HomeMy WebLinkAbout2023-cv-1797 - San Roman V. Nace, Et Al. - 009 - Dfs' Answer
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-CV-01797-CNS-SKC
Angel San Roman; and
Carlos Lopez,
Plaintiffs.
v.
Mindy Nace, individually;
Kyle Bendzsa, individually;
Kevin Park, individually; and
City of Fort Collins, a municipality,
Defendants.
DEFENDANTS MINDY NACE, KYLE BENDZSA, KEVIN PARK, AND THE CITY OF
FORT COLLINS’ ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS’ COMPLAINT
Defendants, Mindy Nace, Kyle Bendzsa, Kevin Park, and City of Fort Collins
(“Defendants”), by and through their undersigned counsel, Hall & Evans, LLC, submit the
following as their Answer, Defenses, and Affirmative Defenses to Plaintiffs’ Complaint:
1. Based on information and belief, these Defendants admit the vehicle possessed by
Plaintiffs was legally parked on the side of the road in Fort Collins, Colorado. The remaining
allegations set forth in paragraph 1 of the Complaint, are denied.
2. The allegations set forth in paragraph 2 of the Complaint, are denied.
3. The individual Defendants admit they identified themselves to the Plaintiffs as the
Fort Collins Police, but deny the remaining allegations set forth in paragraph 3 of the Complaint.
Based on information and belief, the City admits the individual Defendants identified themselves
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to the Plaintiffs as the Fort Collins Police, but denies the remaining allegations set forth in
paragraph 3 of the Complaint.
4. The allegations set forth in paragraph 4 of the Complaint are conclusory, and
therefore no response is required. To the extent the allegations set forth in paragraph 4 of the
Complaint are determined to be factual, these Defendants admit Plaintiffs failed to stop and obey
the lawful commands of the individual Defendants, but deny the remaining allegations.
5. These Defendants admit Plaintiff San Roman stopped and held his hands up in the
air, but otherwise deny the allegations or implications set forth in paragraph 5 of the Complaint,
including any notion Plaintiff San Roman was compliant with the individual officers’ lawful
commands.
6. The City of Fort Collins (“City”), Kyle Bendzsa, and Kevin Park, are without
sufficient knowledge or information regarding the allegations set forth in paragraph 6 of the
Complaint, requiring denial of same. Mindy Nace denies the allegations set forth in paragraph 6
of the Complaint.
7. Kevin Park is without sufficient knowledge or information regarding whether or
not Plaintiff San Roman fell backward and striking his head, requiring denial of said allegations.
The City, Kyle Bendzsa, and Mindy Nace, admit that upon application of the Taser, Plaintiff San
Roman fell backwards. The remaining allegations set forth in paragraph 7 of the Complaint are
conclusory and therefore no response is required. To the extent the remaining allegations set forth
in paragraph 7 of the Complaint are determined to be factual, said allegations are denied.
8. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 8 of the Complaint, requiring denial of same.
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9. The allegations set forth in paragraph 9 of the Complaint are conclusory, and
therefore no response is required. To the extent the allegations set forth in paragraph 9 of the
Complaint are determined to be factual, the City, Kyle Bendzsa, and Mindy Nace, are without
sufficient knowledge or information regarding the allegations set forth in paragraph 9 of the
Complaint requiring denial of same. Kevin Park denies the allegations set forth in paragraph 9 of
the Complaint.
10. The allegations set forth in paragraph 10 of the Complaint, are denied.
11. The allegations set forth in paragraph 11 of the Complaint are conclusory, while at
the same time purport to set forth legal conclusions to which no response is required. To the extent
the allegations set forth in paragraph 11 of the Complaint are determined to be factual, said
allegations are denied.
II. JURISDICTION AND VENUE
These Defendants restate their responses to paragraphs 1 to 11 of the Complaint, as though
fully set forth herein.
12. These Defendants admit this Court has jurisdiction over the parties, but deny the
remaining allegations set forth in paragraph 12 of the Complaint, including but not limited to the
notion Plaintiffs are entitled to any attorneys’ fees or costs.
13. These Defendants admit venue is proper in this Court, but deny the remaining
allegations set forth in paragraph 13 of the Complaint.
III. PARTIES
These Defendants restate their responses to paragraphs 1 to 13 of the Complaint, as though
fully set forth herein.
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14. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 14 of the Complaint, requiring denial of same.
15. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 15 of the Complaint, requiring denial of same.
16. These Defendants admit at the times as set forth in Plaintiff’s Complaint, Mindy
Nace was a citizen of the United States, a resident of the State of Colorado, and acting under the
color of State law in her capacity as a law enforcement officer for the City of Fort Collins. These
Defendants are without sufficient knowledge or information regarding the remaining allegations
set forth in paragraph 16 of the Complaint, requiring denial of same.
17. These Defendants admit at the times as set forth in Plaintiff’s Complaint, Kyle
Bendzsa was a citizen of the United States, a resident of the State of Colorado, and acting under
the color of State law in his capacity as a law enforcement officer for the City of Fort Collins.
These Defendants are without sufficient knowledge or information regarding the remaining
allegations set forth in paragraph 17 of the Complaint, requiring denial of same.
