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

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1150-LTB-BWB BARBARA WALDRON; RICHARD SARRO; and ELIZABETH BROOKHART, Plaintiffs, vs. JAMES DRURY, individually; DAVID D. STONG, in his official capacity as the Sheriff of the County of Alamosa; CHARLES J. KALBACHER, individually, and in his capacity as former Investigator for the District Attorney for the 12th Judicial District; EUGENE L. FARISH, individually and in his official capacity as former District Attorney, 12th Judicial District, State of Colorado; DISTRICT ATTORNEY, 12th JUDICIAL DISTRICT, STATE OF COLORADO, a political subdivision of the State of Colorado; ALAMOSA COUNTY SHERIFF'S DEPARTMENT, a political subdivision of the State of Colorado; ALAMOSA COUNTY, a body corporate and politic; and ALAMOSA COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Colorado, Defendants. ______________________________________________________________________________ REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS DRURY AND KALBACHER IN THEIR INDIVIDUAL CAPACITIES; FARISH IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT STATE OF COLORADO; ALAMOSA COUNTY; AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS ______________________________________________________________________________

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 2 of 12

INTRODUCTORY STATEMENT As illustrated in the remainder of this reply brief and the incorporated portions of the reply brief of the co-defendants, the undisputed material portions of the record herein simply do not constitute a denial of Plaintiffs' right of access to the courts, nor was Plaintiffs' view of this right clearly established in 1984. As will be further illustrated below, there is simply no individual or municipal 1983 liability created by the undisputed record in this matter. Moreover, Plaintiffs' claims against these individual Defendants are barred by the doctrine of qualified immunity. In the initial dispositve motion filed by these Defendants, dismissal of Plaintiffs' individual claim against former District Attorney Farish as well as Plaintiffs' official capacity claim against Mr. Farish, and their claim against the District Attorney, 12th Judicial District, State of Colorado, was sought on grounds of lack of personal participation and the bar of the Eleventh Amendment to the United States Constitution. As to these grounds for dismissal, Plaintiffs have either confessed these grounds or not addressed the grounds at all, thereby inferentially confessing the dismissal of Farish and the District Attorney's Office. Finally, as will also be illustrated below, Plaintiffs' claims against Alamosa County and its Board of Commissioners should also be dismissed. PLAINTIFFS' CLAIMS AGAINST EUGENE FARISH IN BOTH HIS INDIVIDUAL AND OFFICIAL CAPACITIES AND PLAINTIFFS' CLAIM AGAINST THE "DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO" SHOULD BE DISMISSED. As to Plaintiffs' individual claim against Eugene Farish, the District Attorney of the Twelfth Judicial District of the State of Colorado in 1984, Plaintiffs confess the dismissal of the

2

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 3 of 12

individual claim against Mr. Farish. (Plaintiffs' Response Brief., p. 34) As to Plaintiffs' claim against Mr. Farish in his official capacity and their claim against the "District Attorney, Twelfth Judicial District, State of Colorado," Plaintiffs' response brief does not appear to address the contention of these Defendants' that the claims against these two entities are barred by the Eleventh Amendment of the United States Constitution. As a consequence, there appears to be an unspoken confession of that component of these Defendants' Motion for Summary Judgment. Therefore, Plaintiffs' claims against Mr. Farish in both his individual and official capacities and their claim against the District Attorney's Office of the Twelfth Judicial District should accordingly be dismissed. PLAINTIFFS' CLAIM AGAINST ALAMOSA COUNTY AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS SHOULD BE DISMISSED. Excepting the allegations of Plaintiffs' Complaint for their apparently redundant claim against Alamosa County as a defendant and the Alamosa County Board of County Commissioners as a separate defendant, there is no basis in fact or law for Plaintiffs' allegation in this regard. More specifically, Plaintiffs contend that the Alamosa County Sheriff's Department is "subject to the authority and control of the Alamosa County Board of Commissioners." (First Amended Complaint, p. 2) As our circuit has stated, in Colorado "the board of county commissioners has no control over the sheriff's employees," Bristol v. Board of County Commissioners of the County of Clear Creek, et al., citing Tunget v. Board of County Commissioners, 992 P.2d 650, 652 (Colo. App. 2000). As a matter of Colorado law, as noted in these Defendants' initial brief, the Tunget decision at 651 specifically states that: Under both the Colorado Constitution and applicable statutes, sheriffs and boards of county commissioners are treated as separate public entities having different powers and responsibilities.

