanent and well

5

Though not set forth in Plaintiff's Consolidated Complaint and Jury Demand, this Third Claim for Relief appears to be against Defendants Webb and Hickenlooper solely in their official capacities as policymakers for the City. As such, it is synonymous with a municipal claim forged against the City. For the reasons set forth above, it should be dismissed as a matter of law.

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settled as to constitute a custom or usage having the force of law." Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A municipality cannot be liable under § 1983 "unless deliberate action attributable to the municipality itself is the `moving force' behind the plaintiff's deprivation of federal rights." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 400 (1997) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). A plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal policy or custom that caused the plaintiff's injury. Brown, 520 U.S. at 403 (referring to Monell, 436 U.S. at 694). In this case, the record is completely devoid of any facts supporting the allegation that the Webb or Hickenlooper had a custom, policy, or practice of allowing its police officers to maliciously prosecute its citizens and that such custom, policy, or practice was the moving force behind Plaintiffs' alleged deprivations. In fact, Plaintiff has no information that Hickenlooper was even involved in supporting alleged police misconduct in any way. [See, Section III of this brief at ¶ 28.] Further, other than letters written to them after the fact, Plaintiff does not have any evidence or information supporting the allegation that Defendants Hickenlooper and Webb had personal knowledge or acquiescence into Plaintiff's arrest on February 24, 2002. [See, Section III of this brief at ¶ 29.] As such, Plaintiffs' Third Claim for Relief against Webb and

Hickenlooper must therefore be dismissed as a matter of law.

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F.

PLAINTIFF'S DISMISSED.

CLAIM

FOR

INJUNCTIVE

RELIEF

MUST

BE

Plaintiff's Sixth Claim for Relief seeks an injunction against the City, Hickenlooper and Whitman. Because Plaintiff admits that she is not seeking any injunction in this case, these claims must be dismissed as a matter of law. [See, Section III of this brief at ¶ 30.] VI. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss those claims addressed herein pursuant to Fed.R.Civ.P. 56.

Respectfully submitted this 15th day of August, 2005.

/s/Seth A. Rider Thomas S. Rice Seth A. Rider SENTER GOLDFARB & RICE, L.L.C. Attorneys for Defendants Gerald Whitman, City and County of Denver, Officer Richard Blea, Officer Nick Sagan, Chris Ramsay, Mayor John Hickenlooper, Rudy Sandoval, Wellington Webb, J. Wallace Wortham, Jr. and Officer Josh Vasconsillas 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 15th day of August, 2005, a true and exact copy of the above and foregoing DEFENDANTS' MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was filed electronically with the Court via PACER and served via the U.S. mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Road Evergreen, CO 80439 _/s/Marie S. DeSanto____ Marie S. DeSanto Legal Secretary to Seth A. Rider [email protected]

00192705

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