Dobson v. City and County of Denver, CIV.A. 98-WM-806-PAC.

• Decision Date: 26 October 1999
• Docket Number: No. CIV.A. 98-WM-806-PAC.,CIV.A. 98-WM-806-PAC.
• Citation: 81 F.Supp.2d 1080
• Parties: Carolyn DOBSON, Individually, and in the Estate of John Robert Adamo, by and through the Personal Representative, Carolyn Dobson, Plaintiff, v. CITY AND COUNTY OF DENVER; Reza Kazemian, in his official and individual capacity; Leslie Groussman, in her official and individual capacity; Bruce Baumgartner, in his official and individual capacity; Richard Brasher, in his official and individual capacity; Richard Gary Brady, Defendants.
• Court: U.S. District Court — District of Colorado

81 F.Supp.2d 1080

Carolyn DOBSON, Individually, and in the Estate of John Robert Adamo, by and through the Personal Representative, Carolyn Dobson, Plaintiff, v. CITY AND COUNTY OF DENVER; Reza Kazemian, in his official and individual capacity; Leslie Groussman, in her official and individual capacity; Bruce Baumgartner, in his official and individual capacity; Richard Brasher, in his official and individual capacity; Richard Gary Brady, Defendants.

No. CIV.A. 98-WM-806-PAC.

United States District Court, D. Colorado.

October 26, 1999.

David H. Miller, Paula Dee Greisen, Miller, Lane, Killmer & Griesen, LLP, Denver, CO, for Plaintiff.

John Milton Eckhardt, Geoffrey S. Wasson, City Attorney's Office, Denver, CO, Jeffrey James Colerick, Beatty, Gresham & Colerick, LLP, Colorado Springs, CO, Jeffrey S. Pagliuca, Holland & Pagliuca, PC, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

COAN, United States Magistrate Judge.¹

Carolyn Dobson, the mother of deceased security guard John Adamo, and the personal representative of Adamo's estate brings claims against defendants for constitutional violations because defendant Richard Brady killed Adamo. Jurisdiction is under 28 U.S.C. §§ 1331 and 1343. Plaintiffs² also assert state law tort claims against defendant Richard Brady, defendant City and County of Denver and its named supervisors, invoking the supplemental jurisdiction of this court under 28 U.S.C. § 1367. Defendants City and County of Denver, Reza Kazemian, Leslie Groussman, Bruce Baumgartner, and Richard Brasher ("Defendants") move for summary judgment on all of plaintiffs' constitutional and state law claims against them, or, alternatively, for dismissal of plaintiffs' state law claims against them. Defendant Brady moves to dismiss the state claims against him for lack of jurisdiction. The motions are fully briefed. I heard oral argument on September, 30, 1999. For the following reasons, I grant both motions.

I.

The following facts are undisputed unless otherwise noted, or, if disputed, are viewed in a light most favorable to plaintiff. John Adamo, ("Adamo"), the deceased, was a security guard employed by C & D Bonded Security Services ("C & D").³ In January 1997, Adamo was assigned to perform security work at the Denver Waste Water Management Division of the Department of Public Works ("WWMD") complex. On January 10, 1997, he submitted an incident report stating that defendant Richard Brady ("Brady"), a city employee, was using WWMD facilities to wash his personal vehicle. After learning of the report, Jeff Snyder, Brady's second level supervisor and operations superintendent, ordered Brady to stop using WWMD's truck washing facility for his personal use. Later that day, Adamo submitted a second report alleging that Brady stormed into the security guard's office, pointed a finger at Adamo, and said "You little rat motherfucker; you and I are going to war." The content of the latter report was communicated to defendant Leslie Groussman ("Groussman"), a member of the WWMD management team, Jeff Snyder, and defendant Reza Kazemian ("Kazemian"), Director of Operations for WWMD.

In response to Adamo's second report, Kazemian met with Brady, who stated that he was angry and admitted making the statements in Adamo's report. Kazemian then informed Brady that WWMD did not permit such conduct in the workplace and ordered Brady to stay away from Adamo. Brady agreed. Groussman responded to Adamo's second report by discussing the matter at a meeting with Adamo and Kendall Hogue, the agency personnel manager. Groussman suggested to Adamo that he should explore the option of transferring to another C & D facility if he felt threatened.