18. These Defendants admit at the times as set forth in Plaintiff’s Complaint, Kevin
Park was a citizen of the United States, a resident of the State of Colorado, and acting under the
color of State law in his capacity as a law enforcement officer for the City of Fort Collins. These
Defendants are without sufficient knowledge or information regarding the remaining allegations
set forth in paragraph 18 of the Complaint, requiring denial of same.
19. These Defendants admit the City of Fort Collins is a municipality located int the
State of Colorado. It is unclear what Plaintiffs mean by “responsible for itself and for FCPS,”
therefore said allegations are denied.
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IV. FACTUAL ALLEGATIONS
These Defendants restate their responses to paragraphs 1 to 19 of the Complaint, as though
fully set forth herein.
These Defendants deny the allegations in the statement set forth between heading number
IV and paragraph 20 in the Complaint.
20. Based on information and belief, these Defendants admit the vehicle possessed by
Plaintiffs was legally parked on the side of the road in Fort Collins, Colorado. The remaining
allegations set forth in paragraph 20 of the Complaint, are denied.
21. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 21 of the Complaint, requiring denial of same.
22. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 22 of the Complaint, requiring denial of same.
23. These Defendants are without sufficient knowledge or information as to what
Plaintiffs did or did not know, and therefore any such allegations are denied. The remaining
allegations set forth in paragraph 23 of the Complaint, are denied.
24. These Defendants admit the Fort Collins Police Services became aware of a
complaint regarding stolen firearms from a vehicle. The remaining allegations set forth in
paragraph 24 of the Complaint, are denied.
25. These Defendants admit the allegations set forth in paragraph 25 of the Complaint.
26. Based on information and belief, these Defendants admit Sergeant Kyle Bendzsa
provided Officer Treutler with an approximate location of suspects involved in the theft of
firearms, and the “manipulation” or “racking” of a shotgun, which was heard multiple times. These
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Defendants further admit based on information and belief, as Officer Treutler reached the
intersection of Remington and E. Olive St, he activated his emergency lights and stopped
individuals on a high risk stop, which turned out to be the Plaintiffs. The remaining allegations
set forth in paragraph 26 of the Complaint, if any, are denied.
27. Based on information and belief, these Defendants admit the two Plaintiffs began
walking away from their vehicle. The remaining allegations set forth in paragraph 27 of the
Complaint are denied.
28. Based on information and belief, these Defendants admit other Fort Collins Police
Officers arrived on scene, but deny the remaining allegations set forth in paragraph 28 of the
Complaint.
29. The allegations set forth in paragraph 29 of the Complaint are conclusory, and
therefore no response is required. To the extent the allegations set forth in paragraph 29 of the
Complaint are determined to be factual, said allegations are denied.
30. Based on information and belief, these Defendants admit some Fort Collins Police
Officers pointed their rifles at Mr. Lopez, but deny the remaining allegations set forth in paragraph
30 of the Complaint.
31. Based on information and belief, these Defendants admit Officer Treutler pointed
a rifle at Plaintiff San Roman. These Defendants are without sufficient knowledge or information
regarding the remaining allegations set forth in paragraph 31 of the Complaint.
32. The allegations set forth in paragraph 32 of the Complaint, are denied.
33. The allegations set forth in paragraph 33 of the Complaint, are denied.
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34. The allegations set forth in paragraph 34 of the Complaint are conclusory, and
therefore no response is required. To the extent the allegations set forth in paragraph 34 of the
Complaint are determined to be factual, said allegations are denied.
These Defendants deny the allegations set forth in the statement between paragraphs 34
and 35 of Plaintiff’s Complaint.
35. The City, Kyle Bendzsa, and Mindy Nace, admit at some point Plaintiff San Roman
stopped walking and turned towards the Officers. These Defendants deny any implication Plaintiff
San Roman was somehow cooperative with the Officers’ other commands. The remaining
allegations set forth in paragraph 35 of the Complaint, if any, are denied. Kevin Park is without
sufficient knowledge or information regarding the allegations set forth in paragraph 35 of the
Complaint, requiring denial of same.
36. Kevin Park admits Mr. Lopez refused commands and kept walking away from him.
Kevin Park admits at some point, Mr. Lopez stopped walking, but denies any implication he
obeyed any other commands made by Kevin Park or other officers. The remaining allegations set
forth in paragraph 36 of the Complaint are denied. The City, Kyle Bendzsa, and Mindy Nace are
without sufficient knowledge or information regarding the remaining allegations set forth in
paragraph 36 of the Complaint, requiring denial of same.
37. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman pulled his
pants down and raised his arms, but deny any implication he was somehow compliant with any
other commands given by the responding Fort Collins Police Officers. The remaining allegations
set forth in paragraph 37 of the Complaint are denied. Kevin Park is without sufficient knowledge
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or information regarding the allegations set forth in paragraph 37 of the Complaint, requiring
denial of same.
