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HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 177 - FINAL PRE-TRIAL ORDER1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-00901-WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. RANDALL KLAMSER, in his individual capacity, and CITY OF FORT COLLINS, a municipality, Defendants. FINAL PRETRIAL ORDER 1. DATE AND APPEARANCES The Final Pretrial Conference is scheduled for September 3, 2021, at 9:30 a.m. in Courtroom C203 of the Byron G. Rogers Courthouse, 1929 South Street, Denver, Colorado before Honorable Magistrate Judge N. Reid Neureiter. Appearing telephonically for the parties are: ATTORNEY FOR PLAINTIFF David A. Lane Killmer Lane & Newman, LLC 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 dlane@kln-law.com ATTORNEYS FOR DEFENDANTS Mark S. Ratner Hall & Evans, LLC 1001 Seventeenth Street, Ste 300 Denver, CO 80202 (303) 628-3300 ratnerm@hallevans.com 2. JURISDICTION This case is brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 1 of 26 2 pursuant to 28 U.S.C. § 1331. Jurisdiction supporting Plaintiff’s claim for attorney fees and costs is conferred by 42 U.S.C. § 1988. The Defendants agree this Court has jurisdiction to hear this matter, but denies Plaintiff is entitled to attorneys’ fees. 3. CLAIMS AND DEFENSES Plaintiff: On April 6, 2017, Ms. Surat and her then-boyfriend, Mitchell Waltz, went to Bondi Beach Bar in Fort Collins with some friends to celebrate her twenty-second birthday. While inside Bondi Beach Bar, Waltz became involved in an altercation and was asked to leave the bar by Bondi’s staff; staff also called the police regarding the incident. Fort Collins Police Services (FCPS) responded; Officers Randall Klamser and Garrett Pastor arrived at Bondi Beach Bar shortly before 11:23 p.m.; Defendant Klamser stood several feet in front of the bar doors and questioned a Bondi Beach Bar bouncer, Cory Esslinger, about what happened. Officer Pastor stood further outside the bar on the sidewalk talking to Mr. Waltz as Ms. Surat stood on the outside bar patio. Ms. Surat then left the patio, walked past Defendant Klamser, towards Mr. Waltz; she grabbed his arm, and tried to walk away with Waltz. She took only a few steps before Officer Pastor stopped Waltz and Defendant Klamser stopped Ms. Surat. Defendant Klamser told Ms. Surat that Mr. Waltz was not free to go, “but you can keep walking.” Concerned for the situation and her boyfriend, Ms. Surat stayed outside of the bar on the sidewalk and was several feet away from Waltz when Defendant Klamser again stopped her, stood in front of her and told her to “back off” while pushing her right shoulder backwards with his hand. Reasonably frustrated by Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 2 of 26 3 Defendant Klamser’s aggressive confrontation and push to her shoulder, Ms. Surat told him, “you don’t need to touch me.” In response, Defendant Klamser grabbed Ms. Surat’s wrist. Frustrated by Defendant Klamser’s painful and unnecessary restraint of her wrist and arm, Ms. Surat told Defendant Klamser, “you don’t need to fucking touch me,” as she attempted to free herself from his grasp. Defendant Klamser, still holding onto Ms. Surat’s wrist, pulled her arm behind her and placed her in a rear wristlock hold. Still grabbing Ms. Surat’s wrist, Defendant Klamser demanded that Ms. Surat put her free hand up on her head. Simultaneously, Ms. Surat repeatedly asked Defendant Klamser why he was touching her. He responded that she was under arrest without giving her any other explanation. Speaking over each other, Ms. Surat again asked Defendant Klamser what she did and why he was touching her, and he again told her that she was under arrest. She asked Defendant Klamser, “can you explain to me why you’re arresting me? What did I do?” This exchange continued for several seconds. Defendant Klamser did not respond. Defendant Klamser then said to Ms. Surat, “I don’t want to throw you on the ground.” Defendant Klamser continued to force Ms. Surat’s wrist in a rear wrist control hold and Ms. Surat, again, distressed and confused by the situation, asked Defendant Klamser what she did wrong. Defendant Klamser, still holding Ms. Surat’s wrist, violently pulled Ms. Surat’s arm and forcefully threw her face-down onto the sidewalk pavement. Ms. Surat’s chin slammed into the sidewalk, causing a concussion, cervical spine strain, and a large and painful contusion that later turned black and purple. Ms. Surat sustained other painful bruising on both of her arms, wrists, knees, and legs. The entire encounter between Ms. Surat and Defendant Klamser happened in thirty-two seconds. Defendant Klamser intended to harm Ms. Surat when he violently threw her to the Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 3 of 26 4 ground to arrest her. Ms. Surat was five-feet, nine inches tall and approximately 115 pounds at the time. Defendant Klamser was about six-feet tall and 203 pounds. A reasonable person in Ms. Surat’s place would have believed that she was not free to leave from the moment that Defendant Klamser grabbed her wrist and refused to let go. Defendant Klamser did not have a reason to believe that Ms. Surat had any weapon or that she posed a threat to the officers. Ms. Surat was humiliated during this experience. During Defendant Klamser’s violent take-down of Ms. Surat, her dress rose above her hips; her undergarments and buttocks were exposed. She remained face-down in this position while she was handcuffed by Officer Pastor. Defendant Klamser was aware that Ms. Surat’s lower buttocks were exposed, as they were uncovered and entirely visible in his body cam