HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 034 - DEFENDANTS' REPLY IN SUPPORT OF MOTION TO DISMISS1
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.
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS [ECF No. 23]
Defendants RANDALL KLAMSER, in his individual capacity, and CITY OF FORT
COLLINS, a municipality, by and through their attorneys, Hall & Evans, L.L.C., submit the
following Reply in Support of Motion to Dismiss [ECF No. 23], as follows:
I. Plaintiff’s Excessive Force Claim is Barred Based Upon Her Underlying Convictions
The basic premise of Supreme Court’s holding in Heck is to “avoid[] parallel litigation”
and “preclude[] the possibility of the claimant succeeding in the tort action after having been
convicted in the underlying criminal prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out of the same or identical transaction.”
Heck v. Humphrey, 512 U.S. 483 (1994). Based on the allegations contained in her complaint –
that the officer’s use of force was contemporaneous with the arrest and all occurred in thirty-two
seconds – this Court cannot rule in Plaintiff’s favor without indirectly invalidating her criminal
convictions for resisting arrest and obstruction of a peace officer.
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Plaintiff argues she is not attacking the lawfulness of her convictions, and Officer
Klamser’s alleged use of force against her is separable from the arrest which underlies her
convictions. This is inaccurate. A civil judgment in Plaintiff’s favor would create an inconsistency
with the underlying criminal conviction, and the jury’s determination Plaintiff’s claim of self-
defense was invalid for the crimes she was ultimately convicted on. This is precisely the
inconsistency Heck dictates must be avoided. Plaintiff seeks to avoid this result with the
unavailing argument that the “defense of person” jury instruction (which informed the jury that
the Plaintiff could not be found guilty if she was defending herself from unreasonable or excessive
force) is inapplicable to this matter, as it addressed her use of physical force and not the use of
force by Officer Klamser. [ECF No. 23-1]. This argument misses the point. Although the language
of the jury instruction was not explicitly directed toward Officer Klamser’s actions, the jury
nonetheless considered the behavior of both Plaintiff and Klamser. The instruction informed jurors
Plaintiff would have been entitled to defend herself from “unlawful physical force” by the
arresting officer. Thus, in convicting Plaintiff, the jury indisputably rejected this defense and,
determined beyond a reasonable doubt there was not any “unlawful physical force” by Officer
Klamser1
.
Indeed, numerous courts in this district have applied a Heck bar to excessive force claims
where jurors considered nearly identical jury instructions which were focused on the behavior of
the arrestee (as opposed to the officer’s use of force). See ECF 23 at 5-6, citing Agyemang v. City
of Aurora Mun. Court, No. 15-cv-734-LTB, 2015 U.S. Dist LEXIS 60628, *8 (D. Colo. May 8,
1 See People v. Barrus, 232 P.3d 262, 268 (Colo. App. 2009) (concluding the affirmative defense of self-defense,
includes the use of unreasonable or excessive force).
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2015); Kennedy v. Golden, No. 13-cv-00920-REB-KLM, 2014 U.S. Dist. LEXIS 106409, at *1 (D.
Colo. Mar. 4, 2014); Johnson, 2013 U.S. Dist. LEXIS 62342 at *8-10; Dye, 2013 U.S. Dist. LEXIS
42453 at *16-22; Oates v. Patella, No. 11-cv-1871-REB-KLM, 2012 U.S. Dist. LEXIS 22715, *9-
11 (D. Colo. Feb. 1, 2012). Critically, Plaintiff’s Response addressed none of these cases. Instead,
Plaintiff relies solely upon opinions which do not contain discussion of the interplay between a
jury’s conviction, despite the Section 1983 Plaintiff’s reliance on a self-defense affirmative
defense in the underlying criminal matter. In so doing, Plaintiff evades addressing the heart of
Defendants’ Heck argument: that the Supreme Court has ruled Plaintiff cannot pursue a claim that
the officer used unlawful force to effect arrest in federal civil court proceedings which would
effectively undermine her state criminal convictions because she specifically argued that she
should not be convicted where her resistance and obstruction were in response to “unlawful
physical force” by the arresting officer2
.
Nonetheless, the cases upon which Plaintiff relies in her Complaint are distinguishable
because Plaintiff specifically alleged in her Complaint that the use of force occurred within the
same interaction as the arrest. This demonstrates the difference between Plaintiff’s allegations and
the facts identified in the Tenth Circuit opinion upon which she heavily relies. See Martinez v.
City of Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999). As argued in Defendants’ Motion to
Dismiss, Colorado courts have distinguished the fact pattern in Martinez from cases such as this
one, where the allegations of force are “inextricably intertwined” with the arrest. See Motion at fn.