3

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 4 of 12

In Plaintiffs' response to that portion of these Defendants' dispositive motion seeking summary judgment in favor of Alamosa County and its Board of Commissioners, in an argument involving less than one page, Plaintiffs simply state that Tunget is distinguishable on the facts, disregarding the clear statement of the Tunget court as to the distinction between an elected sheriff and an elected board of commissioners. Further, it is readily apparent that the Tenth Circuit finds Tunget as authoritative on the question at issue here. As a technical issue, under Colorado statute, specifically C.R.S. § 30-11-105, "a suit against a county shall be brought against the board of county commissioners" as opposed to simply naming the "county" as a separate defendant. Cortese v. Black, et al., 838 F. Supp. 485, 496 (1993). Because of this fact, this very court revised the caption in Cortese to identify only the board of county commissioners as the appropriate defendant. This court also noted aptly in Cortese that "Colorado law provides that the sheriff and the county are suable entities," citing C.R.S. § 30-11-101(a) and C.R.S. § 30-10-522. Id. at 496. In this context, it is clear that the Board of County Commissioners of Alamosa County played no role whatsoever in the investigation of the unfortunate death at issue here or the decision by the involved Deputy District Attorney that this death was a suicide and not a homicide. As a consequence, if the individual Board of County Commissioners in office at the time in question had been named individually, such a claim would clearly have been subject to dismissal. Langley v. Adams County Board of County Commissioners, 97 F.2d 1473, 1480 (10th Cir. 1993). In this particular case, plaintiffs have named both the present sheriff of Alamosa County in his official capacity and the Alamosa County Sheriff's Department as separate defendants and as this court

4

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 5 of 12

noted in Cortese, plaintiffs' claim against the sheriff's department should actually be treated as a "suit against the sheriff in his official capacity." Cortese at 496. As part of their argument that the Board of County Commissioners of Alamosa County is a proper defendant in matter, Plaintiffs refer to this Court's decision in Sanders v. Board of County Commissioners, 192 F. Supp.2d 1094 (D. Colo. 2001) While these Defendants certainly agree with this Court's pronouncement in Sanders and earlier cases that a single act of an employee (or a sheriff) may under appropriate circumstances constitute final authority with respect to the establishment of a policy, the defendants in Sanders did not challenge the issue of whether the policy in question could impose liability on both the municipal entity and the sheriff as a separate entity. These Defendants do not agree that an alleged "policy" of a sheriff in Colorado can subject a board of county commissioners to a potential 1983 liability. In fact, as this Court noted in Cortese, the question of whether a 1983 action could proceed against both the sheriff as an entity and the county commissioners as a separate entity "is left for another day." Cortese at 496. Plaintiffs' response to the motion of these Defendants that the County and its Board should be dismissed specifically states that Defendants' contention and "arguments run contrary to well established Colorado and federal precedents." (Response at p. 40) These purported "precedents" begin with a citation to Roberts v. People, 13 P. 630 (Colo. 1887). A careful review of the Colorado Supreme Court's decision in Roberts reveals no pronouncement which has anything to do with this litigation. Roberts dealt simply with a criminal theft case in which the court approved the appointment of a special prosecuting district attorney and criminal law issues related to the conviction of a person for stealing silver and gold ore. Under any circumstance, the

5

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 6 of 12

Roberts decision does nothing to contradict the authorities relied upon by these Defendants with respect to the dismissal of the Board of County Commissioners of Alamosa County from this lawsuit. Finally, Plaintiffs refer this Court to a Tenth Circuit decision reported as Owens v. Rush, 636 F.2d 283 (10th Cir. 1980) for the proposition that the circuit has determined a Kansas sheriff to be an agent of a county. Again, Owens appears to have nothing to do with the arguments of these Defendants on the question of whether the Alamosa Board should remain as a defendant in this case. Owens was simply a decision involving a Kansas sheriff's office which employed fewer than 15 individuals. The Owens decision is limited completely to the question of whether the employees of the sheriff's office should be aggregated with the other employees of the county in question for purposes of Title VII jurisdiction. In sum, while these Defendants do not believe that the investigation directed by then Sheriff Drury into this tragedy implicates either a constitutionally suspect policy or custom of the then Sheriff's Office, the investigation of the death at issue here was the responsibility of the Sheriff as a separate entity and not the Board of County Commissioners of Alamosa County. Accordingly, both Alamosa County and the Board of County Commissioners of Alamosa County should be dismissed from this litigation. PLAINTIFFS' INDIVIDUAL CLAIMS AGAINST FORMER SHERIFF DRURY AND INVESTIGATOR KALBACHER ARE BARRED BY QUALIFIED IMMUNITY. A synthesis of Plaintiffs' qualified argument appears to largely focus on the alleged conclusion of S heriff Drury that the death at issue here was a suicide and not a homicide, as well as the thoroughness of the investigation conducted by Drury's office in this matter. In this vein, Plaintiffs seem to suggest that they have been denied access to the courts because Mr. Cottrell was not charged with some form of criminal homicide. In this context, it is undisputed that the

