HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 160 - PROPOSED FINAL PRETRIAL ORDER1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:17-CV-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS
Defendant.
PROPOSED FINAL PRETRIAL ORDER
1. DATE AND APPEARANCES
The final pre-trial conference is set for February 11, 2020 at 9:00 AM in Courtroom
A 402 before Magistrate Judge Scott T. Varholak. (Dkt. 151.) It is anticipated that Plaintiff
Chayce Aaron Anderson (“Plaintiff” or “Mr. Anderson”) will be represented by Christopher
Casolaro and Alexandra Lakshmanan, Faegre Drinker Biddle & Reath LLP, 1144
Fifteenth Street, Suite 3400, Denver, CO 80202, and that Defendant Jason Shutters
(“Defendant” or “Mr. Shutters”) will be represented by Mark S. Ratner, Hall & Evans, LLC,
1001 Seventeenth Street, Suite 300, Denver, CO 80202.
2. JURISDICTION
This Court has subject matter jurisdiction over this civil action brought under
28 U.S.C. § 1983 pursuant to 28 U.S.C §§ 1331 and 1343.
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3. CLAIMS AND DEFENSES
Plaintiff’s version:
Plaintiff asserts an excessive force claim against Defendant. Plaintiff’s summarized
version of the facts is as follows. On August 28, 2015, Sergeant Kim Cochran (“Sgt.
Cochran”) approached Plaintiff while he was retrieving items from his vehicle. (Dkt. 133
at 2.) Sgt. Cochran discussed an unrelated incident regarding damage to Plaintiff’s
vehicle, but did not give Plaintiff any indication that she had a warrant for his arrest. (Id.)
Shortly thereafter, Officer Andrew Edmonds (“Officer Edmonds”), Detective Tammy Tracy
(“Det. Tracy”), and Defendant arrived on the scene. (Id.) Defendant initiated a
conversation with Plaintiff. (Id.) Once Defendant informed Plaintiff that his questions did
not pertain to the damage to Plaintiff’s vehicle, Plaintiff invoked his right to an attorney.
(Id.)
The only recording of Plaintiff’s arrest was obtained by Defendant using an audio
recording device in his pocket. (Id. at 3.) Defendant told Plaintiff he was under arrest
and gave multiple verbal commands to Plaintiff. (Id.) At all times during the arrest,
Plaintiff was compliant and cooperative, neither attempting to resist nor flee. (Id.)
Defendant initially placed handcuffs on Plaintiff and then asked Plaintiff whether the
handcuffs were too tight. (Id.) Plaintiff responded that they were not. (Id.) Defendant
then tightened the handcuffs further before double-locking them. (Id. at 4.) However,
Defendant did not subsequently ask Plaintiff whether, after further tightening the
handcuffs, the handcuffs were too tight. The interaction between Plaintiff and Defendant
ended two to three minutes after this further tightening of the handcuffs by Defendant.
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(Dkt. 158 at 2-3.) Almost immediately after this further tightening, Plaintiff complained
that he was suffering from wrist pain. (Dkt. 156 at 4.) Indeed, multiple officers testified
that they were aware of Plaintiff’s wrist pain complaints within minutes of the arrest. (Id.
at 5-6.)
Plaintiff was transported to the Fort Collins Police Department (“FCPD”) by Officer
Edmonds. (Dkt. 133 at 4.) Once at FCPD, Defendant was intentionally kept away from
Plaintiff. (Id.) Plaintiff was eventually transported to Poudre Valley Hospital (“PVH”) for
evaluation of his injuries, where he was seen by Erin Carnahan, a physician’s assistant.
(Id. at 4-5.) Mr. Carnahan “testified that there were no diagnostic tests capable of
providing conclusive evidence of nerve damage that he could have ordered, and instead
he would have had to send Plaintiff to a neurologist for a nerve conduction study.” (Dkt.