38. The City, Kyle Bendzsa, and Mindy Nace admit it appeared that when Plaintiff San
Roman pulled his pants down and raised his arms, his hands appeared empty, but deny any
implication he was somehow compliant with any other commands given by the responding Fort
Collins Police officers. The remaining allegations set forth in paragraph 38 of the Complaint are
denied. Kevin Park is without sufficient knowledge or information regarding the allegations set
forth in paragraph 38 of the Complaint, requiring denial of same.
39. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman was told to
get on the ground. Kevin Park is without sufficient knowledge or information regarding the
allegations set forth in paragraph 39 of the Complaint, requiring denial of same.
40. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman said, “fuck
you, I’m a law abiding citizen-suck my ass.” Kevin Park is without sufficient knowledge or
information regarding the allegations set forth in paragraph 40 of the Complaint, requiring denial
of same.
41. The City, Kyle Bendzsa, and Mindy Nace admit police officers shined flashlights
in his direction and into his parked SUV. The City, Kyle Bendzsa, and Mindy Nace, admit Plaintiff
San Roman said “Don’t touch my shit” multiple times, as well as “Don’t touch my vehicle.”
Whether or not Plaintiff San Roman had a legal right to deny the police permission to enter his
private vehicle at the time he repeatedly said, “Don’t touch my shit” and “Don’t touch my vehicle”
is a conclusory statement while at the same time purporting to set forth a legal conclusion, to which
no response is required. To the extent it is determined whether or not Plaintiff San Roman had a
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legal duty to deny the police permission to enter his private vehicle at the time he repeatedly said,
“Don’t touch my shit,” and “Don’t touch my vehicle” is a factual question, said allegations are
denied. The remaining allegations set forth in paragraph 41 of the Complaint are denied. Kevin
Park is without sufficient knowledge or information regarding the allegations set forth in paragraph
41 of the Complaint, requiring denial of same.
42. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman said “I have
no weapons” but deny the remaining allegations set forth in paragraph 42 of the Complaint. Kevin
Park is without sufficient knowledge or information regarding the remaining allegations set forth
in paragraph 42 of the Complaint, requiring denial of same.
43. The City, Kyle Bendzsa, and Mindy Nace admit the allegations set forth in
paragraph 43 of the Complaint. Kevin Park is without sufficient knowledge or information
regarding the allegations set forth in paragraph 43 of the Complaint, requiring denial of same.
44. The City, Kyle Bendzsa, and Mindy Nace deny the allegations set forth in
paragraph 44 of the Complaint. Kevin Park is without sufficient knowledge or information
regarding the allegations set forth in paragraph 44 of the Complaint, requiring denial of same.
45. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman removed his
shirt. The City, Kyle Bendzsa and Mindy Nace are without sufficient knowledge or information
regarding the allegations set forth in paragraph 45 of the Complaint, requiring denial of same.
Kevin Park is without sufficient knowledge or information regarding the allegations set forth in
paragraph 45 of the Complaint, requiring denial of same.
46. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman pulled his
pants down, exposing his underwear. The City, Kyle Bendzsa and Mindy Nace are without
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sufficient knowledge or information regarding the allegations set forth in paragraph 46 of the
Complaint, requiring denial of same. Kevin Park is without sufficient knowledge or information
regarding the allegations set forth in paragraph 45 of the Complaint, requiring denial of same.
47. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman pulled down
his pants and lifted his arms in the air, but deny the remaining allegations set forth in paragraph 47
of the Complaint. Kevin Park is without sufficient knowledge or information regarding the
allegations set forth in paragraph 47 of the Complaint, requiring denial of same.
48. The City, Kyle Bendzsa, and Mindy Nace admit Mindy Nace deployed a Taser, but
deny the remaining allegations set forth in paragraph 48 of the Complaint. Kevin Park is without
sufficient knowledge or information regarding the allegations set forth in paragraph 48 of the
Complaint, requiring denial of same.
49. At the time of the Taser deployment, Kyle Bendzsa believed Plaintiff San Roman
stopped breathing. The City and Mindy Nace are without sufficient knowledge or information
regarding the allegations set forth in paragraph 49 of the Complaint, requiring denial of same. The
remaining allegations set forth in paragraph 49 of the Complaint, if any, are denied. Kevin Park
is without sufficient knowledge or information regarding the allegations set forth in paragraph 49
of the Complaint, requiring denial of same.
50. At the time of the Taser deployment, Kyle Bendzsa believed Plaintiff San Roman
stopped breathing. The City and Mindy Nace are without sufficient knowledge or information
regarding the allegations set forth in paragraph 50 of the Complaint, requiring denial of same. The
remaining allegations set forth in paragraph 50 of the Complaint, if any, are denied. Kevin Park
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is without sufficient knowledge or information regarding the allegations set forth in paragraph 50
of the Complaint, requiring denial of same.
51. The City, Kyle Bendzsa, and Mindy Nace admit Kyle Bendzsa delivered a sternum
rub, but are without sufficient knowledge or information regarding the remaining allegations set
forth in paragraph 51 of the Complaint thereby requiring denial of same. The remaining allegations
set forth in paragraph 51, if any, are denied. Kevin Park is without sufficient knowledge or
information regarding the allegations set forth in paragraph 51 of the Complaint, requiring denial
of same.