6

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 7 of 12

involved Deputy District Attorney found this death to be a suicide and not a homicide. In Colorado, a peace officer such as Sheriff Drury cannot bring criminal charges for a felony homicide. This must be done by a District Attorney. C.R.S. § 16-5-205. This is simply to say that in this case the ultimate decision on the cause of death of Ms. Vanderveen was that of a prosecutor not Sheriff Drury and most certainly not investigator Kalbacher. Under any

circumstance, these issues are unrelated to the analysis of an alleged denial of access to the courts. Similarly, while Plaintiffs' response brief repeatedly and in a purely conclusory manner describes the investigation of this death as conducted with deliberate indifference to the rights of the Plaintiffs, the facts clearly belie this argument. Whether or not right of access to the courts is to be measured in part by the standard of "deliberate indifference, this principle is a "stringent standard of fault requiring proof that defendant disregarded known or obvious consequences of his or her action." Board of County Commissioners of Bryant County v. Brown, 117 S.Ct. 1382, 1391 (1997). In the i stant case, there is no question that Sheriff Drury secured the crime scene, n preserved existing evidence in a reasonable manner, and forwarded extensive evidence to the Colorado Bureau of investigation, including gunshot residue tests which indicated that the death weapon was fired by the decedent and not by Mr. Cottrell. On this issue, these Defendants incorporate by reference and adopt the original factual component of the co-defendants brief in this matter and their reply brief as to the undisputed aspects of the investigation which was conducted in this particular instance. In any event, with the exception of the conclusory statements of Plaintiffs' counsel to the contrary, what occurred in this case simply does not

7

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 8 of 12

constitute deliberate indifference to the rights of the Plaintiffs in this matter under the standard noted above. Plaintiffs' specific response to the assertion of qualified immunity by Drury and Kalbacher is found on page 32 of their brief and comprises less than one page, although qualified immunity concepts are interspersed in other portions of Plaintiffs' brief under separate subject headings. In essence, Plaintiffs appear to argue that the constitutional right of access to the courts has been "clearly established" in our circuit since t e decision of McKay v. Hammock, 730 F.2d h 1367 (10th Cir. 1984). As illustrated in the co-defendants Reply Brief, McKay is completely inapposite to the issues present in the instant matter. This blithe statement also ignores the admonition against constitutional generalities regarding qualified immunity presented in

Anderson v. Creighton, 483 U.S. 635, (1987). Plaintiffs' argument in this regard is hardly different than a simple assertion that the Fourth Amendment was clearly established as a constitutional right in 1984. More pointedly, conclusory, nonspecific and generalized allegations of constitutional deprivations are insufficient to oppose qualified immunity. Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993). Rather, Plaintiffs here have the "burden to show with particularity facts and law establishing the inference that (a) defendant violated a constitutional right." Abeyta v. Chama Valley Sch. Dist., 77 F.3d 1253, 1255 (10th Cir. 1996). These precepts of course primarily deal with the initial prong of the qualified immunity analysis which requires that a civil rights plaintiff must initially demonstrate that the involved public official actually violated a civil right of a plaintiff. Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996). As to this initial element of Plaintiffs' burden to overcome qualified immunity, these Defendants again incorporate and adopt by reference the co-defendants' reply brief on this issue. In essence, the

