HomeMy WebLinkAbout2021-1284 - Surat V. Klamser, Et Al - 018 - Supplemental AppendixCase No. 21-1284
In the United States Court of Appeals
For the Tenth Circuit
MICHAELLA LYNN SURAT,
Plaintiff-Appellee,
v.
RANDALL KLAMSER, in his individual capacity
Defendant-Appellant,
and
CITY OF FORT COLLINS, a municipality
Defendant.
__________________________________________________________________
On Appeal from the United States District Court for the District of Colorado
The Honorable William J. Martinez, District Court Civil Action No. 19-cv-00901
__________________________________________________________________
SUPPLEMENTAL APPENDIX
__________________________________________________________________
DAVID A. LANE
ANDREW MCNULTY
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400, Denver, CO 80202
(303) 571-1000
(303) 571-1001 fax
Attorneys for Plaintiff-Appellee
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 1
ii
TABLE OF CONTENTS – SUPPLEMENTAL APPENDIX
Page
Civil Court Docket Sheet ........................................................................................... 1
Order Certifying Interlocutory Appeal as Frivolous
(Doc. 175), September 2, 2021.............................................................................. 22
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 2
APPEAL,JD1,MJ CIV PP,NDISPO
U.S. District Court - District of Colorado
District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:19-cv-00901-WJM-NRN
Surat v. Klamser et al
Assigned to: Judge William J. Martinez
Referred to: Magistrate Judge N. Reid Neureiter
Case in other court: Tenth Circuit, 21-01284
Cause: 28:1983
Date Filed: 03/26/2019
Jury Demand: Both
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
Plaintiff
Michaella Lynn Surat represented by Tania Nickens Valdez
University of Denver-Sturm College of
Law
2255 East Evans Avenue
Suite 335
Denver, CO 80208-0632
303-871-6140
Email: tvaldez@law.du.edu
TERMINATED: 07/26/2019
LEAD ATTORNEY
Andrew Joseph McNulty
Killmer Lane & Newman, LLP
1543 Champa Street
Suite 400
Denver, CO 80202
303-571-1000
Email: amcnulty@kln-law.com
ATTORNEY TO BE NOTICED
David A. Lane
Killmer Lane & Newman LLP
1543 Champa Street
Suite 400
Denver, CO 80202
303-571-1000
Fax: 303-571-1001
Email: dlane@kln-law.com
ATTORNEY TO BE NOTICED
Helen S. Oh
Killmer Lane & Newman, LLP
1543 Champa Street
Suite 400
Denver, CO 80202
303-571-1000
Email: hoh@kln-law.com
ATTORNEY TO BE NOTICED
SUPP. APP. 000001
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 3
V.
Defendant
Randall Klamser
in his individual capacity
represented by Brenden W. Desmond
Hall & Evans LLC-Denver
1001 Seventeenth Street
Suite 300
Denver, CO 80202
303-628-3461
Email: desmondb@hallevans.com
TERMINATED: 12/07/2020
Christina Shavon Gunn
Hall & Evans LLC-Denver
1001 Seventeenth Street
Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-629-3368
Email: gunnc@hallevans.com
TERMINATED: 01/23/2020
Gillian Dale
Hall & Evans LLC-Denver
1001 Seventeenth Street
Suite 300
Denver, CO 80202
303-628-3328
Fax: 303-628-3368
Email: daleg@hallevans.com
TERMINATED: 10/07/2020
Gina Marie Rossi
Hall & Evans LLC-Denver
1001 Seventeenth Street
Suite 300
Denver, CO 80202
303-293-3240
Email: rossig@hallevans.com
ATTORNEY TO BE NOTICED
John R. Duval
City Attorney's Office-Fort Collins
P.O. Box 580
Fort Collins, CO 80522
970-221-6520
Email: jduval@fcgov.com
ATTORNEY TO BE NOTICED
John Felix Peters
Caplan & Earnest LLC
SUPP. APP. 000002
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 4
3107 Iris Avenue
Suite 100
Boulder, CO 80301
303-443-8010
Fax: 303-440-3967
Email: jpeters@celaw.com
TERMINATED: 04/21/2021
Mark Scott Ratner
Hall & Evans LLC-Denver
1001 Seventeenth Street
Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
Email: ratnerm@hallevans.com
ATTORNEY TO BE NOTICED
Defendant
City of Fort Collins
a municipality
represented by Brenden W. Desmond
(See above for address)
TERMINATED: 12/07/2020
Christina Shavon Gunn
(See above for address)
TERMINATED: 01/23/2020
Gillian Dale
(See above for address)
TERMINATED: 10/07/2020
Gina Marie Rossi
(See above for address)
ATTORNEY TO BE NOTICED
John R. Duval
(See above for address)
ATTORNEY TO BE NOTICED
John Felix Peters
(See above for address)
TERMINATED: 04/21/2021
Mark Scott Ratner
(See above for address)
ATTORNEY TO BE NOTICED
Date Filed #Page Docket Text
03/26/2019 1 COMPLAINT and Jury Demand against City of Fort Collins, Randall
Klamser (Filing fee $ 400,Receipt Number 1082-6602943)Attorney David
SUPP. APP. 000003
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 5
Arthur Lane added to party Michaella Surat(pty:pla), filed by Michaella Surat.
(Attachments: # 1 Civil Cover Sheet)(Lane, David) (Entered: 03/26/2019)
03/26/2019 2 SUMMONS REQUEST as to Randall Klamser and City of Fort Collins re 1
Complaint, by Plaintiff Michaella Surat. (Attachments: # 1 Summons)(Lane,
David) (Entered: 03/26/2019)
03/26/2019 3 Case assigned to Magistrate Judge N. Reid Neureiter. Text Only Entry. (rroge,
) (Entered: 03/26/2019)
03/26/2019 4 SUMMONS issued by Clerk. (Attachments: # 1 Summons, # 2 Magistrate
Judge Consent Form) (rroge, ) Modified on 3/28/2019 to correct Summons
date (rroge, ). (Entered: 03/26/2019)
03/26/2019 6 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT
RULES/PROCEDURES:re: 1 Complaint, filed by attorneyTania Valdez and
David Lane.The s/signature did not match the filers name on the account for
which the login and password are registered. DO NOT REFILE THE
DOCUMENT. Action to take - future documents must be filed pursuant to
D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures
(Civil cases).(Text Only Entry) (rroge, ) (Entered: 03/28/2019)
03/27/2019 5 ORDER Setting Scheduling/Planning Conference and Setting Deadline for
Filing of Consent/Non-Consent Form, by Magistrate Judge N. Reid Neureiter
on 3/27/2019. Consent/Non-Consent Form due on or before 5/22/2019.
Scheduling/Planning Conference set for 6/5/2019 01:30 PM in Courtroom
C205 before Magistrate Judge N. Reid Neureiter. (slibi, ) (Entered:
03/27/2019)
03/29/2019 7 NOTICE of Entry of Appearance by Tania N. Valdez on behalf of Michaella
Lynn Surat (Valdez, Tania) (Entered: 03/29/2019)
05/10/2019 8 WAIVER OF SERVICE Returned Executed by Michaella Lynn Surat. City of
Fort Collins waiver sent on 4/8/2019, answer due 6/7/2019; Randall Klamser
waiver sent on 4/8/2019, answer due 6/7/2019. (Attachments: # 1 Continuation
of Main Document)(Lane, David) (Entered: 05/10/2019)
05/14/2019 9 NOTICE of Entry of Appearance by Christina Shavon Gunn on behalf of City
of Fort Collins, Randall KlamserAttorney Christina Shavon Gunn added to
party City of Fort Collins(pty:dft), Attorney Christina Shavon Gunn added to
party Randall Klamser(pty:dft) (Gunn, Christina) (Entered: 05/14/2019)
05/14/2019 10 NOTICE of Entry of Appearance by Mark Scott Ratner on behalf of City of
Fort Collins, Randall KlamserAttorney Mark Scott Ratner added to party City
of Fort Collins(pty:dft), Attorney Mark Scott Ratner added to party Randall
Klamser(pty:dft) (Ratner, Mark) (Entered: 05/14/2019)
05/14/2019 11 Unopposed MOTION to Reset Scheduling Conference by Defendants City of
Fort Collins, Randall Klamser. (Attachments: # 1 Exhibit A, # 2 Exhibit
B)(Ratner, Mark) (Entered: 05/14/2019)
05/14/2019 12 MINUTE ORDER denying 11 Unopposed Motion to Reset Scheduling
Conference, by Magistrate Judge N. Reid Neureiter on 5/14/2019.(slibi, )
(Entered: 05/14/2019)
05/22/2019 13
SUPP. APP. 000004
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CONSENT to Jurisdiction of Magistrate Judge by Defendants City of Fort
Collins, Randall Klamser All parties do not consent.. (Ratner, Mark) (Entered:
05/22/2019)
05/23/2019 14 CASE REASSIGNED. All parties do not consent. This case is randomly
reassigned to Judge Robert E. Blackburn. All future pleadings should be
designated as 19-cv-00901-REB. (Text Only Entry) (slibi, ) (Entered:
05/23/2019)
05/23/2019 15 MEMORANDUM RETURNING CASE by Senior Judge Blackburn. This
case is randomly reassigned to Judge William J. Martinez. All future pleadings
should be designated as 19-cv-00901-WJM. (athom, ) (Entered: 05/23/2019)
05/24/2019 16 ORDER REFERRING CASE to Magistrate Judge N. Reid Neureiter.
