HomeMy WebLinkAbout2023-cv-1343 - Elias V. V. City Of Fort Collins, Et Al. - 061 - City Heaton Mot To Supplement Mot Dismiss And Exceed Page LimitIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1343-GPG-KAS
Harris Elias,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman; and
Sergeant Allen Heaton.
Defendants.
THE CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S MOTION FOR
LEAVE TO FILE A SUPPLEMENT TO THEIR MOTION TO DISMISS AND TO
EXCEED PAGE LIMITATIONS BY ONE PARAGRAPH
Defendants City of Fort Collins and Allen Heaton, through their undersigned counsel, Hall
& Evans, LLC, submit the following as their Motion for Leave to File a Supplement to their Motion
to Dismiss and to Exceed Page Limitations by One Paragraph:
CONFERRAL
Counsel for the City and Sergeant Heaton attempted to confer with Counsel for Plaintiff,
regarding the relief requested in this Motion. Undersigned Counsel received an indication
Plaintiff’s Counsel was out of the office. As of the filing of this Motion, no other response has
been received, and therefore Plaintiff’s position is unknown.
I. ARGUMENT
On December 27, 2023, the Defendants City of Fort Collins, and Sergeant Allen Heaton,
filed a Reply in Support of their Motion to Dismiss Plaintiff’s Complaint (ECF 60). As part of
their Reply, the Defendants addressed the Plaintiff’s allegations regarding the purported actions
Case No. 1:23-cv-01343-GPG-KAS Document 61 filed 12/29/23 USDC Colorado pg 1 of 3
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and inactions of Sergeant Heaton. One of the allegations made by Plaintiff was that Sergeant
Heaton intentionally failed to activate his body-worn camera when he interacted with Plaintiff, at
the hospital, and prepare a written report. (ECF 1-1 at ¶ 113).
Subsequent to the filing of the Reply, undersigned Counsel became aware that Sergeant
Heaton’s body-worn camera video and the report, do, in-fact, exist. The video and the
supplemental report have since been disclosed to all parties.
The Defendants are requesting leave to supplement their Reply with the body-camera
footage 1, the supplemental report, and one-paragraph, which is attached as Exhibit A.
Additionally, the supplement will make the Reply more than the 10-page limit set forth in
the Local Rules, and therefore the City and Sergeant Heaton are requesting leave to exceed the
limitation, by one-paragraph 2.
II. CONCLUSION
Wherefore, Defendants, City of Fort Collins, and Sergeant Allen Heaton, respectfully
request the Court grant their Motion, allow the filing of the supplement attached as Exhibit A as
well as the body-camera footage, and increase the page-limitation by one-paragraph.
Respectfully submitted this 29th day of December, 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
1 The body-camera footage will be submitted via conventional means, if leave is granted.
2 Undersigned Counsel is aware this Motion seeks multiple requests, which perhaps should be set
forth in two separate motions. It seemed logical and more efficient, however, to present both requests in
one motion, since they are related.
Case No. 1:23-cv-01343-GPG-KAS Document 61 filed 12/29/23 USDC Colorado pg 2 of 3
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303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
weinerr@hallevans.com
hoffmank@hallevans.com
ATTORNEYS FOR THE CITY OF FORT
COLLINS AND SERGEANT ALLEN HEATON
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 29th day of December 2023, a true and correct copy of the
foregoing THE CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
MOTION FOR LEAVE TO FILE A SUPPLEMENT TO THEIR MOTION TO DISMISS
AND TO EXCEED PAGE LIMITATIONS BY ONE PARAGRAPH was filed with the Court
via CM/ECF and served on the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
Jonathan M. Abramson, Esq.
jonathan@kandf.com
Yulia Nikolaevskaya, Esq.
julie@kandf.com
s/ Sarah Stefanick
Case No. 1:23-cv-01343-GPG-KAS Document 61 filed 12/29/23 USDC Colorado pg 3 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1343-GPG-KAS
Harris Elias,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman; and
Sergeant Allen Heaton.
Defendants.
THE CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S SUPPLEMENT
TO THE REPLY IN SUPPORT OF THEIR MOTION TO DISMISS (ECF 60)
Defendants City of Fort Collins and Allen Heaton, through their undersigned counsel, Hall
& Evans, LLC, submit the following as their Supplement to the Reply in Support of their Motion
to Dismiss (ECF 60):
I.ARGUMENT
As addressed in the Reply, Plaintiff states Sergeant Heaton “directed” Officer Haferman’s
plan which included failing to turn on his body-worn camera (ECF 49 at 12). Sergeant Heaton,
however, did turn on his body-worn camera during his discussion with Plaintiff. Mr. Elias
complained about Officer Haferman not wearing a mask or a seatbelt, and his leg being caught in
the door when it was closed. Plaintiff made no allegations of wrongful arrest or excessive force.
(See Sergeant Heaton’s body-worn camera video, conventionally submitted as Exhibit A-1)1.
1 The City and Sergeant Heaton are seeking leave to file this supplement and will conventionally
submit the video if and when the Court grants the Defendants’ request.
Exhibit A
Case No. 1:23-cv-01343-GPG-KAS Document 61-1 filed 12/29/23 USDC Colorado pg 1 of
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Respectfully submitted this 29th day of December, 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, Esq.
Katherine N. 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
weinerr@hallevans.com
hoffmank@hallevans.com
ATTORNEYS FOR THE CITY OF FORT
COLLINS AND SERGEANT ALLEN HEATON
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 29th day of December 2023, a true and correct copy of the
foregoing THE CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
MOTION FOR LEAVE TO FILE A SUPPLEMENT TO THEIR MOTION TO DISMISS
AND TO EXCEED PAGE LIMITATIONS BY ONE PARAGRAPH was filed with the Court
via CM/ECF and served on the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
Jonathan M. Abramson, Esq.
jonathan@kandf.com
Yulia Nikolaevskaya, Esq.
julie@kandf.com
s/ Sarah Stefanick
Case No. 1:23-cv-01343-GPG-KAS Document 61-1 filed 12/29/23 USDC Colorado pg 2 of
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