52. The City, Kyle Bendzsa, and Mindy Nace admit Sergeant Avrech delivered CPR,
but deny any implication any such efforts were somehow delayed or insufficient. Kevin Park is
without sufficient knowledge or information regarding the allegations set forth in paragraph 52 of
the Complaint, requiring denial of same.
53. The City, Kyle Bendzsa, and Mindy Nace admit Mindy Nace was instructed to give
use of force warnings, but deny the remaining allegations set forth in paragraph 53 of the
Complaint. Kevin Park is without sufficient knowledge or information regarding the allegations
set forth in paragraph 53 of the Complaint, requiring denial of same.
54. The allegations set forth in paragraph 54 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 54 of the Complaint are determined to be factual, said
allegations are denied.
55. The allegations set forth in paragraph 55 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
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extent the allegations set forth in paragraph 55 of the Complaint are determined to be factual, said
allegations are denied.
56. The allegations set forth in paragraph 56 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 56 of the Complaint are determined to be factual, said
allegations are denied.
57. The allegations set forth in paragraph 57 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 57 of the Complaint are determined to be factual, said
allegations are denied.
58. The allegations set forth in paragraph 58 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 58 of the Complaint are determined to be factual, said
allegations are denied.
59. The allegations set forth in paragraph 59 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 59 of the Complaint are determined to be factual, said
allegations are denied.
60. The allegations set forth in paragraph 60 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 60 of the Complaint are determined to be factual, said
allegations are denied.
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61. The allegations set forth in paragraph 61 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 61 of the Complaint are determined to be factual, said
allegations are denied.
62. The allegations set forth in paragraph 62 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 62 of the Complaint are determined to be factual, said
allegations are denied.
63. The City, Kyle Bendzsa, and Mindy Nace admit Plaintiff San Roman was
handcuffed, but deny the remaining allegations set forth in paragraph 63 of the Complaint. Kevin
Park is without sufficient knowledge or information regarding the allegations set forth in paragraph
63 of the Complaint, requiring denial of same.
64. The City, Kyle Bendzsa, and Mindy Nace admit the allegations set forth in
paragraph 64 of the Complaint. Kevin Park is without sufficient knowledge or information
regarding the allegations set forth in paragraph 64 of the Complaint requiring denial of same.
65. The allegations set forth in paragraph 65 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 65 of the Complaint are determined to be factual, said
allegations are denied.
66. These Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 66 of the Complaint, requiring denial of same.
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67. Based on information and belief, Plaintiff San Roman was transported to the
Larimer County Jail. These Defendants are without sufficient knowledge or information regarding
the allegations set forth in paragraph 67 of the Complaint requiring denial of same.
68. The allegations set forth in paragraph 68 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 68 of the Complaint are determined to be factual, said
allegations are denied.
These Defendants deny the allegations set forth between paragraphs 68 and 69 of the
Complaint, beginning with “Defendant Park arbitrarily…”
69. Based on information and belief, Kevin Park admits the allegations set forth in
paragraph 69 of the Complaint. The City, Kyle Bendzsa, and Mindy Nace are without sufficient
knowledge or information regarding the allegations set forth in paragraph 69 of the Complaint,
requiring denial of same.
70. The allegations set forth in paragraph 70 of the Complaint are denied.
71. Kevin Park admits the allegations set forth in paragraph 71 of the Complaint. The
City, Kyle Bendzsa, and Mindy Nace are without sufficient knowledge or information regarding
the allegations set forth in paragraph 71 of the Complaint, requiring denial of same.
72. The allegations set forth in paragraph 72 of the Complaint are conclusory while at
the same time purport to set forth a legal conclusion to which no response is required. To the
extent the allegations set forth in paragraph 72 of the Complaint are determined to be factual, said
allegations are denied.
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73. Kevin Park admits he told Plaintiff Lopez to set his phone down. The City, Kyle
Bendzsa, and Mindy Nace are without sufficient knowledge or information regarding the
allegations set forth in paragraph 73 of the Complaint, requiring denial of same.
74. Kevin Park admits Plaintiff Lopez said he had a right to record, but denies the
remaining allegations set forth in paragraph 74 of Plaintiffs’ Complaint. The City, Kyle Bendzsa,
and Mindy Nace are without sufficient knowledge or information regarding the allegations set
forth in paragraph 74 of the Complaint, requiring denial of same.
75. Kevin Park admits he sprayed pepper spray at Plaintiff Lopez, but denies the
remaining allegations set forth in paragraph 75 of the Complaint. The City, Kyle Bendzsa, and
Mindy Nace are without sufficient knowledge or information regarding the allegations set forth in
paragraph 75 of the Complaint, requiring denial of same.
76. Based on information and belief, Kevin Park admits Officer Treutler was pointing
his rifle at Plaintiff Lopez,at the time Kevin Park applied OC spray to Plaintiff Lopez. Kevin Park
admits the administration of OC spray is intended to cause pain as a means to obtain compliance
with lawful commands, but denies the remaining allegations of paragraph 76 of the Complaint.
The City, Kyle Bendzsa, and Mindy Nace are without sufficient knowledge or information
regarding the allegations set forth in paragraph 76 of the Complaint, requiring denial of same.
