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HomeMy WebLinkAbout2021-1284 - Surat V. Klamser, Et Al - 001 - Appeal Docketed - Preliminary RecordCase 1:19-cv-00901-WJM-NRN Document 159 Filed 08/11/21 USDC Colorado Page 1 of 1 AppellGase: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 1 Jeffrey P. Colwell Clerk Date: 8/11/2021 I� Pro Se XRetained UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO OFFICE OF THE CLERK Case No: 19-cv-00901-WJM-NRN Date Filed: August 10, 2021 Appellant: Randall Klamser Pro Se Appellant: IFP forms mailed/given Retained Counsel: Appeal fee paid Alfred A. Arraj United States Courthouse 901 19th Street Denver, Colorado 80294 www.cod.uscourts.gov Phone: (303) 844-3433 USA or other CJA ❑FPD I 'Federal Agency (Appeal Fee Exempt) ❑ Amended Notice of Appeal ❑ Other pending appeals ❑Transferred Successive §2254 or §2255 ❑ Supplemental Record Motion IFP pending ❑Appeal fee paid IFP denied ❑Appeal fee not paid ®Appeal fee not paid ❑Motion IFP filed The Preliminary Record on Appeal is hereby transmitted to the Tenth Circuit Court of Appeals. Please refer to the forms, procedures, and requirements for ordering transcripts, preparing docketing statements and briefs, and designations of the record that are found on the Tenth Circuit's website, www.cal0.uscourts.gov. If not already completed, either an appeal fee payment for filing this case or filing of a motion to proceed in forma pauperis will be made to this District Court. The transcript order form must be filed in the District Court as well as the Court of Appeals within 14 days after the notice of appeal was filed with the District Court. If you have questions, please contact this office. Sincerely, JEFFREY P. COLWELL, CLERK by: s/T. Vo Deputy Clerk cc: Clerk of the Court, Tenth Circuit Court of Appeals Rev. 8/17/2017 Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 1 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 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 Cause: 28:1983 Plaintiff Michaella Lynn Surat V. Defendant Randall Klamser in his individual capacity Date Filed: 03/26/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question 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: 0 7/2 6/2 019 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 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 Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 2 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 3 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 John R. Duval City Attorney's Office —Fort Collins P.O. Box 580 Fort Collins, CO 80522 970-221-6520 Email: iduval@fcgov.com ATTORNEY TO BE NOTICED John Felix Peters Caplan & Earnest LLC 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 represented by Brenden W. Desmond a municipality (See above for address) TERMINATED: 12/0 7/2 02 0 Christina Shavon Gunn (See above for address) TERMINATED: 01/23/2020 Gillian Dale (See above for address) TERMINATED: 10/07/2020 John R. Duval (See above for address) ATTORNEY TO BE NOTICED Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 3 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 4 John Felix Peters (See above for address) TERMINATED: 04/21/2021 Mark Scott Ratner (See above for address) ATTORNEY TO BE NOTICED Date Filed # Docket Text 08/10/2021 151 NOTICE OF APPEAL as to 154 Order on Motion for Summary Judgment by Defendant Randall Klamser (Ratner, Mark) (Entered: 08/10/2021) 07/19/2021 1S 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) 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) 07/15/2021 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) 07/13/2021 154 ORDER denying 118 Defendants' Motion for Summary Judgment by Judge William J. Martinez on 07/13/2021.(trvo,) (Entered: 07/13/2021) 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: 04/21/2021) 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) 04/19/2021 151 MOTION to Withdraw as Attorney John F. Peters, Esq. by Defendants City of Fort Collins, Randall Klamser. (Peters, John) (Entered: 04/19/2021) 04/12/2021 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 Plaintiffs 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 Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 4 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 5 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) 02/08/2021 149 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 Plaintiffs Consolidated Response to Defendants' Motion to Dismiss and Motion for Summary Judgment (Dkt. # 14) 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) 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) 01/26/2021 147 Unopposed MOTION for Leave to Restrict by Defendants City of Fort Collins, Randall Klamser. (Peters, John) (Entered: 01/26/2021) 01/25/2021 146 ORDER. Before the Court is Defendants' Motion for Leave to File Motion to Strike Plaintiffs 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) 01/25/2021 145 RESPONSE to 143 First MOTION for Leave to File Motion to Strike Plaintiffs 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) 01/20/2021 144 ORDER: This matter is before the Court on Defendant's Motion for Leave to File Motion to Strike Plaintiffs Expert Pursuant to F.R.C.P. 702 14 . 