IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
Case No. 08-cv-00010-EWN-BNB
SCOTT ANTHONY GOMEZ, JR.,
Plaintiff,
v.
PUEBLO COUNTY, by and through the PUEBLO COUNTY BOARD OF COUNTYCOMMISSIONERS;KIRK M. TAYLOR, Pueblo County Sheriff;DAN CORSENTINO, former Pueblo County Sheriff;J.R. HALL;MARYANN STUART;MARK LIGHTCAP;ALLEN MEDINA;DOUGLAS SYKES;FRANK MORALES; andJOHN and JANE DOES 1-10,
Defendants.______________________________________________________________________
COMBINED MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT______________________________________________________________________________
Defendants PUEBLO COUNTY, by and through the PUEBLO COUNTY BOARD OF
COUNTY COMMISSIONERS; KIRK M. TAYLOR, Pueblo County Sheriff; DAN
CORSENTINO, former Pueblo County Sheriff; J. R. HALL; MARYANN STUART; MARK
LIGHTCAP; ALLEN MEDINA; DOUGLAS SYKES; and FRANK MORALES submit this
motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and for summary
judgment pursuant to Fed. R. Civ. P. 56. In support thereof, Defendants state as follows:
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NATURE OF THE CASE
Plaintiff, SCOTT ANTHONY GOMEZ, JR., filed his complaint in this matter on
January 3, 2008. Plaintiff named as defendants the PUEBLO COUNTY BOARD OF
COUNTY COMMISSIONERS (“Pueblo County”); KIRK TAYLOR (“Taylor”) the current
Pueblo County Sheriff; DAN CORSENTINO (“Corsentino”), the former Pueblo County
Sheriff; and Sheriff’s officers and/or deputies J.R. HALL (“Hall”), MARYANN STUART
(“Stuart”), MARK LIGHTCAP (“Lightcap”), ALLEN MEDINA (“Medina”), DOUGLAS SYKES
(“Sykes”), and FRANK MORALES (“Morales”). Plaintiff also named John and Jane Does
1-10 as defendants.
Plaintiff sets out nine claims for relief in the complaint. The complaint does not, in
most instances, state with particularity which claims are alleged against which defendants.
Plaintiff simply states that these claims are against “Defendants” generally. Additionally,
as discussed in more detail within this motion, Plaintiff provides little description of the
specific conduct alleged against the individual defendants. The nine claims for relief are
summarized as follows:
Claim for Relief Description Claim Against
First 42 U.S.C. § 1983-based claim foruse of excessive force (no specificconstitutional provision cited)
“Defendants”
Second 42 U.S.C. § 1983-based claim forconspiracy to violate civil rights
“Defendants”
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1 Although not relevant to the arguments herein, the beginning date forCorsentino’s term as sheriff was much earlier than August 2006. The last date ofCorsentino’s term as sheriff is correctly stated.
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Third 42 U.S.C. § 1983-based claim forviolation of Fourth, Fifth, Eighth,and Fourteenth Amendment rights,including policy and practice ofcounty to allow and/or conceal useof excessive force
“Defendants” Pueblo Countyregarding practice and policyclaim
Fourth “Constitutional” failure to train andsupervise
Corsentino and Taylor, intheir individual and officialcapacities
Fifth assault and battery Medina and John Doe“Defendants”
Sixth intentional infliction of emotionaldistress
Medina and John Doe“Defendants”
Seventh malicious abuse of process “Defendants”
Eighth negligence “Defendants” and Hall,individually and in his officialcapacity
Ninth respondeat superior Pueblo County
In the prayer, Plaintiff seeks, in part, “declaratory and other injunctive and/or
equitable relief,” compensatory and consequential damages, punitive damages, and
attorney fees.
FACTS
A. Factual Allegations in the Complaint.
Plaintiff’s substantive factual allegations set out in the complaint are as follows:
1. “Defendant Dan Corsentino . . . was the Pueblo County Sheriff between
August of 2006 and January 8, 2007. . . .” Complaint ¶ 3.1
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2. Taylor began his term as sheriff on or about January 8, 2007. Complaint ¶
4.
3. Hall, Stuart, Lightcap, Medina, Sykes, and Morales were all duly appointed
and acting officers of the Sheriff’s Department of Pueblo County acting within the course
and scope of their employment. Complaint ¶ 5.
4. Plaintiff was an inmate at the Pueblo County Jail (“Jail”) being held on a
parole violation. Complaint ¶¶ 11-12.
5. Plaintiff was “assaulted and injured by Defendant Allen Medina” and other jail
personnel. This included use of pepper spray and a taser and beating and kicking Plaintiff.
Complaint ¶ 13.
6. Plaintiff escaped from the Jail on November 22, 2006, and was captured two
days later. Complaint ¶ 14.
7. Medina falsely accused Plaintiff of inciting a riot to cover up his conduct.
Complaint ¶ 20.
8. During the week prior to January 10, 2007, Plaintiff worked on an escape
plan including melting material on a ceiling tile in the shower with a candle. Complaint ¶ 22.
On January 9, 2007, Morales found a candle in the shower but did not follow up to discover
the escape plan. Complaint ¶ 23.
9. On January 10, 2007, Sykes left the Jail section in which Plaintiff was
assigned unattended for an hour. During that time, Plaintiff and an accomplice escaped
through the shower area to the Jail roof. Complaint ¶ 26. Plaintiff fell, sustaining injuries
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while attempting to descend the roof. Complaint ¶ 27. Plaintiff was found by Lightcap who
called for medical help. Complaint ¶ 27.
10. Defendants knew Plaintiff had a propensity to escape and should have taken
more precautions to prevent the escape. Complaint ¶ 84.