5, citing Dye, 2013 U.S. Dist. LEXIS 42453 at *16-22. Indeed, Plaintiff twice cites the Tenth
2 See August 23, 2018 transcript of Plaintiff’s closing argument in criminal matter, 2017M965, Div. 4D: (“If
you believe that Klamser was in – involved in unreasonable or excessive force as it applies to Michaella Surat, then
she is not guilty of resisting arrest.”), attached as Exhibit A, 171:24-25; 172:1). See also Fed. R. Evid. 201(b)(2)
with respect to judicial notice of the Court transcript.
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Circuit’s holding in Fresquez v. Minks, 567 F. App’x 662 (10th Cir. 2014) for the proposition that
a favorable finding on an excessive force claim does not necessarily call into question an
underlying obstruction conviction. However, Fresquez is inapposite. For starters, the Court
specifically said, “there is a dispute as to whether the obstruction conviction stemmed from the
incident with Deputy Sheriff Viers or from a subsequent altercation between Plaintiff and other
deputy sheriffs.” Id. at 666. This stands in direct contrast to Plaintiff’s own allegations in her
Complaint in this matter, which explicitly demonstrate the use of force was inextricably linked
with her arrest. More importantly, even though the Fresquez Court subsequently stated there may
be instances where the level of force used to subdue a suspect during an arrest may, in certain
circumstances, be separately considered without undermining an obstruction conviction, that is not
the case here. Indeed, there is no indication in the Fresquez opinion that the criminal factfinder
considered a self-defense instruction to make any assessment related to the amount or timing of
use of force related to the conviction for obstruction of a peace officer. To the contrary, in this
case, the jury found Plaintiff guilty of both resisting arrest and obstruction, and moreover, related
to both charges, was instructed to consider Plaintiff’s assertion that her physical resistance and acts
of obstruction were excusable due to “unlawful physical force” by the arresting officer. Indeed,
the jury’s guilty verdicts were a direct rejection of Plaintiff’s assertion. Consequently, a
determination in this matter in Plaintiff’s favor would be directly inconsistent with the conclusion
already reached by the jury in the criminal matter, requiring Plaintiff’s claims be dismissed
pursuant to Heck.
Plaintiff’s secondary argument with respect to timing is also incorrect [ECF No. 28 at 6].
First, Plaintiff never addresses the fact that the Complaint alleges the entire interaction between
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Plaintiff and Officer Klamser took thirty-two (32) seconds [ECF No. 1 at 5, para. 28]. There is no
indication in the Complaint the entire second encounter could somehow be parsed to exclude the
facts upon which her convictions were based. Thus, they are “inextricably linked” and must be
dismissed pursuant to Heck, as numerous other Courts of this circuit, and others, have held. See ECF
No. 23 at p. 5-6 (collecting cases), p. 8 (citing Matheney v. City of Cookeville); Norris v. Baikie,
No. 14-cv-1652, 2017 U.S. Dist. LEXIS 12147, at *12-13 (N.D. Ill. Jan. 30, 2017).
Plaintiff’s Response makes great effort to separate her acts of physical resistance and
obstruction from Officer Klamser’s use of force, but these arguments are belied by the plain
allegations of the Complaint. The Complaint alleges Officer Klamser grabbed Plaintiff’s wrist
[ECF 1, ⁋19,21], and then she told him he didn’t need to touch her and attempted to free herself
from his grasp, at which time he pulled her arm behind her and advised she was under arrest. [Id.
At 18.] The Complaint alleges the two continued speaking over each other as Officer Klamser
continued his hold on her wrist and he then took her to the ground. [Id., ⁋22-24, 26-27.] The
Complaint subsequently alleges that Officer Klamser’s alleged acts in both “pulling her arm by
the wrist and throwing her face-first to the sidewalk” constitute the basis for her excessive force
claim. [ECF 1, ⁋ 63]. This stands in direct contrast to Plaintiff’s Response, which now seeks to
allege “The Complaint alleges that Defendant Klamser used excessive force against Plaintiff after
her attempts at defending herself” in an effort to save her Heck-barred claim. This does not
comport with the Complaint, which alleges Officer Klamser’s alleged act in grabbing her wrist
started the alleged use of force, and her acts in arguing with him and pulling away were in self-
defense to his assertion of force upon her and as alleged in the Complaint, occurred
contemporaneously with the takedown. Moreover, as argued supra, this argument was placed
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squarely before the jury when she presented the affirmative defense and they rejected it. Plaintiff’s
claims are therefore barred pursuant to the reasoning in Heck.
II. The Claim against the City of Fort Collins Must Be Dismissed.
a. There is No Underlying Constitutional Violation
As the Plaintiff acknowledges, it is her burden to establish the existence of a Constitutional
violation, as a necessary element of her claim pursuant to 42 U.S.C. § 1983 [ECF No. 28 at 7].