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) 01/19/2021 143 First MOTION for Leave to File Motion to Strike Plaintiffs Expert Pursuant to F.R. C.P. 702 by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 01/19/2021) 01/04/2021 142 REPLY to Response to 118 MOTION for Summary Judgment , 108 MOTION to Dismiss Plaintiffs 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) 12/17/2020 141 Minute ORDER by Magistrate Judge N. Reid Neureiter on 17 December 2020. It is hereby ORDERED that Plaintiffs Unopposed Motion to Restrict Public Access to Exhibits 12 and 13 to Plaintiffs Consolidated Response to Defendants' Motion to Dismiss and Motion for Summary Judgment (Dkt. # 13$) 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) 12/14/2020 140 MEMORANDUM regarding 118 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 5 of 14 • Ap 12/10/2020 139 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) 12/09/2020 138 MOTION for Leave to Restrict by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered: 12/09/2020) 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) 12/07/2020 136 Unopposed MOTION for Extension of Time to File Response/Reply as to 1$1 MOTION for Summary Judgment by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 12/07/2020) 12/07/2020 135 Minute ORDER by Magistrate Judge N. Reid Neureiter on 7 December 2020. It is hereby ORDERED that the Motion to Withdraw (Dkt. # 133) is GRANTED. Brenden Desmond shall be permitted to withdraw as counsel for Defendant. The Clerk of Court is directed to remove Brenden Desmond from electronic notification in this case. PLEASE READ ATTACHED MINUTE ORDER. (cmadr, ) (Entered: 12/07/2020) 12/07/2020 134 MEMORANDUM regarding 133 MOTION to Withdraw as Attorney filed by Randall Klamser, City of Fort Collins. Motions referred to Magistrate Judge N. Reid Neureiter by Judge William J Martinez on 12/7/2020. Text Only Entry (wjmsec, ) (Entered: 12/07/2020) 12/07/2020 133 MOTION to Withdraw as Attorney by Defendants City of Fort Collins, Randall Klamser. (Desmond, Brenden) (Entered: 12/07/2020) 12/02/2020 132 Conventionally Submitted Material : CD — Exhibit 4 to Response to Motion„ 128 by Plaintiff Michaella Lynn Surat. Material stored in the Clerk's Office: oversized area A-3-3. Text Only Entry (angar, ) Modified to specify storage location on 12/9/2020 (jtorr, ). (Entered: 12/03/2020) 12/02/2020 131 Conventionally Submitted Material : CD — Restricted Level 1 Exhibit to Response to Motion, 128 re: Notice of convectional filed material 130], by Plaintiff Michaella Lynn Surat. Material stored in the Clerk's Office: oversized area A-3-3. Text Only Entry. (angar, ) Modified to specify storage location on 12/9/2020 (jtorr, ). (Entered: 12/03/2020) 12/01/2020 13Q NOTICE of Conventionally Filed Material by Plaintiff Michaella Lynn Surat (Oh, Helen) (Entered: 12/01/2020) 11/30/2020 122 RESTRICTED DOCUMENT — Level 1 — Exhibits to 128 : by Plaintiff Michaella Lynn Surat.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Oh, Helen) Modified on 12/2/2020 to add title (angar, ). (Entered: 11/30/2020) 11/30/2020 12$ RESPONSE to 118 MOTION for Summary Judgment , 108 MOTION to Dismiss Plaintiffs 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 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 1 Exhibit 17, # 1$ Exhibit 18, # 12 Exhibit 19, # 2Q Exhibit 20, # 21 Exhibit 21)(Oh, Helen) (Entered: 11/30/2020) 11/24/2020 127 ORDER granting Plaintiffs 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 6 of 14 • • 7 Ap 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 Plaintiffs First Amended Complaint by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered: 11/24/2020) 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) 10/21/2020 124 ORDER granting Plaintiffs 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) 10/21/2020 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) 10/20/2020 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) 10/19/2020 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) 10/19/2020 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) 10/13/2020 119 NOTICE re 118 MOTION for Summary Judgment by Defendants City of Fort Collins, Randall Klamser (Ratner, Mark) (Entered: 10/13/2020) 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, # Exhibit Ex. G—Trial Transcript-8.21.18)(Ratner, Mark) (Entered: 10/13/2020) 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) 10/07/2020 116 ORDER granting Plaintiffs 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 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 7 of 14 Ap lor! imant• (11 f11 in • ane• 10/06/2020 114 MOTION to Withdraw as Attorney by Defendants City of Fort Collins, Randall Klamser. (Dale, Gillian) (Entered: 10/06/2020) 10/06/2020 113 Unopposed MOTION for Extension of Time to File Response/Reply as to 108 MOTION to Dismiss Plaintiffs First Amended Complaint by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered: 10/06/2020) 10/06/2020 112 ORDER denying Plaintiffs Unopposed Motion for Extension of Time to Respond to Defendants' Motion to Dismiss First Amended Complaint [Doc. #108] 111 . Plaintiffs Motion is once again DENIED without prejudice to refiling given Plaintiffs 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) 10/05/2020 111 Unopposed MOTION for Extension of Time to File Response/Reply as to 108 MOTION to Dismiss Plaintiffs First Amended Complaint by Plaintiff Michaella Lynn Surat. (Oh, Helen) (Entered: 10/05/2020) 10/05/2020 110 ORDER denying Plaintiffs 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 Plaintiffs 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 10/5/2020. Text Only Entry(wjmsec, ) (Entered: 10/05/2020) 10/02/2020 109 Unopposed MOTION for Extension of Time to File Response/Reply as to 108 MOTION to Dismiss Plaintiffs First Amended Complaint by Plaintiff Michaella Lynn Surat. (McNulty, Andrew) (Entered: 10/02/2020) 09/14/2020 108 MOTION to Dismiss Plaintiffs First Amended Complaint by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 09/14/2020) 08/24/2020 107 AMENDED COMPLAINT against Michaella Lynn Surat, filed by Michaella Lynn Surat.