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
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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
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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
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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
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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
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•
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
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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
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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)
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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)
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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)
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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:
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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)
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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
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.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
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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)
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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
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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.
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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
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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.)
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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
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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.)
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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
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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,
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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
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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.)
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"[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
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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
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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
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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
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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
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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