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Home My WebLink About2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 213 - Reply Re City Am Mot In Limine IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-00901-WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. CITY OF FORT COLLINS, a municipality, Defendant REPLY IN SUPPORT OF THE CITY OF FORT COLLINS’ AMENDED MOTION IN LIMINE Defendant the CITY OF FORT COLLINS (the “City”), a municipality, by and through its attorneys, submit the following as their Reply in Support of its Amended Motion In Limine: I. ARGUMENT A. Plaintiff presents no factual similarity to any previous complaints, lawsuits, settlements, or internal investigations, involving excessive force supporting a “failure to train” liability theory; therefore, any such evidence should be excluded. Plaintiff’s Response in opposition to the City’s Motion in Limine contends the City’s argument “is premised on a faulty assumption that these prior uses of force will be introduced to demonstrate a theory of Monell liability based on an informal custom or policy. . . .” (Pl’s. Resp. to Def’s. Mot. in Limine, 1, ECF No. 209.) It is Plaintiff, however, who is incorrect. Despite limiting her theory at trial solely to whether the City failed to train its officers, Plaintiff still must establish the existence of a municipal policy or custom that was the moving force behind the Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 1 of 7 2 alleged constitutional deprivation.1 Hernandez v. City and Cnty. of Denver, 2022 U.S. Dist. LEXIS 151302, at *7 (D. Colo. Aug. 23, 2022), citing Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). A failure to train is but one way to establish the existence of a municipal policy or custom. Hernandez, supra, citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010). “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Hernandez, 2022 U.S. Dist. LEXIS 151302, at *3, (emphasis added), citing Bd. of the Cnty Comm’rs v. Brown 520 U.S. 397 (1997). “The causation element is applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training. . . .” Hernandez, at *3, (emphasis added), citing Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013). “[F]or claims of inadequate. . . training. . . a plaintiff ‘must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.’” Hernandez, at *3, citing Waller v. City and Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019). “[A] less stringent standard of fault for a failure-to-train claim ‘would result in de facto respondeat superior liability on municipalities.’” Hernandez, at *3, citing Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing City of Canton v. Harris, 489 U.S. 378, 392 (1989)). Plaintiff’s argument that other incidents involving the use of force are relevant to corroborate the City’s general admission Officer Klamser’s use of force comported with the City’s training, while also 1 Plaintiff also states, “In a single-issue trial focused solely on a Monell failure to train claim…” (Resp. 4). Based on Plaintiff’s admission, her only Monell liability theory is a failure to train; thus, Plaintiff should be precluded from arguing any other theories at trial. Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 2 of 7 3 arguing the factual similarity of these other matters, is irrelevant (See Resp. 2). This approach necessarily attempts to establish a pattern and practice of alleged constitutional violations in an effort to demonstrate deliberate indifference, while at the same time failing to consider whether there is any necessary factual similarity with the events surrounding Plaintiff’s arrest. Any such approach is improper and does nothing other than confuse the jury and prejudice the City. “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Erickson v. City of Lakewood, 489 F. Supp. 3d 1192, 1208 (D. Colo. Sept. 24, 2020) (emphasis added), citing Connick, 563 U.S. at 62. (“Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.”) Allowing Plaintiff to submit evidence of previous matters, without addressing whether any such matters are factually similar, risks establishing liability based merely on respondeat superior.2 Hernandez, at *7, citing Connick, 563 U.S. at 62. Furthermore, by not addressing any of the underlying facts of the previous matters, Plaintiff fails to establish that any of those incidents actually implicate any training or lack thereof. Plaintiff has merely identified previous matters she believes resulted from excessive force, while arguing presentation of the evidence “will focus on the facts of those cases to corroborate Plaintiff’s claim that Fort Collins training on use of force in response to resistance is constitutionally deficient . . . .” (Resp. 3). 2 Plaintiff also seeks to utilize matters occurring subsequent to Plaintiff’s arrest. The Chancellor, Patnode, and San Roman matters occurred on 10/6/17, 3/29/18, and 7/17/21, respectively and should be excluded as they could not have provided actual or constructive notice to the City prior to the incident in this matter. Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 3 of 7 4 Plaintiff identifies no facts to “corroborate” her belief training on use of force was “constitutionally deficient.” Furthermore, no information is provided suggesting any officers involved in the previous matters received the same training as Officer Klamser. When viewed within the factual scope of this matter, Plaintiff provides no facts suggesting there was a failure to train in the other matters based on: use of a take-down maneuver; while attempting to effect an arrest; against an arrestee’s actions that were subjecting the officer to threats of physical force and/or violence; thereby placing the officer at substantial risk of bodily injury; while taking into account the failure of the arrestee’s self-defense argument in a subsequent criminal matter; and the fact the officer had first attempted to subdue the arrestee through lawful lesser force. (See Order Mot. to Dismiss, 14-15, ECF No. 84 (emphasis in original)). Given this particular factual scope, coupled with the stringent standards for proving a failure to train claim, as well as Plaintiff’s inability to provide even a scintilla of information respecting how the previous matters establish a failure to train, the previous complaints of excessive force and other matters should be precluded pursuant to Fed. R. Evid. 401, 402, and 403. Plaintiff also suggests “one incident of excessive force can be enough to trigger municipal liability under a failure to train theory . . . .” (Resp. 2). If Plaintiff intends on pursuing this particular avenue at trial, then the submission of other, unrelated matters would be irrelevant pursuant to Fed. R. Evid. 401 and 402 and unfairly prejudicial pursuant to Fed. R. Evid. 403. Plaintiff argues there is no prejudice to the Defendants. But, submission of other, unrelated matters, without any judicial adjudication, based solely on Plaintiff’s belief the uses of force were “excessive” is necessarily prejudicial as Plaintiff is attempting to establish some pattern, without regard to the stringent standards of culpability and causation. Hernandez, at *3, citing Brown, Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 4 of 7 5 520 U.S. at 407. Plaintiff does not address the notion settlement of these matters is also highly prejudicial and irrelevant. It is well-established “[s]ettlements are ‘impertinent and have no bearing on [a] Monell claim.’” Hernandez, n. 4, referring to A.M.J. v. Cnty. of Los Angeles, EDCV 15- 01346-VAP, 2015 WL 13711269, at *2-3 (C.D. Cal. Sept. 23, 2015). B. Plaintiff should be precluded from mentioning “traumatic brain injury.” According to the website cited by Plaintiff: A [t]raumatic brain injury usually results from a violent blow or jolt to the head or body. An object that goes through brain tissue, such as a bullet or shattered piece of skull, also can cause traumatic brain injury. Mild traumatic brain injury may affect your brain cells temporarily. More-serious traumatic brain injury can result in bruising, torn tissues, bleeding, and other physical damage to the brain. These injuries can result in long-term complications or death. www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/symptoms-causes/syc- 20378557 (last visited Nov. 8, 2023) Plaintiff has identified no expert in this matter who will testify as to any of the medical information contained in the Plaintiff’s definition of “traumatic brain injury,” and there are no witnesses to testify as to cause, effect, or treatment (there is no treatment, and none is cited by Plaintiff). Plaintiff argues this information is within the “common knowledge” of a jury, but in support provides only statistics - not medical testimony indicating as much. “Expert testimony is required ‘[w]hen the subject matter of proffered testimony constitutes scientific, technical, or other specialized knowledge.” Perry v. Auto-Owners Ins. Co., 2021 U.S. Dist. LEXIS 168736, *18, citing United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011). Any discussion or application of the phrase “traumatic brain injury” requires specialized scientific knowledge, and in the absence of an expert, should be precluded pursuant to Fed. R. Evid. 402, 602, and 702 and Fed. R. Civ. P. 26(a)(2) for failure to disclose. Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 5 of 7 6 Dated this 10th day of November 2023. Respectfully submitted, s/ Mark S. Ratner Mark S. Ratner, Esq. Gina Rossi, Esq. Robert Weiner, Esq. Katherine Hoffman, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300, Denver, CO 80202 303-628-3300 /Fax: 303-628-3368 ratnerm@hallevans.com rossig@hallevans.com weinerr@hallevans.com hoffmank@hallevans.com and 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 ATTORNEYS FOR DEFENDANTS Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 6 of 7 7 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 10th day of November 2023, a true and correct copy of the foregoing REPLY IN SUPPORT OF THE CITY OF FORT COLLINS’ AMENDED MOTION IN LIMINE was filed with the Court via CM/ECF and served on the below-listed party by email: David Lane, Esq. dlane@killmerlane.com Maddie Lips, Esq. mlips@killmerlane.com s/Sarah Stefanick Case No. 1:19-cv-00901-WJM-NRN Document 213 filed 11/10/23 USDC Colorado pg 7 of 7