Magistrate Judge Neureiter, or such other Magistrate Judge who may in the
future be reassigned this case, is designated to conduct NDISPO proceedings
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b).
Court sponsored alternative dispute resolution is governed by
D.C.COLO.LCivR 16.6. On the recommendation or informal request of the
Magistrate Judge or on the request of the parties by motion, the court may
direct the parties to engage in an early neutral evaluation, a settlement
conference, or another alternative dispute resolution proceeding. SO
ORDERED by Judge William J. Martinez on 5/24/2019. Text Only Entry
(wjmsec, ) (Entered: 05/24/2019)
05/24/2019 17 ORDER: Counsel for the parties and all counsel who may later enter an
appearance shall review and familiarize themselves with the
undersigned's Revised Practice Standards (as most recently revised
effective December 1, 2018 and as they may be amended from time to
time), which may be downloaded here. SO ORDERED by Judge William J.
Martinez on 5/ 24/2019. Text Only Entry (wjmsec, ) (Entered: 05/24/2019)
05/28/2019 18 Proposed Scheduling Order by Plaintiff Michaella Lynn Surat. (Valdez, Tania)
(Entered: 05/28/2019)
05/28/2019 19 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT
RULES/PROCEDURES:re: 18 Proposed Scheduling Order filed by attorney
Tania Valdez. Attorney has used an incorrect signature format in violation of
D.C.COLO.LCivR 5.1(a) and 4.3(a) of the Electronic Case Filing Procedures
(Civil cases). DO NOT REFILE THE DOCUMENT. In the future, the filer
must affix an electronic s/signature and s/followed by a typed, not an inked,
signature to all future documents.(Text Only Entry) (angar, ) (Entered:
05/29/2019)
06/03/2019 20 MINUTE ORDER due to personal circumstances, it is hereby ORDERED that
the Scheduling Conference set for June 5, 2019 is VACATED, by Magistrate
Judge N. Reid Neureiter on 6/03/2019. It is further ORDERED that on or
before June 14, 2019, the parties shall jointly contact Chambers
(303-335-2403) to reschedule the Scheduling Conference. Text Only Entry
(slibi, ) Modified on 6/3/2019 to edit reschedule date (slibi, ). (Entered:
06/03/2019)
06/07/2019 21 MINUTE ORDER Scheduling/Planning Conference set for 7/26/2019 10:00
AM in Courtroom C205 before Magistrate Judge N. Reid Neureiter, by
Magistrate Judge N. Reid Neureiter on 6/07/2019. (slibi, ) (Entered:
SUPP. APP. 000005
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 7
06/07/2019)
06/07/2019 22 STRICKEN MOTION to Dismiss by Defendants City of Fort Collins,
Randall Klamser. (Attachments: # 1 Exhibit A - Criminal Jury
Instructions)(Gunn, Christina) Modified on 6/7/2019 pursuant to filing error.
(tsher, ). Modified on 6/7/2019 (tsher, ). (Entered: 06/07/2019)
06/07/2019 23 MOTION to Dismiss by Defendants City of Fort Collins, Randall Klamser.
(Attachments: # 1 Exhibit A - Criminal Jury Instructions)(Gunn, Christina)
(Entered: 06/07/2019)
06/27/2019 24 Unopposed MOTION for Extension of Time to File Response/Reply as to 23
MOTION to Dismiss by Plaintiff Michaella Lynn Surat. (Valdez, Tania)
(Entered: 06/27/2019)
06/27/2019 25 ORDER denying Plaintiff's Unopposed Motion for Extension of Time to
Respond to Motion to Dismiss 24 . Plaintiff's Motion is DENIED without
prejudice to refiling given Plaintiff's counsel's failure to comply with WJM
Revised Practice Standard II.D.2. This Practice Standard requires that the
certificate of service for motions of this type specifically confirm that
service has been made upon moving counsel's client(s) and, if appropriate,
identifies the individual who has received service of the motion on behalf of
any party which is not a natural person. SO ORDERED by Judge William J.
Martinez on 6/27/2019. Text Only Entry(wjmsec, ) (Entered: 06/27/2019)
06/28/2019 26 Unopposed MOTION for Extension of Time to File Response/Reply as to 23
MOTION to Dismiss by Plaintiff Michaella Lynn Surat. (Valdez, Tania)
(Entered: 06/28/2019)
06/28/2019 27 ORDER granting Plaintiff's Unopposed Motion for Extension of Time to
Respond to Motion to Dismiss 26 . Plaintiff is granted leave, for good cause
shown, to file said Response on or before July 3, 2019. SO ORDERED by
Judge William J. Martinez on 6/28/2019. Text Only Entry(wjmsec, ) (Entered:
06/28/2019)
07/03/2019 28 RESPONSE to 23 MOTION to Dismiss filed by Plaintiff Michaella Lynn
Surat. (Valdez, Tania) (Entered: 07/03/2019)
07/08/2019 29 Unopposed MOTION for Extension of Time to File Response/Reply as to 23
MOTION to Dismiss by Defendants City of Fort Collins, Randall Klamser.
(Ratner, Mark) (Entered: 07/08/2019)
07/08/2019 30 MOTION to Amend/Correct/Modify 29 Unopposed MOTION for Extension
of Time to File Response/Reply as to 23 MOTION to Dismiss by Defendants
City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 07/08/2019)
07/08/2019 31 ORDER granting Defendants' Amended Unopposed Motion for Extension of
Time to File a Reply in Support of Motion to Dismiss 30 . Defendants are
granted leave, for good cause shown, to file said Reply on or before July 24,
2019. It is FURTHER ORDERED that Defendants' Unopposed Motion for
Extension of Time to File a Reply in Support of Motion to Dismiss 29 is
DENIED as MOOT. SO ORDERED by Judge William J. Martinez on
7/8/2019. Text Only Entry(wjmsec, ) (Entered: 07/08/2019)
07/19/2019 32 NOTICE of Entry of Appearance by Andrew Joseph McNulty on behalf of
Michaella Lynn SuratAttorney Andrew Joseph McNulty added to party
SUPP. APP. 000006
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 8
Michaella Lynn Surat(pty:pla) (McNulty, Andrew) (Entered: 07/19/2019)
07/24/2019 33 MOTION to Withdraw as Attorney by Plaintiff Michaella Lynn Surat.
(Valdez, Tania) (Entered: 07/24/2019)
07/24/2019 34 REPLY to Response to 23 MOTION to Dismiss filed by Defendants City of
Fort Collins, Randall Klamser. (Attachments: # 1 Exhibit A - FTR
Transcriber's Transcript)(Gunn, Christina) (Entered: 07/24/2019)
07/24/2019 35 MOTION to Stay Proceedings by Defendants City of Fort Collins, Randall
Klamser. (Attachments: # 1 Exhibit A - Updated Notice of Appeal, # 2
Exhibit B - Criminal Jury Instructions)(Gunn, Christina) (Entered:
07/24/2019)
07/25/2019 36 MEMORANDUM regarding 33 MOTION to Withdraw as Attorney filed by
Michaella Lynn Surat. Motions referred to Magistrate Judge N. Reid Neureiter
by Judge William J. Martinez on 7/25/2019. Text Only Entry (wjmsec, )
(Entered: 07/25/2019)
07/26/2019 37 MEMORANDUM regarding 35 MOTION to Stay Proceedings filed by
Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge
N. Reid Neureiter by Judge William J. Martinez on 7/26/2019. (wjmsec, )
(Entered: 07/26/2019)
07/26/2019 38 MINUTE ORDER granting 33 Motion to Withdraw as Counsel of Record, by
Magistrate Judge N. Reid Neureiter on 7/26/2019. Attorney Tania N. Valdez
terminated.(slibi, ) (Entered: 07/26/2019)
07/26/2019 40 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Scheduling Conference held on 7/26/2019. Discovery due by
4/3/2020. Dispositive Motions due by 4/24/2020. Joint Status Report due by
2/21/2020. Final Pretrial Conference set for 7/7/2020 09:30 AM in Courtroom
C205 before Magistrate Judge N. Reid Neureiter. FTR: Courtroom C205.
(slibi, ) (Entered: 07/30/2019)
07/26/2019 41 SCHEDULING ORDER by Magistrate Judge N. Reid Neureiter on 7/26/2019.
(slibi, ) (Entered: 07/30/2019)
07/29/2019 39 RESPONSE to 35 MOTION to Stay Proceedings filed by Plaintiff Michaella
Lynn Surat. (Attachments: # 1 Exhibit)(McNulty, Andrew) (Entered:
07/29/2019)
07/30/2019 42 NOTICE of Entry of Appearance by David Arthur Lane on behalf of
Michaella Lynn SuratAttorney David Arthur Lane added to party Michaella
Lynn Surat(pty:pla) (Lane, David) (Entered: 07/30/2019)
08/07/2019 43 Unopposed MOTION for Extension of Time to File Response/Reply as to 35
MOTION to Stay Proceedings by Defendants City of Fort Collins, Randall
Klamser. (Ratner, Mark) (Entered: 08/07/2019)
08/08/2019 44 MEMORANDUM regarding 43 Unopposed MOTION for Extension of Time
to File Response/Reply as to 35 MOTION to Stay Proceedings filed by
Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge
N. Reid Neureiter by Judge William J. Martinez on 8/8/2019. Text Only Entry
(wjmsec, ) (Entered: 08/08/2019)
SUPP. APP. 000007
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 9
08/08/2019 45 MINUTE ORDER granting 43 Motion for Extension of Time to File Reply, by
Magistrate Judge N. Reid Neureiter on 8/8/2019. PLEASE READ
ATTACHED MINUTE ORDER. (tsher, ) (Entered: 08/08/2019)
08/19/2019 46 REPLY to Response to 35 MOTION to Stay Proceedings filed by Defendants
City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 08/19/2019)
08/20/2019 47 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 8/20/2019 re: 35
MOTION to Stay Proceedings filed by Randall Klamser, City of Fort Collins.
