Johnson v. Bd. of County Com'rs County of Fremont, Civ. A. No. 93-K-2465.

• Decision Date: 17 November 1994
• Docket Number: Civ. A. No. 93-K-2465.
• Citation: 868 F. Supp. 1226
• Parties: Tammie JOHNSON, Elizabeth York, Judy O'Connor and Patricia Caudill, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF FREMONT; and Bob Cheek, in his official and individual capacities, Defendants.
• Court: U.S. District Court — District of Colorado

868 F. Supp. 1226

Tammie JOHNSON, Elizabeth York, Judy O'Connor and Patricia Caudill, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF FREMONT; and Bob Cheek, in his official and individual capacities, Defendants.

Civ. A. No. 93-K-2465.

United States District Court, D. Colorado.

November 17, 1994.

Richard C. LaFond, Arnold M. Woods, Law Offices of Richard C. LaFond, Denver, CO, for plaintiffs.

William L. Senter, Peter H. Doherty, Greengard Senter Goldfarb & Rice, Denver, CO, Brenda L. Jackson, Fremont County Atty., Meconi & Jackson, Canon City, CO, for Bd. of Cty. Com'rs.

Cathy H. Greer, Hall & Evans, L.L.C., Theodore S. Halaby, Robert M. Liechty, Halaby Cross Liechty, Schluter & Buck, Denver, CO, for Bob Cheek.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

The four plaintiffs in this consolidated civil action brought claims of sex discrimination against the defendants. They allege that Defendant Bob Cheek, who was the Sheriff of Fremont County, subjected them to sexual harassment while they were employed either as dispatchers or, in the case of Plaintiff Caudill, as a deputy sheriff. The complaints of the several plaintiffs are replete with allegations of lurid and tasteless comments, obscenities and nonconsensual physical contacts. This memorandum opinion does not deal with the merits of the factual allegations, but rather with fundamental questions concerning an attorney's obligations to represent a client fully and to appear before the court with candor. Because of a lack of clearly defined precedents, sanctions are not imposed even though inappropriate conduct by counsel is found.

A hearing was held on all pending motions on October 19, 1994. At that time I stated I would follow my bench ruling with a memorandum opinion because these issues seriously affect the administration of justice, attention needs to be drawn to them and they appear to be arising with increasing frequency. These issues include so-called limited appearances by counsel and ghost-writing pleadings and briefs by counsel for purportedly pro se litigants.

As this memorandum opinion describes in laborious detail, the delay and confusion occasioned in this case by the conduct of various attorneys is extraordinary. Having accommodated to the point of dalliance the various requests of attorneys acting on behalf of or in the person of the Defendant Cheek to delay his obligations to appear and defend, I issued an order to show cause why all pleadings filed on behalf of Defendant Cheek should not be stricken and under what legal authority Cathy H. Greer, Esq. presumed to enter a limited appearance on behalf of a party of record. Also pending were Defendant Cheek's motion for reconsideration of my minute order dated September 19, 1994, Plaintiffs' motion to allow the deposition of Defendant Cheek after the discovery cut off date and Defendants' motion to allow the depositions of Caudill, York and Gary O'Connor after that date.

At the October 19 hearing, I found no cause had been shown and struck the appearance of Greer in this case. I denied all pending motions as moot and rejected the attempt of Messrs. Halaby, Cross, Liechty, Schluter and Buck to enter their limited appearance as counsel for Defendant Cheek in his individual capacity. This memorandum opinion follows.

I. Background.

In December 1993, Plaintiffs commenced these consolidated actions against the Board of County Commissioners for the County of Fremont. On January 28, 1994, I granted Plaintiffs' motion to amend their complaints to add as a new party Sheriff Bob Cheek in his official capacity. Plaintiffs asserted claims against the Board and Cheek in his official capacity pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-17.

On February 4, 1994, Edward G. Rodgers, District Attorney for the Eleventh Judicial District, State of Colorado, requested appointment of a special prosecutor to represent Cheek in this action and an extension of time in which Cheek could file an answer to the complaints. On February 7, 1994, I granted the motion to extend the time for filing an answer up to and including March 7, 1994 but denied the motion to appoint a special prosecutor.¹

On March 2, 1994, Rodgers filed a further motion for extension of time in which to file an answer. He stated an attorney, David Zook, had been appointed to represent Cheek effective March 7, 1994 when Zook would return to Colorado from Louisiana. I granted an extension of thirty days in which Cheek could file an answer. Mr. Zook did not enter an appearance as suggested.

