HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 148 - RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGEIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS
Defendant.
______________________________________________________________________________
DEFENDANT JASON SHUTTERS’ SUR-RESPONSE IN OPPOSITION TO
PLAINTIFF’S SUR-REPLY (ECF 137-1)
______________________________________________________________________________
Defendant, Jason Shutters, through his Attorneys, Hall & Evans, LLC, submits the
following as his Sur-Response in Opposition to Plaintiff’s Sur-Reply (ECF No. 137-1):
I. ARGUMENT
A. The Court may not take judicial notice of the International Classification
of Diseases (“ICD”)1.
Federal Rule of Evidence 201(b) generally provides that a Court may take judicial notice
of a fact if it is: “(1) generally known within the trial court’s territorial jurisdiction or (2) can be
accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”
Fed. R. Evid. 201(b) (2019). Notice, however, is limited to “adjudicative” versus “legislative”
facts. Adjudicative facts are the “facts of a particular case.” (See Notes of Advisory Committee on
1 During the hearing on Plaintiff’s Motion for Leave to File a Sur-Reply (ECF Nos. 137 &137-1), the
Court directed Defendant to file a brief addressing whether the Court can take judicial notice of the ICD.
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Proposed Rules, Fed. R. Evid. 201), and which are generally known and accepted. Hunt v. Cent.
Consol. Sch. Dist., 2016 U.S. Dist. LEXIS 51022 at *5, ftnt. 6 (D.N.M. April 14, 2016) citing
Mills v. Denver Tramway Corp., 155 F.2d 808, 811 (10th Cir. 1946). A fact which is generally
known and accepted would, for example, be that a train has a bell and whistle. Mills, 155 F.2d at
811.
Courts take judicial notice of matters of common knowledge. Ohio Bell Tel. Co. v. Public
Utilities Com., 301 U.S. 292, 301 (1937) (emphasis added) citing 5 Wigmore, Evidence, §§ 2571,
2580, 2583; Thayer, Preliminary Treatise on Evidence, pp. 277, 302. “A judge takes judicial
notice when he recognizes the truth of a matter that is either generally known or capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
United States v. Wolny, 133 F.3d 758, 764 (10th Cir. 1998) citing Fed.R.Evid. 201(b).
The scope of what might be judicially noticed with respect to the ICD, has not been defined
by the Court or the Plaintiff. Nonetheless, based on Plaintiff’s arguments, it would appear the
Court is asking for the propriety of taking judicial notice on the applicability of ICD Code 780.2
to the facts in this matter, versus the mere existence of the ICD. Plaintiff argues in his Sur-Reply
that ICD Code 780.2 somehow supports the notion he suffered more than a de minimis injury.
But, any such contention is disputed in particular based on the testimony of the treating physician
assistant Erin Carnahan (“PA Carnahan”) who found no evidence of trauma, swelling or redness
in Plaintiff’s wrists (Movant’s Appx. pp. 35 to 36-Deposition of Erin Carnahan, 30:13-25;
31:1-6); no lacerations or abrasions (Movant’s Appx. pp. 36 & 37-Deposition of Erin
Carnahan, 31:22-25;32:1-5); full range of motion (Movant’s Appx. p. 37-Depositon of Erin
Carnahan, 32:6-9), and acknowledgment that in his mind “disturbance of skin sensation” was a
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descriptor to identify a scratch (Movant’s Appx. p. 36-Deposition of Erin Carnahan, 31:7-19).
Judicial notice of the ICD Code, as a basis to overcome a de minimis injury, also ignores the
differential diagnosis made by PA Carnahan of “malingering” (Movant’s Appx. p. 34-Deposition
of Erin Carnahan, 17:12-23) and his conclusion Mr. Anderson did not suffer any injury to his
wrists (Movant’s Appx. pp. 38 & 39-Deposition of Erin Carnahan, 36:15-22; 37:2-7).
Furthermore, any inkling of judicial notice of Plaintiff’s position ignores PA Carnahan’s position
he does not agree with Plaintiff’s assessment of “severe nerve damage” (Movant’s Appx. p. 40-
Deposition of Erin Carnahan, 40:12-16).
The ICD is not the proper kind of fact by which the Court can take judicial notice, because
it is in dispute. King v. Kramer, 2014 U.S. App. LEXIS 13252 at *31 (7th Cir. 2014) referring to
GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997) ("in order for
a fact to be judicially noticed, indisputability is a prerequisite").
Likewise, Plaintiff offers no expert testimony pursuant to 26(a)(2), or foundational basis
pursuant to Fed. R. Evid. 602, to support application of the ICD codes or which might allow the
Court to take judicial notice. Rather, Plaintiff offers nothing more than conclusory statements
respecting application of the ICD to this matter and arguing that ICD Code 780.2 should suffice
as the ultimate diagnosis, while at the same time ignoring the basic premises that the ICD and its
codes are intended for billing purposes: “According to the AMA Evaluation and Management
Services Guide, ‘[w]hen billing for a patient's visit, codes are selected that best represent the
services furnished during the visit…The two common sets of codes used are: Diagnostic or
International Classification of Diseases, 9th Revision, Clinical Modification codes [ICD-9-CM];
and Procedural or American Medical Association Current Procedural Terminology Codes [CPT
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codes]." Sharp v. E. Okla. Orthopedic Ctr., 2013 U.S. Dist. LEXIS 27307 at *2 (N.D. Okla.,
February 28, 2013, Case No. 05-CV-572-TCK-TLW).