Motion Hearing set for 9/3/2019 09:30 AM in Courtroom C205 before
Magistrate Judge N. Reid Neureiter. (tsher, ) (Entered: 08/20/2019)
09/03/2019 48 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Motion Hearing held on 9/3/2019. ORDER taking under
advisement 35 Defendants Motion to Stay Proceedings. FTR: Courtroom
C205. (slibi, ) (Entered: 09/05/2019)
09/10/2019 49 NOTICE re 48 Order on Motion to Stay, Motion Hearing by Plaintiff
Michaella Lynn Surat (McNulty, Andrew) (Entered: 09/10/2019)
09/13/2019 50 ORDER denying 35 Motion to Stay Proceedings, by Magistrate Judge N. Reid
Neureiter on 9/13/2019.(tsher, ) (Entered: 09/13/2019)
09/16/2019 51 TRANSCRIPT of TRANSCRIPT OF PROCEEDINGS held on 09/03/2019
before Magistrate Judge Neureiter. Pages: 1-23. Prepared by: AB Court
Reporting & Video, Inc..
NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar
days of this filing, each party shall inform the Court, by filing a Notice of
Intent to Redact, of the party's intent to redact personal identifiers from
the electronic transcript of the court proceeding. If a Notice of Intent to
Redact is not filed within the allotted time, this transcript will be made
electronically available after 90 days. Please see the Notice of Electronic
Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased
through the Court Reporter/Transcriber prior to the 90 day deadline for
electronic posting on PACER. (AB Court Reporting & Video, Inc., ) (Entered:
09/16/2019)
11/07/2019 52 Unopposed MOTION for Extension of Time to Serve Responses to Discovery
by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered:
11/07/2019)
11/08/2019 53 MEMORANDUM regarding 52 Unopposed MOTION for Extension of Time
to Serve Responses to Discovery filed by Randall Klamser, City of Fort
Collins. Motions referred to Magistrate Judge N. Reid Neureiter by Judge
William J. Martinez on 11/8/2019. Text Only Entry (wjmsec, ) (Entered:
11/08/2019)
11/08/2019 54 MINUTE ORDER granting 52 Motion for Extension of Time to Serve
Responses to Discovery, by Magistrate Judge N. Reid Neureiter on 11/8/2019.
PLEASE READ ATTACHED MINUTE ORDER. (tsher, ) (Entered:
11/08/2019)
11/18/2019 55 MOTION to Supplement 23 MOTION to Dismiss , 34 Reply to Response to
Motion by Defendants City of Fort Collins, Randall Klamser. (Attachments: #
SUPP. APP. 000008
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 10
1 Exhibit Exhibit A - Order Affirming County Court Convictions)(Gunn,
Christina) (Entered: 11/18/2019)
11/19/2019 56 ORDER: This matter is before the Court on Defendants' Motion to
Supplement their Motion to Dismiss Plaintiff's Complaint (ECF Nos. 23 and
34) 55 . The Plaintiff is DIRECTED to file a Response to the Motion on or
before tomorrow, November 20, 2019. No Reply will be accepted without
prior leave or order of Court. SO ORDERED by Judge William J. Martinez on
11/19/2019. Text Only Entry (wjmsec, ) (Entered: 11/19/2019)
11/19/2019 57 RESPONSE to 55 MOTION to Supplement 23 MOTION to Dismiss , 34
Reply to Response to Motion filed by Plaintiff Michaella Lynn Surat.
(McNulty, Andrew) (Entered: 11/19/2019)
11/20/2019 58 ORDER: This matter is before the Court on Defendants' Motion to
Supplement their Motion to Dismiss Plaintiff's Complaint (ECF Nos. 23 and
34) 55 . The Court needs no further briefing on this motion, nor will it accept
any. The Court will take up the motion alongside Defendants' Motion to
Dismiss 23 , in due course. SO ORDERED by Judge William J. Martinez on
11/20/2019. Text Only Entry (wjmlc1) (Entered: 11/20/2019)
11/22/2019 59 Unopposed MOTION to Amend/Correct/Modify 41 Scheduling Order by
Plaintiff Michaella Lynn Surat. (McNulty, Andrew) (Entered: 11/22/2019)
11/25/2019 60 MEMORANDUM regarding 59 Unopposed MOTION to
Amend/Correct/Modify 41 Scheduling Order filed by Michaella Lynn Surat.
Motions referred to Magistrate Judge N. Reid Neureiter by Judge William J.
Martinez on 11/25/2019. Text Only Entry (wjmsec, ) (Entered: 11/25/2019)
11/25/2019 61 ORDER granting 59 Motion to Modify Scheduling Order by Magistrate Judge
N. Reid Neureiter on 11/25/2019. Discovery due by 6/3/2020. Dispositive
Motions due by 6/29/2020. PLEASE READ ATTACHED MINUTE ORDER.
(tsher, ) (Entered: 11/25/2019)
12/16/2019 62 Unopposed MOTION for Extension of Time to Serve Responses to Discvorery
by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered:
12/16/2019)
12/18/2019 63 MEMORANDUM regarding 62 Unopposed MOTION for Extension of Time
to Serve Responses to Discvorery filed by Randall Klamser, City of Fort
Collins. Motions referred to Magistrate Judge N. Reid Neureiter by Judge
William J. Martinez on 12/18/2019. Text Only Entry (wjmsec, ) (Entered:
12/18/2019)
12/18/2019 64 MINUTE ORDER granting 62 Motion for Extension of Time by Magistrate
Judge N. Reid Neureiter on 12/18/2019. PLEASE READ ATTACHED
MINUTE ORDER. (tsher, ) (Entered: 12/18/2019)
12/30/2019 65 Third MOTION for Extension of Time to Serve Responses to Discovery by
Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered:
12/30/2019)
12/31/2019 66 MEMORANDUM regarding 65 Third MOTION for Extension of Time to
Serve Responses to Discovery filed by Randall Klamser, City of Fort Collins.
Motions referred to Magistrate Judge N. Reid Neureiter by Judge William J.
Martinez on 12/31/2019. Text Only Entry (wjmlc1) (Entered: 12/31/2019)
SUPP. APP. 000009
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 11
01/02/2020 67 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 1/2/20
GRANTING 65 Defendants' Third Motion for Extension of Time to Serve
Responses to Discovery. Defendants shall respond to Plaintiffs First Set of
Discovery Requests on or before January 6, 2020. (nmarb, ) (Entered:
01/03/2020)
01/17/2020 68 NOTICE of Entry of Appearance by Helen S. Oh on behalf of Michaella Lynn
SuratAttorney Helen S. Oh added to party Michaella Lynn Surat(pty:pla) (Oh,
Helen) (Entered: 01/17/2020)
01/23/2020 69 MOTION to Withdraw as Attorney Christina S Gunn by Defendants City of
Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 01/23/2020)
01/23/2020 70 MEMORANDUM regarding 69 MOTION to Withdraw as Attorney Christina
S Gunn filed by Randall Klamser, City of Fort Collins. Motions referred to
Magistrate Judge N. Reid Neureiter by Judge William J. Martinez on
1/23/2020. Text Only Entry (wjmsec, ) (Entered: 01/23/2020)
01/23/2020 71 MINUTE ORDER granting 69 Motion to Withdraw as Attorney by Magistrate
Judge N. Reid Neureiter on 1/24/2020. Attorney Christina Shavon Gunn
terminated from this case. (tsher, ) (Entered: 01/24/2020)
01/24/2020 72 Unopposed MOTION for Protective Order by Defendants City of Fort Collins,
Randall Klamser. (Attachments: # 1 Proposed Order (PDF Only))(Ratner,
Mark) (Entered: 01/24/2020)
01/24/2020 73 MEMORANDUM regarding 72 Unopposed MOTION for Protective Order
filed by Randall Klamser, City of Fort Collins. Motions referred to Magistrate
Judge N. Reid Neureiter by Judge William J. Martinez on 1/24/2020. Text
Only Entry (wjmsec, ) (Entered: 01/24/2020)
01/24/2020 74 MINUTE ORDER granting 72 Motion for Protective Order by Magistrate
Judge N. Reid Neureiter on 1/24/2020. The proposed Protective Order (Dkt.
#72-1) is APPROVED and made an Order of Court. (tsher, ) (Entered:
01/27/2020)
01/24/2020 75 PROTECTIVE ORDER by Magistrate Judge N. Reid Neureiter on 1/24/2020.
(tsher, ) (Entered: 01/27/2020)
02/19/2020 76 NOTICE of Entry of Appearance by Brenden W. Desmond on behalf of All
Defendants Attorney Brenden W. Desmond added to party City of Fort
Collins(pty:dft), Attorney Brenden W. Desmond added to party Randall
Klamser(pty:dft) (Desmond, Brenden) (Entered: 02/19/2020)
02/19/2020 77 MOTION for Protective Order by Defendants City of Fort Collins, Randall
Klamser. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order
(PDF Only) Proposed Protective Order)(Ratner, Mark) (Entered: 02/19/2020)
02/19/2020 78 MEMORANDUM regarding 77 MOTION for Protective Order filed by
Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge
N. Reid Neureiter by Judge William J. Martinez on 2/19/2020. Text Only
Entry (wjmsec, ) (Entered: 02/19/2020)
02/19/2020 79 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 2/19/2020 re: 77
MOTION for Protective Order filed by Randall Klamser, City of Fort Collins.
