Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-00791-WDM-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00791-WDM-BNB STEVEN H. ADAMS, Plaintiff, v. LANCE DYER, Aurora Police Department, et al., Defendants. ______________________________________________________________________________ PRETRIAL ORDER

1. DATE AND APPEARANCES A pretrial conference is scheduled before Magistrate Judge Boyd N. Boland on Tuesday, August 9, 2005, at 8:30 a.m. Plaintiff will appear telephonically pro se. Michael T. Lowe of BRUNO, BRUNO & COLIN , P.C. will appear on behalf of Defendants Officer Lance Dyer, Michael Gaskill, Christopher Stine, Gerald Jonsgaard, Richard Day, William Heller, Justine Thull, Julie Stahnke, and Lieutenant Stevens. Peter Ruben Morales of the OFFICE OF THE CITY ATTORNEY will appear on behalf of Defendant The City of Aurora and Defendant Captain Roger Cloyd. 2. JURISDICTION Plaintiff asserts that the Court has jurisdiction pursuant to his status as a county jail inmate. All Defendants deny that the Court has jurisdiction pursuant to such status.

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3. CLAIMS AND DEFENSES 1. Plaintiff This litigation arises out of an incident occurring on January 30, 2003, at the apartment of Plaintiff's common-law wife, Vondrice DeRuso, which was located at 172 Kenton, P-107, in the City of Aurora, Colorado. In the early morning hours, Officers Dyer and Stine of the Aurora Police Department were dispatched to Ms. DeRuso's residence. The dispatch was

the result of a phone call she placed to report that Plaintiff wanted to turn himself in for a minor parole violation. Upon arrival at Ms. DeRuso's residence, Officers Dyer and Stine were invited into the residence without Plaintiff's knowledge. where they found Plaintiff and four children. Once there, the officers entered a bedroom The officers, then, without announcing their During this assault,

presence and no command to surrender, tackled and assaulted Plaintiff.

Plaintiff does not resist but merely covers himself with his arms from further attack. The assault consists of hits, blows, punches, strikes, and twists to the body and arms of the Plaintiff. The assault continued even after Plaintiff was handcuffed, while being placed in and removed from the police car. By his complaint, Mr. Adams alleges injuries including permanent physical and emotional injuries due to the excessive force of Officers Dyer and Stine. Specifically, Mr.

Adams alleges two (2) violations of his 4th and 14th Amendment rights to be free from the use of excessive force upon his person. In addition, Mr. Adams apparently alleges a violation of his Lastly Plaintiff alleges that by

8thAmendment rights pursuant to his equal protection rights.

reason of its failure to investigate the incident of January 30, 2003, which led to his arrest,

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Defendant City has condoned the excessive, unnecessary force of their police officers pursuant to its "policy and training." 2. Defendant Officers On January 30, 2003, Vontrice DeRuso contacted the Aurora Police Department at approximately 3:00 a.m. Ms. DeRuso complained that Plaintiff , who did not reside at 172 Kenton Street, Apartment P-107, was banging on her front door. Aurora Police Officers Dyer and Stine were dispatched to 172 Kenton Street, Apartment P107 pursuant to Ms. DeRuso's request. Plaintiff, who was on parole, told Ms. DeRuso that the police "would have to kill [him] before they take me back to prison." Plaintiff had been drinking alcohol. Plaintiff's presence at Ms. DeRuso's apartment was a violation of his parole. Vontrice DeRuso answered the

officer's knock on the door and voluntarily gave permission for the officers to enter the apartment. As a result of the officers' presence in Ms. DeRuso's apartment, Plaintiff was taken into custody and arrested. Later, Plaintiff was taken to Columbia Health South and evaluated. Defendant Lieutenant Stevens later conducted an investigation into the arrest of Plaintiff at the direction of Defendant Captain Cloyd. A jury found Plaintiff guilty of Second Degree Assault on a police officer, of disarming a police officer, and of resisting arrest based upon his actions during the incident of January 30, 2003. Generally, Defendant officers deny that the allegations and averments in Plaintiff's Complaint give rise to a claim under Title 42 U.S.C. Section 1983. As to specific

defenses, Defendant Officers allege that Plaintiff has failed to state a claim upon which relief may be granted, that Plaintiff has failed to allege the requisite personal participation necessary to