footage during Ms. Surat’s handcuffing. Ms. Surat was forcefully lifted to her feet by Defendant Klamser and Officer Pastor. One of the officers partially attempted to fix her dress, but it was not pulled down enough and she was paraded through Old Town Square with part of her lower buttocks still exposed. While Defendant walked with Ms. Surat towards a backup patrol vehicle, Ms. Surat was sobbing and asked a passerby for help. Ms. Surat then collapsed to the ground, and while still sobbing in extreme distress, she told Defendant Klamser that he was hurting her. She soon mustered the strength to get back on her feet, she pleaded with individuals walking down the street to help her and pull her dress down because it was again at her hips. Several seconds later, a young woman helped Ms. Surat by pulling the skirt of her dress down. Additional FCPS officers arrived at the scene, and Ms. Surat spoke with them about the incident while handcuffed in the patrol car. Ms. Surat was extremely distressed as she spoke with the officers. Ms. Surat requested paramedic help for her injuries. Ms. Surat proceeded through a Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 4 of 26 5 misdemeanor jury trial in Fort Collins on August 20-24, 2018. Ms. Surat was convicted of C.R.S. § 18-8-103 (Resisting Arrest) and C.R.S. § 18-8-104(a)(a) (Obstructing a Peace Officer) and sentenced to 12 months of supervised probation, 48 hours of community service, alcohol evaluation and treatment, monitored sobriety, and a Making Better Choices class. On the night of April 6, 2017, and into the morning of April 7, 2017, Ms. Surat was examined by Ken Philbeck, M.D. in the Poudre Valley Hospital (PVH) Emergency Department. Dr. Philbeck diagnosed Ms. Surat with “contusion of head, unspecified part of head.” Ms. Surat was then examined by Nicole Niemann, M.D. and Mollie Wolf, Physician Assistant, Certified (PAC) in the PVH Emergency Department. Dr. Niemann’s diagnoses were contusion to other part of head, contusion of left forearm, contusion of right forearm, and contusion of left wrist. Dr. Wolf’s physician exam showed a two centimeter in diameter ecchymotic area to her chin. Ms. Surat reported that she was in continual pain. Later that day, Ms. Surat was examined by doctors Thomas Fralich, M.D., Keasha Kuhnen, D.O., and Mollie Wolf, PAC in the Emergency Department for her chin contusion. She was given recommendation on how to care for her contusion and instructed to return for a follow-up appointment in several days. By April 8, 2017, Ms. Surat’s chin contusion had grown and become purple and black. On April 11, 2017, Ms. Surat was evaluated by Dr. Julie Devita-Bailey, D.O. at UCHealth. Dr. Devita-Bailey noted that Ms. Surat presented with “injury” and “concussion.” Ms. Surat was suffering from left hand pain and numbness, trouble focusing and thinking, headaches, and jaw, neck, and back pain. Dr. Devita-Bailey’s physical exam showed that she had decreased cervical spine lordosis and tenderness with palpation of her left lateral neck. She also had mile to moderate spasms of her neck and praezius muscles (back of neck to top of back) Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 5 of 26 6 bilaterally. Dr. Devita-Bailey referred Ms. Surat to the Emergency Room for an evaluation for her neck pain and headaches. Ms. Surat was then seen by Dr. Travis Brown, D.O. at the UCHealth Emergency Room. She was diagnosed with “acute cervical strain” and “chin contusion.” She was given pain relief medication during her visit and prescribed Flexeril to alleviate muscle spasms. Ms. Surat had trouble chewing and opening her mouth all of the way for approximately five to six months after the incident. The bruises on her arms and legs continued to hurt for several weeks, and her neck was sore and difficult to move for several days and was confused and dizzy at times due to the head injury. Ms. Surat also suffered mental and emotional harm from the incident. She received so many death threats and nasty comments online that she deactivated her social media accounts and avoided leaving her house. To this day, people on the street still recognize her from the video, which went viral. Defendant Klamser’s treatment of Ms. Surat was pursuant to Defendant Fort Collins’ custom, policy and/or practice of: (1) its officers responding to even the mildest resistance, or perceived resistance, with excessive force and (2) failing, in the face of obvious excessive force in response to perceived resistance, to find officers engaged in wrongdoing and to discipline officers. In this case, Defendant Fort Collins found that Defendant Klamser’s use of force in response to Ms. Surat’s initial resistance was in accordance with Defendant Fort Collins’ custom, policy, and practice. Specifically, Defendant Fort Collins, in a review conducted by Officer Al Brown, who is FCPS’ Senior Lead Defensive Tactics Instructor, found that Officer Klamser responded to Ms. Surat’s resistance with an agency approved technique. In other words, Officer Klamser’s full takedown of Ms. Surat, which was done in response to her perceived resistance, Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 6 of 26 7 was done in accordance with Defendant Fort Collins’ customs, policies, and practices. Officer Klamser was not disciplined for his use of force in response to Ms. Surat’s perceived resistance. Defendant Fort Collins’ failure to find wrongdoing and failure to discipline officers in this case and in the cases described below reflects a custom, policy or practice of ratifying blatantly illegal and improper conduct. These ratifications evidence that such police conduct is