(McNulty, Andrew) (Entered: 08/24/2020) 08/11/2020 106 ORDER granting Plaintiffs Motion for Leave to File First Amended Complaint 2f . Plaintiffs 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 Plaintiffs 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(wjmlcl) (Entered: 08/11/2020) 07/28/2020 LU 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) 07/27/2020 104 MEMORANDUM regarding Q 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) 07/27/2020 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 8 of 14 • Ap 07/27/2020 102 Unopposed MOTION to Amend/Correct/Modify Scheduling Order by Defendant Randall Klamser. (Ratner, Mark) (Entered: 07/27/2020) 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 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) 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) 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 98 Unopposed MOTION to Amend/Correct/Modify Scheduling Order by Defendant Randall Klamser. (Desmond, Brenden) (Entered: 05/12/2020) 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) 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) 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 2 Defendants Opposed Motion for Protective Order Regarding Deposition of Plaintiff and Request for Expedited Determination. FTR: Courtroom C203. (slibi, ) (Entered: 03/10/2020) 03/09/2020 94 RESPONSE to 2 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) 03/09/2020 93 ANSWER to 1 Complaint, by Randall Klamser.(Ratner, Mark) (Entered: 03/09/2020) 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) 03/06/2020 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 90 Unopposed MOTION for Extension of Time to disclose experts by Defendant Randall Klamser. (Ratner, Mark) (Entered: 03/06/2020) 03/06/2020 89 MINUTE ORDER re:. 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 9 of 14 • App 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 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) 03/04/2020 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) 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) 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 Plaintiffs Complaint 55 , by Judge William J. Martinez on 02/24/2020. (wjmlcl) (Entered: 02/24/2020) 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) 02/20/2020 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) 02/19/2020 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) 02/19/2020 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 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 Judge N. Reid Neureiter. PLEASE READ ATTACHED MINUTE ORDER. (tsher,) (Entered: 02/19/2020) 02/19/2020 78 MEMORANDUM regarding 71 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 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 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) 01/24/2020 75 PROTECTIVE ORDER by Magistrate Judge N. Reid Neureiter on 1/24/2020. (tsher, ) (Entered: 01/27/2020) 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 10 of 14 App nIlate Case: 21-1284 Doc'ux p c1.5fi-O7aq___Dat? Filed• 08/11/2021 page• 11 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 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) 01/23/2020 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) 01/23/2020 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 69 MOTION to Withdraw as Attorney Christina S Gunn by Defendants City of Fort Collins, Randall Klamser. (Ratner, Mark) (Entered: 01/23/2020) 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) 01/02/2020 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) 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 (wjmlcl) (Entered: 12/31/2019) 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) 12/18/2019 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) 12/18/2019 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) 12/16/2019 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) 11/25/2019 61 ORDER granting 2 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) 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) 11/22/2019 59 Unopposed MOTION to Amend/Correct/Modify 41 Scheduling Order by Plaintiff Michaella Lynn Surat. (McNulty, Andrew) (Entered: 11/22/2019) 11/20/2019 58 ORDER: This matter is before the Court on Defendants' Motion to Supplement their Motion to Dismiss Plaintiffs 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 (wjmlcl) (Entered: Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 11 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 12 11/20/2019) 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) 11/19/2019 56 ORDER: This matter is before the Court on Defendants' Motion to Supplement their Motion to Dismiss Plaintiffs 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) 11/18/2019 55 MOTION to Supplement 23 MOTION to Dismiss , 34 Reply to Response to Motion by Defendants City of Fort Collins, Randall Klamser. (Attachments: # 1 Exhibit Exhibit A — Order Affirming County Court Convictions)(Gunn, Christina) (Entered: 11/18/2019) 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) 11/08/2019 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) 11/07/2019 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) 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) 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) 09/10/2019 49 NOTICE re 48 Order on Motion to Stay, Motion Hearing by Plaintiff Michaella Lynn Surat (McNulty, Andrew) (Entered: 09/10/2019) 09/03/2019 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) 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) 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) 08/08/2019 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) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 12 of 14 • App 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) 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) 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) 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) 07/26/2019 41 SCHEDULING ORDER by Magistrate Judge N. Reid Neureiter on 7/26/2019. (slibi, ) (Entered: 07/30/2019) 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 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 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) 07/25/2019 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) 07/24/2019 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) 07/24/2019 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 33 MOTION to Withdraw as Attorney by Plaintiff Michaella Lynn Surat. (Valdez, Tania) (Entered: 07/24/2019) 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 Michaella Lynn Surat(pty:pla) (McNulty, Andrew) (Entered: 07/19/2019) 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) 07/08/2019 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 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) 07/03/2019 28 RESPONSE to 23 MOTION to Dismiss filed by Plaintiff Michaella Lynn Surat. (Valdez, Tania) (Entered: 07/03/2019) Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 13 of 14 App .IIate Case: 21-1284 Document. 