Telephonic Motion Hearing set for 2/20/2020 11:00 AM before Magistrate
SUPP. APP. 000010
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 12
Judge N. Reid Neureiter. PLEASE READ ATTACHED MINUTE ORDER.
(tsher, ) (Entered: 02/19/2020)
02/19/2020 80 NOTICE of Entry of Appearance by Gillian Dale on behalf of City of Fort
Collins, Randall KlamserAttorney Gillian Dale added to party City of Fort
Collins(pty:dft), Attorney Gillian Dale added to party Randall
Klamser(pty:dft) (Dale, Gillian) (Entered: 02/19/2020)
02/19/2020 81 RESPONSE to 77 MOTION for Protective Order Regarding Deposition of
Officer Klamser filed by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered:
02/19/2020)
02/20/2020 82 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Motion Hearing held on 2/20/2020. Granting 77 Motion for
Protective Order. FTR: Courtroom C203. (swest) (Entered: 02/20/2020)
02/21/2020 83 NOTICE of Entry of Appearance by John R. Duval on behalf of City of Fort
CollinsAttorney John R. Duval added to party City of Fort Collins(pty:dft)
(Duval, John) (Entered: 02/21/2020)
02/24/2020 84 ORDER granting in part and denying in part Defendants' Motion to Dismiss
23 ; and denying Defendants' Motion to Supplement Their Motion to Dismiss
Plaintiff's Complaint 55 , by Judge William J. Martinez on 02/24/2020.
(wjmlc1) (Entered: 02/24/2020)
02/27/2020 85 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT
RULES/PROCEDURES:re: 80 Notice of Entry of Appearance, 83 Notice of
Entry of Appearance, 76 Notice of Entry of Appearance, filed by attorneyJohn
R. Duval, Brenden W. Desmond and Gillian Dale. DO NOT REFILE THE
DOCUMENT. Action to take - counsel must submit a change of contact
request through the Attorney Services Portal Account pursuant to
D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures
(Civil cases).(Text Only Entry) (angar, ) (Entered: 02/27/2020)
03/04/2020 86 NOTICE of Entry of Appearance by John R. Duval on behalf of Randall
KlamserAttorney John R. Duval added to party Randall Klamser(pty:dft)
(Duval, John) (Entered: 03/04/2020)
03/06/2020 87 MOTION for Protective Order Regarding Deposition of Plaintiff and Request
for Expedited Determination by Defendant Randall Klamser. (Attachments: #
1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Ratner, Mark) (Entered:
03/06/2020)
03/06/2020 88 MEMORANDUM regarding 87 MOTION for Protective Order Regarding
Deposition of Plaintiff and Request for Expedited Determination filed by
Randall Klamser. Motions referred to Magistrate Judge N. Reid Neureiter by
Judge William J. Martinez on 3/6/2020. Text Only Entry (wjmsec, ) (Entered:
03/06/2020)
03/06/2020 89 MINUTE ORDER re: 87 MOTION for Protective Order Regarding
Deposition of Plaintiff and Request for Expedited Determination filed by
Randall Klamser, by Magistrate Judge N. Reid Neureiter on 3/06/2020.
Motion Hearing set for 3/10/2020 01:30 PM in Courtroom C203 before
Magistrate Judge N. Reid Neureiter. Text Only Entry (slibi, ) (Entered:
03/06/2020)
SUPP. APP. 000011
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 13
03/06/2020 90 Unopposed MOTION for Extension of Time to disclose experts by Defendant
Randall Klamser. (Ratner, Mark) (Entered: 03/06/2020)
03/06/2020 91 MEMORANDUM regarding 90 Unopposed MOTION for Extension of Time
to disclose experts filed by Randall Klamser. Motions referred to Magistrate
Judge N. Reid Neureiter by Judge William J. Martinez on 3/6/2020. Text Only
Entry (wjmsec, ) (Entered: 03/06/2020)
03/06/2020 92 MINUTE ORDER granting 90 Motion for Extension of Time by Magistrate
Judge N. Reid Neureiter on 3/6/2020. PLEASE READ ATTACHED
MINUTE ORDER. (tsher, ) (Entered: 03/06/2020)
03/09/2020 93 ANSWER to 1 Complaint, by Randall Klamser.(Ratner, Mark) (Entered:
03/09/2020)
03/09/2020 94 RESPONSE to 87 MOTION for Protective Order Regarding Deposition of
Plaintiff and Request for Expedited Determination filed by Plaintiff Michaella
Lynn Surat. (Attachments: # 1 Exhibit Declaration of Michaella Surat)(Oh,
Helen) (Entered: 03/09/2020)
03/10/2020 95 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Motion Hearing held on 3/10/2020. ORDER granting in part
and denying in part 87 Defendants Opposed Motion for Protective Order
Regarding Deposition of Plaintiff and Request for Expedited Determination.
FTR: Courtroom C203. (slibi, ) (Entered: 03/10/2020)
03/12/2020 96 MOTION to Amend/Correct/Modify 1 Complaint, by Plaintiff Michaella Lynn
Surat. (Attachments: # 1 Proposed Document Redlined Amended Complaint, #
2 Proposed Document Clean Amended Complaint)(McNulty, Andrew)
(Entered: 03/12/2020)
04/02/2020 97 NOTICE re 96 MOTION to Amend/Correct/Modify 1 Complaint, by
Defendants City of Fort Collins, Randall Klamser (Ratner, Mark) (Entered:
04/02/2020)
05/12/2020 98 Unopposed MOTION to Amend/Correct/Modify Scheduling Order by
Defendant Randall Klamser. (Desmond, Brenden) (Entered: 05/12/2020)
05/12/2020 99 MEMORANDUM regarding 98 Unopposed MOTION to
Amend/Correct/Modify Scheduling Order filed by Randall Klamser. Motions
referred to Magistrate Judge N. Reid Neureiter by Judge William J. Martinez
on 5/12/2020. Text Only Entry (wjmsec, ) (Entered: 05/12/2020)
05/12/2020 100 MINUTE ORDER granting 98 Motion to Amend Scheduling Order by
Magistrate Judge N. Reid Neureiter on 5/12/2020. Discovery due by 8/3/2020.
Dispositive Motions due by 8/29/2020. Proposed Pretrial Order due by
9/22/2020. Final Pretrial Conference set for 9/29/2020 11:00 AM in
Courtroom C203 before Magistrate Judge N. Reid Neureiter. PLEASE READ
ATTACHED MINUTE ORDER. (tsher, ) (Entered: 05/12/2020)
07/14/2020 101 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 14 July 2020.
Per the request of the parties, it is hereby ORDERED that a Telephonic
Discovery Hearing is set on July 27, 2020 at 10:30 a.m. The parties are
directed to prepare and email to Chambers,
Neureiter_Chambers@cod.uscourts.gov, no later than July 23, 2020 a short
(no longer than ten pages) joint statement setting forth each side's respective
SUPP. APP. 000012
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 14
position concerning the dispute. The parties are advised that the joint statement
will be attached to the courtroom minutes and made a part of the record. The
parties are directed to call the conference line as a participant at (888)
398-2342, Access Code 5755390# at the scheduled time. PLEASE READ
ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 07/14/2020)
07/27/2020 102 Unopposed MOTION to Amend/Correct/Modify Scheduling Order by
Defendant Randall Klamser. (Ratner, Mark) (Entered: 07/27/2020)
07/27/2020 103 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Telephonic Discovery Hearing held on 7/27/2020. FTR:
Courtroom C203. (Attachments: # 1 Discovery Dispute Statement) (slibi, )
(Entered: 07/27/2020)
07/27/2020 104 MEMORANDUM regarding 102 Unopposed MOTION to
Amend/Correct/Modify Scheduling Order filed by Randall Klamser. Motions
referred to Magistrate Judge N. Reid Neureiter by Judge William J. Martinez
on 7/27/2020. Text Only Entry (wjmsec, ) (Entered: 07/27/2020)
07/28/2020 105 Minute ORDER by Magistrate Judge N. Reid Neureiter on 28 July 2020. It is
hereby ORDERED that Defendant's Unopposed Motion to Amend Scheduling
Order 102 is GRANTED. The Scheduling Order 41 is further AMENDED to
extend the Discovery Cut-Off up to and including September 17, 2020, and
the Dispositive Motion Deadline up to and including October 13, 2020. It is
further ORDERED that the Final Pretrial Conference set for September 29,
2020 at 11:00 a.m. is VACATED and RESET to November 18, 2020 at 10:00
a.m. The proposed Final Pretrial Order shall be filed on or before November
11, 2020. PLEASE READ ATTACHED MINUTE ORDER. (cmadr, )
(Entered: 07/28/2020)
08/11/2020 106 ORDER granting Plaintiff's Motion for Leave to File First Amended
Complaint 96 . Plaintiff's Motion is GRANTED for good cause shown.
Plaintiff shall file a clean copy of the Amended Complaint as a separate docket
entry no later than August 25, 2020, consistent with D.C.COLO.LCivR
15.1(b). Defendants shall answer or otherwise respond to Plaintiff's Amended
Complaint no later than on or before 21 days after the First Amended
Complaint is filed. The parties shall continue to comply with the deadlines set
in the Scheduling Order, as amended 41 . SO ORDERED by Judge William J.