158 at 4 (internal quotation marks and citation omitted).) Yet no referral was made to
definitively confirm whether Plaintiff suffered nerve damage. Instead, in the years since
Plaintiff’s arrest, Plaintiff has experienced and continues to experience intermittent,
shooting pains in his wrists. (Dkt. 133 at 5.) These shooting pains are more pronounced
and frequent in Plaintiff’s left wrist. (Id.) Because Plaintiff has had limited means to obtain
treatment for his ongoing wrist pain, due to facility transfers and uninterrupted
incarceration, Plaintiff has relied on over-the-counter medication to cope with his wrist
pain. (Id. at 5-6.)
Plaintiff’s legal theory is based on Defendant’s use of excessive force which
occurred when Defendant further tightened the handcuffs on Plaintiff. Although
completely compliant at all times during the arrest, and although the initial placement of
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the handcuffs on Plaintiff by Defendant was confirmed not to cause Plaintiff any pain,
Defendant further tightened the handcuffs. This further tightening almost immediately
caused Plaintiff wrist pain and has resulted in ongoing wrist pain for the past 4+ years.
Plaintiff therefore has established both elements of his excessive force claim—that
Defendant used greater force than would have been reasonably necessary to effect a
lawful seizure, and that some actual injury was caused by the unreasonable seizure that
is not de minimis. See Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009).
Plaintiff seeks monetary damages for his ongoing wrist pain in an amount sufficient
to (1) reimburse Plaintiff for his costs to obtain over-the-counter medicine as of the date
of trial, and (2) cover Plaintiff’s continued use of such over-the-counter medicine.
Defendant’s version:
On August 28, 2015, Defendant Detective Jason Shutters (“Detective Shutters”)
initiated a sexual assault investigation, of Plaintiff Chayce Anderson. After gathering the
facts of the matter, Detective Shutters authored a “41.1” for Plaintiff Anderson. A “41.1”
is otherwise known as a collection of nontestimonial evidence, pursuant to the Colorado
Rules of Criminal Procedure. The documents prepared by Detective Shutters were
reviewed by Fort Collins Police Detective Tammy Tracy and Detective Shutters’ Sergeant,
Kim Cochran, to ensure the existence of probable cause for an arrest. Detective Shutters
then met with an “on-call judge” who also reviewed the documents. A determination was
made by the reviewing Judge that sufficient probable cause existed for an arrest of
Plaintiff Anderson.
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On the same day, Detective Shutters responded to the 600 block of South
Whitcomb, in Fort Collins, Colorado, where Plaintiff was located. Detective Shutters
began to speak with Plaintiff Anderson about the sexual assault he was investigating.
After minimal questioning by Detective Shutters, Plaintiff Anderson indicated he did not
want to speak without a lawyer being present. Detective Shutters then informed Anderson
he was under arrest.
Once the Plaintiff was informed he was under arrest, Detective Shutters placed
him into handcuffs. Simultaneously, Detective Shutters asked the Plaintiff if either of the
cuffs were too tight, to which the Plaintiff responded, “no, they’re fine.” No indication was
ever provided by the Plaintiff to Detective Shutter that the handcuffs were too tight. This
interaction was audio recorded by Detective Shutters.
Plaintiff was transported to the Fort Collins Police Station for processing. On the
way to the station, the Plaintiff complained to Officer Barnes about having wrist pain and
“severe nerve damage”. An ambulance was called, and Plaintiff Anderson was
transported to Poudre Valley Hospital, where he was admitted and examined by
Physician’s Assistant, Erin Carnahan. PA Carnahan conducted a physical examination
of Plaintiff Anderson. Based on this examination, PA Carnahan found no evidence of
trauma, swelling or redness in Plaintiff’s wrists. Furthermore, no lacerations or abrasions
were observed, and PA Carnahan also noted Plaintiff’s wrists had a full range of motion.
The final diagnosis was “disturbance of skin sensation” which, according to PA Carnahan,
is a descriptor used to identify a scratch. In addition, PA Carnahan made a differential
diagnosis of “malingering.” Consistent with his findings, PA Carnahan concluded that
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Plaintiff Anderson did not suffer any injury to his wrists, including “severe nerve damage.”