B. Statement of Undisputed Material Facts for Purposes of SummaryJudgment Argument.
11. The Pueblo County Jail has adopted a policy with respect to inmate
grievances. See affidavit of Pueblo County Sheriff’s Office Detentions Bureau Chief
Darlene Alcala, attached hereto as EXHIBIT A-1.
12. This policy is provided to the inmates in the Inmate Informational Handbook,
and states as follows:
GRIEVANCE: INMATES ARE PROHIBITED BY FEDERALLAW TO FILE ANY LAWSUITS UNTIL THEY HAVEEXHAUSTED ALL ADMINISTRATIVE REMEDIES. If youhave a complaint regarding conditions or actions against you,you must first try and resolve the grievance informally. If youfail to resolve it at that level, you may submit a writtengrievance, but it must be received within 10 days of the date ofoccurrence. Your grievance must be detailed in writing on akite. If you do not agree with the reply you receive you mayappeal to the next higher in the chain of command, goingthrough the floor officers, sergeants, commanders, assistantsheriff and finally the sheriff. If you wish to file a grievanceagainst an officer, your kite should go to the officer’simmediate supervisor.
See excerpt from Inmate Informational Handbook, attached to EXHIBIT A-1 as ALCALA
AFFIDAVIT EXHIBIT 1 (emphasis in original).
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13. During his stay at the Jail, Plaintiff filed two grievances. See EXHIBIT A-1.
14. Plaintiff’s first grievance is dated October 30, 2006, and relates his frustration
with being placed in administrative segregation. See grievance dated October 30, 2006,
attached to EXHIBIT A-1 as ALCALA AFFIDAVIT EXHIBIT 2.
15. Plaintiff’s second grievance is dated November 5, 2006, and also relates his
frustration with being in administrative segregation. See grievance dated November 5,
2006, attached to EXHIBIT A-1 as ALCALA AFFIDAVIT EXHIBIT 3.
16. Plaintiff did not file appeals to either of these grievances. See EXHIBIT A-1.
STANDARD OF REVIEW
A. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1).
A motion to dismiss for lack of subject matter jurisdiction is considered under Fed.
R. Civ. P. 12(b)(1). Such a motion must be determined from factual allegations contained
in the complaint, “without regard to mere conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). However, if the moving party
attacks the plaintiff’s factual assertions as to subject matter jurisdiction, a court may receive
evidence pertaining to the motion. See Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221
(10th Cir. 2001). The consideration of material outside the pleadings does not convert to
the motion to one for summary judgment. See id.
A court’s dismissal for lack of subject matter jurisdiction is reviewed de novo, and
findings of jurisdictional facts are reviewed for clear error. See id.
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B. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6).
Motions to dismiss for failure to state a claim are considered under Fed. R. Civ. P.
12(b)(6). The standard for review under Fed. R. Civ. P. 12(b)(6) is whether, taking the
facts as pled as true, Plaintiff’s claim can be said to state a claim as a matter of law. See
Maez v. Mountain States Telephone and Telegraph, Inc., 54 F.3d 1488, 1496 (10th Cir.
1995). “‘The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter
of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is
true.’” Brin v. Kansas, 101 F.Supp.2d 1343, 1346 (D. Kan. 2000), quoting Mayer v. Mylod,
988 F.2d 635, 638 (6th Cir. 1993). While a plaintiff is not required to precisely state in the
complaint each element of the claim, “[a] court may not assume that a plaintiff can prove
facts that it has not alleged. . . .” Leprino Foods Co. v. United States, 105 F.Supp.2d 1161,
1162 (D. Colo. 2000), citing Associated General Contractors of California, Inc. v. California
State Council of Carpenters, 459 U.S. 519, 526 (1983). Rather, “a plaintiff must ‘set forth
factual allegations, either direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.’” Id. at 1162, quoting Gooley v.
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988).
C. MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56.
“To defeat a summary judgment motion, [the plaintiff] would have to present
evidence establishing a reasonable inference the employer’s proffered, nondiscriminatory
explanation is pretextual.” Meredith v. Beech Aircraft Corp., 18 F.3d 890, 897 (10th Cir.
1994). After each party has met their initial burdens, and if the plaintiff attempts to
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2 Plaintiff’s ninth claim for relief for respondeat superior liability is notsufficiently clear to determine if it is based on just state claims or both state and federalclaims. To the extent that the ninth claim for relief also alleges respondeat superior claimson the basis of federal claims, such claims are unavailable as a theory under 42 U.S.C. §1983. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (“there is no concept ofstrict supervisor liability under § 1983”).
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demonstrate that defendants’ explanation is a pretext, the court must decide, “‘which
party’s explanation of the employer’s motivation it believes.’” Love v. RE/MAX of America,
Inc., 738 F.2d 383, 386 (10th Cir. 1984) (quoting U.S. Parcel Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983)), see also Berry v. Stevinson Chevrolet, 74 F.3d 980,
987 (10th Cir. 1996).
Summary judgment is appropriate for a defendant if a plaintiff fails to make a
sufficient showing of an essential element of his case as to which he has the burden of
proof. Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994). The “mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis
in original).
LEGAL ARGUMENT AND AUTHORITY
I. PLAINTIFF’S STATE LAW TORT CLAIMS FOR RELIEF SHOULD BE DISMISSEDON THE BASIS OF THE PROVISIONS OF THE COLORADO GOVERNMENTALIMMUNITY ACT.
Plaintiff’s fifth, sixth, seventh, eighth, and ninth2 claims for relief allege state law tort
claims against Defendants. These claims are barred by the Colorado Governmental
Immunity Act (“CGIA”), C.R.S. § 24-10-101, et seq.