Martinez on 8/11/2020. Text Only Entry(wjmlc1) (Entered: 08/11/2020)
08/24/2020 107 AMENDED COMPLAINT against Michaella Lynn Surat, filed by Michaella
Lynn Surat.(McNulty, Andrew) (Entered: 08/24/2020)
09/14/2020 108 MOTION to Dismiss Plaintiff's First Amended Complaint by Defendants City
of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 09/14/2020)
10/02/2020 109 Unopposed MOTION for Extension of Time to File Response/Reply as to 108
MOTION to Dismiss Plaintiff's First Amended Complaint by Plaintiff
Michaella Lynn Surat. (McNulty, Andrew) (Entered: 10/02/2020)
10/05/2020 110 ORDER denying Plaintiff's Unopposed Motion for Extension of Time to
Respond to Defendants' Motion to Dismiss First Amended Complaint [Doc.
#108] 109 . Defendant's Motion is DENIED without prejudice to refiling given
Plaintiff's counsel's failure to comply with WJM Revised Practice Standard
II.D.2. This Practice Standard requires that the certificate of service for
SUPP. APP. 000013
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 15
motions of this type specifically confirm that service has been made upon
moving counsel's client(s) and, if appropriate, identifies the individual who has
received service of the motion on behalf of any party which is not a natural
person. SO ORDERED by Judge William J. Martinez on 10/5/2020. Text Only
Entry(wjmsec, ) (Entered: 10/05/2020)
10/05/2020 111 Unopposed MOTION for Extension of Time to File Response/Reply as to 108
MOTION to Dismiss Plaintiff's First Amended Complaint by Plaintiff
Michaella Lynn Surat. (Oh, Helen) (Entered: 10/05/2020)
10/06/2020 112 ORDER denying Plaintiff's Unopposed Motion for Extension of Time to
Respond to Defendants' Motion to Dismiss First Amended Complaint [Doc.
#108] 111 . Plaintiff's Motion is once again DENIED without prejudice to
refiling given Plaintiff's counsel's continuing inability to comply with WJM
Revised Practice Standard II.D.2. This Practice Standard requires that the
certificate of service for motions of this type specifically confirm that service
has been made upon moving counsel's client(s) and, if appropriate, identifies
the individual who has received service of the motion on behalf of any party
which is not a natural person. SO ORDERED by Judge William J. Martinez on
10/6/2020. Text Only Entry(wjmsec, ) (Entered: 10/06/2020)
10/06/2020 113 Unopposed MOTION for Extension of Time to File Response/Reply as to 108
MOTION to Dismiss Plaintiff's First Amended Complaint by Plaintiff
Michaella Lynn Surat. (Oh, Helen) (Entered: 10/06/2020)
10/06/2020 114 MOTION to Withdraw as Attorney by Defendants City of Fort Collins,
Randall Klamser. (Dale, Gillian) (Entered: 10/06/2020)
10/07/2020 115 MEMORANDUM regarding 114 MOTION to Withdraw as Attorney filed by
Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge
N. Reid Neureiter by Judge William J. Martinez on 10/7/2020. Text Only
Entry (wjmsec, ) (Entered: 10/07/2020)
10/07/2020 116 ORDER granting Plaintiff's Unopposed Motion for Extension of Time to
Respond to Defendants' Motion to Dismiss First Amended Complaint 113 .
Plaintiff is granted leave, for good cause shown, to file said Response on or
before October 26, 2020. SO ORDERED by Judge William J. Martinez on
10/7/2020. Text Only Entry(wjmsec, ) (Entered: 10/07/2020)
10/07/2020 117 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 10/7/2020.
ORDERED that the Motion to Withdraw (Dkt. # 114 ) is GRANTED. Gillian
Dale shall be permitted to withdraw as counsel for Defendants Randall
Klamser and City of Fort Collins. The Clerk of Court is respectfully directed
to remove Gillian Dale from electronic notification in this matter. PLEASE
READ THE ATTACHED MINUTE ORDER. (agarc, ) (Entered: 10/07/2020)
10/13/2020 118 MOTION for Summary Judgment by Defendants City of Fort Collins, Randall
Klamser. (Attachments: # 1 Exhibit Ex. A-Klamser Report-Main, # 2 Exhibit
Ex. C-Pastor Report-Supp. 5, # 3 Exhibit Ex. D-Michael Findlay Depo
Transcript, # 4 Exhibit Ex. E-Mast Report-Supp. 4, # 5 Exhibit Ex. F-Cory
Esslinger Depo Transcript, # 6 Exhibit Ex. G-Trial
Transcript-8.21.18)(Ratner, Mark) (Entered: 10/13/2020)
10/13/2020 119 NOTICE re 118 MOTION for Summary Judgment by Defendants City of Fort
Collins, Randall Klamser (Ratner, Mark) (Entered: 10/13/2020)
SUPP. APP. 000014
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 16
10/19/2020 120 Unopposed MOTION for Leave to File Consolidated Response to MTD and
MSJ and Motion for Extension by Plaintiff Michaella Lynn Surat. (Oh, Helen)
(Entered: 10/19/2020)
10/19/2020 121 Conventionally Submitted Material : Flash Drive to Notice 119 by Defendants
City of Fort Collins, Randall Klamser Text Only Entry (angar, ) Location of
stored items, oversized area A-3-4. (Text Only Entry) (jsalz, ). (Entered:
10/20/2020)
10/20/2020 122 Joint MOTION to Stay Pretrial Order Deadlines Until After Ruling on the
Pending Motions by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered:
10/20/2020)
10/21/2020 123 MEMORANDUM regarding 122 Joint MOTION to Stay Pretrial Order
Deadlines Until After Ruling on the Pending Motions filed by Michaella Lynn
Surat. Motions referred to Magistrate Judge N. Reid Neureiter by Judge
William J. Martinez on 10/21/2020. Text Only Entry (wjmsec, ) (Entered:
10/21/2020)
10/21/2020 124 ORDER granting Plaintiff's Unopposed Motion for Leave to File Consolidated
Response to Motion to Dismiss and Motion for Summary Judgment [Docs.
108 & 118] and Motion for Extension 120 . Plaintiff is granted leave, for good
cause shown, to file a consolidated Response to Defendants' Motion to
Dismiss and Motion for Summary Judgment on or before November 24, 2020,
not to exceed 50 pages, exclusive of attorney signature blocks and certificate
of service. SO ORDERED by Judge William J. Martinez on 10/21/2020. Text
Only Entry(wjmsec, ) (Entered: 10/21/2020)
10/22/2020 125 Minute ORDER by Magistrate Judge N. Reid Neureiter on 22 October 2020. It
is hereby ORDERED that the parties' Joint Motion to Stay Pretrial Order
Deadline Until After a Ruling on the Pending Motions (Dkt. # 122 ) is
GRANTED finding good cause shown. The Final Pretrial Conference set for
November 18, 2020 at 10:00 a.m., and all associated deadlines, are
VACATED. Within three (3) days of a ruling by Judge Martinez on the
pending motion to dismiss (Dkt. # 108 ) and motion for summary judgment
(Dkt. # 118 ), the parties shall, if necessary, jointly contact Chambers
(303-335-2403) to reset the Final Pretrial Conference. PLEASE READ
ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 10/22/2020)
11/24/2020 126 Unopposed MOTION for Extension of Time to File Response/Reply as to 118
MOTION for Summary Judgment , 108 MOTION to Dismiss Plaintiff's First
Amended Complaint by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered:
11/24/2020)
11/24/2020 127 ORDER granting Plaintiff's Unopposed Motion for Extension of Time to File
Consolidated Response to Defendants' Motion to Dismiss and Motion for
Summary Judgment 126 . Plaintiff is granted leave, for good cause shown, to
file said Response on or before November 30, 2020. SO ORDERED by Judge
William J. Martinez on 11/24/2020. Text Only Entry(wjmsec, ) (Entered:
11/24/2020)
11/30/2020 128 RESPONSE to 118 MOTION for Summary Judgment , 108 MOTION to
Dismiss Plaintiff's First Amended Complaint filed by Plaintiff Michaella Lynn
Surat. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4,
# 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10
SUPP. APP. 000015
Appellate Case: 21-1284 Document: 010110648383 Date Filed: 02/22/2022 Page: 17
Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14,
# 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19
Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)(Oh, Helen) (Entered:
11/30/2020)
11/30/2020 129 RESTRICTED DOCUMENT - Level 1 - Exhibits to 128 : by Plaintiff
Michaella Lynn Surat.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4
Exhibit, # 5 Exhibit, # 6 Exhibit)(Oh, Helen) Modified on 12/2/2020 to add
title (angar, ). (Entered: 11/30/2020)
12/01/2020 130 NOTICE of Conventionally Filed Material by Plaintiff Michaella Lynn Surat
(Oh, Helen) (Entered: 12/01/2020)
12/02/2020 131 Conventionally Submitted Material : CD - Restricted Level 1 Exhibit to
Response to Motion, 128 re: Notice of convectional filed material 130], by
Plaintiff Michaella Lynn Surat. Material stored in the Clerk's Office:
oversized area A-3-3. Text Only Entry. (angar, ) Modified to specify storage
location on 12/9/2020 (jtorr, ). (Entered: 12/03/2020)
12/02/2020 132 Conventionally Submitted Material : CD - Exhibit 4 to Response to Motion,,
128 by Plaintiff Michaella Lynn Surat. Material stored in the Clerk's Office:
oversized area A-3-3. Text Only Entry (angar, ) Modified to specify storage
location on 12/9/2020 (jtorr, ). (Entered: 12/03/2020)
12/07/2020 133 MOTION to Withdraw as Attorney by Defendants City of Fort Collins,
Randall Klamser. (Desmond, Brenden) (Entered: 12/07/2020)
12/07/2020 134 MEMORANDUM regarding 133 MOTION to Withdraw as Attorney filed by
Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge
N. Reid Neureiter by Judge William J. Martinez on 12/7/2020. Text Only
Entry (wjmsec, ) (Entered: 12/07/2020)
12/07/2020 135 Minute ORDER by Magistrate Judge N. Reid Neureiter on 7 December 2020.