77. The allegations set forth in paragraph 77 of the Complaint are denied.
78. The allegations set forth in paragraph 78 of the Complaint are denied.
79. The allegations set forth in paragraph 79 of the Complaint are denied.
80. Kevin Park admits Plaintiff Lopez grabbed his face after the application of OC
spray, but denies the remaining allegations set forth in paragraph 80 of the Complaint. The City,
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Kyle Bendzsa, and Mindy Nace are without sufficient knowledge or information regarding the
allegations set forth in paragraph 80 of the Complaint, requiring denial of same.
81. Kevin Park admits he took Plaintiff Lopez’ phone from his hands, and placed him
on the ground, and then in handcuffs, but denies the remaining allegations set forth in paragraph
81 of the Complaint. The City, Kyle Bendzsa, and Mindy Nace are without sufficient knowledge
or information regarding the allegations set forth in paragraph 81 of Plaintiffs’ Complaint,
requiring denial of same.
82. Kevin Park admits the allegations set forth in paragraph 82 of the Complaint. The
City, Kyle Bendzsa, and Mindy Nace are without sufficient knowledge or information regarding
the allegations set forth in paragraph 82 of Plaintiffs’ Complaint, requiring denial of same.
83. Kevin Park admits the allegations set forth in paragraph 83 of the Complaint. The
City, Kyle Bendzsa, and Mindy Nace, are without sufficient knowledge or information regarding
the allegations set forth in paragraph 83 of Plaintiffs’ Complaint, requiring denial of same.
84. Based on information and belief, Kevin Park admits the allegations set forth in
paragraph 84 of the Complaint. The City, Kyle Bendzsa, and Mindy Nace are without sufficient
knowledge or information regarding the allegations set forth in paragraph 84 of Plaintiffs’
Complaint, requiring denial of same.
85. The allegations set forth in paragraph 85 of the Complaint are denied.
The Defendants deny the allegations set forth between paragraphs 85 and 86 of Plaintiffs’
Complaint, which begin with the words, “All criminal charges…”
86. The allegations set forth in paragraph 86 of the Complaint are denied.
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87. Based on information and belief, the vehicle in the possession of Plaintiffs Lopez
and San Roman was towed to an impound lot. The remaining allegations set forth in paragraph
87 of the Complaint are denied.
88. The allegations set forth in paragraph 88 of the Complaint are denied.
89. Based on information and belief, the Defendants admit the allegations set forth in
paragraph 89 of the Complaint.
90. Based on information and belief, the Defendants admit the allegations set forth in
paragraph 90 of the Complaint.
The Defendants deny the allegations set forth between paragraphs 90 and 91 of the
Complaint, which start with the words, “Fort Collins…”
91. The allegations set forth in paragraph 91 of the Complaint are denied.
92. The City denies Surat matter clearly establishes the violation of any constitutional
rights, or any custom or practice of excessive force. The City admits Ms. Surat was with her
boyfriend on April 6, 2017, at the Bondi Beach Bar in Old Town Fort Collins, but denies the
remaining allegations set forth in paragraph 92 of the Complaint. Kyle Bendzsa, Mindy Nace, and
Kevin Park are without sufficient knowledge or information regarding the allegations set forth in
paragraph 92 of the Complaint, requiring denial of same.
93. Based on information and belief, the City admits Mr. Waltz was asked to leave
Bondi Beach Bar after an altercation, and police officers were called regarding said altercation.
Any remaining allegations or implications set forth in paragraph 93 of the Complaint are denied.
Kyle Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information
regarding the allegations set forth in paragraph 93 of the Complaint, requiring denial of same.
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94. Based on information and belief, the City admits the allegations set forth in
paragraph 94 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin Park are without sufficient
knowledge or information regarding the allegations set forth in paragraph 94 of the Complaint,
requiring denial of same.
95. The City denies the allegations set forth in paragraph 95 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 95 of the Complaint, requiring denial of same.
96. The City denies the allegations set forth in paragraph 96 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 96 of the Complaint, requiring denial of same.
97. The City denies the allegations set forth in paragraph 97 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 97 of the Complaint, requiring denial of same.
98. The City admits it conducted an internal investigation and concluded Officer
Klamser’s use of force did not violate policy. The City denies any such determination supports
Plaintiffs’ contention Officer Klamser’s use of force violated Ms. Surat’s constitutional rights.
Kyle Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information
regarding the allegations set forth in paragraph 98 of the Complaint, requiring denial of same.
99. The City denies the allegations set forth in paragraph 99 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 99 of the Complaint, requiring denial of same.
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100. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 100 of the Complaint, requiring denial of same.
101. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 101 of the Complaint, requiring denial of same.
102. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 102 of the Complaint, requiring denial of same.
103. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 103 of the Complaint, requiring denial of same.
104. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 104 of the Complaint, requiring denial of same.
105. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 105 of the Complaint, requiring denial of same.
106. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 106 of the Complaint, requiring denial of same.
107. The Defendants are without sufficient knowledge or information regarding the
allegations set forth in paragraph 107 of the Complaint, requiring denial of same.