010110560299 Date Filed: 08/11/2021 Page: 14 06/28/2019 27 ORDER granting Plaintiffs 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) 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) 06/27/2019 25 ORDER denying Plaintiffs Unopposed Motion for Extension of Time to Respond to Motion to Dismiss 24 . Plaintiffs Motion is DENIED without prejudice to refiling given Plaintiffs 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) 06/27/2019 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) 06/07/2019 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) 06/07/2019 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 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: 06/07/2019) 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) 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) 05/28/2019 1j Proposed Scheduling Order by Plaintiff Michaella Lynn Surat. (Valdez, Tania) (Entered: 05/28/2019) 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) 05/24/2019 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 Case 1:19-cv-00901-WJM-NRN Document 159-1 Filed 08/11/21 USDC Colorado Page 14 of 14 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 15 Judge William J. Martinez on 5/24/2019. Text Only Entry (wjmsec, ) (Entered: 05/24/2019) 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) 05/23/2019 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) 05/22/2019 13 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) 05/14/2019 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) 05/14/2019 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 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 2 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) 05/10/2019 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) 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) 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) 03/26/2019 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) 03/26/2019 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 3 Case assigned to Magistrate Judge N. Reid Neureiter. Text Only Entry. (rroge, ) (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 1 COMPLAINT and Jury Demand against City of Fort Collins, Randall Klamser (Filing fee $ 400,Receipt Number 1082-6602943)Attorney David Arthur Lane added to party Michaella Surat(pty:pla), filed by Michaella Surat. (Attachments: # 1 Civil Cover Sheet)(Lane, David) (Entered: 03/26/2019) Case 1:X a0 1-kAB1901.1=MUM D,i llaieDto kntF71lNtl OBilkl1/1217/10/SEDCRIajeraolIi 18'age 1 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martinez 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 DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT This matter is before the Court on Defendants Randall Klamser and the City of Fort Collins, Colorado's (the "City") (collectively, "Defendants") Motion for Summary Judgment ("Motion") (ECF No. 118). For the following reasons, the Motion is DENIED. I. STANDARD OF REVIEW Summary judgment is warranted under Federal Rule of Civil Procedure 56 "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is "material" if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is "genuine" if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and 1 Case 1:X9a a0 1A OA@O RNJlDNI:RlteDtol entFil 0BilbIVHY/10,SmC r ()eraabd 18age 2 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 17 all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). II. BACKGROUND AND PROCEDURAL HISTORY' This action arises out of an incident on April 6, 2017, when Plaintiff Michaella Surat, at the time a student at Colorado State University at Fort Collins, went to a bar to celebrate her twenty-second birthday. At approximately 11:12 p.m., Fort Collins Police Services ("FCPS") officers, Officer Garrett Pastor and Defendant Klamser, were dispatched to a disturbance at the bar involving Surat's then -boyfriend, Mitchell Waltz. While Pastor spoke with Waltz, Klamser spoke with the bar's bouncer, Cory Esslinger. As Klamser spoke with Esslinger, Surat walked out of the bar past Klamser and Esslinger. Defendants assert that Surat physically bumped into Klamser and Esslinger, though Surat disputes that she made physical contact with Klamser. (Id. at 5; ECF No. 128 at 5.) Pastor's bodycam footage appears to show Surat lightly bumping Klamser as she walked out of the bar. (Ex. I, ECF No. 121 at 00:45-00:55.) On learning from Esslinger that Waltz had been involved in an altercation, Klamser yelled to Pastor that Waltz was not free to go. Defendants assert that Surat then attempted to pull Waltz away and leave with him. (ECF No. 118 at 6.) Surat 'The following factual summary is based on the parties' Motions and documents submitted in support thereof. These facts are undisputed unless attributed to a party or source. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination. The Court does not cite the briefs for undisputed facts. 