It is hereby ORDERED that the Motion to Withdraw (Dkt. # 133 ) is
GRANTED. Brenden Desmond shall be permitted to withdraw as counsel for
Defendant. The Clerk of Court is directed to remove Brenden Desmond from
electronic notification in this case. PLEASE READ ATTACHED MINUTE
ORDER. (cmadr, ) (Entered: 12/07/2020)
12/07/2020 136 Unopposed MOTION for Extension of Time to File Response/Reply as to 118
MOTION for Summary Judgment by Defendants City of Fort Collins, Randall
Klamser. (Ratner, Mark) (Entered: 12/07/2020)
12/08/2020 137 ORDER granting Defendants' Unopposed Motion for Extension of Time to
File a Reply, Motion to File a Consolidated Reply, and Motion to Exceed the
Court's Page Limitation 136 . Defendants are granted leave, for good cause
shown, to file a consolidated Reply in support of their Motion to Dismiss and
Motion for Summary Judgment on or before January 4, 2021, not to exceed
30 pages, exclusive of attorney signature blocks and certificate of service. SO
ORDERED by Judge William J. Martinez on 12/8/2020. Text Only
Entry(wjmsec, ) (Entered: 12/08/2020)
12/09/2020 138 MOTION for Leave to Restrict by Plaintiff Michaella Lynn Surat. (Oh, Helen)
(Entered: 12/09/2020)
12/10/2020 139
SUPP. APP. 000016
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NOTICE of Entry of Appearance by John Felix Peters on behalf of All
Defendants Attorney John Felix Peters added to party City of Fort
Collins(pty:dft), Attorney John Felix Peters added to party Randall
Klamser(pty:dft) (Peters, John) (Entered: 12/10/2020)
12/14/2020 140 MEMORANDUM regarding 138 MOTION for Leave to Restrict filed by
Michaella Lynn Surat. Motions referred to Magistrate Judge N. Reid Neureiter
by Judge William J. Martinez on 12/14/2020. Text Only Entry (wjmsec, )
(Entered: 12/14/2020)
12/17/2020 141 Minute ORDER by Magistrate Judge N. Reid Neureiter on 17 December 2020.
It is hereby ORDERED that Plaintiff's Unopposed Motion to Restrict Public
Access to Exhibits 12 and 13 to Plaintiff's Consolidated Response to
Defendants' Motion to Dismiss and Motion for Summary Judgment (Dkt. #
138 ) is GRANTED finding the subject motion meets the requirements as
outlined in D.C.COLO.LCivR 7.2(c). The Clerk is respectfully directed to
place Dkt. ##129-1 & 129-2 under Level 1 Restriction. PLEASE READ
ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 12/17/2020)
01/04/2021 142 REPLY to Response to 118 MOTION for Summary Judgment , 108 MOTION
to Dismiss Plaintiff's First Amended Complaint filed by Defendants City of
Fort Collins, Randall Klamser. (Attachments: # 1 Exhibit J, # 2 Exhibit K, # 3
Exhibit L, # 4 Exhibit M, # 5 Exhibit N)(Ratner, Mark) (Entered: 01/04/2021)
01/19/2021 143 First MOTION for Leave to File Motion to Strike Plaintiff's Expert Pursuant
to F.R.C.P. 702 by Defendants City of Fort Collins, Randall Klamser. (Ratner,
Mark) (Entered: 01/19/2021)
01/20/2021 144 ORDER: This matter is before the Court on Defendant's Motion for Leave to
File Motion to Strike Plaintiff's Expert Pursuant to F.R.C.P. 702 143 . Plaintiff
is DIRECTED to file a Response to the Motion on or before January 25,
2021. No Reply will be accepted without prior leave or order of Court. SO
ORDERED by Judge William J. Martinez on 1/20/2021. Text Only Entry
(wjmsec, ) (Entered: 01/20/2021)
01/25/2021 145 RESPONSE to 143 First MOTION for Leave to File Motion to Strike
Plaintiff's Expert Pursuant to F.R.C.P. 702 filed by Plaintiff Michaella Lynn
Surat. (Attachments: # 1 Exhibit, # 2 Exhibit)(Oh, Helen) (Entered:
01/25/2021)
01/25/2021 146 ORDER. Before the Court is Defendants' Motion for Leave to File Motion to
Strike Plaintiff's Expert Pursuant to F.R.C.P. 702 ("Motion") 143 . Plaintiff
responded in opposition 145 . Upon due consideration, the Motion is DENIED
for lack of good cause shown. SO ORDERED by Judge William J. Martinez
on 1/25/2021. Text Only Entry(wjmlc1, ) (Entered: 01/25/2021)
01/26/2021 147 Unopposed MOTION for Leave to Restrict by Defendants City of Fort
Collins, Randall Klamser. (Peters, John) (Entered: 01/26/2021)
01/31/2021 148 MEMORANDUM regarding 147 Unopposed MOTION for Leave to Restrict
filed by Randall Klamser, City of Fort Collins. Motions referred to Magistrate
Judge N. Reid Neureiter by Judge William J. Martinez on 1/31/2021. Text
Only Entry (wjmsec, ) (Entered: 01/31/2021)
02/08/2021 149
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Minute ORDER by Magistrate Judge N. Reid Neureiter on 8 February 2021. It
is hereby ORDERED that Defendants' Unopposed Motion for Leave to
Restrict Access to Exhibits 16 &18 to Plaintiff's Consolidated Response to
Defendants' Motion to Dismiss and Motion for Summary Judgment (Dkt. #
147 ) is GRANTED finding the subject motion meets the requirements as
outlined in D.C.COLO.LCivR 7.2(c). The Clerk is directed to place Dkt.
##129-3 through 129-6 under Level 1 Restriction. PLEASE READ
ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 02/08/2021)
04/12/2021 150 ORDER. This case is before the Court sua sponte. Defendants Randall
Klamser and City of Fort Collins (jointly, "Defendants") have filed
Defendants' Motion to Dismiss Plaintiff's First Amended Complaint [ECF
107] Pursuant to Fed. R. Civ. P. 12(b)6), seeking dismissal of all claims in the
First Amended Complaint 108 . Klamser also seeks application of qualified
immunity. (ECF No. 108 at 4.) In addition, Defendants filed a Motion for
Summary Judgment Pursuant to Fed. R. Civ. P. 56, seeking summary
judgment in their favor on all claims set forth in the First Amended Complaint
118 . The Court acknowledges that in the Motion for Summary Judgment,
Defendants state that "Given the timing of the applicable Case Management
Order [sic], Defendants filed this Motion for Summary Judgment even though
the 2020 Motion to Dismiss is still pending before the Court. This Motion for
Summary Judgment, however, is not intended to supersede any request for
relief set forth in the 2020 Motion to Dismiss. The arguments set forth in the
2020 Motion to Dismiss are, therefore, incorporated herein." (ECF No. 118 at
3.) However, the Motion for Summary Judgment raises the same arguments
made in the Motion to Dismiss but tailors these arguments to the current phase
of the litigation by including references to the record developed during
discovery, rather than simply relying on the allegations in the First Amended
Complaint. Because the Motion for Summary Judgment incorporates the same
arguments raised in the Motion to Dismiss, the Court finds that the Motion to
Dismiss is indeed superseded and is therefore DENIED WITHOUT
PREJUDICE AS MOOT. See Drake v. City and Cnty. of Denver, 953 F. Supp.
1150, 1152 n.1 (D. Colo. 1997) (holding that motions to dismiss were
"subsumed by the Motions for Summary Judgment and are denied as moot.")
The Court will resolve the substantive issues raised in the Motion to Dismiss
when it rules on Defendants' Motion for Summary Judgment. SO ORDERED
by Judge William J. Martinez on 4/12/2021. Text Only Entry(wjmlc1, )
(Entered: 04/12/2021)
04/19/2021 151 MOTION to Withdraw as Attorney John F. Peters, Esq. by Defendants City of
Fort Collins, Randall Klamser. (Peters, John) (Entered: 04/19/2021)
04/21/2021 152 MEMORANDUM regarding 151 MOTION to Withdraw as Attorney John F.
Peters, Esq. filed by Randall Klamser, City of Fort Collins. Motions referred
to Magistrate Judge N. Reid Neureiter by Judge William J. Martinez on
4/21/2021. Text Only Entry (wjmsec, ) (Entered: 04/21/2021)
04/21/2021 153 Minute ORDER by Magistrate Judge N. Reid Neureiter on 21 April 2021. It is
hereby ORDERED that the Motion to Withdraw (Dkt. # 151 ) is GRANTED.
John F. Peters shall be permitted to withdraw as counsel for Defendants
Randall Klamser and The City of Fort Collins. The Clerk is respectfully
directed to remove John F. Peters from electronic notification in this matter.