On April 6, 1994, Cathy H. Greer, Esq. of the law firm of Hall and Evans, representing Bob Cheek in his official capacity as Fremont County Sheriff, requested an extension of time until April 13, 1994 within which to respond to Plaintiffs' first amended complaint. Greer stated she had just been retained and had not yet had an opportunity to discuss the case with Cheek. I granted the extension.

On April 13, 1994, Greer filed an answer of Bob Cheek to the first amended complaint of each Plaintiff. Each answer stated Cheek was answering "in his official capacity as Sheriff of Fremont County" and was signed by Greer of Hall and Evans, "Attorneys for Defendant Bob Cheek."

On June 17, 1994, Plaintiffs filed a motion for leave to file a second amended complaint and to extend the discovery deadline. I granted this motion and extended the discovery deadline to September 28, 1994. Each Plaintiff's second amended complaint includes a claim for relief under 42 U.S.C. § 1983 and seeks punitive damages against "Defendant Cheek in his individual capacity."

On July 29, 1994, Bob Cheek, "in his individual capacity and pro se" requested an extension of time to file an answer to the second amended complaint. As Cheek confirmed at the time of the hearing, this and other documents allegedly filed by him in such capacity were ghost-written by Fremont County Attorney Brenda Jackson. Cheek asserted he was seeking declaratory relief from the District Court of Fremont County, Colorado, to determine whether the Board of County Commissioners of Fremont County would provide counsel to represent him in his individual capacity. On August 1, 1994, in deference to the state action, I granted the extension to September 16, 1994.

On August 2, 1994, Greer, of Hall and Evans, "Attorney for Defendant Bob Cheek," filed an answer of "Bob Cheek in his Official Capacity" to each Plaintiff's second amended complaint. On September 16, 1994, Cheek, "in his individual capacity" and pro se requested an additional extension of time to file his answer to the second amended complaint. Cheek stated the District Court of Fremont County, Colorado was scheduled to rule on his motion for declaratory judgment on September 26, 1994.

On September 19, 1994 I denied Cheek's motion because he had failed to comply with Local Rule 7.1 A which requires a moving party, before filing a motion, to confer with opposing counsel to resolve the disputed matter. I further ordered Greer to show cause in writing on or before October 3, 1994 why all pleadings filed on behalf of Cheek should not be stricken and under what legal authority Greer presumed to enter a limited appearance on behalf of a party of record.

On September 21, 1994, Greer as "Attorney for Defendant Bob Cheek in his official capacity as Sheriff of Fremont County" requested an extension of the deadline to respond to certain discovery requests "until such time as counsel representing Defendant Cheek in his individual capacity would have an opportunity to become familiar with this case." On September 22, 1994 I denied the request.

On September 21, 1994, Greer filed a response to the order to show cause. She recounted the only claims in the original complaints were pursuant to Title VII and such claims could only be asserted against an individual in his official capacity. She stated such claims were in effect a suit against the entity or office held by the individual, rather than against the individual himself. She maintained in this case the Title VII claim was against the "Office of the Sheriff of Fremont County (Bob Cheek in his official capacity)," that on October 1, 1993, Cheek had been suspended from his office of sheriff, that he would not run for re-election, that a successor would be duly elected to replace Cheek as sheriff in January 1995 and that thereafter the official represented by Greer would be someone other than Cheek.

On September 26, 1994, Cheek "in his individual capacity and pro se" filed another ghost-written motion for reconsideration of my minute order dated September 1994 and requested the answer date be extended to October 3, 1994. Attached to the motion is a certificate of compliance pursuant to D.C.Colo.L.R. 7.1A, stating that, through Fremont County Attorney Brenda Jackson, Cheek had conferred with Plaintiffs' counsel who indicated he had no objection to the extension.

On September 27, 1994, I set all pending motions and the response to order to show cause for hearing on October 19, 1994, ordering all counsel of record and Cheek to be present.

On September 27, 1994, Plaintiffs filed a motion to allow the deposition of Cheek after the discovery cutoff date (September 28, 1994), within thirty days after the receipt of Cheek's responses to written discovery requests submitted on August 23, 1994. Plaintiffs' counsel explained that my September 22, 1994 denial of Cheek's counsel's motion for extension of time to respond to discovery requests in effect denied the request to allow Plaintiffs to take Cheek's deposition within thirty days after the receipt of Cheek's discovery responses.

On September 28, 1994, Defendants "Bob Cheek, in his official capacity, and Board of County Commissioners for the County of Fremont" filed a motion to allow the depositions of Plaintiffs Patricia Caudill and Elizabeth York and Gary O'Connor, former acting sheriff of Fremont County, after...