2 2 Case 1:19a ao A A901F UNIDURIlte utongAkntF71l l 018ilkl1/ iY/10/SDCF erao6d 18age 3 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 18 disputes that she tried to pull Waltz away and states that she had tried to walk away with him only before Klamser said that he was not free to go. (ECF No. 128 at 5.) Surat attempted to walk toward Waltz while Pastor interviewed him. Defendants assert that Surat attempted to "walk through" Klamser to reach Waltz, which Surat denies. (ECF No. 118 at 7; ECF No. 128-2 at 145-46.) Klamser testified in his deposition that when he tried to block Surat, she started to slap him and put her hands on his throat. (ECF No. 118-6 at 48.) Surat testified in her deposition that she did not physically attack Klamser or put her hands on his throat. (ECF No. 128-2 at 145.) Klamser then placed Surat under arrest and held her by her wrist. Klamser testified that Surat was hitting him as he attempted to place her in handcuffs, but Surat testified that she did not hit him. (ECF No. 118 at 8; ECF No. 128-2 at 145.) The available footage is not clear as to whether Surat physically assaulted Klamser at this time. (ECF Nos. 121 & 131.) Surat attempted to pry Klamser's fingers off of her arm and pawed at Klamser's arms. (ECF No. 118 at 8; ECF No. 128 at 7.) Klamser then used the "rowing arm takedown" maneuver, throwing Surat to the ground to subdue her. Per her medical records, Surat sustained a concussion, cervical spine strain, contusions to her face, and bruising on her arms, wrists, knees, and legs. (ECF No. 128-12; ECF No. 128-13; ECF No. 128-14.) Surat was charged with and ultimately convicted of resisting arrest and obstruction of a peace officer in violation of Colorado Revised Statute §§ 18-8-103 and 18-8-104(1)(a). Surat initiated this action on March 26, 2019, asserting claims against Klamser and the City for excessive force in violation of the Fourth Amendment to the 3 3 Case 1:X s0 1-kADDO NRNJNII3D,i ltt e utonTrAkntF71l l 018ilkl1/2i7/10/SDCF er4o6d 1gage 4 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 19 Constitution, brought pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Defendants filed their first Motion to Dismiss on June 7, 2019. (ECF No. 23.) On February 24, 2020, the Court issued its Order Granting in Part and Denying in Part Defendants' Motion to Dismiss. (ECF No. 84.) Specifically, the Court granted the Motion to Dismiss with respect to Surat's excessive force claim to the extent it was based on any conduct prior to the takedown, as such challenge was barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Id. at 17.) The Court also granted the Motion to Dismiss with respect to Surat's claim against the City, finding that she had not alleged the existence of an informal custom or policy which would support a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id.) Surat filed her First Amended Complaint on August 24, 2020, renewing her Monell claims against the City. (ECF No. 107.) Defendants filed their Motion on October 13, 2020, seeking summary judgment on all claims.2 (ECF No. 118.) Surat responded on November 30, 2020, and Defendants replied on January 4, 2021. (ECF Nos. 128 & 142.) III. ANALYSIS A. Klamser's Individual Liability Defendants assert that Klamser is not liable for Surat's injuries because he is entitled to qualified immunity. (ECF No. 118 at 11.) Specifically, they contend that Klamser did not violate Surat's constitutional rights and that no clearly established law prohibits his allegedly unlawful actions. (Id. at 13-18.) 2 Pursuant to the Court's April 12, 2021 Order, Defendants' second Motion to Dismiss (ECF No. 108) was denied as mooted by the instant Motion. (ECF No. 150.) 4 4 Case 1:X s0 1-kAQDOGIFRNJe utonTrAkntF71l l 018ilkl1/1217/10/SDCF erRchi 18age 5 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 20 Public employees acting in their individual capacities are presumed to be immune from suit. 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). Constitutional Violation Defendants assert that Surat has not demonstrated a genuine issue of material fact as to the existence of a constitutional violation. (ECF No. 118 at 13.) Specifically, they argue that Klamser's use of the takedown maneuver was not objectively unreasonable given that Surat was resisting arrest. (Id. at 13-16.) A plaintiff asserting an excessive force claim based on resisting arrest may prevail if she demonstrates: "(1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Cortez v. McCauley, 478 F.3d 1108 n.25 (10th Cir. 2007). A court considers three factors in determining whether an officer's actions are objectively reasonable in this context: "[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 5 5 Case 1:na a0 1-kAQDOCTIFRNJ1I3Di 114-1 e utonTrAkntF71l l 018ilkl1/1217/10/SDCF er&hi 18age 6 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 21 to evade arrest by flight." Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). First, Surat was convicted of the misdemeanors of resisting arrest and obstruction of a peace officer, which are not severe crimes. 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). The first Graham factor therefore favors Surat. Second, at the time of the incident, Surat was a twenty -two -year -old, 115-pound woman, and Klamser was a 30-year-old man standing six feet tall and weighing approximately 200 pounds. (ECF No. 118-1 at 2.) Surat was unarmed, and immediately before Klamser used the takedown maneuver on her, he held her by her wrists as she attempted to pull away from his grip. (ECF No. 118 at 8-9; ECF No. 128 at 11-12; ECF No. 131 at 00:01-00:10.) The video footage of the event does not show that Surat was assaulting or threatening Klamser immediately before he used the takedown maneuver. (Ex. B, ECF No. 121 at 00:57-01:31; ECF No. 131 at 00:01- 00:10.) Accordingly, Surat has presented evidence from which a reasonable juror could conclude that she was not an immediate threat to Klamser's safety; the second Graham factor therefore favors Surat's position. See Morris v. Noe, 672 F.3d 1185, 1189-90 (10th Cir. 2012) (finding excessive force where police officers used takedown maneuver on unarmed, intoxicated man because he posed little to no threat to the safety of officers). Third, while Surat does not dispute that she resisted arrest, she contends that Klamser used an inappropriate amount of force to subdue her. (ECF No. 128 at 27-30.) 