carried out pursuant to the regimen of training provided by Defendant Fort Collins, and that such conduct is customary within Defendant Fort Collins’ Police Department. It is Defendant Fort Collins’ responsibility to properly train its officers to ensure they perform their duties correctly and to discipline, rather than ratify, their improper conduct, so that officers can learn from their mistakes and perform their jobs correctly moving forward. Defendant Fort Collins’ failure to do so has led to its officers’ unconstitutional conduct, and will lead to more unconstitutional conduct in the future. The FCPS internal affairs investigation concluded that Defendant Klamser acted lawfully and in accordance with FCPS policy. Because Defendant Klamser failed to institute any number of options of lesser uses of force to address Ms. Surat’s perceived resistance, the reasonable inference is that the city condones excessive force like that of Officer Klamser’s rowing arm takedown under the circumstances, and that the City’s policy and training lead officers to act unconstitutionally. Additionally, in response to the incident involving Ms. Surat, FCPS spokesperson Kate Kimble told the media that Defendant Klamser used “standard arrest control,” which indicates a custom and practice of unconstitutional use of force. Defendant Klamser stated in a deposition in this matter, under oath, that the actions he Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 7 of 26 8 took with respect to Ms. Surat, including his use of force in response to Ms. Surat’s perceived resistance, were in accordance with the training he was given by Defendant Fort Collins and Defendant Fort Collins’ customs, policies, and practices. Furthermore, Defendant Fort Collins has a responsibility to properly train and supervise its law enforcement officers in complying with constitutional requirements during encounters with citizens, and to discipline officers that violate such constitutional requirements. FCPS has been involved in several high-profile excessive force cases. In December of 2013, FCPS officers similarly brutalized Stanley Cropp, an sixty-year-old man with Alzheimer’s disease and dementia. Mr. Cropp was tackled and apprehended by FCPS officers while taking a walk in his neighborhood before bed. FCPS officers alleged that they used further force against Mr. Cropp, after they tackled him, because he resisted their arrest. The force the officer used to end Mr. Cropp’s alleged resistance was excessive. Despite this, on information and belief, the FCPS officers were not disciplined for their use of excessive force or otherwise reprimanded. Only a few months before FCPS officers wrongfully seized and used excessive force against Ms. Surat, other FCPS officers similarly and unreasonably used excessive force against other members in the community in response to the alleged resistance of those other individuals. On October 20, 2016, a FCPS officer used excessive force against Dakota McGrath. Mr. McGrath was suspected of third-degree assault and approached by a Fort Collins police officer while he was in his vehicle. The officer directed Mr. McGrath to stop what he was doing and to come speak with the officer. However, Mr. McGrath walked away from the officer down an alley and indicated to the officer that he would not comply. The officer then struck Mr. McGrath with his baton, knocking Mr. McGrath to the ground. The officer gave Mr. McGrath a number of Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 8 of 26 9 further commands, which Mr. McGrath did not comply with. To end Mr. McGrath’s noncompliance, the officer struck Mr. McGrath in the leg multiple times with his baton, fracturing his leg in several places. The force the officer used to end Mr. McGrath’s resistance was excessive. Despite this, on information and belief, the officer was not disciplined for his use of excessive force or otherwise reprimanded. In July of 2016, FCPS officer responded to Enan Joe Heneghan’s house for a noise complaint. Mr. Heneghan complied and turned down the music. The officer proceeded to search Mr. Heneghan’s home without a warrant and without his consent. The FCPS officer asked Mr. Heneghan to give his identification. When Mr. Heneghan refused, the officer told him that he was resisting arrest and responded to that alleged resistance by pepper spraying him twice in the face. The force the officer used to end Mr. Heneghan’s alleged resistance was excessive. Despite this, on information and belief, the officer was not disciplined for his use of excessive force or otherwise reprimanded. On October 6, 2017, Kimberly Chancellor was driving when she noticed that a man on a motorcycle was following her. That man was a FCPS officer. He continued following her as she pulled into the parking lot of her apartment complex. She hurried toward the building to get away from him. When the man yelled that he was a FCPS officer and she was going to be arrested, she hesitated and stopped even though he still had not proven that he was an officer. After Ms. Chancellor handed the officer her identification, he put his hand on her and she pulled away. In response to this resistance, the FCPS officer slammed Ms. Chancellor to the ground, put his knee in her back, and held her head to the ground. The force the officer used to end Ms. Chancellor’s resistance was excessive. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 9 of 26 10 FCPS officers used excessive force in a recent egregious incident against Natasha Patnode, a woman who shoplifted at a Target store on March 29, 2018. Ms. Patnode was held to the ground by a number of FCPS officers, but had her arm under her body. The FCPS officers repeatedly yelled at Ms. Patnode to stop resisting and give them her arm. She did not. In response to this perceived resistance, an FCPS officer repeatedly punched and beat Ms. Patnode with a baton. Another FCPS officer tased Ms. Patnode multiple. the ground. The force the officer used to end Ms. Chancellor’s perceived resistance was excessive. Despite this, on information and belief, the officer was not disciplined for his use of excessive force or otherwise reprimanded. On December 3, 2016, Sean Slatton was attending his girlfriend’s sorority formal when he was ejected from the event. An FCPS officer ordered Mr. Slatton to leave, and Mr. Slatton calmly and immediately complied. Mr. Slatton stood outside the building and ordered a ride service to take him back to his hotel. Two FCPS officers followed Mr. Slatton outside and demanded he leave the premises. Mr. Slatton explained that he was waiting for his ride. After again demanding Mr. Slatton leave the property, on FCPS officer demanded to see Mr. Slatton’s identification. Mr. Slatton objected and walked away. In response to this perceived resistance, the FCPS officer told Mr. Slatton he was under arrest, and immediately struck Mr. Slatton in the leg with a baton and pepper sprayed him in the face. The force the officer used to end Mr. Slatton’s perceived resistance was excessive. Despite this, on information and belief, the officer was not disciplined for his use of excessive force or otherwise reprimanded. Despite having notice that their policies, practices, customs, and insufficient training and supervision led to unconstitutional police conduct, Defendant Fort Collins continuously failed to Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 10 of 26 11 provide adequate training to FCPS officers on complying with the requirements of the Fourth Amendment, including that responding to even the mildest resistance, or perceived resistance, with excessive force violates the Fourth Amendment. Defendants’ unlawful conduct, as set forth in detail herein, amounts to a custom and widespread practice, even if not authorized by written law or express municipal policy, so pervasive and well-established as to constitute a custom or usage with the force of law. Had Defendant Fort Collins implemented different training policy on the Fourth Amendment, including that responding to even the mildest resistance, or perceived resistance, with excessive force violates the Fourth Amendment, the officers would not have subjected Ms. Surat to the constitutional violations described herein. Thus, the Defendant Officers’ illegal conduct was caused by Defendant Fort Collins’ failure in its direction to and training of FCPS officers. Defendant Fort Collins knew, or had constructive knowledge, that its employees would respond to even the mildest resistance, or perceived resistance, with excessive force, which violates the Fourth Amendment. Defendant Fort Collins was deliberately indifferent to Plaintiff’s constitutional rights, because Fort Collins knew that individuals in Plaintiff’s position would be at a substantial risk of suffering dangerous consequences from Fort Collins’ failure to properly train and supervise its employees. Defendant Fort Collins could have and should have pursued reasonable methods for the training and supervising of such employees, but intentionally chose not to do so. Defendant Fort Collins’ policies, customs, or practices in failing to properly train and supervise its employees were a moving force and proximate cause of Defendants’ violation of Plaintiff’s constitutional rights. All of the acts described herein were done by the Defendants intentionally, knowingly, willfully, wantonly, maliciously and/or recklessly in disregard for Ms. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 11 of 26 12 Surat’s federally protected rights, and were done pursuant to the preexisting, deliberately indifferent official custom, policy, practice, training, and supervision. It is the longstanding widespread deliberately indifferent custom, habit, practice and/or policy of Defendant Fort Collins to fail to supervise and to train officers in the rights of citizens to be free from unreasonable seizure and excessive force. Defendant Fort Collins’ training on when it is appropriate to use the “rowing arm takedown” technique caused the violation of Ms. Surat’s constitutional rights. Police officers throughout the United States are taught, or should be taught, to avoid striking and causing blunt trauma force to an individuals’ head, neck, and /or spine, except in the most exceptional of cases where the officers may be engaged in a deadly force confrontation. It is standard police practice that officers are typically taught not to use a police baton on someone’s head, neck, or spine because such trauma can cause serious bodily injury or even death. It is standard police practice that officers are taught not to punch, kick, knee strike or elbow strike someone in the head, neck, or spine, again because such trauma can cause serious bodily injury or even death. It is standard police practice that officers are taught not to use a TASER on someone who is running away due to the fact that once energized and neuro-muscular incapacitation sets in, the subject will most probably fall and injure his or head, neck, or spine, again suffering serious bodily injury or perhaps death. It is standard police practice that officers are taught not to shoot beanbag shotgun rounds or 40 mm stun rounds at someone’s head or neck, again because they may sustain serious bodily injury or even death. A takedown maneuver where