108. The allegations set forth in paragraph 108 of the Complaint are denied.
109. The allegations set forth in paragraph 109 of the Complaint are denied.
110. The City admits the Cropp claim was settled, but deny the remaining allegations
set forth in paragraph 110 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin Park are
without sufficient knowledge or information regarding the allegations set forth in paragraph 110
of the Complaint, requiring the denial of same.
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111. The allegations set forth in paragraph 111 of the Complaint are denied.
112. The City admits the Heneghan matter was resolved, but deny the remaining
allegations set forth in paragraph 112 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin
Park deny the allegations set forth in paragraph 112 of the Complaint.
113. The allegations set forth in paragraph 113 of the Complaint are denied.
114. The allegations set forth in paragraph 114 of the Complaint are denied.
115. The allegations set forth in paragraph 115 of the Complaint are denied.
116. The City admits the matter resolved, but deny the remaining allegations set forth in
paragraph 116 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin Park are without
sufficient knowledge or information regarding the allegations set forth in paragraph 116 of the
Complaint requiring denial of same.
117. The City denies the allegations set forth in paragraph 117 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 117 of the Complaint, requiring denial of same.
118. The City denies the allegations set forth in paragraph 118 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 118 of the Complaint, requiring denial of same..
119. The City denies the allegations set forth in paragraph 119 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 119 of the Complaint, requiring denial of same.
120. The City admits the Patnode matter was resolved, but deny the remaining
allegations set forth in paragraph 120 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin
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Park are without sufficient knowledge or information regarding the allegations set forth in
paragraph 120 of the Complaint, requiring denial of same.
121. The City admits Mr. Slatton attended an event in Fort Collins and was asked to
leave. The remaining allegations are denied. Kyle Bendzsa, Mindy Nace, and Kevin Park are
without sufficient knowledge or information regarding the allegations set forth in paragraph 121
of the Complaint, requiring denial of same.
122. The City admits Slatton stood outside the building and told the two officers, who
followed him out, he was waiting for a ride. The City denies the remaining allegations set forth in
paragraph 122 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin Park are without
sufficient knowledge or information regarding the allegations set forth in paragraph 122 of the
Complaint, requiring denial of same.
123. The City denies the allegations set forth in paragraph 123 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 123 of the Complaint, requiring denial of same.
124. The City denies the the allegations set forth in paragraph 124 of the Complaint.
Kyle Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information
regarding the allegations set forth in paragraph 124 of the Complaint, requiring denial of same.
125. The City admits the Slatton matter was resolved, but denies the remaining
allegations set forth in paragraph 125 of the Complaint. Kyle Bendzsa, Mindy Nace, and Kevin
Park are without sufficient knowledge or information regarding the allegations set forth in
paragraph 125 of the Complaint, requiring denial of same.
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126. The City denies the allegations set forth in paragraph 126 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 126 of the Complaint, requiring denial of same.
127. The City denies the allegations set forth in paragraph 127 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 127 of the Complaint, requiring denial of same.
128. The City denies the allegations set forth in paragraph 128 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 128 of the Complaint, requiring denial of same.
129. The City denies the allegations set forth in paragraph 129 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 129 of the Complaint, requiring denial of same.
130. The City denies the allegations set forth in paragraph 130 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 130 of the Complaint, requiring denial of same.
131. The City denies the allegations set forth in paragraph 131 of the Complaint. Kyle
Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information regarding
the allegations set forth in paragraph 131 of the Complaint, requiring denial of same.
132. Based on information and belief, the City admits the McGrath matter resolved.
Kyle Bendzsa, Mindy Nace, and Kevin Park are without sufficient knowledge or information
regarding the allegations set forth in paragraph 132 of the Complaint, requiring denial of same.
133. The allegations set forth in paragraph 133 of the Complaint are denied.
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134. The allegations set forth in paragraph 134 of the Complaint are denied.
135. The allegations set forth in paragraph 135 of the Complaint are denied.
136. The allegations set forth in paragraph 136 of the Complaint are denied.
137. The allegations set forth in paragraph 137 of the Complaint are denied.
138. The allegations set forth in paragraph 138 of the Complaint are denied.
139. The allegations set forth in paragraph 139 of the Complaint do not identify the
“conduct” which Plaintiffs intend to criticize, and therefore any such allegations are conclusory,
and no response is required. To the extent the allegations set forth in paragraph 139 of the
Complaint are determined to be factual, said allegations are denied.
140. The allegations set forth in paragraph 140 of the Complaint do not identify the
“conduct” which Plaintiffs intend to criticize, and therefore any such allegations are conclusory,
and no response is required. To the extent the allegations set forth in paragraph 140 of the
Complaint are determined to be factual, said allegations are denied.
141. The allegations set forth in paragraph 141 of the Complaint do not identify the
“conduct” which Plaintiffs intend to criticize, and therefore any such allegations are conclusory,
and no response is required. To the extent the allegations set forth in paragraph 141 of the
Complaint are determined to be factual, said allegations are denied.
V. Claims for Relief
FIRST CLAIM FOR RELIEF
Allegations of Unlawful Seizure and Excessive Force by Plaintiffs
(Against All Defendants)
The Defendants deny any allegations set forth between paragraphs 141 and 142 of
Plaintiffs’ Complaint.