Plaintiff has insufficiently argued the existence of a Constitutional violation, pursuant to Heck3
and Ash v. Twp. Of Willingsboro, No. 10-1900, 2012 U.S. Dist. LEXIS 179124, *12 (D. N.J. Dec.
18, 2012) (“Supervisory liability claims under Monell require an underlying constitutional violation
and, where the underlying violation is barred by Heck, it cannot form the basis for a derivative
Monell claim.”) (collecting cases). Thus, her municipal liability claim must be dismissed.
b. The Plaintiff has Failed to Properly Allege a Custom, Practice, Policy, or
Procedure, in Anything Other Than a Conclusory Fashion
“It is not enough for a §1983 plaintiff merely to identify conduct properly attributable to
the municipality,” in order to satisfy her burden of establishing a custom, practice, policy or
procedure. Bd. Of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1998). In an effort
to overcome her burden, Plaintiff references paragraphs 46-58 of the Complaint [ECF No. 28 at
9]. These paragraphs, however, are nothing more than conclusory statements which are insufficient
pursuant to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, (2007). See e.g., “Defendant Fort Collins
has a policy, custom, and practice of unlawful seizure and use of excessive force” [ECF No. 1 at
8, para. 46]; “(t)he reasonable inference is that the city’s policy and training lead officers to act
3 The Defendants incorporate those arguments made with respect to Heck, above.
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unconstitutionally.” [ECF No. 1 at 8, ⁋47]; “(i)n response to the incident…FCPS spokesperson…told
the media that Defendant Klamser used ‘standard arrest control’ which indicates a custom and
practice of unconstitutional use of force.” [ECF No. 1 at 8, ⁋ 47]; “Defendant Fort Collins
continued not to provide adequate training to FCPS officers….” [ECF No. 1 at 10, ⁋ 55]; “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…” [ECF No. 1 at 11, ⁋ 58]. None
of these allegations raise to the level required for federal pleading standards, and are insufficient
to establish a custom, practice, policy, or procedure in enough detail to overcome a motion to
dismiss. Specifically, these paragraphs fail to provide any indication why there should be an
inference of Fort Collins’ policy and training (which is unidentified) lead officers to act
“unconstitutionally [ECF No. 1 at 8, ⁋ 47], why “standard arrest control” is a custom or practice
of “unconstitutional force” [ECF No. 1 at 8, ⁋ 48], or what training was supposedly inadequate
[ECF No. 1 at ⁋ 55].
Plaintiff also attempts to somehow establish a custom or policy, through the citation of
previous lawsuits against Fort Collins. But, any such attempt is improper and misleading.4
Tellingly, none of the instances are alleged to have resulted in a finding of liability or wrongdoing
by the City of Fort Collins or any of its employees. For example, in McGrath v. Fort Collins Police
Services Officer Nick Rodgers [ECF 1, ⁋ 51], Plaintiff summarily discusses the purported facts of
the lawsuit, but provides no evidentiary support for the conclusory statements. Additionally,
Plaintiff provides no indication of any factual similarity between McGrath and the present matter
4 Plaintiff provides no proper citation to the referenced lawsuits to support her
allegations set forth in the Complaint.
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which in any way could establish some sort of custom or policy. The Plaintiff also acknowledges
the matter may have been “settled for an undisclosed amount.” It could, therefore, have been
resolved for any purpose other than an admission of liability. See Rowley v. Morant, No. 10-cv-
1182-WJ-GBW, 2014 U.S. Dist. LEXIS 186532, at *2 (D.N.M. July 14, 2014) ("[T]he mere fact
that a lawsuit was filed without any mention of the disposition of the lawsuit or whether the City
was found to have violated any rights does not establish a pattern and practice."); see also Morris v.
City of N.Y., No. 12-cv-3959, 2013 U.S. Dist. LEXIS 154528, at *11 (E.D.N.Y. Oct. 28, 2013) ("The
fact that two of the defendants as well as a non-defendant supervising officer have had civil suits
brought against them in the past that resulted in settlements is not even evidence of wrongdoing,
let alone that the City has a custom or policy that fosters or results in wrongdoing.").
Likewise, reference to the matter involving Mr. Heneghan is improper [ECF No. 1 at 9, para.
52]. Plaintiff has again pled the case settled, demonstrating a lack of a substantiated allegation
which may form the basis of a municipal liability claim or otherwise provide notice to the City of
some allegedly insufficient policy or training. As with the other lawsuits cited in the Complaint,
there are no factual similarities and no judgment entered against the City or reference to any
decisions which could be binding in this matter. See e.g. Connick v. Thompson, 563 U.S. 51, 62-63
(2011) (“Because those incidents are not similar to the violation at issue here, they could not have
put Connick on notice that specific training was necessary to avoid this constitutional violation.”)