No treatment was rendered.
Detective Shutters claims that pursuant to the applicable law, his actions were
reasonable under the circumstances. Furthermore, the Plaintiff, despite having an
opportunity to do so, failed to tell Detective Shutters that the handcuffs were too tight. In
addition, based on the medical testimony, the Plaintiff did not suffer any injury, or at the
most suffered an injury considered to be de minimis.
Detective Shutters also sets forth the following affirmative defenses:
1. The Second Amended Complaint fails to state a claim on which relief may
be granted.
2. To any extent, the Court concludes this Defendant acted under color of state
law with respect to Plaintiff, this Defendant is entitled to absolute immunity, qualified
immunity, or both such immunities, as well as common law and statutory immunities, with
respect to some or all of Plaintiff’s claim against him.
3. On information and belief, Plaintiff failed to mitigate his damages, if any.
4. On information and belief, some or all of Plaintiff’s injuries and damages, if
any, were either pre-existing or not aggravated by any action or omission of or by this
Defendant, nor proximately caused by or related to any act or omission of this Defendant.
5. All or part of Plaintiff’s claim never achieved the level of any constitutional
violation sufficient to state a claim under 42 U.S.C. § 1983.
6. At all times pertinent herein, this Defendant acted in accordance with all
common law, statutory and constitutional obligations, and without any intent to cause
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Plaintiff harm. This Defendant also lacked the requisite intent to establish any claim
against Plaintiff in this matter. The claim of the Plaintiff also fails to establish any basis
for concluding that this Defendant acted or failed to act in a willful and wanton manner.
This Defendant also possess or possessed a reasonable good faith belief in the
lawfulness of all his conduct.
7. Plaintiff’s injuries and damages, if any, in whole or in part, were proximately
caused by his own acts or omissions, either in combination with one another or
independent of one another.
8. Plaintiff’s 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 of control.
9. To any extent, any action or inaction on the part of this Defendant was in
any way involved in any detention of the Plaintiff by anyone, any action or inaction by this
Defendant was privileged under applicable law, including the privilege of police officers
to use reasonable physical force to affect an arrest, keep a subject in custody, and defend
themselves and others.
10. In all respects, this Defendant behaved in accordance with applicable legal
authority in all actions or inactions associated with Plaintiff, negating any claim of liability
asserted by Plaintiff against him.
11. This Defendant never breached any obligation or responsibility to anyone
associated with any property or liberty interest of any party in relation to this matter.
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12. Plaintiff cannot satisfy all or some of the prerequisites to a grant of injunctive
relief in this matter. Any request for injunctive relief is moot.
13. This Defendant is not liable for any punitive damages pursuant to state or
federal law and no Defendant could become liable for any such damages.
14. Plaintiff’s claim is barred pursuant to the Colorado Governmental Immunity
Act.
15. Any claim for punitive or exemplary damages against any individual
Defendant in any individual capacity is barred, limited, reduced, or in the alternative,
unconstitutional and in violation of the rights of such individual Defendant under the Due
Process Clauses of the Fifth and Fourteenth Amendments to the United States
Constitution.
16. Plaintiff’s injuries, if any, are de minimus and therefore do not constitute a
violation of his Constitutional rights.
4. STIPULATIONS
The parties stipulate to the following facts:
1. Defendant Jason Shutters arrested Plaintiff Chayce Anderson on
August 28, 2015.
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5. PENDING MOTIONS
Defendant’s motion for summary judgment, filed July 5, 2019, is pending. (Dkt.