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Any civil action against a public entity or employee that lies or could lie in tort,
whether recognized at common law or by statute, is subject to the provisions of the CGIA,
Defendants are public entities and public employees and, as such, the CGIA applies to
Plaintiff’s state law tort claims.
A. There is no waiver of immunity for Plaintiff’s claims under the CGIA.
The CGIA provides that a public entity and its employees are immune from liability
for all claims that lie in tort or could lie in tort unless immunity has been waived in the
CGIA. See C.R.S. § 24-10-106(1); Reynolds v. State Board for Community Colleges and
Occupational Education, 937 P.2d 774, 776 (Colo.App. 1996). Because Plaintiff’s fifth,
sixth, seventh, eighth, and ninth claims sound in tort and the CGIA does not waive
immunity for the claims, Defendants enjoy immunity and this Court does not have subject
matter jurisdiction over those claims. See Hallam v. City of Colorado Springs, 914 P.2d
479, 481 (Colo.App. 1995) (holding that the issue of sovereign immunity is one of subject
matter jurisdiction).
Immunity has been waived under the CGIA in seven distinct circumstances. The
only potentially applicable waiver in this instance is pursuant to C.R.S. § 24-10-106(1)(b),
which provides that sovereign immunity is waived by a public entity in an action for injuries
resulting from “[t]he operation of any . . . correctional facility . . . or jail by such public
entity.” However, that waiver is inapplicable as Plaintiff’s claims are subject to an exception
in the CGIA for the waiver of immunity relating to the operation of a correctional facility or
jail. That exception provides:
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3 Plaintiff concedes that he was jailed as a parole violator. As such, he wouldbe considered a person incarcerated in a jail pursuant to a prior conviction. See Wakat v.Montgomery County, 471 F.Supp.2d 759, 766 (S.D. Tex. 2007) (“Parolees who aredetained for a violation of parole are considered convicted prisoners rather than pre-trialdetainees.”) See also Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
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The waiver of sovereign immunity created in paragraphs(b) and (e) of subsection (1) of this section does not apply toclaimants who have been convicted of a crime andincarcerated in a correctional facility or jail pursuant to suchconviction, and such correctional facility or jail shall be immunefrom liability as set forth in subsection (1) of this section.
C.R.S. § 24-10-106(1.5)(a).
Plaintiff was incarcerated as a convicted inmate at the time of the incidents alleged
in his complaint. See complaint at ¶12.3 As such, the exception in § 24-10-106(1.5)(a) of
the CGIA applies to Plaintiff’s state law tort claims against Defendants, and, therefore,
immunity has not been waived under the CGIA in this case. As such, Plaintiff’s state law
tort claims against Defendants should be dismissed as Defendants are immune from suit
for those claims. See Hallam, 914 P.2d at 481; see also Jesusdaughter v. Colorado
Mental Health Institute at Pueblo, 2006 WL 2560707, *7 (D.Colo. 2006).
In discussing the legislative history of this exception to sovereign immunity as
applied to the operations of correctional facilities and jails, the Colorado Court of Appeals
has stated:
The unique nature of prisons and the obligationsimposed in operating them expose the state to significantliability if negligence actions by prisoners are allowed. Section24-10-106(1.5) recognizes this concern, eliminates theexposure, and also prevents the state from being subjected tonumerous frivolous lawsuits that may be brought by inmates in
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an attempt to harass prison officials. Even if a court promptlydismisses such actions, such a dismissal would not be withoutcost to the state. In addition, although the state may beawarded its attorney fees and costs, inmates are frequentlywithout resources from which collection may be made.
The General Assembly’s decision to limit the state’sliability for negligence actions involving prisons recognizesthese factors . . . .
See Davis v. Paolino, 21 P.3d 870, 872 (Colo.App. 2001) (discussing the exception in
section 24-10-106(1.5) and holding that it does not violate equal protection rights of
prisoners).
Plaintiff’s fifth, sixth, seventh, eighth, and ninth claims should be dismissed because
Defendants are immune from liability for those claims and this Court therefore does not
have subject matter jurisdiction over those claims.
B. Alternately, Plaintiff failed to comply with the notice requirements of theCGIA.
Assuming, arguendo, which Defendants do not, that the immunity enjoyed by
Defendants for Plaintiff’s state law tort claims has been waived in the CGIA, those claims
should still be dismissed for Plaintiff’s failure to comply with the notice requirements of the
CGIA.
C.R.S. § 24-10-109(1) requires that a plaintiff provide notice to the public entity
within 180 days of the discovery of the injury and that such notice is a jurisdictional
prerequisite to suit. C.R.S. § 24-10-109(2) contains the requirements for a notice of tort
claim as follows:
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4 Although Defendants concede that there is a notice of claim from Plaintiff,dated June 7, 2007, Defendants do not concede that same complies with either thetimeliness or content requirements of the CGIA.
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(a) The name and address of the claimant and the name andaddress of his attorney, if any;
(b) A concise statement of the factual basis of the claim, includingthe date, time, place, and circumstances of the act, omission,or event complained of;
(c) The name and address of any public employee involved, ifknown;
(d) A concise statement of the nature and the extent of the injuryclaimed to have been suffered;
(e) A statement of the amount of monetary damages that is beingrequested.
A claimant must substantially comply with the notice requirements of the CGIA. See
Woodsmall v. Regional Transp. Dist., 800 F.2d 63, 68 (Colo. 1990). Substantial
compliance means that the claimant must “make a good faith effort to include within the
notice, to the extent the claimant is reasonably able to do so, each item of information
listed in section 24-10-109(2).” Id. at 69; see also Conde v. Colorado State Dept. of
Personnel, 872 P.2d 1381, 1385-86 (Colo.App. 1994).