On Tuesday, January 14, 1997, Adamo submitted a third incident report which stated that Brady had confronted him, stating "If you're going to write something down, you'd better get it right." According to the report, Brady then stormed out of the guard office, but returned a short time later pointing a finger at Adamo, saying, "You better get your bike out of the garage." In response, Adamo told Brady he was under orders from Groussman to put it there, to which Brady replied, "You have no right" and "We'll see about that."

Upon receipt of Adamo's third report, Kazemian met with Hogue and Nick Skifaledes, a deputy manager of the Department of Public Works and senior manager of WWMD, to discuss the situation. They decided to place Brady on investigatory leave due to his conduct. After notifying Brady that he was on investigatory leave, Brady and his immediate supervisor, Adrian Johnson, met with Kazemian. Brady asked not to be placed on leave but to remain at work. Kazemian agreed to take back the letter placing Brady on Investigatory leave if Brady agreed to avoid all contact with Adamo, to which Brady replied, "I won't start anything." Kazemian took the letter back and Brady was permitted to continue working.

On January 15, 1997, Groussman met with Tamara Fox, the office manager for C & D, to discuss the Brady/Adamo issue and Brady's verbal threats. They discussed relocating Adamo or changing his hours so that they did not overlap with Brady's schedule.

On January 16, 1997, Kazemian was advised that Brady was asking questions about why Adamo was allowed to park his motorcycle inside the garage area while Brady was not allowed to use the City's truck washing facilities. Kazemian, Hogue, and Skifaledes determined that Brady should be placed on investigatory leave until after the predisciplinary meeting was held on January 21, 1997. Brady was handed a letter just before his shift ended that day advising him that he would be placed on investigatory leave. On the same day, Brady contacted Victor Padilla, the Deputy Manager of Operations at the City's Public Works Department, under which WWMD operates, and expressed his outrage about Adamo and the suspension. Brady said that if Padilla did not do something about Adamo, he would "do what [he] need[ed] to do!" Following Brady's phone call, Padilla contacted defendants Bruce Baumgartner, ("Baumgartner"), the Manager of Denver Public Works, and Richard Brasher ("Brasher"), Deputy Manager of Denver Public Works. Padilla informed Baumgartner and Brasher of Brady's anger and urged them to respond to the problem quickly. Plaintiffs claim that no further action was taken against Brady and that no one informed Adamo of Brady's investigatory leave or of Brady's threat as expressed to Padilla.

On January 17, 1999, the next day, Adamo telephoned Fox to discuss the Brady threats. Fox expressed concern for Adamo's welfare and they discussed options, such as a leave of absence, move to a different facility, or a change in shifts. Adamo declined those options and chose to remain at the WWMD facility. He stated that everything would be fine. Shortly thereafter, Brady came to the WWMD facility in violation of his investigatory leave, and shot Adamo to death. Plaintiffs state that Brady had keys to the facility, which defendants had failed to retrieve from Brady prior to his investigatory leave, and that Brady had used the keys to enter the facility and kill Adamo. Defendants claim that Brady did not have keys to the facility.

Pursuant to a plea bargain, Brady pleaded guilty to murdering Adamo and is now serving a sentence of forty years incarceration within the Colorado Department of Corrections.

II.

The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The movant bears the initial burden to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to [the nonmovant's claim]." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993)(internal citations omitted). The nonmovant has the burden to show that there are genuine issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995). To defeat a properly supported motion for summary judgment, "there must be evidence upon which the jury could reasonably find for the plaintiff." Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Conclusory allegations will not create a genuine issue of material fact necessitating trial. White, 45 F.3d at 363.

III.

1. Substantive Due Process

Plaintiffs claim that defendants violated Adamo's substantive due process rights in failing to take appropriate measures to protect Adamo from the risk inherent in Brady's threats to Adamo. Defendants move for summary judgment arguing that there is no constitutional right to a safe workplace and that plaintiffs' allegations fail to satisfy the substantive due process "danger creation" test of liability for the acts of third parties. See Defendants' Brief in Support of Motion for Summary Judgment and Dismissal, at 8-10.

The Due Process Clause of the Fourteenth Amendment provides that no state "shall deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. Generally, state actors are...