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142. The Defendants restate their responses to paragraphs 1 to 141 of the Complaint, as
though fully set forth herein.
143. The Defendants admit that at the time as set forth in the Complaint, the individually
named Defendants were acting in the scope of their employment and under the “color of state law”
as police officers with the City of Fort Collins. The Defendants deny the remaining allegations set
forth in paragraph 143 of the Complaint.
144. The allegations set forth in paragraph 144 of the Complaint are conclusory while at
the same time purport to set forth legal conclusions to which no response is required. To the extent
the allegations set forth in paragraph 144 of the Complaint are determined to be factual, these
Defendants admit Plaintiffs have certain rights under the United States Constitution, but deny any
such rights were violated by these Defendants. The remaining allegations set forth in paragraph
144 of the Complaint, if any, are denied.
145. The allegations set forth in paragraph 145 of the Complaint, do not purport to set
forth any allegations against the City, or Kevin Park, and therefore no response is set forth on their
behalf. To the extent the allegations set forth in paragraph 145 of the Complaint are determined
to be directed to the City and/or Kevin Park, any such allegations are denied. Kyle Bendzsa and
Mindy Nace deny the allegations set forth in paragraph 145 of the Complaint.
146. The allegations set forth in paragraph 146 of the Complaint do not purport to set
forth any allegations against the City, Kyle Bendzsa, or Mindy Nace, and therefore no response is
set forth on their behalf. To the extent the allegations set forth in paragraph 146 of the Complaint
are determined to be directed to the City, Kyle Bendzsa, and/or Mindy Nace, any such allegations
are denied. Kevin Park denies the allegations set forth in paragraph 146 of the Complaint.
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147. The allegations set forth in paragraph 147 of the Complaint are denied.
148. The allegations set forth in paragraph 148 of the Complaint are denied.
149. The allegations set forth in paragraph 149 of the Complaint do not purport to set
forth any allegations against the City, Kyle Bendzsa, or Kevin Park, and therefore no response is
set forth on their behalf. To the extent the allegations set forth in paragraph 149 of the Complaint
are determined to be directed to the City, Kyle Bendzsa, and/or Kevin Park, any such allegations
are denied. Mindy Nace denies the allegations set forth in paragraph 149 of the Complaint.
150. The allegations set forth in paragraph 150 of the Complaint do not purport to set
forth any allegations against the City, Mindy Nace, or Kevin Park, and therefore no response is set
forth on their behalf. To the extent the allegations set forth in paragraph 150 of the Complaint are
determined to be directed to the City, Mindy Nace, and/or Kevin Park, any such allegations are
denied. Kyle Bendzsa denies the allegations set forth in paragraph 150 of the Complaint.
151. The allegations set forth in paragraph 151 of the Complaint do not purport to set
forth any allegations against the City, Kyle Bendzsa, or Mindy Nace, and therefore no response is
set forth on their behalf. To the extent the allegations set forth in paragraph 151 of the Complaint
are determined to be directed to the City, Kyle Bendzsa, and/or Mindy Nace, any such allegations
are denied. Kevin Park denies the allegations set forth in paragraph 151 of the Complaint.
152. The allegations set forth in paragraph 152 of the Complaint are denied.
153. The allegations set forth in paragraph 153 of the Complaint do not purport to set
forth any allegations against the City, and therefore no response is set forth on the City’s behalf.
To the extent the allegations set forth in paragraph 153 of the Complaint are determined to be
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directed to the City, any such allegations are denied. Kyle Bendzsa, Mindy Nace, and Kevin Park
deny the allegations set forth in paragraph 153 of the Complaint.
154. The allegations set forth in paragraph 154 of the Complaint do not purport to set
forth any allegations against the Kyle Bendzsa, Kevin Park, and/or Mindy Nace, and therefore no
response is set forth on their behalf. To the extent the allegations set forth in paragraph 154 of the
Complaint are determined to be directed to Kyle Bendzsa, Kevin Park, and/or Mindy Nace, any
such allegations are denied. The City denies the allegations set forth in paragraph 154 of the
Complaint.
155. The allegations set forth in paragraph 155 of the Complaint do not purport to set
forth any allegations against the Kyle Bendzsa, Kevin Park, and/or Mindy Nace, and therefore no
response is set forth on their behalf. To the extent the allegations set forth in paragraph 155 of the
Complaint are determined to be directed to Kyle Bendzsa, Kevin Park, and/or Mindy Nace, any
such allegations are denied. The City denies the allegations set forth in paragraph 155 of the
Complaint.
156. The allegations set forth in paragraph 156 of the Complaint do not purport to set
forth any allegations against the Kyle Bendzsa, Kevin Park, and/or Mindy Nace, and therefore no
response is set forth on their behalf. To the extent the allegations set forth in paragraph 156 of the
Complaint are determined to be directed to Kyle Bendzsa, Kevin Park, and/or Mindy Nace, any
such allegations are denied. The City denies the allegations set forth in paragraph 156 of the
Complaint.
