HomeMy WebLinkAbout2017CV884 - Chayce Anderson V. Fcps Officer Jason Shutters - 056 - Response To Motion To Amend ComplaintIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00884-CMA
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS (In their (sic) Individual Capacity only),
Defendants.
_____________________________________________________________________________
DEFENDANT JASON SHUTTERS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S
MOTION TO AMEND COMPLAINT (ECF No. 50)
______________________________________________________________________
Defendant Jason Shutters, through his Attorneys Hall & Evans, LLC, submits the
following as his Response in Opposition to Plaintiff’s Motion to Amend Complaint (ECF
No. 5):
I. INTRODUCTION
Plaintiff, who is currently incarcerated, seeks leave to amend his Complaint for the
second time, purportedly to address certain deficiencies created by multiple jail facility
transfers (ECF No. 50 at 1,¶ 1), “undue duress” (ECF No. 50 at 2, ¶ 3) and “extraordinary
circumstances” (ECF No. 50 at 2, ¶ 6). Plaintiff’s request should be denied for two
reasons. First, Plaintiff does not identify in anything other than a conclusory fashion, any
notion of how “undue duress” or “extraordinary circumstances” should form the basis for
the filing of a third complaint. Secondly, the proposed amended complaint offers no new
allegations which might correct any deficiencies identified in Defendant’s pending Motion
to Dismiss (ECF No. 43). Rather, the proposed second amended complaint contains
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nothing but a lengthy and irrelevant recitation respecting Plaintiff’s criminal past, and a
rehash of the same conclusory allegations as set forth in the operative First Amended
Complaint (cf. ECF No. 9 and ECF No. 50-1).
II. ARGUMENT
Courts generally refuse leave to amend pleadings only on a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment. Duncan v.
Manager, Dep’t of Safety, City & County of Denver, 397 F.3d 1300, 1315 (10th
Cir.2005) citing Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993).
A. The “amendments” to Plaintiff’s proposed amended complaint are
futile and should be precluded.
A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.2004). Plaintiff provides
no viable argument respecting the necessity of amending the allegations in the operative
complaint, or how any “new” allegations correct the deficiencies identified in Defendant’s
Motion to Dismiss. Further, no explanation is provided respecting a proper basis for leave
to amend, based on Plaintiff’s claims of “duress” or “extraordinary circumstances”.
A review of the proposed amended complaint also fails to reveal any new or
substantive allegations that might overcome the pending Motion to Dismiss (ECF No. 43),
which argues for dismissal on several grounds, including the failure to comply with federal
pleading standards pursuant to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007),
and qualified immunity1
. None of the allegations in Plaintiff’s proposed amended
1 Qualified immunity is sought as a valid Court Order, premised on a probable cause
determination, was issued to conduct a search of Plaintiff (ECF No. 43 at 5)
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complaint do anything to overcome the notion that the complaint should be dismissed for
failing to set forth anything other than conclusory allegations, or that qualified immunity
for Detective Shutters should somehow be precluded. Rather, the proposed amended
complaint still provides a largely irrelevant, fourteen-page recitation of Mr. Anderson’s
criminal and social history, and a restatement of the exact same claims attempted in
previous iterations of the complaint. (see eg: Claim One, “formerly claim 2(b)”, ECF No.
50-1 at 21; Claim Two, “formerly claim 2(a)”, ECF No. 50-1 at 23).
B. Plaintiff’s attempts to amend the Complaint for a third time, are
dilatory
The purported claims in Plaintiff’s proposed amended complaint also attempt to
set forth the claims previously dismissed by the Court (see ECF No. 17 at 11). For
example, in the proposed amended complaint Plaintiff attempts to set forth a claim for
violation of the “Uniform Youthful Offender Act” related to the disclosure of a juvenile
criminal matter (ECF No. 50-1 at 25) and slander/defamation (ECF No. 50-1 at 28). These
claims have already been dismissed by the Court. (ECF No. 17 at 3 and 11, referring to
claims 3(b) and (c)).
There is no legitimate reason provided by Plaintiff for his attempts at restating
these claims, especially given a failure to seek proper review of the dismissal. Any such
attempts should be precluded as futile and. see Minter v. Prime Equip. Co., 451 F.3d
1196, 1206 (10th Cir.2006) citing Viernow v. Euripides Dev.Corp. 157 F.3d 785, 800
(10th Cir. 1998); Hayes v. Whitman, 264 F.3d 1017, 1027 (10th Cir.2001); Pallottino v.
City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.1994); Walters v. Monarch Life Ins.
Co., 57 F.3d 899, 903 (10th Cir.1995).
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III. CONCLUSION
WHEREFORE, Detective Shutters, for the foregoing reasons, respectfully request
the Court deny Plaintiff’s request to file an amended complaint, and for entry of any other
relief deemed just and appropriate by this Court.
Dated this 20th day of November 2017.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, Colorado 80202
Phone: (303) 628-3300
Fax: (303) 628-3368
Ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on this 20th day of November 2017, I served via email the
foregoing DEFENDANT JASON SHUTTER’S RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION TO AMEND COMPLAINT (ECF No. 50) to the following:
Plaintiff:
Chayce Aaron Anderson, #175290
Arkansas Valley Correctional Facility
12750 Hwy. 96 at Lane 13
Ordway, CO. 81034
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