The same can be argued with respect to the Chancellor and Patnode allegations referred to
in the Complaint. [ECF No. 1 at paras. 53-54.] There is no allegation a lawsuit has been filed,
binding decision promulgated or judgment entered in either matter; to the contrary, the Complaint
acknowledges no lawsuit has been brought by Ms. Patnode. All of these lawsuits are irrelevant to
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the issues in this matter, and certainly to the motion to dismiss. Unsubstantiated allegations from
complainants related to discrete and dissimilar incidents, without more, do not put a municipality
on notice of deficiencies in their policies or training programs. In her Complaint, Plaintiff
acknowledges none of the instances cited resulted in a substantiated finding of wrongdoing, and
consequently, none show any underlying custom, practice, or policy, or a causal link with the
alleged Constitutional violation.
Likewise, Plaintiff’s citation to Lynch v. Barrett, 2012 U.S. Dist. LEXIS 72250 (D. Colo.
May 24, 2012), is misleading. Plaintiff apparently addresses Lynch for the proposition one
statement made in a newspaper article, is somehow sufficient to establish the “general culture” of
a police department [ECF No. 28 at 10]. But, Plaintiff fails to offer a complete recitation with
respect to the Court’s analysis. In Lynch, the Court held evidentiary statements contained in a
newspaper article are unusual, and submission of this type of evidence (notwithstanding
inadmissibility due to being hearsay), is based on the facts and circumstances of the particular
case. Lynch, 2012 U.S. Dist. LEXIS 72250 at *20. What the Plaintiff ignores, is that the article in
Lynch, was based on testimony made under oath at a Civil Service Commission hearing. Id. at
*19-20. Here, there are no such factors provided by Plaintiff, establishing any of the allegations in
the Complaint rise to the level of acceptance for the testimony in Lynch.
With respect to the “single-incident” theory posited by the Plaintiff in support of her failure
to train claim [ECF No. 28 at 10], the Supreme Court has held application is only available “in a
narrow range of circumstances.” Connick, 563 U.S. at 62 referring to Bryan Cty. v. Brown, 520
U.S. 397, 409 (1997). The Connick Court also warned that, “[a] municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to train. Id. at 61. It is
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well-settled in this District that "[m]ere conclusory allegations that an officer or group of officers
are unsatisfactorily trained will not suffice to fasten liability on the city." Bark v. Chacon, 2011
U.S. Dist. LEXIS 53245, 2011 WL 1884691, at *3 (D. Colo. 2011) (internal quotation marks
omitted); Salazar v. Castillo, 2013 U.S. Dist. LEXIS 2000, 2013 WL 69154, at *6 (D. Colo. Jan.
7, 2013). Here, Plaintiff presents no proper indicia to satisfy the pleading standard to sufficiently
identify a the allegedly improper training or any direct causal connection to the alleged use of force
– much less the “narrow range of circumstances” addressed by the Supreme Court.
No allegations are provided supporting any notion the City maintained any custom or
policy relevant to the Plaintiff’s 42 U.S.C. §1983 claim, or that anyone followed any specific
custom or policy regarding the interaction between the Plaintiff and the City of Fort Collins.
Nothing in the Complaint suggests that any specific policy or custom was implicated, deliberately
followed, or how any such custom, practice or policy harmed the Plaintiff. Further, the Complaint
(and Plaintiff’s response) also fail to identify any proper allegation there was a deliberate choice
to follow a specific course of action, made by anyone responsible for establishing any final policy
with respect to any of the Plaintiff.
CONCLUSION
For all of the reasons addressed here and in the Motion to Dismiss [ECF No. 23], Defendants
respectfully request this Court to dismiss Plaintiff’s claims in their entirety with prejudice, and for
all other and further relief as this Court deems proper.
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Dated: July 24, 2019 Respectfully submitted,
s/ Christina S. Gunn _____
Christina S. Gunn, Esq.
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th
Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
gunnc@hallevans.com /ratnerm@hallevans.com
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 24th day of July, 2019, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which will send notification of such filing to
the following e-mail addresses:
David Lane, Esq.
Tania Valdez, Esq.
Andy McNulty, Esq.
Killmer, Lane & Newman, LLP
1543 Champa St, Suite 400
Denver, CO 80202
303-571-1000 Phone
303-571-1001 Fax
dlane@kln-law.com
tvaldez@kln-law.com
amcnulty@kln-law.com
Attorney for Plaintiff
s/ Nicole Marion, Legal Assistant to
Christina S. Gunn, Esq. of
Hall & Evans, L.L.C.
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