Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02339-RPM

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Filed 06/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2339-RPM-MJW JOHN HIMMLER and JACOB HIMMLER, Plaintiffs. v. ELODE BRODBECK, RICHARD MANGEN, DAVID KEIFFER PATRICIA ANN PHILLIPS, CHILD AND FAMILY CENTER, INC., and BEHAVIORAL ASSOCIATES, INC., Defendants.

DEFENDANT DAVID KIEFFER AND BEHAVIORAL ASSOCIATES, INC.'S RESPONSE IN OBJECTION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON SUBJECT-MATTER JURISDICTION, IMMUNITY, ACTION UNDER THE COLOR OF LAW, AND VIOLATIONS OF PLAINTIFFS' FUNDAMENTAL RIGHTS

Defendants David Kieffer and Behavioral Associates, Inc., by and through counsel, Treece, Alfrey, Musat & Bosworth, P.C., submit their Response in Objection to Plaintiffs' Motion for Partial Summary Judgment on Subject-Matter Jurisdiction, Immunity, Action Under the Color of Law, and Violations of Plaintiffs' Fundamental Rights. In support thereof, Defendants David Kieffer and Behavioral Associates, Inc. show the following: 1. Plaintiffs' Motion for Partial Summary Judgment on Subject-Matter Jurisdiction,

Immunity, Action Under the Color of Law, and Violations of Plaintiffs' Fundamental Rights contains arguments previously briefed by the parties to this action. The issues raised in

Case 1:03-cv-02339-RPM

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Plaintiffs' Motion have been addressed in the various Defendants' Motions to Dismiss and/or Motions for Summary Judgment. 2. Defendants David Kieffer and Behavioral Associates, Inc. have previously briefed

these issues for the Court in their Motion to Dismiss or for Summary Judgment in Response to Plaintiffs' Third Amended Verified Complaint with Incorporated Authority, filed October 8, 2004, and their Reply in Support of Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Motion to Strike Affidavit of John McKendree, filed December 6, 2004. By this reference, Defendants David Kieffer and Behavioral Associates, Inc. incorporate that Motion and Response in support of that Motion herein. These pleadings address, among other arguments, why this Court does not have subject matter jurisdiction over Plaintiffs' claims, why Dr. Kieffer was not acting under color of state law, and how and why Dr. Kieffer did not act in furtherance of any conspiracy. 3. Defendant Richard Mangen addresses the threshold requirement of maintaining a

claim for violation of fundamental rights pursuant to 42 U.S.C. § 1983 in his Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment, filed June 6, 2005. Defendants David Kieffer and Behavioral Associates, Inc. incorporate by this reference paragraphs 3 and 4 of Defendant Mangen's Response as if fully set forth herein and join the argument presented by Defendant Mangen. 4. Plaintiffs have presented no evidence to this Court that Dr. Kieffer or Behavioral

Associates, Inc. engaged in any action to deliberately violate Plaintiffs' constitutional rights. Dr. Kieffer was not part of the custody proceedings at issue in this case, was not appointed by the court or by the Special Advocate and no formal role in the proceedings. He did not file any reports in the custody proceedings. Instead, Kieffer was a therapist for Plaintiff Jacob Himmler,

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ending in November 2000. Plaintiffs have not presented any evidence that Kieffer or Behavioral Associates, Inc. deliberated or otherwise violated Plaintiffs' constitutional rights because no such evidence exists. Moreover, no evidence of any conspiracy between Kieffer and any other Defendant (or other person) has been presented. Accordingly, Plaintiffs' Motion for Partial Summary Judgment on Subject-Matter Jurisdiction, Immunity, Action Under the Color of Law, and Violations of Plaintiffs' Fundamental Rights must be denied. WHEREFORE, Defendants David Kieffer and Behavioral Associates, Inc. respectfully request Plaintiff's Motion for Partial Summary Judgment on Subject-Matter Jurisdiction, Immunity, Action Under the Color of Law, and Violations of Plaintiffs' Fundamental Rights be DENIED. Respectfully submitted this 27th day of June, 2005. /s David E. Wilson David E. Wilson TREECE, ALFREY, MUSAT & BOSWORTH, P.C. 999 Eighteenth Street, Suite 1600 Denver, Colorado 80202 Telephone: (303) 292-2700 Telecopier: (303) 295-0414 E-Mail: [email protected] Attorneys for Defendants David Kieffer and Behavioral Associates, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of June, 2005, I served a true and correct copy of the foregoing DEFENDANT DAVID KIEFFER AND BEHAVIORAL ASSOCIATES, INC.'S RESPONSE IN OBJECTION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON SUBJECT-MATTER JURISDICTION, IMMUNITY, ACTION UNDER THE COLOR OF LAW, AND VIOLATIONS OF PLAINTIFFS' FUNDAMENTAL RIGHTS upon all parties/counsel of record in this action, by ECF, or by depositing the same with the United States Postal Service, first class postage pre-paid, addressed as follows: Mr. John Himmler Mr. Jacob Himmler 825 9th Street Berthoud, Colorado 80203 Peter S. Ely, Esq. 1600 Stout Street, Suite 1100 Denver, Colorado 80202 David H. Yun, Esq. Jaudon & Avery, LLP 1660 Wynkoop Street, Suite 1010 Denver, Colorado 80202 Miles M. Dewhirst, Esq. Trevor L. Cofer, Esq. Dewhirst & Dolven, LLP 102 South Tejon, Suite 500 Colorado Springs, Colorado 80903

/s David E. Wilson

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