Plaintiff’s purported notice of claim to Defendants, dated June 7, 2007,4 does not
substantially comply with the notice requirements of § 24-10-109(2). The purported notice
of claim provides the following description of claims against the public entity and
employees:
a) Mr. Gomez has been an inmate at the PuebloCounty jail since August 2006.
b) From the time of his incarceration to the present,Mr. Gomez has been assaulted and injured by jail staff. These
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incidents of assault have included being sprayed with pepperspray and/or mace, shot with a taser gun, beaten and kicked.In addition, Mr. Gomez was assaulted by members of theSTAT team. These assaults were without provocation andwere not done to control inmate or maintain order or safety inthe jail. Finally, during this time, threats were made on Mr.Gomez’s life and his physical safety by an employee namedMedina. Upon information and belief, employees of theSheriff’s Department attempted to have other inmates at thePueblo County Jail assault Mr. Gomez.
c) In January of 2007, Mr. Gomez was injured in afall from the side of the jail building. It is asserted that theinjuries were the result of the actions or failures to act of theSheriff’s Department and its employees. In addition, after thefall, employees of the Sheriff’s Department did little or nothingto aid Mr. Gomez and to provide immediate medical treatmentto him despite serious and life threatening injuries.
d) Since Mr. Gomez’s return to Pueblo from Denverafter the fall, Mr. Gomez has been denied medical treatment,medication and medical supplies. He has again beenthreatened with physical injury by employee Medina. For aperiod of time he was forced to live in unsanitary andintolerable conditions in his jail cell.
e) Mr. Gomez has been charged with additionalcrimes as a cover for at least one assault by employees of theSheriff’s Department.
f) There have been unauthorized disclosures ofmedical information to those not authorized to obtain theinformation.
See notice of claim attached as EXHIBIT A-2.
Plaintiff’s notice of claim is insufficient and does not substantially comply with the
notice requirements of the CGIA as it does not set out the dates, times, and circumstances
of the alleged assaults against Plaintiff and, with the exception of naming “Medina,” the
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identity of the employees involved. Such failures were held by the U.S. District Court for
Colorado to make the notice of claim insufficient for substantial compliance with the CGIA.
Jesusdaughter v. Colorado Mental Health Institute at Pueblo, 2006 WL 2560707 (D.Colo.
2006) (copy attached as EXHIBIT A-3).
In Jesusdaughter, the claimant, an inmate in various institutions over the course of
years, claimed various abuses and injuries in her notice of claim. Her notice of claim
stated the abuses she complained of in general terms, such as “refusal to file grievances,”
“affliction of psychological abuse, mental anguish, loss of property . . . excessive force,”
etc. and stated that the abuses were at the hands of “Colorado Department of Corrections
employees.” Id. at *6.
The court therein found that the claimant did not substantially comply with the notice
of claim requirements as the notice did not provide any facts to describe the type of abuse,
mental anguish, or excessive force, nor did it specify which employee inflicted which
injuries, the date of the injuries, or the date, time, place, and circumstances of each act,
omission, or event complained of. See id. at *7. As such, the court stated that the notice
lacked the sufficient specificity to substantially comply with the notice requirements of the
CGIA. Id. at *7.
In this case, Plaintiff’s notice of claim fails for the same reasons. Like the notice of
claim in Jesusdaughter, Plaintiff’s notice of claim in this case does not provide any facts
to describe the assaults and injuries claimed, nor does it specify which employee inflicted
which injuries. The notice mentions only one employee, “Medina,” with regard to an actual
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alleged assault and then thereafter mentions other individual employees in a separate
paragraph but, again, does not specify which employee inflicted which alleged injuries.
Rather, throughout the notice of claim, in regards to the very general descriptions of the
alleged injuries, there are only generic references to other employees as “jail staff,”
“members of the STAT team,” and “employees of the Sheriff’s Department.”
Further, the notice of claim herein, like in Jesusdaughter, did not specify the dates,
times, and circumstances underlying the alleged assaults and injuries.
Therefore, as with the notice of claim in Jesusdaughter, Plaintiff’s notice of claim
herein does not substantially comply with the requirements for notice under the CGIA. It
is clear that the notice was not a good faith effort by Plaintiff to comply with the notice
requirements. As the Colorado Supreme Court stated in Trinity Broadcasting of Denver,
Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), the contents of the notice must be
in substantial compliance with the statute. The word “substantial” is not meaningless.
Substantial compliance still requires compliance with the requirements of the CGIA. In
discussing the requirements for substantial compliance with the notice requirements of the
CGIA, the Colorado Court of Appeals stated:
In 1990, our supreme court considered the impact ofthis change and, after examining the legislative history of the1986 amendments, determined that the General Assembly “didnot intend to create a standard of absolute or literal compliancewith the notice requirement, but rather intended a degree ofcompliance that was considerably more than minimal but lessthan absolute.” Woodsmall v. Regional Transportation District,[800 P.2d 63, 68 (Colo. 1990)]. The court characterized thislevel of compliance as “substantial compliance,” the same termas was expressly deleted from the statute by the GeneralAssembly.
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While arriving at this conclusion, however, the court didnot find that the removal of the term “substantial” wasmeaningless. The court noted that, according to legislativehistory, the deletion was meant to prevent courts from “seizingon the word ‘substantial’ to allow all manner of defective noticeto be considered.” [citing Woodsmall, 800 P.2d at 68]. Basedupon this reasoning the court further concluded that substantialcompliance requires a good faith effort to include within awritten notice, to the extent reasonably possible, each item ofinformation listed in § 24-10-109(2).
Conde, 872 P.2d at 1385-1386. (Emphasis added.)