6 6 Case 1:1C9a a0 1-kADMQIRNJ1I3bi 114-1 e utongAkntF71l41 018ilkl1/121Y/10/SDCF erAcdf 18age 7 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 22 The Tenth Circuit has held in several cases that extreme force is unjustified where a plaintiff resisted arrest but the crime was non -severe and the plaintiff did not pose a serious or immediate threat to the officers' safety. See Long v. Fulmer, 545 F. App'x 757, 759-60 (10th Cir. 2013) (finding excessive force where officers tackled plaintiff after plaintiff "protested and pulled away" during arrest for unauthorized entry into closed hospital cafeteria); Roe, 13 F.3d at 406 (finding takedown maneuver excessive force where plaintiff verbally resisted arrest for possession of a non -intoxicating substance by a minor); Davis v. Clifford, 825 F.3d 1131, 1136-37 (10th Cir. 2016) (finding excessive force where officers shattered plaintiff's car window and pulled her through the window despite refusal to exit vehicle). Specifically, the Tenth Circuit has stated that where the underlying crime is a misdemeanor, an officer should use minimal force to effect an arrest. See Fisher, 584 F.3d at 895; Cook v. Peters, 604 F. App'x 663, 664-65 (10th Cir. 2015) (finding excessive force where sheriff tackled teenager who weighed 200 pounds less based on misdemeanor breach of peace). Notwithstanding the extent of her injuries as an indication of the extent of the force used against her, Surat submits a police expert report stating that the rowing arm takedown is not minimal force. (ECF No. 128-6 at 11-12.) As Surat has presented evidence that the amount of force used to subdue her was objectively unreasonable considering the Graham factors, issues of fact exist as to whether Klamser used excessive force. Finally, Defendants do not dispute that Surat suffered an injury that was not de minimis. As she presents evidence that she suffered a concussion, cervical spine 7 7 Case 1:19acs-Q011-VAQDMQ1RNJNIDb,i llaieDtal kntF1Ll /HY/1r wC' 0eradif 18age 8 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 23 strain, and emotional injuries, the Court is satisfied that she has met this prong of the inquiry. (ECF Nos. 128-12, 128-13 & 128-14.) "[S]ummary 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)). Thus, even assuming that the Graham factors do not straightforwardly establish a constitutional violation, Surat has at least offered evidence in the form of video footage and deposition testimony which establish that there exists a genuine dispute of material fact as to whether she presented an immediate threat to Klamser's safety or was a serious flight risk. As such, summary judgment is inappropriate as to the issue of the existence of a constitutional violation. ii. Clearly Established Law Even if a constitutional violation has occurred, a plaintiff still must show that the right violated was clearly established. See Redmond v. Crowther, 882 F.3d 927, 937 (10th Cir. 2018). For a right to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Weiss v. Casper, 593 F.3d 1163, 1167 (10th Cir.2010) (quoting Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007)). The inquiry should not be "a scavenger hunt for prior cases with precisely the same facts" but instead "whether the law put officials on fair notice that the described conduct was unconstitutional." Pierce v. Gilchrist, 359 F.3d 1279, 8 8 Case 1:1C9a a0 1-kAQDOGIFRNJNIDb ltcli e utonTrAkntF71l l 018ilkl1/1217/10/SDCF er9chi 18age 9 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 24 1298 (10th Cir. 2004) (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Thus, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2004). Further, where an officer's violation of the Fourth Amendment is clear from the Graham analysis, the Tenth Circuit does not "require a second decision with greater specificity to establish the law." Morris, 672 F.3d at 1197 (quoting Casey, 509 F.3d at 1284). As discussed above, Surat has presented evidence from which a jury could conclude that Klamser committed a constitutional violation under the Graham factors. Moreover, several Tenth Circuit cases support the proposition that an officer may not use a takedown maneuver on an unarmed misdemeanant who poses little to no threat to the officer's safety. See Long, 545 F. App'x at 759-60; Roe, 13 F.3d at 406; Morris, 672 F.3d at 1189-90. The relevant authority in other circuits is in accord. See, e.g., Shannon v. Koehler, 616 F.3d 855, 858-63 (8th Cir. 2010) (finding takedown maneuver excessive force where plaintiff had physically struck a woman and aggressively told officer to leave bar premises while in arms -length of officer); Blankenhorn v. City of Orange, 485 F.3d 463, 477-79 (9th Cir. 2007) (finding takedown maneuver excessive force where plaintiff pulled free from officers' grasp but posed no serious threat to officers or others and underlying crime was not serious); Smith v. City of Troy, Ohio, 874 F.3d 938, 945-46 (6th Cir. 2017) (finding that plaintiff's resistance by pulling arm from officer did not justify knocking his face into the ground). The weight of authority within and outside the Tenth Circuit illustrates that, even where an arrestee for a minor crime allegedly resists arrest, an officer is not entitled to 9 9 Case 1:1C9a a0 1-kAQ11901. 3Je4J1V3b,V llaheDto kntRIMI OBilblV137/10SEDCRIajeraCI®f fag e 10 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 25 use an unreasonable degree of force in response. As discussed above, the video footage of the event and the differing testimonial accounts of the incident raise significant and genuine issues of material fact as to whether Surat posed a flight risk or any danger of serious bodily harm to Klamser. (ECF Nos. 121 & 131.) Given the totality of the circumstances, the Court finds that Klamser should have been on notice that his alleged actions —slamming a woman approximately half his size into the ground because she was resisting arrest for a misdemeanor —would violate clearly established law. The Court therefore denies the Motion as to Surat's excessive force claim against Klamser. B. Municipal Liability The City asserts that it is not subject to liability because Surat has not demonstrated a genuine issue of material fact as to the existence of a constitutional violation or presented evidence of a custom or policy underwriting the alleged violation. (ECF No. 118 at 18-21.) Surat's theory of liability is failure to train officers on the appropriate use of force in response to resistance of arrest. (ECF No. 107 ¶¶ 95-99.) Thus, although both parties appear to conflate Monell liability based on an informal custom or policy and failure to train, supervise, or discipline, the Court construes Surat's claim as premised on the failure to train, as her Amended Complaint and Response focus solely on that theory of Monell liability. Surat argues that the City is liable for failure to train its officers because Klamser used the takedown maneuver in conformance with the City's policy in such situation. (ECF No. 128 at 39.) She asserts that because the maneuver constituted excessive force, Klamser violated her constitutional rights. (ECF No. 107 ¶¶ 95-99.) 