Here, the indicia which might allow the Court to take judicial notice is lacking, and the
Court should decline to do so.
B. Plaintiff’s opinions concerning Detective Shutters’ handcuffing technique
are precluded.
Plaintiff’s second argument in the Sur-Reply addresses Detective Shutters’ “method of
arrest” as being “higher impact”. But, Plaintiff does not offer any citation to the record wherein
anyone explicitly identifies or defines the way Plaintiff was handcuffed as “higher impact” or how
any such approach was improper when arresting Plaintiff. The argument is again conclusory, and
inadmissible pursuant to Fed. R. Evid. 602 and Vigil v. Burlington Northern & Santa Fe Ry.,
521 F. Supp. 1185, 1203 (D.N.M., August 3, 2007). When responding to a motion for summary
judgment, a non-moving party must submit evidence admissible at trial, pursuant to the Federal
Rules of Evidence. “(T)he nonmovant must set forth specific facts that would be admissible in
evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”
Vigil, 521 F. Supp. at 1203 citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.
1998). “A party relying on only conclusory allegations cannot defeat a properly supported motion
for summary judgment.” Vigil, 521 F. Supp. at 1203 citing White v. York Int’l Corp., 45 F.3d 357,
363 (10th Cir. 1995). “Only admissible evidence may be reviewed and considered on summary
judgment.” Vigil, 521 F. Supp. At 1203 citing Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541
(10th Cir. 1995) and Vigil, supra. Furthermore, police handcuffing techniques are outside the
knowledge of a lay person, and therefore subject to expert testimony. There is no indication
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Plaintiff is qualified to render any such opinions or that any proper expert disclosures were made.
Plaintiff’s argument is also precluded pursuant to Fed. R. Evid. 702 and Fed. R. Civ. P. 26(a)(2).
C. Plaintiff’s argument that Detective Shutters squeezed the handcuffs too
tight is conclusory.
Lastly, Plaintiff states Detective Shutters knew he squeezed Mr. Anderson’s handcuffs too
tightly (ECF No. 137-1), in an attempt to overcome the notion that he must establish personal
knowledge on the part of Detective Shutters. “(I)n this circuit…(t)o trigger liability for unduly
tight handcuffs…the plaintiff must show…the officer’s knowledge that the handcuffs were too
tight.” Zartner v. Miller, 760 Fed. Appx. 558, 561 (10th Cir. 2019) (unpublished) (footnotes
omitted,) referring to Cortez, 478 F.3d at 1129 and ftnt. 24, and Scott v. Hern, 216 F.3d 897, 911
(10th Cir. 2000). See also Fisher v. The City of Las Cruces, 584 F.3d 888, 896 (10th Cir. 2009)
referring to Rodriguez v. Farrell, 290 F.3d 1341, 1352-53 (11th Cir. 2002). See also Silvan W. v.
Briggs, 309 Fed. Appx. 216, 224 (10th Cir. 2009) citing Vondrak v. City of Las Cruces, 535 F.3d
1198, 1208-09 (10th Cir. 2008) (“And because there is no evidence that Cory [Plaintiff]…notified
the officers that his handcuffs were painful, he cannot maintain an excessive force claim based on
unduly tight handcuffing.”).
Plaintiff’s statements are conclusory as there is no evidence to support any such argument.
The statement is therefore inadmissible pursuant to Fed. R. Evid. 602 and Vigil, supra.
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II. CONCLUSION
For the foregoing reasons, Detective Shutters respectfully requests the Court grant his
Motion for Summary Judgment, and for entry of any other relief deemed just.
Dated this 21st day of October 2019.
HALL & EVANS, L.L.C.
s/ Mark S. Ratner____________
Mark S. Ratner
1001 17th Street, Suite 300
Denver, CO 80202
Telephone: (303) 628-3300
Facsimile: (303) 382-4325
Email: ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 21st day of October 2019, I electronically filed the
foregoing DEFENDANT JASON SHUTTERS’ SUR-RESPONSE IN OPPOSITION TO
PLAINTIFF’S SUR-REPLY with the Clerk of Court using the CM/ECF system which will send
notification of such filing to the following e-mail addresses:
Attorneys for Plaintiff:
Alexandra L. Lakshmanan
Christopher J. Casolaro
FAEGRE BAKER DANIELS LLP-DENVER
allie.lakshmanan@faegrebd.com
christopher.casolaro@faegrebd.com
Heather C. Burgess
FAEGRE BAKER DANIELS LLP-CHICAGO
heather.burgess@faegrebd.com
s/ Robin Havens, Legal Assistant to
Mark S. Ratner
of HALL & EVANS, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Telephone: (303) 628-3300
Facsimile: (303) 382-4325
Email: ratnerm@hallevans.com
ATTORNEYS FOR DEFENDANT
JASON SHUTTERS
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