As such, again assuming Defendants do not have immunity for the claims, which
Defendants do not assume, Plaintiff’s state law tort claims should be dismissed for
Plaintiff’s failure to comply with the notice requirements of the CGIA.
C. The Notice of Claim is Not a Notice of Any Alleged Injuries OccurringPrior to the 180-day Period Before the Filing of the Notice.
Again assuming, arguendo, that Defendants do not have immunity for Plaintiff’s
state law claims, which Defendants do not assume, any claims of Plaintiff for assaults or
injuries occurring prior to the 180-day period before the notice of claim was filed are forever
barred under the CGIA’s notice provisions. See C.R.S. § 24-10-109(1).
The CGIA requires a person who claims to have been injured by a public entity
and/or a public employee to file a written notice of the claim within 180 days after the date
of discovery of the injury prior to bringing a lawsuit against the public entity or public
employee. C.R.S. § 24-10-109(1) of the CGIA provides:
Any person claiming to have suffered an injury by a publicentity or by an employee thereof while in the course of suchemployment, whether or not by a willful and wanton act or
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omission, shall file a written notice as provided in this sectionwithin one hundred eighty days after the date of the discoveryof the injury, regardless of whether the person then knew all ofthe elements of a claim or of a cause of action for such injury.Compliance with the provisions of this section shall be ajurisdictional prerequisite to any action brought under theprovisions of this article, and failure of compliance shall foreverbar any such action.
(Emphasis added.)
Although Plaintiff’s notice of claim does not provide dates or times for the alleged
assaults and injuries, the notice does state that Plaintiff had been incarcerated at the Jail
since August 2006 and that, from that time to the present (the date of the notice of claim,
June 7, 2007), he was “assaulted and injured by jail staff.” See EXHIBIT A-2.
To the extent any of the alleged injuries occurred before the 180-day period prior
to the notice of claim, Plaintiff is forever barred from making claims as to any alleged
injuries or assaults occurring prior to that time. Plaintiff’s failure to submit a timely notice
of claim for those alleged injuries or assaults occurring prior to that time defeats subject
matter jurisdiction for those injuries and forever bars any claims Plaintiff may have for
same. See C.R.S. § 24-10-109(1); see also City and County of Denver v. Crandall, 161
P.3d 627, 634 (Colo. 2007) (holding that the notice of claim provision is both a condition
precedent and a jurisdictional prerequisite to suit under the CGIA, and must be strictly
applied; any failure to comply with it is an absolute bar to suit).
Further, it has been clearly established in Colorado that there is no continuing tort
theory that can be used to defeat the 180-day notice period. See Crandall, 161 P.3d at
633-634. The Colorado Supreme Court in that case held that “[t]he CGIA is a non-claim
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statute that does not recognize tolling for those occurrences that are continuous in nature.”
Id. at 634. As such, Plaintiff’s claims based on any alleged assaults or injuries that
occurred prior to the 180-day period, before the notice of claim was filed, are forever
barred.
D. Alternately, Plaintiff Cannot Recover for Damages Sustained in theCommission of a Felony.
Again, assuming, arguendo, which Defendants do not, that the immunity enjoyed
by Defendants for Plaintiff’s state law tort claims has been waived in the CGIA, to the
extent Plaintiff makes claims for damages incurred during his escape attempt, those claims
should still be dismissed as they are barred by Colorado law.
C.R.S. § 13-80-119 provides that damages are not recoverable for injuries
“sustained during the commission of or during immediate flight from an act that is defined
by any law of this state or the United States to be a felony.” Pursuant to C.R.S. § 18-8-
208, a person escaping from custody or confinement commits a felony unless the person
has been convicted of a misdemeanor or petty offense or a violation of a municipal
ordinance.
Plaintiff was found guilty of escape from a pending felony on July 13, 2007. This
is a class 4 felony. See portion of criminal history report for Plaintiff, attached hereto as
EXHIBIT A-4.
Accordingly, to the extent Plaintiff’s claims are to recover damages sustained during
his escape attempt, such claims are barred and must be dismissed.
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5 Citing Bennett v.Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), and Wisev. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981).
6 A copy is attached hereto as EXHIBIT A-5.
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II. PLAINTIFF FAILS TO PLEAD FACTS OF PERSONAL PARTICIPATION AS TOINDIVIDUAL DEFENDANTS.
Personal participation by a defendant is required for liability in a § 1983 action. See
McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983); Olson v. Stotts, 9 F.3d 1475, 1477
(10th Cir. 1993) (“[a] defendant cannot be liable under § 1983 unless personally involved
in the deprivation”). The plaintiff must show the defendant personally participated in the
alleged violation, and conclusory allegations are not sufficient to state a constitutional
violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).5
Nor can a plaintiff rely on respondeat superior liability for a § 1983 action. See
McKee, 703 F.3d at 483. Indeed, for any finding of liability as to an individual defendant
under § 1983, there must be a causal connection or affirmative link “‘between the
constitutional deprivation and either the supervisor’s personal participation, his exercise
of control or direction, or his failure to supervise.’” Brack v. Ortiz, 2007 WL 867992 *14 (D.
Colo. March 20, 2007)6, quoting Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.
1993). See also Jenkins, 81 F.3d at 994.
Allegations of sufficient facts to establish a claim for relief and against which an
individual defendant must defend is necessary to maintain either a federal or state tort
claim against individual defendants. See Fed. R. Civ. P. 8(a)(2). See also Robbins v.
Oklahoma, - - - F.3d - - -, 2008 WL 747132 (10th Cir. March 21, 2008).
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A. Hall.
All allegations made by Plaintiff against Hall relate to his supervision of other
defendants in this matter. Plaintiff also identifies Hall as the bureau chief in charge of the
Jail.