PLEASE READ ATTACHED MINUTE ORDER. (cmadr, ) (Entered:
SUPP. APP. 000018
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04/21/2021)
07/13/2021 154 ORDER denying 118 Defendants' Motion for Summary Judgment by Judge
William J. Martinez on 07/13/2021.(trvo, ) (Entered: 07/13/2021)
07/15/2021 155 Minute ORDER by Magistrate Judge N. Reid Neureiter on 15 July 2021. It is
hereby ORDERED that a Status Conference is set for July 29, 2021 at 10:00
a.m. The parties are directed to call the conference line as a participant at (888)
398-2342, Access Code 5755390# at the scheduled time. PLEASE READ
ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 07/15/2021)
07/16/2021 156 Minute ORDER by Magistrate Judge N. Reid Neureiter on 16 July 2021. This
matter is before the Court on review of the docket. It is hereby ORDERED
that the Status Conference set for July 29, 2021 at 10:00 a.m. is VACATED
and RESET to July 19, 2021 at 10:00 a.m. The parties are directed to call the
conference line as a participant at (888) 398-2342, Access Code 5755390# at
the scheduled time. PLEASE READ ATTACHED MINUTE ORDER. (cmadr,
) (Entered: 07/16/2021)
07/19/2021 157 COURTROOM MINUTES for proceedings held before Magistrate Judge N.
Reid Neureiter: Telephonic Status Conference held on 7/19/2021. Telephonic
Final Pretrial Conference set for 8/20/2021 09:30 AM in Courtroom C203
before Magistrate Judge N. Reid Neureiter. The parties are directed to call the
conference line as a participant at (888) 398-2342, Access Code 5755390# at
the scheduled time. FTR: Courtroom C203. (slibi, ) (Entered: 07/19/2021)
08/10/2021 158 NOTICE OF APPEAL as to 154 Order on Motion for Summary Judgment by
Defendant Randall Klamser (Ratner, Mark) (Entered: 08/10/2021)
08/11/2021 159 LETTER Transmitting Notice of Appeal to all counsel advising of the
transmittal of the 158 Notice of Appeal filed by Randall Klamser to the U.S.
Court of Appeals for the Tenth Circuit. (Retained Counsel, Fee not paid)
(Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(trvo, ) (Entered:
08/11/2021)
08/11/2021 160 ANSWER to Complaint by City of Fort Collins, Randall Klamser.(Ratner,
Mark) (Entered: 08/11/2021)
08/11/2021 164 USCA Case Number 21-1284 for 158 Notice of Appeal filed by Randall
Klamser. (angar, ) (Entered: 08/16/2021)
08/12/2021 161 MOTION for Order to Certify Defendant Klamser's Interlocutory Appeal As
Frivolous And Request For Hearing by Plaintiff Michaella Lynn Surat.
(McNulty, Andrew) (Entered: 08/12/2021)
08/12/2021 163 USCA Appeal Fees received $ 505, receipt number COX100029; Full
Payment (USCA Case No. 21-1284) (angar, ) (Entered: 08/16/2021)
08/13/2021 162 NOTICE of Entry of Appearance by Gina Marie Rossi on behalf of City of
Fort Collins, Randall KlamserAttorney Gina Marie Rossi added to party City
of Fort Collins(pty:dft), Attorney Gina Marie Rossi added to party Randall
Klamser(pty:dft) (Rossi, Gina) (Entered: 08/13/2021)
08/16/2021 165 Minute ORDER by Magistrate Judge N. Reid Neureiter on 16 August 2021. At
the request of the parties, it is hereby ORDERED that the Final Pretrial
Conference set for August 20, 2021 at 9:30 a.m. is VACATED and RESET for
SUPP. APP. 000019
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September 3, 2021 at 9:30 a.m. The proposed Final Pretrial Order is due on or
before August 27, 2021. PLEASE READ ATTACHED MINUTE ORDER.
(cmadr, ) (Entered: 08/16/2021)
08/16/2021 166 ORDER: This matter is before the Court on Plaintiff's Motion for Order
Certifying Defendant Klamser's Interlocutory Appeal as Frivolous and
Request for Hearing 161 . Defendants are DIRECTED to file a Response to
the Motion on or before August 19, 2021. Plaintiff shall file a Reply in
support of her Motion on or before August 23, 2021. SO ORDERED by Judge
William J. Martinez on 8/16/2021. Text Only Entry (wjmsec, ) (Entered:
08/16/2021)
08/19/2021 167 RESPONSE to 161 MOTION for Order to Certify Defendant Klamser's
Interlocutory Appeal As Frivolous And Request For Hearing filed by
Defendant Randall Klamser. (Ratner, Mark) (Entered: 08/19/2021)
08/19/2021 168 MOTION for Extension of Time to File Response/Reply as to 161 MOTION
for Order to Certify Defendant Klamser's Interlocutory Appeal As Frivolous
And Request For Hearing by Plaintiff Michaella Lynn Surat. (McNulty,
Andrew) (Entered: 08/19/2021)
08/20/2021 169 ORDER granting Plaintiff's Motion for Extension of Time to File Reply in
Support of Plaintiff's Motion for Order Certifying Defendant Klamser's
Interlocutory Appeal as Frivolous 168 . Plaintiff is granted leave, for good
cause shown, to file said Reply on or before August 25, 2021. SO ORDERED
by Judge William J. Martinez on 8/20/2021. Text Only Entry(wjmsec, )
(Entered: 08/20/2021)
08/25/2021 170 TRANSCRIPT ORDER FORM re 158 Notice of Appeal (Transcript is not
necessary for this appeal) by Defendant Randall Klamser (Ringel, Andrew)
(Entered: 08/25/2021)
08/25/2021 171 MINUTE ORDER. The upcoming Final Pretrial Conference on September 3,
2021 at 9:30 a.m. in this matter shall be conducted via telephone. The parties
are directed to call the conference line as a participant at (888) 398-2342,
Access Code 5755390# at the scheduled time. The Court notes that the parties
may hear the conclusion of a prior hearing at the time they call in, and are
instructed to simply wait until their case is called. SO ORDERED, by
Magistrate Judge N. Reid Neureiter on August 25, 2021. Text Only Entry.
(rvill, ) (Entered: 08/25/2021)
08/25/2021 172 REPLY to Response to 161 MOTION for Order to Certify Defendant
Klamser's Interlocutory Appeal As Frivolous And Request For Hearing filed
by Plaintiff Michaella Lynn Surat. (Attachments: # 1 Exhibit)(McNulty,
Andrew) (Entered: 08/25/2021)
08/26/2021 173 LETTER TO USCA and all counsel certifying the record is complete as to 158
Notice of Appeal filed by Randall Klamser. A transcript order form was filed
stating that a transcript is not necessary. (Appeal No. 21-1284) (Text Only
Entry) (trvo, ) (Entered: 08/26/2021)
08/27/2021 174 Proposed Pretrial Order by Plaintiff Michaella Lynn Surat. (Attachments: # 1
Exhibit 1 - Plaintiff's Witness List, # 2 Exhibit 2 - Defendants' Witness List, #
3 Exhibit 3 - Plaintiff's Exhibit List, # 4 Exhibit 4 - Defendants' Exhibit
List)(McNulty, Andrew) (Entered: 08/27/2021)
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09/02/2021 175 ORDER Certifying Interlocutory Appeal as Frivolous. Surat's Motion (ECF
No. 161 ) is GRANTED, and the Court reassumes and reasserts jurisdiction
over this dispute. SO ORDERED by Judge William J. Martinez on
9/2/2021.(trvo, ) (Entered: 09/02/2021)
09/03/2021 176 COURTROOM MINUTES for Telephonic Final Pretrial Conference before
Magistrate Judge N. Reid Neureiter held on 9/3/2021. The proposed FINAL
PRETRIAL ORDER, with witness list(s) and exhibit list(s), which was
tendered to the court, is modified to note that the Trial is expected to take five
(5) days and is made an Order of Court. FTR: Courtroom C203. (rvill, )
(Entered: 09/03/2021)
09/03/2021 177 FINAL PRETRIAL ORDER by Magistrate Judge N. Reid Neureiter on
September 3, 2021. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, #
4 Exhibit 4) (rvill, ) (Entered: 09/03/2021)
09/10/2021 178 ORDER: A 5-Day Jury Trial is hereby set to begin on September 12, 2022
at 8:30 a.m. in Courtroom A801. The Final Trial Preparation Conference is
set for August 26, 2022 at 2:15 p.m. in Courtroom A801. Counsel are
directed to this Court's Revised Practice Standards to ensure compliance with
all deadlines triggered by the dates of the Final Trial Preparation Conference
and Trial. In so doing, the parties are strongly encouraged to take advantage of
the "Trial Preparation Conference & Pretrial Checklist" available here. SO
ORDERED by Judge William J. Martinez on 9/10/2021. Tex t Only Entry
(wjmsec, ) (Entered: 09/10/2021)
SUPP. APP. 000021
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Case No. 19-cv-0901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
RANDALL KLAMSER, in his individual capacity, and
CITY OF FORT COLLINS, COLORADO, a municipality,
Defendants.
ORDER CERTIFYING INTERLOCUTORY APPEAL AS FRIVOLOUS
This matter is before the Court on Plaintiff Michaella Surat’s Motion to Certify
Defendant Randall Klamser’s Interlocutory Appeal as Frivolous (“Motion”) (ECF No.
161). For the following reasons, the Motion is granted.
I. BACKGROUND AND PROCEDURAL HISTORY
The Court assumes the parties’ familiarity with the facts underlying this action
and incorporates by reference the factual summary contained in the Court’s July 13,
2021 Order Denying Defendants’ Motion for Summary Judgment (“Order”). (ECF No.
154.)
