Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01002-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1002-MSK-CBS DONJA VAUGHN, PLAINTIFF, v. SIMMS RHEA, JOE OLT, JOEL STEVENSON, AND GARY SHOUN, DEFENDANTS. RESPONSE TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF DEFENDANTS SHOUN AND STEVENSON Defendants Shoun and Stevenson ("State Defendants"), by and through the Office of the Colorado Attorney General, submit the following Response to Plaintiff's Motion for Reconsideration of the Court's May 30, 2006 Order that granted, in part, the State Defendants' Motion for Summary Judgment. 1. In her Motion for Reconsideration, Plaintiff seeks reversal of this Court's

dismissal of her claim that the State Defendants violated her right to due process of law when they released the horses Edes and Elgin to Defendant Rhea at the direction of District Attorney Olt. In support of this request for reconsideration, Plaintiff acknowledges that criminal charges were pending against her in Montezuma County, but she asserts that the horses were not part the criminal prosecution. This statement is factually incorrect, as Plaintiff herself acknowledged in her deposition:

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Q (by Mr. Kennedy): But you were the subject of a Montezuma County criminal prosecution in 2002; is that correct? A: Yes. Q: And the two horses that are at issue in this case were part of that case also? A: Yes.

Deposition of Donja Vaughn, p. 396, lines 11-16 (Docket # 133, Exhibit D). 2. Additionally, even assuming arguendo that there were no charges pending

related directly to the horses Elgin and Edes at the time the horses were released to Defendant Rhea, it is undisputed that criminal charges were pending against Ms. Vaughn, and that Defendant Olt planned to use the two horses as evidence in the criminal prosecution of those charges. [Docket #132, Exhibit E, F; docket 132, Exhibit C at 17-18]. Plaintiff has presented no evidence to the contrary, and thus has failed to create any genuine issue of material fact concerning the circumstances surrounding the release of the horses to Defendant Rhea. This Court correctly determined that Defendant Olt is entitled to absolute prosecutorial immunity because a prosecutor is immune for actions he takes to preserve evidence for a pending criminal matter. DiCesare v. Stuart, 12 F. 3d 973, 977 (10th Cir. 1993); Coleman v. Turpen, 697 F. 2d 1341, 1344 (10th Cir. 1983). 3. Plaintiff asserts that even if Defendant Olt is immune from suit, Defendants

Shoun and Stevenson, as brand inspectors, cannot benefit from absolute prosecutorial immunity. This is an incorrect statement of law. Prosecutorial immunity protects individuals engaged in prosecutorial functions. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). In determining whether to apply prosecutorial immunity, courts examine the nature 2

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of the function performed, not "the identity of the actor who performed it." Kalina v. Fletcher, 522 U.S. 118, 127 (1997). Thus, absolute prosecutorial immunity applies not only to district attorneys, but also to individuals who work with district attorneys in the performance of prosecutorial functions. Atkins v. Lanning, 556 F. 2d 485, 489 (10th Cir. 1977). Plaintiff does not dispute that the State Defendants released the two horses at the direction of the District Attorney. Accordingly, the State Defendants share Defendant Olt's absolute immunity for their role in the release of the horses to Defendant Rhea. 4. Even if the State Defendants are not entitled to absolute immunity, they are

entitled to qualified immunity for their role in the release of the horses to Defendant Rhea. In determining whether qualified immunity applies, the "essential inquiry" is whether an objectively reasonable official would have known that his conduct was unlawful. Lawrence v. Reed, 406 F. 3d 1224, 1230 (10th Cir. 2005). Where the law is not clearly established so as to provide guidance to officials that conduct may be unlawful, courts "do not require officials to anticipate its future developments, and qualified immunity is therefore appropriate." Id. In the Tenth Circuit, case law clearly indicates that the disposition of evidence relevant to a criminal prosecution is a lawful prosecutorial function. Coleman v. Turpen, 697 F. 2d at 1344. The State Defendants could not have known that they were acting unlawfully by releasing the horses to Defendant Rhea at the direction of the District Attorney because there is no established case law in the Tenth Circuit telling them so. 5. Finally, Plaintiff argues that the Court improperly denied Plaintiff's Motion to

Amend her Complaint. Plaintiff has offered no argument or authority that was not raised in 3

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the previous briefing of this matter. Accordingly, with respect to this issue, the State Defendants rely on the arguments and authorities raised in Defendant Olt's Response to Plaintiff's Motion to Amend Complaint (Docket # 143). 6. State Defendants have not addressed those portions of Plaintiff's Motion for

Reconsideration pertaining to issues related to Defendant Rhea. WHEREFORE, based on the arguments and authorities stated above, Defendants Shoun and Stevenson request this Court to deny Plaintiff's Motion for Reconsideration (Docket # 225).

JOHN W. SUTHERS Attorney General

s/ Kathleen Spalding KATHLEEN L. SPALDING* Assistant Attorney General Civil Litigation & Employment Section Attorneys for Defendants Shoun and Stevenson 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: 303-866-3249 *Counsel of Record

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CERTIFICATE OF SERVICE This is to certify that on July 3, 2006, I electronically filed the foregoing Response to Plaintiff's Motion for Reconsideration of Defendants Shoun and Stevenson with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following:

Michael Considine, Jr., Esq. 12 E. Barnard St., Suite 100 West Chester, PA 19382 Edmund M. Kennedy, Esq. 1125 17th St., Suite 600 Denver, CO 80202

Jack Robinson, Esq. 1660 Lincoln St., Suite 2220 Denver, CO 80264

s/ Kathleen Spalding _______________________________________

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