128.) Plaintiff filed his response in opposition on July 26, 2019. (Dkt. 133.) Defendant
filed his reply in support on August 8, 2019. (Dkt. 136.) Plaintiff filed for leave to file a
surreply in opposition to Defendant’s motion for summary judgment (Dkt. 137), which was
fully briefed and subsequently granted on October 4, 2019 (Dkt. 146). Plaintiff’s surreply
filed with his motion for leave to file a surreply was accepted (Dkt. 137-1), and Defendant
was given until October 21, 2019 to file a response to the surreply, which Defendant did
so file on October 21, 2019 (Dkt. 147). Defendant’s motion for summary judgment was
referred to Magistrate Judge Scott Varholak (Dkt. 134), who issued an amended
recommendation to grant Defendant’s motion for summary judgment and dismiss the
case on November 19, 2019 (Dkt. 152). Plaintiff subsequently filed an objection to the
recommendation on December 3, 2019 (Dkt. 156); Defendant responded in opposition
on December 17, 2019 (Dkt. 157); and Plaintiff replied in support on December 31, 2019
(Dkt. 158).
6. WITNESSES
1. The parties’ nonexpert witness lists are attached as Exhibit A (Plaintiff’s
Witness List) and Exhibit B (Defendant’s Witness List). The parties do not intend to
introduce any witness testimony by deposition.
2. Plaintiff does not intend to call any expert witnesses.
Defendant’s non-retained expert witness list is attached as Exhibit B.
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7. EXHIBITS
The Joint Exhibit List is attached hereto as Exhibit C.
Copies of listed exhibits must be provided to opposing counsel and any pro se
party no later than 30 days before trial. The objections contemplated by Fed. R. Civ. P.
26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later
than 14 days after the exhibits are provided.
8. DISCOVERY
Discovery is closed.
9. SPECIAL ISSUES
Plaintiff requests that the Court permit him to testify in person or via live video
feed.
10. SETTLEMENT
Undersigned counsel for the parties certify that:
1. Counsel for the parties met by telephone on multiple occasions in 2019 to
discuss in good faith the settlement of the case.
2. The participants in the settlement discussions included counsel
for the parties.
3. The parties were promptly informed of all offers of settlement.
4. Counsel for the parties do not intend to hold future settlement
conferences.
5. It appears from the discussion by all counsel that there is no possibility of
settlement.
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6. Counsel for the parties considered ADR in accordance with
D.C.COLO.LCivR.16.6.
11. OFFER OF JUDGMENT
Counsel and any pro se party acknowledge familiarity with the provision of Rule
68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have
discussed it with the clients against whom claims are made in this case.
12. EFFECT OF FINAL PRETRIAL ORDER
Hereafter, this Final Pretrial Order will control the subsequent course of this action
and the trial, and may not be amended except by consent of the parties and approval by
the court or by order of the court to prevent manifest injustice. The pleadings will be
deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In
the event of ambiguity in any provision of this Final Pretrial Order, reference may be made
to the record of the pretrial conference to the extent reported by stenographic notes and
to the pleadings.
13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION
PROCEEDINGS
Trial will be to a jury. The parties estimate that the trial will last 2 days or less.
Trial will be held at the Alfred A. Arraj United States Courthouse, Courtroom A602,
located at 901 19
th
Street, Denver, CO 80294.
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DATED this day of , 2020.
BY THE COURT:
United States Magistrate Judge
APPROVED:
s/Alexandra Lakshmanan s/ Mark S. Ratner
Alexandra L. Lakshmanan Mark S. Ratner
Christopher J. Casolaro HALL & EVANS, L.L.C.
Travis Jordan 1001 Seventeenth Street
Heather Campbell Burgess Suite 300
FAEGRE DRINKER BIDDLE & REATH LLP Denver, Colorado 80202
1144 Fifteenth Street, Suite 3400 Ratnerm@hallevans.com
Denver, Colorado 80202 (303) 628-3300
(303) 607-3500 ratnerm@hallevans.com
allie.lakshmanan@faegredrinker.com
christopher.casolaro@faegredrinker.com Attorney for Defendant
travis.jordan@faegredrinker.com
heather.burgess@faegredrinker.com
Attorneys for Plaintiff
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