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establish individual liability on the part of Defendant Officers Jonsgaard, Day, Heller, Thull, Stahnke, Stevens, and Cloyd, that any injury, damage or loss suffered by Plaintiff is the direct and proximate result of his felonious conduct, that at all time, the Plaintiff was afforded all rights, privileges and immunities guaranteed to him by the Constitution and laws of the United States, that Plaintiff's claims are barred by the doctrines of issue and claim preclusion, and the doctrines of official, absolute, sovereign, and qualified immunity, that Defendants used no more force than was reasonable and necessary to contain Plaintiff's resistance, that Plaintiff's damages, if any, are the result of Plaintiff's willful, unlawful, and intentional acts, that Plaintiff's claims, to the extent that they are cognizable, allege mere negligence, that the actions of individual Defendant officers were at all times undertaken with a good faith belief in the lawfulness of their actions, that the Defendant Officers were properly exercising their public duties pursuant to C.R.S. Section 18-1-701, and that the Defendant Officers were properly exercising their police powers and authority vested in them by reason of C.R.S. Sections 16-3101, 16-3-102, 16-3-103, and 18-1-107. 3. Defendants The City of Aurora and Captain Cloyd Defendants Aurora and Cloyd adopt all of the above assertions and defenses and further assert that the Plaintiff's Complaint fails to state any claim against Aurora because the Plaintiff cannot establish a Constitutional violation in the first instance, and further cannot establish that any violation of his Constitutional Rights was the result of an unconstitutional policy or custom of the City of Aurora. Lastly, Defendant City asserts that it is not liable to

Plaintiff for exemplary or punitive damages pursuant to either Colorado or Federal law.

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4. STIPULATIONS A. Stipulated Facts. Defendants have been unable to contact Plaintiff who remains incarcerated so as to establish what may be subject to stipulation. 5. PENDING MOTIONS The following motions are pending: A. Defendants' Motion for Summary Judgment and Defendants' Memorandum in

Support of Summary Judgment with Exhibits was filed April 18, 2005. 6. WITNESSES Subject to the pending Motion for Summary Judgment, Defendants are presently able to articulate and disclose only the following witnesses: A. Officer Dyer, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-7396000. B. Officer Stine, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-7396000. C. Officer Stahnke, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303739-6000. D. Officer Heller, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303739-6000. E. Officer Gaskill, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303739-6000.

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F. Officer Jonsgaard, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303739-6000. G. Officer Thull, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-7396000. H. Officer Day, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-7396000. I. Lieutenant Stevens III, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-739-6000. J. Captain Cloyd, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303739-6000. K. Sgt. Obrecht, APD, 15151 E. Alameda Parkway, Aurora, Colorado 80012, 303-7396000. L. Plaintiff Stephen J. Adams, Reg. No. 86319, Unit 1-C-1-12, Sterling Correctional Facility, P.O. Box 6000, Sterling, CO 80751. M. Vondrice DeRuso, 172 Kenton Street, Apt. P107, Aurora, CO. N. Dr. Ivor Garlick, Swedish Medical Center, 501 E. Hampden Ave., Englewood, CO, 80110. 7. EXHIBITS Subject to the pending Motion for Summary Judgment, Defendants are presently able to articulate and disclose only the following exhibits: A. All police reports involved with Case Report No. 03-5097.

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B.

All criminal trial transcripts involved with Arapahoe County District Court Case No. 03CR314.

C.

All Jury Instructions involved with Arapahoe County District Court Case No. 03CR314. 8. DISCOVERY

Defendants moved to stay discovery for sixty (60) days to provide Defendants the opportunity to review and consider the grounds for Plaintiff's state court appeal of his underlying criminal conviction for purposes of their Motion for Summary Judgment. Court denied the motion. been accomplished. 9. SPECIAL ISSUES The parties are unable to articulate and disclose special issues until the Court has ruled upon Defendants= Motion for Summary Judgment. However, should the Court deny This

Thus, no discovery beyond Defendant City's written discovery has

Defendants' Motion for Summary Judgment, it is anticipated that there will be continuing issues with discovery, in particular Plaintiff's refusal to provide Defendants with complete medical records and medical history in order to properly analyze Plaintiff's damages claims. 10. SETTLEMENT . The Court's Scheduling Order, dated September 7, 2004, did not require a

Settlement Conference and none has been held.

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11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure, which they have discussed with their clients. 12. EFFECT OF FINAL PRETRIAL ORDER Subject to amendment due to additional discovery, and after the Court's ruling on Defendants' Motion for Summary Judgment, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. Subject to amendment due to additional discovery and the Court's ruling on the pending Motion for Summary Judgment, the pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS Trial is not scheduled in this matter. DATED this ____ day of August, 2005. BY THE COURT:

United States Magistrate Judge Boyd N. Boland APPROVED:
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/s/ Michael T. Lowe Marc F. Colin Michael T. Lowe BRUNO, BRUNO & COLIN , P.C. One Civil Center Plaza 1560 Broadway, Suite 1099 Denver, CO 80202-5143 (303) 831-1088 ATTORNEYS FOR DEFENDANTS OFFICERS DYER , GASKILL, STINE JONSGAARD , DAY HELLER, THULL , STAHNKE , AND LT . STEPHENS

Stephen H. Adams #86319 STERLING CORRECT IONAL FACILITY P.O. BOX 6000 STERLING , CO 80751

/s/ Peter Ruben Morales Charles H. Richardson Peter Ruben Morales, OFFICE OF THE CITY ATTORNEY 15151 E. Alameda Pkwy., 5th Fl. Aurora, CO 80012 (303) 739-7042 ATTORNEYS FOR DEFENDANT THE CITY OF AURORA AND CAPT AIN ROGER CLOYD

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