10 10 Case 1:X9a Q0 NAIDDeOIF J NMI:RicheDto b ntFIM 018i1H1/13Y71t3SmC %firer&f®f lag 11 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 26 "[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989). To establish a city's liability under 42 U.S.C. § 1983 for inadequate training of police officers in the use of force, a plaintiff must show (1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come into contact, and (4) there is a direct causal link between the constitutional deprivation and the inadequate training. Allen, 119 F.3d at 841-42. "[E]vidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, is sufficient to trigger municipal liability." Id. at 842. Moreover, the Court has previously found that law enforcement officers' use of excessive force in accordance with their training established a Monell claim for failure to train. See Ortega v. City & Cnty. of Denver, 944 F. Supp. 2d 1033, 1038-39 (D. Colo. 2013) (denying summary judgment on Monell failure -to -train claim for excessive force where plaintiff presented evidence that the impermissible force used was in accordance with the officers' training). First, as discussed above, Surat has presented evidence from which a reasonable jury could conclude that Klamser used excessive force in violation of the Fourth Amendment during her arrest. Further, although Defendants argue that Surat does not allege or provide evidence of other, sufficiently similar excessive -force 11 11 Case 1:1C9a a01 14A011901RAIJ1\I3b,V t eUtd::11gAkntFlIN 0BilblV137/10SLDCF erad®f 2Age 12 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 27 incidents, this point is immaterial, as even one such event may trigger liability. See Allen, 119 F.3d at 842. Second, the incident underlying this matter arose out of an altercation at a restaurant, a situation which the Court has previously held is usual and recurring such that officers may encounter the situation again. See Ortega, 944 F. Supp. 2d at 1038- 39. Further, Pastor testified at his deposition that he and Klamser often patrol the area of Fort Collins where the incident occurred and "frequently" respond to altercations involving intoxicated university students such as Waltz. (ECF No. 128-1 at 36-37.) Third, Klamser, Pastor, and FCPS Deputy Chief Greg Yeager all testified in depositions that Klamser acted in accordance with FCPS training and policy in effecting the rowing arm takedown in response to resistance of arrest. (ECF No. 128-1 at 10-11; ECF No. 128-5 at 58-60; ECF No. 128-7 at 5.) Another officer issued a report stating that the rowing arm takedown was "agency approved" and that FCPS trains its recruits to use this maneuver in the same situation. (ECF No. 128-6 at 12.) Thus, a reasonable juror could conclude that the City's sanctioning of this policy constituted deliberate indifference to the rights of those with whom the officers come into contact. Allen, 119 F.3d at 842 (stating that a single instance of excessive force is sufficient to infer municipality's notice that training was inadequate). Finally, as the Court held in Ortega, "a reasonable juror could find that, had [the City] implemented a different training policy on the use of force, [Surat] would not have been subjected to the amount of force used in this case." Ortega, 944 F. Supp. 2d at 1039. As Surat has raised genuine issues of material fact as to the constitutionality of employing the rowing arm takedown against her, the Court finds that a reasonable juror 12 12 Case 1:1C9a a01 14AOID901.RJe4J1\I3b,V llaheDta kntFlIN 0BilblV137/10SLDCF eracd®f 2Age 13 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 28 could conclude that the City's policy expressly authorizing the maneuver caused the violation of Surat's rights. Defendants' Motion is therefore also denied with respect to the Mone// failure -to -train claim. IV. CONCLUSION For the reasons set forth above, the Court ORDERS as follows: 1 Defendants' Motion for Summary Judgment (ECF No. 118) is DENIED; and 2. No later than July 15, 2021, the parties shall contact the chambers of United States Magistrate Judge N. Reid Neureiter to schedule a Status Conference so that Judge Neureiter may consider whether this matter is ripe for a final pretrial conference, or such other proceeding as Judge Neureiter deems appropriate. Dated this 13th day of July, 2021. 13 BY THE COURT: illiam . Martinez United States District Judge 13 Case 1:19C.a9T)eJ.