someone is forcefully taken to the ground where their contact with the ground results in them striking their head and/or neck falls into the same category. There is no difference. It is standard police practice that these maneuvers, Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 12 of 26 13 sometimes referred to by police officers as, “throw downs,” “face plants,” or “head plants,” are not to be condoned, except in the most aggravated of cases where there is a deadly force confrontation occurring or about to occur. Defendant Fort Collins trains its officers to use the same technique, calling it a “rowing arm takedown,” in circumstances where there is no deadly force confrontation occurring or about to occur. Defendant Fort Collins does not train its officers to avoid causing injury or even serious bodily injury or death during the “rowing arm takedown” maneuver. Defendant Fort Collins fully sanctions the “rowing arm takedown” maneuver and authorizes Fort Collins Police Officers to use it during physical force scenarios. Defendant Fort Collins does not train its officers on how to utilize the “rowing arm takedown” maneuver in a manner where the individual taken down does not get injured, especially insofar as head, neck, and facial injuries are concerned. Defendant Fort Collins does not train its officers on the significant potential of the “rowing arm takedown” maneuver to cause death or serious bodily injury. Defendant Fort Collins does, however, train its officers that this maneuver is a department-sanctioned maneuver. It does so without any training on the proportionality of such force to the resistance being offered or the inherent dangers of using such a tactic. Defendant Klamser used the “rowing arm takedown” on Ms. Surat, despite the fact that this use of force was excessive. Defendant Klamser was trained to do so by Defendant Fort Collins. Defendant Fort Collins’ training and supervision of Defendant Klamser, and its sanctioning of the use of the “rowing arm takedown” in instances where use of the maneuver is excessive, caused Defendant Klamser to violate Ms. Surat’s constitutional right to be free from excessive force. Defendant Fort Collins trained its officers to utilize the “rowing arm takedown” Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 13 of 26 14 (without any training regarding the proportionality of such force to the resistance being offered or the inherent dangers of using such a tactic) despite knowing that such a maneuver can cause death or serious bodily injury. After Officer Klamser used the “rowing arm takedown” against Ms. Surat, his use of force was reviewed by Officer Al Brown, the FCPS Senior Lead Defensive Tactics Instructor. Officer Brown, on behalf of Defendant Fort Collins, stated that Officer Klamser’s use of the “rowing arm takedown” against Ms. Surat was in accordance with Defendant Fort Collins’ training. Ms. Surat brings two claims against the Defendants: (1) Excessive Force pursuant to the Fourth and Fourteenth Amendments, and (2) a municipal liability claim based on the same. Defendant: On April 6, 2017, at approximately 11:12 p.m., City of Fort Collins Police Officer, Randall Klamser, was dispatched along with his partner, Garrett Pastor, to a disturbance at a bar in downtown Fort Collins, called the “Bondi Beach Bar.” Officers Klamser and Pastor responded to the call and were informed by dispatch that one half of the disturbance was outside the bar and the other half was inside. When Officers Klamser and Pastor arrived at Bondi Beach Bar, they contacted an employee and were informed the male, who had been removed from the bar, was standing outside. At a call such as the one for Bondi Beach Bar, Fort Collins police officers take different roles identified as contact and cover. A contact officer’s primary responsibility is to conduct an interview and allow the other officer to focus 100% of their attention on the surroundings. A cover officer’s primary responsibility is to pay attention to the surroundings, respond if something in the Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 14 of 26 15 surroundings changes, and preserve the peace. A cover officer allows the contact officer to focus on what he or she is doing. When Officers Klamser and Pastor arrived at Bondi Beach Bar, there was a crowd consisting of 30-40 people waiting in line outside the establishment. A uniformed bar staff pointed out a male who was waiting outside, and Officer Pastor contacted the male, who was identified as Plaintiff’s then-boyfriend, Mitchell Waltz. While Officer Pastor was talking to Mr. Waltz, Plaintiff was yelling at him from inside the bar’s fenced in patio. Officer Klamser spoke to witness Cory Esslinger, who was a uniformed bouncer at the bar working security at the time of the disturbance. Mr. Esslinger started to tell Officer Klamser what happened but was interrupted when Plaintiff walked out of the bar and physically bumped into both Mr. Esslinger and Officer Klamser. Officer Klamser said “excuse me” and Plaintiff yelled back “excuse you” as she walked by. Mr. Esslinger informed Officer Klamser that Mr. Waltz had been involved in a disturbance with another bar patron and a bouncer who tried to confront him. At the same time, Plaintiff walked towards Officer Pastor and grabbed Mr. Waltz by the arm, trying to pull him away from Officer Pastor. As a result, Officer Klamser yelled to Officer Pastor that Mr. Waltz could not leave, while at the same time telling Plaintiff she was free to go. Michael Findlay, who was a witness to the incident between Officer Klamser and Plaintiff, observed Officer Klamser attempt to put himself between