These allegations do not state a viable claim against Hall. Indeed, based on the
allegations, it appears as though Plaintiff’s only allegations against Hall related to his role
as a supervisor. However, as set forth above, there is no respondeat superior liability
under § 1983. As such, Plaintiff’s claims against Hall must be dismissed.
B. Stuart.
As to Stuart, Plaintiff provides no factual allegations, apart from stating that she was
a supervisor of the other individual Defendants. Plaintiff may not rely on respondeat
superior liability to impose § 1983 liability on Stuart, and his claims against her must be
dismissed.
C. Lightcap.
Plaintiff provides slightly more detail as to Lightcap than certain other Defendants.
In addition to asserting that Lightcap was a supervisor to other Defendants, Plaintiff also
states that Lightcap found him injured on the ground after the escape attempt and called
for medical help. See complaint ¶ 27.
It is unclear from the complaint whether Plaintiff is merely asserting respondeat
superior liability against Lightcap, or if Plaintiff is attempting to assert some novel theory
of liability against Lightcap for coming to Plaintiff’s aid. If it is the latter, Plaintiff fails to
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articulate how such conduct might establish a claim. Neither theory is viable under the
facts as stated, and the claims against Lightcap must be dismissed.
D. Medina.
While Plaintiff identifies Medina as participating in the alleged assaults on Plaintiff,
there are no allegations of personal participation by Medina as to any other conduct
alleged to establish a claim. As such, to the extent not involved in Plaintiff’s claims for
excessive force, the claims against Medina must be dismissed.
E. Sykes.
Plaintiff alleges that Sykes “left the maximum security section - 4B - unattended for
more than an hour” on January 10, 2007, the date of Plaintiff’s second escape. See
complaint ¶ 25.
Even assuming this allegation is true, Plaintiff has not specified what constitutional
right has been violated. Nor has Plaintiff provided any causal connection between the
ward being left unattended and any such constitutional violation. The claims against Sykes
must be dismissed.
F. Morales.
Plaintiff’s allegations regarding Morales involve the discovery of a homemade candle
used to melt part of a tile in the shower area through which Plaintiff escaped. The
complaint states that Morales smelled something burning in the shower area and
discovered the candle, but “nothing was done by Jail personnel in response to this
incident.” See complaint ¶ 23.
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As with Plaintiff’s allegations against Sykes, the allegations against Morales do not
set out what constitutional right has been violated and a link between Morales’ actions and
a violation of Plaintiff’s constitutional rights. The claims against Morales must be
dismissed.
G. Corsentino.
Corsentino is the former Sheriff of Pueblo County and left office on January 8, 2007,
two days prior to Plaintiff’s second escape from the Jail. Plaintiff asserts that Corsentino
established policies, procedures, customs, and/or practices that exhibited a deliberate
indifference to the constitutional rights of individuals housed in the Jail and accordingly
caused a violation of Plaintiff’s constitutional rights. The complaint further states that there
was a failure to train and supervise “with respect to the use of force and providing
adequate medical care.” See complaint ¶ 54.
Plaintiff further alleges that Corsentino interviewed Plaintiff following his first escape
from the Jail and that Plaintiff told Corsentino that “there were many ways to get out of the
facility.” See complaint ¶ 17.
Again, respondeat superior liability is not available in a § 1983 action. Plaintiff’s
claims against Corsentino in his individual capacity must be dismissed.
H. Taylor.
Taylor took office as the Sheriff of Pueblo County on January 8, 2007. Plaintiff
escaped on January 10, 2007. On its face, the complaint fails to establish how Taylor
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personally participated in a deprivation of Plaintiff’s constitutional rights after being in office
for less than two full days.
As with Corsentino, the claims against Taylor in his individual capacity must be
dismissed.
III. PLAINTIFF’S CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS IN THEIROFFICIAL CAPACITIES SHOULD BE DISMISSED.
A claim against a public official in his official capacity is the equivalent of a claim
against the public entity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Additionally, the United States District Court for the District of Colorado has stated that a
§ 1983 action against a municipality may be pled against the municipality or against an
official in their official capacity. Stump v. Gates, 777 F. Supp. 808, 816 n.3 (D. Colo.
1991). (“As the United States Supreme Court repeatedly has stated, a § 1983 action
appropriately is pleaded against a municipality either by naming the municipality itself or
by naming a municipal official in his or her official capacity. Naming either is sufficient.
Naming both is redundant.”) (Citations omitted.)
The complaint names Pueblo County by and through the Pueblo County Board of
County Commissioners. Complaint ¶ 2. The complaint also names Corsentino and Taylor
in both their individual and official capacities. Complaint ¶¶ 3, 4. As to all other individually
named Defendants, the complaint states that “[a]ll of the individual Defendants are sued
individually and in their official capacity.” Complaint ¶ 5.
Defendants agree that naming the Board of County Commissioners is the
appropriate method by which to bring claims against Pueblo County. See C.R.S. § 30-22-
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205; Calahan v. Jefferson County, 429 P.2d 301, 302 (Colo. 1967). However, to the extent
Plaintiff’s complaint asserts claims against all individual Defendants in their official
capacities, such claims should be dismissed as redundant.