157. The allegations set forth in paragraph 157 of the Complaint do not purport to set
forth any allegations against the Kyle Bendzsa, Kevin Park, and/or Mindy Nace, and therefore no
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response is set forth on their behalf. To the extent the allegations set forth in paragraph 157 of the
Complaint are determined to be directed to Kyle Bendzsa, Kevin Park, and/or Mindy Nace, any
such allegations are denied. The City denies the allegations set forth in paragraph 157 of the
Complaint.
158. The allegations set forth in paragraph 158 of the Complaint are denied.
159. The allegations set forth in paragraph 159 of the Complaint are denied.
SECOND CLAIM FOR RELIEF
Allegations of Retaliation pursuant to the First Amendment- Plaintiff Lopez
(Against Defendant Park)
The Defendants deny any allegations between paragraphs 159 and 160 of the Complaint.
160. The Defendants restate their responses to paragraphs 1 to 159 of the Complaint, as
though fully set forth herein.
161 to 173. Paragraphs 161 to 173 of the Complaint do not purport to set forth any
allegations against the City, Kyle Bendzsa, and/or Mindy Nace, and therefore no response is
provided on their behalf. To the extent the allegations set forth in paragraphs 161 to 173 of the
Complaint are determined to apply to the City, Kyle Bendzsa, and/or Mindy Nace, any such
allegations are denied.
161. It is unclear what Plaintiff means by “acting under the color of law,” and therefore
the allegations set forth in paragraph 161 of the Complaint, are denied on this basis. Kevin Park
admits that at the time of the incidents as set forth in the Complaint, he was acting with the course
and scope of his employment as a police officer for the City of Fort Collins.
162. The allegations set forth in paragraph 162 of the Complaint are denied.
163. The allegations set forth in paragraph 163 of the Complaint are denied.
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164. The allegations set forth in paragraph 164 of the Complaint are denied.
165. The allegations set forth in paragraph 165 of the Complaint are denied.
166. The allegations set forth in paragraph 166 of the Complaint are denied.
167. The allegations set forth in paragraph 167 of the Complaint are denied.
168. The allegations set forth in paragraph 168 of the Complaint are denied.
169. The allegations set forth in paragraph 169 of the Complaint are denied.
170. The allegations set forth in paragraph 170 of the Complaint, are denied.
171. The allegations set forth in paragraph 171 of the Complaint are denied.
172. The allegations set forth in paragraph 172 of the Complaint are denied.
173. The allegations set forth in paragraph 173 of the Complaint are denied.
GENERAL DENIAL
174. The City, Kyle Bendzsa, Mindy Nace, and Kevin Park deny each and every
allegation set forth in the Complaint, which is not specifically admitted herein.
175. The City, Kyle Bendzsa, Mindy Nace, and Kevin Park deny any allegation after the
word “WHEREFORE” set forth on page 24 of the Complaint.
176. The City, Kyle Bendzsa, Mindy Nace, and Kevin Park deny Plaintiffs are entitled
to any relief, whatsoever.
Demand for jury trial
The City, Kyle Bendzsa, Mindy Nace, and Kevin Park, demand a trial by jury of all clams
in this matter.
Affirmative Defenses
1. Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
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2. Plaintiffs are not entitled to any relief being sought or claimed in the Complaint
under any legal theories asserted therein.
3. On information and belief, Plaintiffs failed to mitigate their damages, if any.
4. On information and belief, some or all of Plaintiffs’ injuries and damages, if any,
were either pre-existing or not aggravated by any action omission of or by the Defendants, nor
proximately caused by or related to any act or omission of the Defendants.
5. All or part of Plaintiffs’ 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.
6. Plaintiffs’ injuries and damages, if any, in whole or in part, were proximately
caused by their own acts or omissions, either in combination with one another or independent of
one another.
7. Plaintiffs’ injuries and damages, if any, were proximately caused by the acts or
omissions of third parties over whom this Defendant possessed no ability to control or right to
control.
8. Plaintiffs 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.
9. Defendants are not liable for any punitive damages pursuant to state or federal law
and no Defendant could become liable for any such damages.
10. There is no custom, practice, policy, or procedure in place which is a proximate
cause of Plaintiffs’ alleged Constitutional violations.
11. The individual Defendants are entitled to qualified immunity for all claims.
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12. Defendants reserve their rights to assert other or additional defenses and affirmative
defenses as may become known in the course of proceedings.
WHEREFORE, after answering all the allegations in Plaintiffs’ Complaint requiring a
response, the City of Fort Collins, Kyle Bendzsa, Mindy Nace, and Kevin Park request the Court
enter an order dismissing all elements of all claims against them, awarding them costs and
attorneys’ fees, and ordering any other relief as deemed just.
Respectfully submitted this 18th day of September 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 18th day of September 2023, a true and correct copy of the
foregoing DEFENDANTS MINDY NACE, KYLE BENDZSA, KEVIN PARK, AND THE
CITY OF FORT COLLINS’ ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES
TO PLAINTIFFS’ COMPLAINT was filed with the Court via CM/ECF and served on the
below-listed party by email:
Darold W. Killmer, Esq.
dkillmer@kln-law.com
Michael P. Fairhurst, Esq.
mfairhurst@kln-law.com
s/ Sarah Stefanick
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