8

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 9 of 12

constitutional right of the instant Plaintiffs' access to the courts was not violated by the investigation which occurred here, Plaintiffs' second guessing to the contrary. To turn to the second prong of the qualified immunity analysis required in this matter, the question is whether in a "particularized" sense, the actions of Sheriff Drury and the more limited involvement of investigator Kalbacher, can be said to have constituted a clearly established violation of the Plaintiffs' civil rights in the year 1984. Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995). Again, these Defendants contend that no such violation occurred, but even accepting Plaintiffs' arguments in this regard, the amorphous and very general statement of this civil right in McKay, supra, simply cannot be said to clearly establish the Plaintiffs' present argument to the extent that Sheriff Drury or investigator Kalbacher would have understood in 1984 that their investigation was violative of the then Vanderveen childrens' right of access to the courts. As these Defendants contended in their opening brief, the contours of this right have become refined and more particularized since 1984, and Plaintiffs' specific argument in this regard was not clearly established in 1984. Here again, these Defendants adopt and incorporate by reference co-defendants reply brief on this issue. In a certain sense, incorporating the contention of all defendants that Plaintiffs' failure to file a civil wrongful death suit is fatal to their claim in this matter, even recent pronouncements of the United States Supreme Court on this issue do not appear to have fully sculpted the contours of the right of access to the courts. As an example, the Court is directed to the decision of the U.S. Supreme Court in Lewis v. Casey, 518 U.S. 343, 356 (1996), relative to the present contours of the right of access to the courts. In conclusion, Plaintiffs have completely failed to meet their burden of proof with respect to the second element of qualified immunity. Plaintiffs' particular arguments presented in this

9

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 10 of 12

case with respect to the inadequacy of the investigation at issue, the nonexistent destruction of evidence or cover up, and implied conspiracy to somehow protect the interests of George Cottrell, while not factually accurate in this case, were simply not clearly established in 1984. Again, the doctrine of qualified immunity clearly protects former Sheriff Drury for the investigation which was conducted in this case and all the more so is applicable to investigator Kalbacher for his limited involvement in this matter on one day in 1984. PLAINTIFFS' CIVIL RIGHTS CLAIM IS BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS. These Defendants also assert the defense of the bar of the applicable two-year Statute of Limitations. Again, in this context these Defendants adopt and incorporate by reference the arguments presented by the co-defendants in their initial and reply briefs in this matter. CONCLUSION The tragic death of the Plaintiffs' decedent and the investigation of that death simply do not implicate or involve a denial of the Plaintiffs' right of access to the courts. The record is completely devoid of any intentional or deliberate actions by the investigators in this matter in the nature of a cover up, a conspiracy with the oft-mentioned Mr. Cottrell or the intentional overlooking or destruction of evidence which could conceivably constitute a violation of this particular civil right. Further, the contours of the right of access to a court were unquestionably not clearly established in 1984, at least in the context of this right as argued by the Plaintiffs herein. Finally, for purposes of the motion of these Defendants, the Board of County Commissioners of Alamosa County is simply not an appropriate 1983 party under the undisputed facts of this case.

10

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 11 of 12

For these several and somewhat independent but individually sufficient reasons, these moving Defendants are entitled to dismissal of Plaintiffs' claims and/or summary judgment as to these claims. Respectfully Submitted,

s/ David R. Brougham David R. Brougham HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: (303) 628-3300 Fax # (303) 293-3238 [email protected] ATTORNEY FOR DEFENDANTS DRURY and KALBACHER, in their individual capacities; FARISH, in his individual and official capacity; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and THE ALAMOSA COUNTY BOARD OF COMMISSIONERS

11

Case 1:04-cv-01150-LTB-BNB

Document 77

Filed 03/21/2006

Page 12 of 12

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 21st day of March 2006, I electronically filed the foregoing REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS DRURY AND KALBACHER IN THEIR INDIVIDUAL CAPACITIES; FARISH IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT STATE OF COLORADO; ALAMOSA COUNTY; AND THE ALAMOSA COUNTY BOARD OF COMMISSIONERS with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: Randall John Paulsen [email protected] [email protected] Scott Robert Armitage [email protected] [email protected] Josh Adam Marks [email protected] [email protected] Justin Colby Berg [email protected] [email protected] Dennis B. Wanebo [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: There are no manual recipients. s/Marlene Wilson, Legal Secretary to ______________________________ David R. Brougham HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: (303) 628-3300 Fax # (303) 293-3238 [email protected]
ATTORNEY FOR DEFENDANTS DRURY and KALBACHER, in their individual capacities; FARISH, in his individual and official capacity; THE DISTRICT ATTORNEY, TWELFTH JUDICIAL DISTRICT, STATE OF COLORADO; ALAMOSA COUNTY; and THE ALAMOSA COUNTY BOARD OF COMMISSIONERS

12