IV. SEVERAL OF PLAINTIFF’S CLAIMS FOR RELIEF FAIL TO STATE A CLAIMUPON WHICH RELIEF MAY BE BASED.
Until recently, the test on a motion to dismiss for failure to state a claim was one that
placed a heavier burden on the moving party. In order to prevail, the moving party had to
show that it appeared “beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
However, with the United States Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, - - - U.S. - - -, 127 S. Ct. 1955 (2007), a new standard has emerged that requires
more detailed pleading by a plaintiff. It is no longer enough that a claim be conceivable;
it must be plausible. Id. at 1974. This standard has been characterized by the 10th Circuit
as follows: “to withstand a motion to dismiss, a complaint must contain enough allegations
of fact ‘to state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, - - -
F.3d - - -, 2008 WL 747132 (10th Cir. March 21, 2008), quoting Twombly, 127 S. Ct. at
1974. Furthermore,
[u]nder this revised standard, as we explained in Ridge at RedHawk, L.L.C. v. Schneider:
the mere metaphysical possibility that someplaintiff could prove some set of facts in supportof the pleaded claims is insufficient; thecomplaint must give the court reason to believethat this plaintiff has a reasonable likelihood ofmustering factual support for these claims.
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493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).The burden is on the plaintiff to frame a “complaint withenough factual matter (taken as true) to suggest” that he orshe is entitled to relief. Twombly, 127 S. Ct. at 1965.
Robbins at *2.
While it is true that prison officials and jail staff may not be deliberately indifferent
to the constitutional rights of inmates, there is not a clearly established constitutional right
involving preventing an inmate from escaping from jail. Nor does Plaintiff’s complaint
assert such a right. However, much of the complaint appears to be asserting that
Defendants’ liability stems largely from their failure to prevent Plaintiff from injuring himself
during an escape attempt.
A. Plaintiff’s First Claim for Relief Fails to State a Claim.
Plaintiff’s first claim is a 42 U.S.C. § 1983 claim for excessive force. However,
Plaintiff does not allege a constitutional basis upon which the claim is founded. A plaintiff
may not merely reference 42 U.S.C. § 1983. See Albright v. Oliver, 510 U.S. 266, 271
(1994) (“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred.’”) (quoting Baker v. McCollan,
443 U.S. 137, 144, n. 3 (1979)). As such, Plaintiff’s first claim must be dismissed.
B. Plaintiff’s Second Claim for Relief Fails to State a Claim.
Plaintiff’s second claim is for a conspiracy to violate civil rights and is asserted under
42 U.S.C. § 1983. This claim asserts that “Defendants Medina and John Does agreed,
conspired, acted together and in concert to deprive Plaintiff of his constitutional right of the
due process of law by assaulting, tasing, beating and kicking him and then by acting
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together to obstruct justice and prevent disclosure of evidence of their unlawful acts.” See
Complaint ¶ 39.
This claim does not meet the standard set forth in Twombly. Indeed, the Tenth
Circuit has long held that these conclusory allegations of conspiracy are insufficient to state
a claim. See Tonkovich v. Kansas Bd. Of Regents, 159 F.3d 504, 533 (10th Cir. 1998).
Plaintiff is asserting a claim of conspiracy yet only identifies one Defendant by name.
These allegations are not sufficient to create a plausible claim and the claim must be
dismissed.
Furthermore, as with Plaintiff’s first claim for relief, Plaintiff has failed to set forth the
constitutional basis upon which he asserts this claim. Plaintiff’s rights, however, are not
conferred upon him by Section 1983. See Albright, 510 U.S. at 271.
C. Plaintiff’s Third Claim for Relief Fails to State a Claim.
Plaintiff’s third claim is also based on 42 U.S.C. § 1983 and asserts a violation of
Plaintiff’s Fourth, Fifth, Eighth, and Fourteenth Amendment rights, including policy and
practice of Pueblo County to allow and/or conceal use of excessive force. As Plaintiff was
not a pre-trial detainee, see above, the basis Plaintiff claims for Fourth, Fifth, and
Fourteenth Amendment violations is unclear. Moreover, beyond his assertions that Medina
tased and beat him, Plaintiff has not made any allegations regarding the policy of Pueblo
County or how Pueblo County has a policy to allow officers to use excessive force. Nor
has Plaintiff distinguished how his third claim for relief is any different from his first claim
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for relief (violation of civil rights through use of excessive force), or his fourth claim for
relief.
While Plaintiff’s complaint is not subject to a heightened pleading requirement, it
nevertheless must demonstrate a plausible claim. Plaintiff has not done so and, thus, his
third claim for relief must be dismissed for failure to state a claim.
D. Plaintiff’s Fourth Claim for Relief Fails to State a Claim.
Plaintiff’s fourth claim for relief is a claim for a constitutional failure to train and/or
supervise. In order to prevail on this claim, Plaintiff must demonstrate that Pueblo County
was deliberately indifferent to the rights of citizens. See City of Canton, Ohio v. Harris, 489
U.S. 378 (1989). Additionally, a claim for failure to train can only be made where a plaintiff
has shown that an official responsible for establishing policy has deliberately chosen to
follow a certain course of action out of other alternatives. See Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986).
Plaintiff’s complaint has not made even the barest of allegations of any such
deliberate choice by any responsible official. Simply asserting that “Corsentino and Taylor
developed and maintained policies, procedures, customs and/or practices exhibiting a
deliberate indifference to the Constitutional rights of persons in Pueblo County which
caused violation of Plaintiff’s Consitutional rights” (Complaint ¶ 53), does not meet the
standard set in Twombly. These are mere conclusory allegations without any detail that
makes the claim plausible. As such, Plaintiff’s fourth claim must be dismissed.
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MOTION FOR SUMMARY JUDGMENT
I. PLAINTIFF’S FEDERALLY-BASED CLAIMS FOR RELIEF SHOULD BEDISMISSED ON THE BASIS OF ITS FAILURE TO EXHAUST ADMINISTRATIVEREMEDIES.