Plaintiff and Officer Pastor. At the same time, the crowd outside Bondi Beach Bar was starting to react to what was occurring, including an interaction by an individual who walked up to Officer Pastor and asked, “What are you guys doing?” As Plaintiff tried to walk away with Mr. Waltz, Officer Pastor grabbed Mr. Waltz by the Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 15 of 26 16 arm and pulled him back. Plaintiff continued walking. When she realized Mr. Waltz was not with her, she started to walk back towards Officer Pastor and Mr. Waltz. Officer Klamser told Plaintiff that Mr. Waltz was not free to go but that she could keep walking, to which Plaintiff responded by stating “no, I’m going to stay here” to Officer’s Klamser’s direction to keep walking, and also Plaintiff continued to “walk through” him, towards Officer Pastor and Mr. Waltz. Officer Klamser attempted to use verbal commands to get Plaintiff to comply with his orders. He also put his left hand up to try and block Ms. Surat from going where Officer Pastor was attempting to interview Mr. Waltz, told Ms. Surat “no,” and also pointed away from where Officer Pastor was interviewing Mr. Waltz, none of which worked to stop Plaintiff. Nonetheless, Plaintiff was being belligerent and abusive towards Officer Klamser. Plaintiff continued to try to walk through Officer Klamser, and she started slapping and hitting him, and repeating “you don’t need to fucking touch me”. As Plaintiff continued to try and walk through Officer Klamser, she grabbed his throat. Officer Klamser repeatedly told Plaintiff to put her hand on her head and she was under arrest. At the point Officer Klamser told Plaintiff she was under arrest, he could no longer fulfill his duties as a cover officer to Officer Pastor, because 100% of his concentration was directed at Plaintiff . Officer Klamser attempted to grab Ms. Surat’ s left hand and place her in a control hold. He told her to place her other hand on her head, and as he was placing her in a rear wrist control hold, she was trying to spin around and break free. Officer Klamser was unable to place Plaintiff in an escort hold and, therefore, he attempted to transition to a wrist control hold, which was also ineffective because Plaintiff was assaulting and hitting Officer Klamser and not being cooperative. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 16 of 26 17 Officer Klamser again told Plaintiff to put her hand on her head and that she was under arrest, but she said “no, explain to me why you are touching me” as she continued to spin around and try to pry his hands off her arm. As Plaintiff refused to listen to Officer Klamser, he told Plaintiff: “I don’t want to throw you to the ground, please don’t do that, please don’t do that.” Plaintiff responded by trying to pry his fingers off her arm again. She said she would put her hand behind her head but instead continued to paw at his arms, saying “what the fuck did I do.” There was no affirmative or physical indication to Officer Klamser that Plaintiff would cooperate, despite Officer Klamser’s repeated requests for compliance. Given Plaintiff’s level of resistance and anger, and because Officer Klamser expected Plaintiff to try and hit him again, he used a rowing arm takedown to take Plaintiff down to the ground and place her under arrest. Officer Klamser determined the rowing arm take down was the only thing he had left to use, because he did not want to use any impact weapons or tools. The purpose of a rowing arm take down maneuver is to break the person’s tunnel vision and concentration which was occupying whatever he or she was just doing and comply with the commands being given. Prior to executing the rowing arm takedown maneuver, Plaintiff either struck or attempted to strike Officer Klamser multiple times. After Plaintiff landed on the ground, she immediately started trying to twist and spin to break free from Officer Pastor and Officer Klamser. The officers were able to handcuff Plaintiff’s wrists and walk her away from the scene as she continued to yell and scream, asking people to help her, saying “I was trying to get my boyfriend are you fucking kidding me” and “I didn’t do anything wrong.” She then fell to the ground and refused to get up unless Officer Klamser let her go, saying “report me, bitch,” and “I can feel you shaking you little pussy, fuck you.” Officer Klamser turned Plaintiff over to Officer Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 17 of 26 18 Erin Mast who had arrived in a patrol car. Officer Klamser asked Plaintiff if she needed medical attention and she responded, “fuck you!” and continued to proclaim she did not do anything wrong. Michael Findlay witnessed the entire incident, and provided a statement to Officer Klamser. He stated that Officer Klamser was “in the right” and that he saw Plaintiff hit Officer Klamser three times before he took her down. He stated that Officer Klamser was being very reasonable with Plaintiff even though she was being so verbally abusive, and it looked like she was about to hit him a fourth time when he took her to the ground. Officer Mast tried to pat Plaintiff down prior to placing her in the patrol car, and Plaintiff cursed at her and tried to turn away from Officer Mast multiple times. Officer Mast told Plaintiff to stop moving and face the vehicle, and Plaintiff continued to curse at her. Plaintiff had bloodshot, watery eyes and smelled strongly of alcohol. At the hospital, Plaintiff continued to be uncooperative with hospital staff and officers. She told Officer Mast that she remembered saying “fuck you” to Officer Klamser multiple times but she did not do anything else wrong. Plaintiff was charged with Resisting Arrest and Obstruction of a Peace Officer and tried on these charges by a jury over five days in August of 2018 in Larimer County Court. At the conclusion of the trial, Plaintiff was found guilty of both charges, and the convictions were affirmed on appeal. It is the Defendants’ position that considering Plaintiff’s convictions, this Court’s prior rulings on initially granting dismissal to the City, and the limitations imposed by Heck v Humphrey, 512 U.S. 477 (1994), Plaintiff cannot prove that Officer Klamser used excessive force in taking her down to the ground after being found guilty of obstructing a peace officer and resisting arrest. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 18 of 26 19 In addition, Plaintiff cannot establish any unconstitutional custom, practice, policy, or procedure of the City or any causal nexus that might support any such constitutional violation. Furthermore, Plaintiff’s reliance on incidents involving City of Fort Collins Police Officers is misplaced, as the incidents are all dissimilar to this matter, and some occurred after Plaintiff’s arrest. Both Officer Klamser and the City of Fort Collins filed Answers and Defenses to Plaintiff’s Complaint denying the substantive allegations, and incorporate by reference those responses, and defenses. In addition, the Defendants set forth the following affirmative defenses: 1. Plaintiff’s Complaint fails to state a claim upon which relief may be granted. 2. Plaintiff failed to mitigate her damages, if any. 3. Plaintiff’s injuries and damages, if any, were either pre-existing or not aggravated by any action omission of or by these Defendants, nor proximately caused by or related to any act or omission of these Defendants. 4. All or part of Plaintiff’s claims never achieved the level of any constitutional violation sufficient to state a claim under 42 U.S.C. § 1983. In addition, no claim pursuant to 42 U.S.C. § 1983 may be grounded in any theory of respondeat superior or vicarious liability respecting these Defendants. 5. At all times pertinent herein, these Defendants acted in accordance with all common law, statutory and constitutional obligations, and without any intent to cause Plaintiff harm. These Defendants also lacked the requisite intent to establish any claim against them in this matter. 6. The claims of the Plaintiff also fail to establish any basis for concluding that these Defendants acted with deliberate indifference or in a willful and wanton manner. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 19 of 26 20 7. Plaintiff’s injuries and damages, if any, were proximately caused, in whole or in part, by her own acts or omissions, either in combination with one another or independent of one another. 8. Plaintiff’s injuries and damages, if any, were proximately caused, in whole or part, by the acts or omissions of third parties over whom these Defendants possessed no ability to control or right to control. 9. At all times pertinent herein, these Defendants acted in accordance with all legal obligations. 10. Plaintiff cannot satisfy all or some of the perquisites to a grant of injunctive or declaratory relief in this matter. Any request for injunctive or declaratory relief is moot. 11. Defendants are not liable for any punitive damages pursuant to state or federal law and no Defendant could become liable for any such damages. 12. Plaintiff’s claims are precluded as a result of her convictions for resisting arrest and obstruction of justice, including the notion she was attempting to injure and/or inflict bodily harm on Officer Klamser as a result of his arrest, and that Officer Klamser first attempted to use a lesser amount of force to effectuate the arrest. 13. Officer Klamser is entitled to qualified immunity. It is also indisputable that Plaintiff was belligerent and abusive towards Officer Klamser, and to complicate matters contemporaneously with Plaintiff’s belligerent actions, the 30 to 40- person crowd was reacting to the situation. To prevent Plaintiff from engaging any further with Officer Pastor and Mr. Waltz, Officer Klamser first attempted verbal directions and hand gestures. But, Plaintiff persisted and even began to escalate the situation by slapping, hitting, and grabbing Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 20 of 26 21 Officer Klamser’s throat. Plaintiff’s obstinance is supported not only by her physical actions, but by her continued verbal assault of Officer Klamser as well, and as a result of Plaintiff’s actions, Officer Klamser was no longer able to fulfill his job as a cover officer. In order to quickly and safely control the rapidly evolving situation and extricate himself and Plaintiff from the scene, Officer Klamser informed Plaintiff she was under arrest. And as Plaintiff’s subsequent criminal trial and conviction establish, he had every right to do so. In order to effectuate the arrest, Officer Klamser attempted to place her in a control position, but Plaintiff continued with her resistive and assaultive efforts thereby making Officer Klamser’s attempts at utilizing a lesser degree of force, ineffective. Plaintiff continued in her refusal to cooperate with Officer Klamser’s lawful and repeated commands, and instead demanded a reason for her arrest. It was Officer Klamser’s reasonable belief that due to Plaintiff’s level of resistance, anger, and repeated assaults, he determined to use a rowing arm takedown in order to place her under arrest. It was also Officer Klamser’s reasonable belief the rowing arm takedown was the only method he had left to bring Plaintiff under control quickly, and to break Plaintiff’s combative and belligerent behavior. The reasonableness of Officer Klamser’s actions was subsequently determined by a criminal jury when they rejected Plaintiff’s defense of self-defense based on the notion Officer Klamser used unreasonable force in arresting her, and convicted her of obstruction and resisting arrest. Plaintiff should be precluded from arguing otherwise. Taking into consideration the notion Officer Klamser was attempting to effect an arrest and, in the process, the Plaintiff’s actions were subjecting him to, or threatening him with, physical force or violence, or putting him at substantial risk of bodily injury, the use of a rowing arm takedown in this situation was objectively reasonable. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 21 of 26 22 Furthermore, the reasonableness of Officer Klamser’s actions are evident when the failure of Plaintiff’s self-defense argument at the criminal trial is taken into account and with the undisputed fact he first attempted to subdue Plaintiff through “lawful lessor force” which was ultimately unsuccessful. It is also Officer Klamser’s position that as of April 6, 2017, there was no clearly established law making it unconstitutional to use a rowing arm takedown on a belligerent, uncooperative, and intoxicated arrestee who interfered with an officer’s interview of a suspect, refused his directions to stay away, struck him multiple times, subjected him to physical force or violence and put him at substantial risk of bodily injury. With respect to the claims against the City of Fort Collins, and in order to avoid violating Heck, it must be taken as given that Officer Klamser was attempting to effect Surat’s arrest through a lawful use of lesser force, and that Surat’s resistance amounted to physical force or violence against Klamser and/or threatened him with substantial bodily harm. There are no City of Fort Collins’ customs, practices, or policies which might be considered unconstitutional, given this factual scenario. Further, none of the incidents or purported failure to train described in Plaintiff’s Complaint are factually similar to the scenario involving Surat and Officer Klamser. Plaintiff cannot also not establish that any deliberate choice to follow a specific course of action was made by anyone responsible for establishing any final policy with respect to the Plaintiff. There is also no evidence establishing a failure to train or supervise, and Plaintiff cannot provide any evidence establishing any custom, practice or policy based on the factual scenario presented in this matter, in a way which avoids application of Heck. Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 22 of 26 23 4. STIPULATIONS 1. There are no stipulations in this case. 5. PENDING MOTIONS 1. Defendant Klamser has filed an interlocutory appeal on the denial of his Motion for Summary Judgment and request for qualified immunity (ECF 154). 2. Plaintiff has filed a Motion to Certify Officer Klamser’s appeal as frivolous. 6. WITNESSES a. (1) Plaintiffs: See attached Witness List attached as Ex. 1. (2) Defendant: See attached Witness List attached as Ex. 2. Only one witness, Ms. Surat’s father, is expected to testify by deposition testimony as he is deceased. While Plaintiffs intend for all witnesses to testify personally in open Court, some testimony by video conference due to the ongoing pandemic concerns. Defendants intend all witness will be called live. Michael Findlay, however, now resides in Washington state, and his personal appearance at trial has not yet been verified. 7. EXHIBITS a. (1) Plaintiff: See attached Exhibit List attached as Ex. 3. (2) Defendants: See attached Exhibit List attached as Ex. 4. Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than 30 days before trial. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 14 Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 23 of 26 24 days after the exhibits are provided. 8. DISCOVERY Discovery is complete. If supplemental disclosures are made, the parties will update their witness and exhibit lists accordingly. 9. SPECIAL ISSUES None. 10. SETTLEMENT The Parties hereby certify that: a. Plaintiff attempted to initiate settlement discussion with Defendants, but Defendants did not indicate an interest in discussing settlement in this matter. b. Counsel for the parties may hold future settlement conferences. c. Counsel for the parties considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 24 of 26 25 conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. Trial is to a jury. 2. Trial is expected to take seven (7) days five (5) days. 3. Trial will be held before the Honorable William J. Martinez in courtroom A-801, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. No date has been set. DATED this 3rd day of September 2021. BY THE COURT: _________________________ United States Magistrate Judge N. Reid Neureiter APPROVED AS TO FORM: Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 25 of 26 26 KILLMER, LANE & NEWMAN, LLP s/ Andrew McNulty _____________ David A. Lane Andrew McNulty 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 dlane@kln-law.com amcnulty@kln-law.com Attorneys For Plaintiff HALL & EVANS, LLC s/_Mark S. Ratner____________ Mark S. Ratner Gina M. Rossi 1001 Seventeenth Street, Ste 300 Denver, CO 80202 (303) 628-3492 ratnerm@hallevans.com Attorneys For Defendants /s/ John R. Duval________________ John R. Duval, Esq. Deputy City Attorney City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 (970) 221-6520 jduval@fcgov.com Attorney for Defendants Case 1:19-cv-00901-WJM-NRN Document 177 Filed 09/03/21 USDC Colorado Page 26 of 26