-wdpoNERAPVJILdbblFnf7Ykr2erFti108F11N2ID8/171W@I✓ CRAgeaf®f Page 14 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-0 09 0 1 -WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. RANDALL KLAMSER in his individual capacity, and CITY OF FORT COLLINS, a municipality, Defendants. NOTICE OF APPEAL Defendant, Randall Klamser, by and through his attorneys, Hall & Evans, LLC, hereby gives notice, pursuant to Rule 4(a)(1), Fed. R. App. P., that he is appealing to the United States Court of Appeals for the Tenth Circuit from that portion of the Court's Order of July 13, 2021, titled "Order Denying Defendants' Motion for Summary Judgment" (ECF 154), which denied his motion for summary judgment based upon the doctrine of qualified immunity. Dated: August 10, 2021. Respectfully submitted, /s/ Mark S. Ratner Mark S. Ratner Hall & Evans, LLC 1001 Seventeenth Street, Suite 300 Denver, Colorado 80202 303-628-3300 ratnerm@hallevans.com Attorneys for Defendant Randall Klamser 14 Case 1:19C 9f-W-JM ERf'WJIDbelF nf7Y kr2erFti1 08F11kk2ID8/171W@C CRAgead®f Page 15 of 15 Appellate Case: 21-1284 Document: 010110560299 Date Filed: 08/11/2021 Page: 30 CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 10th day of August, 2021, I electronically filed the foregoing Notice of Appeal with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David Lane, Esq. Andrew McNulty, Esq. Helen S. Oh, Esq. Killmer, Lane & Newman, LLP 1543 Champa St, Suite 400 Denver, CO 80202 303-571-1000 Phone 303-571-1001 Fax dlane@kln-law.com amcnulty@kln-law.com hoh@kln-law.com Attorneys for Plaintiff s/ Sarah M. Stefanick, Legal Assistant Mark S. Ratner Hall & Evans, LLC 1001 Seventeenth St., Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 ratnerm@hallevans.com ringela@hallevans.com ATTORNEYS FOR DEFENDANT 2 15 Appellate Case: 21-1284 Document: 010110560307 Date Filed: 08/11/2021 Page: 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 (303) 844-3157 Clerk@cal0.uscourts.gov Christopher M. Wolpert Jane K. Castro Clerk of Court Chief Deputy Clerk August 11, 2021 Mark Ratner Hall & Evans 1001 17th Street, Suite 300 Denver, CO 80202 RE: 21-1284, Surat v. Klamser Dist/Ag docket: 1:19-CV-00901-WJM-NRN Dear Counsel: The court has received and docketed your appeal. Please note your case number above. Copies of the Tenth Circuit Rules, effective January 1, 2021, and the Federal Rules of Appellate Procedure, effective December 1, 2020, may be obtained by contacting this office or by visiting our website at http://www.cal0.uscourts.gov. In addition, please note all counsel are required to file pleadings via the court's Electronic Case Filing (ECF) system. See loth Cir. R. 25.3. You will find information regarding registering for and using ECF on the court's website. We invite you to contact us with any questions you may have about our operating procedures. Please note that all court forms are now available on the court's web site. Attorneys must complete and file an entry of appearance form within 14 days of the date of this letter. See loth Cir. R. 46.1(A). Pro se parties must complete and file the form within thirty days of the date of this letter. An attorney who fails to enter an appearance within that time frame will be removed from the service list for this case, and there may be other ramifications under the rules. If an appellee does not wish to participate in the appeal, a notice of non -participation should be filed via ECF as soon as possible. The notice should also indicate whether counsel wishes to continue receiving notice or service of orders issued in the case. You are required to file a docketing statement within 14 days of filing the notice of appeal. If you have not yet filed that pleading, you should do so within 14 days of the date of this letter. Please note that under loth Cir. R. 3.4(B), the appellant is not limited to the issues identified in his docketing statement and may raise other appropriate issues in the opening brief. The court's docketing statement form was updated on January 1, 2019; please make sure you use the current form. It may be found at http://www.cal0.uscourts.gov/clerk/forms. Appellate Case: 21-1284 Document: 010110560307 Date Filed: 08/11/2021 Page: 2 In addition to the docketing statement, all transcripts must be ordered within 14 days of the date of this letter. If no transcript is necessary, you must file a statement to that effect. The $5.00 filing fee and $500.00 docket fee were not paid to the district clerk when the notice of appeal was filed as required by Fed. R. App. P. 3(e). Unless the fees are paid to the district clerk within 14 days of the date of this letter, this appeal may be dismissed without further notice. See loth Cir. R. 3.3(B). Appellant is not required to file a designation of record, but will be required to file an appendix with appellant's opening brief. See loth Cir. R. 10.1 and 30.1. Appellant must file an opening brief and appendix within 40 days after the date on which the district clerk notifies the parties and the circuit clerk that the record is complete for purposes of appeal. See loth Cir. R. 31.1(A)(1). Motions for extension of time to file briefs and appendices must comply with loth Cir. R. 27.1 and 27.6. These motions are not favored. Briefs must satisfy all requirements of the Federal Rules of Appellate Procedure and Tenth Circuit Rules with respect to form and content. See specifically Fed. R. App. P. 28 and 32 and loth Cir. R. 28.1, 28.2 and 32, as well as 31.3 when applicable. In addition, we encourage all counsel, as applicable, to be familiar with loth Cir. R. 46.4(B). Seven hard copies of briefs must be provided to the court within five business days of the court issuing notice that the electronic brief has been accepted for filing. See 10th Cir. R. 31.5 and the court's CM/ECF User's Manual. Appendices must satisfy the requirements of Fed. R. App. P. Rule 30 and loth Cir. R. 30.1(A) through (F). Appendix volumes submitted under seal must be accompanied by a separate motion to seal. See loth Cir. R. 30.1(D)(6). All appendices must be filed electronically, and a single hard copy provided to the court within five business days of the court issuing notice that the electronic appendix has been accepted for filing. See loth Cir. R. 30 as well as the court's CM/ECF User's Manual. Counsel are encouraged to utilize the court's Briefing & Appendix checklist when compiling their briefs and appendices. Appellate Case: 21-1284 Document: 010110560307 Date Filed: 08/11/2021 Page: 3 Please contact this office if you have questions. Sincerely, c-,t,_ ...,,,r•••••-...,... Christopher M. Wolpert Clerk of Court cc: John R. Duval David A. Lane Andrew McNulty Helen S. Oh Tania Nickens Valdez CMW/at