A. Prerequisites to Filing Suit Under the Prison Litigation Reform Act.
Pursuant to the Prison Litigation Reform Act (“PLRA”), an inmate litigant is required
to exhaust his administrative remedies prior to bringing suit. The relevant provision states:
No action shall be brought with respect to prison conditionsunder [42 U.S.C. § 1983], or any other Federal law, by aprisoner confined in any jail, prison, or other correctional facilityuntil such administrative remedies as are available areexhausted.
42 U.S.C. § 1997e(a).
The United State Supreme Court has held that the exhaustion requirement of the
PLRA “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516 (2002).
The United States Supreme Court has also recently clarified certain procedural
issues concerning inmate litigants and the requirement of exhaustion of administrative
remedies. In Jones v. Bock, - - - U.S. - - -, 127 S. Ct. 910, 918-19, 166 L.Ed.2d 798
(2007), the Court confirmed that “[t]here is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in court.” Jones also confirmed
that failure to exhaust is an affirmative defense to be raised by a defendant. Id. at 921.
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In order to “properly exhaust administrative remedies prisoners must ‘complete the
administrative review process in accordance with the applicable procedural rules.’” Id. at
922, quoting Woodford v. Ngo, 548 U.S. 81 (2006). The “applicable procedural rules” are
the specific rules set out by the prison’s inmate grievance policy. Therefore, “it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Jones, 127 S. Ct. at 923.
Additionally, “[a]n inmate who begins the grievance process but does not complete
it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his
administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), citing
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
Finally, exhaustion of administrative remedies is required even if the prison’s
grievance procedure does not authorize the relief requested. See Booth v. Churner, 532
U.S. 731, 734 (2001).
B. Plaintiff did not Exhaust his Administrative Remedies.
As set forth above under the undisputed material facts, the Jail has adopted a policy
concerning inmate grievances. This policy provides that an inmate must first try to resolve
a grievance informally. Then the inmate may submit a grievance in writing. If the response
to the written grievance is unsatisfactory, the inmate may appeal up through the chain of
command to the sheriff. See ALCALA AFFIDAVIT EXHIBIT 1, attached to EXHIBIT A-1.
During his incarceration at the Jail, Plaintiff filed only two grievances. One of these
grievances, dated October 30, 2006, relates to a problem that Plaintiff experienced with
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his visitation after being placed in administrative segregation and, also, his frustration over
being placed in administrative segregation. See ALCALA AFFIDAVIT EXHIBIT 2,
attached to EXHIBIT A-1.
Plaintiff’s second grievance is dated November 5, 2006, and also involves Plaintiff’s
placement in administrative segregation. In this grievance, Plaintiff requested to get out
of the “hole” and stated that he has not been charged with anything. He also asserted that
the right procedure was not followed and that his constitutional rights had been violated
because of this failure to follow procedure. See ALCALA AFFIDAVIT EXHIBIT 3, attached
to EXHIBIT A-1.
Plaintiff’s two grievances do not make any mention of the events that Plaintiff
alleges in his complaint. While the allegations in the complaint are vague, at the least it
is clear that Plaintiff did not file any grievances in connection with the use of force
incidents. Even if Plaintiff had filed a grievance regarding these incidents, which he did
not, he failed to file any appeals during his incarceration at the Jail. As such, Plaintiff failed
to exhaust his administrative remedies and all claims as they relate to the Jail conditions
must be dismissed.
CONCLUSION
For the reasons stated above, Defendants request that this Court grant Defendants’
combined motion to dismiss and motion for summary judgment and award those costs and
fees and such other relief as this Court finds reasonable.
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REQUEST FOR COSTS AND ATTORNEYS FEES
42 U.S.C. § 1988 provides that a court, in its discretion, may award reasonable
attorney fees to the prevailing party in an action brought to enforce a federal right. Such
fees may be awarded where a plaintiff’s claims are “frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.” See Hughes v. Rowe, 449
U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978).
Additionally, Colorado state law provides that a person may not recover damages
sustained during the commission of a felony or in flight from a felony and that the person
against whom any such action is brought may recover attorney fees and costs. See C.R.S.
§ 13-80-119. As set forth above in Section I, D, Plaintiff was found guilty of a class 4
felony after his escape attempt.
Finally, to the extent that Plaintiff seeks exemplary damages for his state tort claims
based on allegations of willful and wanton conduct, Defendants request attorney fees in
the event the Court dismisses such claims. See C.R.S. § 24-10-110(c) (“In any action
against a public employee in which exemplary damages are sought based on allegations
that an act or omission of a public employee was willful and wanton, if the plaintiff does not
substantially prevail on his claim . . . the court shall award attorney fees against the plaintiff
or the plaintiff’s attorney or both.”).
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As such, to the extent this Court grants Defendants’ combined motion to dismiss
and motion for summary judgment, Defendants respectfully request that the Court award
them their reasonable costs and attorney fees.
Respectfully submitted,
Date: March 31, 2008 s/ Ann B. Smith Gordon L. VaughanAnn B. Smith
VAUGHAN & DeMURO111 South Tejon, Suite 410Colorado Springs, CO 80903(719) 578-5500 (phone)(719) 578-5504 (fax)[email protected] (e-mail)
ATTORNEY FOR DEFENDANTS
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CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of March, 2008, I electronically filed theforegoing with the Clerk of Court using the CM/ECF system which will send notification ofsuch filing to the following e-mail addresses:
George Case [email protected]
and I hereby certify that the foregoing was placed in the U.S. Mail, postage prepaid, andaddressed to the following:
[none]
s/ Ann B. Smith Ann B. Smith
VAUGHAN & DeMURO111 South Tejon, Suite 410Colorado Springs, CO 80903719-578-5500 (phone)719-578-5504 (fax)[email protected] (e-mail)
ATTORNEY FOR DEFENDANTS
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