In its Order, the Court denied summary judgment to Defendants Klamser and the
City of Fort Collins, Colorado (jointly, “Defendants”). (Id.) As to Klamser, the Court
found that Surat had presented evidence creating a genuine issue of material fact as to
whether Klamser committed a constitutional violation. (Id. at 5–8.) The Court further
found that she had presented evidence, albeit disputed, from which a reasonable trier of
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2
fact could conclude that Klamser had violated clearly established law.1 (Id. at 8–10.)
The Court therefore concluded that Klamser was not entitled to qualified immunity. (Id.)
In response to the denial of qualified immunity, Klamser filed a Notice of Appeal
on August 10, 2021. (ECF No. 158.) Surat filed her Motion on August 12, 2021,
seeking an order from this Court certifying Klamser’s interlocutory appeal as frivolous.
(ECF No. 161.) Klamser responded on August 19, 2021, and Surat replied on August
25, 2021. (ECF Nos. 167 & 170.)
II. LEGAL STANDARD
A. Frivolous Interlocutory Appeal
In Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990), the Tenth Circuit held that
an appeal of the denial of qualified immunity would not prevent the district court from
continuing to adjudicate the case “if the district court (1) after a hearing and, (2) for
substantial reasons given, (3) f[inds] the [interlocutory appeal] to be frivolous.” 915 F.2d
at 576. In other words, “[o]nce a notice of appeal on an appealable issue such as
qualified immunity is filed, the status quo is that the district court has lost jurisdiction to
proceed. To regain jurisdiction, it must take the affirmative step of certifying the appeal
as frivolous or forfeited . . . .” Id. at 577. To determine whether an appeal is frivolous,
this Court must essentially perform the same qualified immunity analysis that the Tenth
Circuit would be required to perform in the context of the interlocutory appeal.
1 The Court conducted the clearly established law analysis although the Tenth Circuit has held
that if—after consideration of the factors set forth in Graham v. Connor, 490 U.S. 386, 396
(1989)—the Court determines that issues of material fact exist as to the existence of a Fourth
Amendment violation, the clearly established prong of the qualified immunity analysis is deemed
satisfied. (ECF No. 154 at 8–10; see also Morris v. Noe, 672 F.3d 1185, 1197 (10th Cir. 2012).)
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3
B. Qualified Immunity
Public employees acting in their individual capacities are presumed to be
immune from suit. See Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990). “In
civil rights actions seeking damages from governmental officials, those officials may
raise the affirmative defense of qualified immunity, which protects all but the plainly
incompetent or those who knowingly violate the law.” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (internal quotation marks and citation
omitted). “The doctrine of qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Moreover,
“summary judgment motions may not be granted on any excessive force claims under
§ 1983 for which any genuine issue of material fact remains—regardless of whether the
potential grant would arise from qualified immunity or from a showing that the officer
merely had not committed a constitutional violation.” Bridges v. Yeager, 352 F. App’x
255, 258 (10th Cir. 2009) (citing Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th
Cir. 2002)).
III. ANALYSIS
Surat contends that Klamser’s appeal necessarily turns on disputed issues of
fact, given that such determination was the basis for the Court’s decision to deny
summary judgment. (ECF No. 161.) In response, Klamser asserts that his appeal is
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4
premised on whether clearly established law prohibited his actions.2 (ECF No. 167 at
4–12.) Specifically, he argues that the law was not clearly established that he was
unable to use the takedown maneuver on an arrestee actively resisting arrest through
threat or use of physical force. (ECF No. 167 at 6; see also Colo. Rev. Stat. § 18-8-
103(1).) He further devotes much of his response to distinguishing the cases on which
the Court relied in determining that the law was clearly established. (Id. at 7–11.)
Klamser’s argument is misplaced, as the Tenth Circuit has held that where a
reasonable jury could conclude that the Graham analysis 3 establishes a Fourth
Amendment violation, it does not “require a second decision with greater specificity to
establish the law.” See Morris, 672 F.3d at 1197. Although the Court, for the sake of
thorough analysis, cited several analogous cases in support of its determination that
clearly established law prohibited Klamser’s actions, no more specific case was
necessary to overcome his assertion of qualified immunity because Surat presented
evidence from which a reasonable jury could conclude that a constitutional violation had
in fact occurred. See id.
Finally, to the extent Klamser argues that no issues of fact exist as to the second
Graham factor—whether the arrestee posed an immediate threat to officer safety—
because of Surat’s conviction for resisting arrest, such argument is also without merit.
2 Klamser first argues in general terms that the filing of a notice of appeal deprives a district
court of jurisdiction, but as discussed above, the exception set forth in Stewart renders this
argument unavailing. See Stewart, 915 F.2d at 576.
3 To determine whether an officer’s actions were objectively reasonable under Graham, a court
considers: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate
threat to the safety of the officers, and [3] whether [s]he is actively resisting arrest or attempting
to evade arrest by flight.” Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009)
(citing Graham, 490 U.S. at 396). A plaintiff must also suffer some injury that is not de minimis,
Cortez v. McCauley, 478 F.3d 1108, 1129 n.25 (10th Cir. 2007), but Defendants do not dispute
that Surat’s injuries satisfy this requirement.
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5
Klamser appears to argue that because one element of Surat’s resisting arrest
conviction is that the arrestee’s actions “were subjecting him to, or threatening him with,
physical force or violence, or putting him at substantial risk of bodily injury,” Surat
necessarily posed an immediate threat to his safety. (ECF No. 167 at 6; see also Colo.
Rev. Stat. § 18-8-103(1).) Throughout the response, Klamser conflates the clauses of
this element, contending that Surat’s conviction establishes that he was at substantial
risk of bodily injury and therefore justified his use of the takedown maneuver. (ECF No.
167 at 10–11.)
Klamser’s suggestion that Surat’s conviction required a finding that she placed
him at substantial risk of bodily injury is, at the very least, misleading. It is not difficult to
imagine a situation where a lesser included element of the offense is satisfied—i.e.
Surat threatened Klamser with physical force—but where Klamser was not in any
immediate danger such that his use of the rowing arm takedown was justified under the
Graham analysis. Thus, as the Court determined, clear questions of disputed fact exist
as to whether Surat posed an immediate threat to Klamser’s safety. As a result, the
Court concluded, and herein reaffirms, that this genuine issue of material fact precluded
a finding of qualified immunity in Klamser’s favor. (ECF No. 154 at 6.)
Viewing the evidence in the light most favorable to Surat, as the Court was
required to do on summary judgment, the Court determined that issues of fact exist as
to whether Surat posed an immediate threat to Klamser’s safety, and whether she was
actively resisting arrest or was a flight risk.4 (Id.) Klamser fails to acknowledge the
4 Klamser does not dispute that the first Graham factor—the severity of the crime at issue—
favors Surat. See Roe v. City of Cushing, 13 F.3d 406 (10th Cir. 1993) (table) (finding
conviction of resisting arrest not severe); Casey v. City of Fed. Heights, 509 F.3d 1278, 1281
(10th Cir. 2007) (finding obstruction a minor crime).
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6
Tenth Circuit’s decision in Morris, which clearly states that where the Graham factors
favor a constitutional violation, no more specific case law is required to overcome a
defendant’s assertion of qualified immunity. Klamser’s interlocutory appeal is a thinly-
veiled and poorly-reasoned attempt to thwart the Court’s clear determination that
disputed issues of fact preclude a grant of summary judgment in his favor. Accordingly,
and as it must on this record, the Court concludes that this appeal is frivolous and
grants the Motion.5
IV. CONCLUSION
For the reasons set forth above, Surat’s Motion (ECF No. 161) is GRANTED, and
the Court reassumes and reasserts jurisdiction over this dispute.
Dated this 2nd day of September, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
5 Courts have not uniformly required a hearing before certifying an appeal as frivolous. See,
e.g., Valdez v. Motyka, 416 F. Supp. 3d 1250 (D. Colo. 2019) (granting motion to certify appeal
as frivolous without a hearing); Martinez v. Mares, 2014 WL 12650970, at *1–4 (D.N.M. Sept.
22, 2014) (same); Monarque v. City of Rio Rancho, 2012 WL 13076594, at *1–2 (D.N.M. Apr.
13, 2012) (stating that hearing was unnecessary and granting motion to certify interlocutory
appeal as frivolous). As the Motion and appeal turn solely on legal issues, the Court finds that
an evidentiary hearing would not assist in resolving the Motion and rules based on the parties’
briefing.
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1
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
(1) All required privacy redactions have been made;
(2) If required to file additional hard copies, that the ECF submission
is an exact copy of those documents;
(3) The digital submissions have been scanned for viruses with the
most recent version of a commercial virus scanning program, WebRoot
Secure Anywhere for Windows, updated February 22, 2022 and according to
the program are free of viruses.
KILLMER, LANE & NEWMAN, LLP
s/ Jamie Akard
Paralegal
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2
CERTIFICATE OF SERVICE
I hereby certify that a copy of this SUPPLEMENTAL APPENDIX
was served on February 22, 2022, via CM/ECF to the following:
Mark Ratner
Brenden Desmond
Hall & Evans, LLC
1001 Seventeenth Street, Ste 300
Denver, CO 80202
303-628-3492
ratnerm@hallevans.com
desmondb@hallevans.com
John R. Duval, Esq.
Deputy City Attorney
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
(970) 221-6520
jduval@fcgov.com
Counsel for Defendant-Appellant
s/ David A. Lane
David A. Lane
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