Stump v. Gates
| Decision Date | 31 October 1991 |
| Docket Number | No. 91-C-0509.,91-C-0509. |
| Citation | 777 F. Supp. 808 |
| Parties | Sara STUMP and Andrew M. Ocrant, Plaintiffs, v. Daryl G. GATES, individual and in official capacity as former Chief of Police of Greenwood Village Police Dept., Diane J. Sexton, individual and in official capacity as Detective of Greenwood Village Police Dept., Sueann Ocrant, individually, Dr. Jill Gould, official capacity as Coroner of the Arapahoe County Coroner's Office and the Arapahoe County Coroner's Office, William Kohnke, official capacity as Chief of Police of Greenwood Village Police Dept., and Greenwood Village, a municipality, Defendants. |
| Court | U.S. District Court — District of Colorado |
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Phillip Lowery, Denver, Colo., for plaintiffs.
Daniel R. Satriana, Jr., Denver, Colo., Jane B. Garrow, Englewood, Colo., Lawrence D. Stone, Denver, Colo., for Gates, Sexton, Kohnke, Barnard and City of Greenwood Village.
John McKendree, Denver, Colo., for Sueann Ocrant.
L. Cary Unkelbach, Littleton, Colo., for Gould.
Plaintiffs Sara Stump and Andrew Ocrant commenced this action asserting claims under 42 U.S.C. § 1983 for denial of the right of access to the courts (first claim), conspiracy (second claim) and defamation (third claim). Plaintiffs further assert pendent state law claims for civil conspiracy (fourth claim), gross negligence (fifth claim), defamation (sixth claim) and outrageous conduct (seventh claim). All claims arise out of acts allegedly committed in Colorado.
Defendants are: (1) Sueann Ocrant; (2) the Arapahoe County (Colorado) Coroner's Office, and Dr. Jill Gould in her official capacity as Arapahoe County Coroner (collectively "Arapahoe County"); and (3) the City of Greenwood Village, Rollin Barnard in his official capacity as the City of Greenwood Village's Mayor, the Greenwood Village Police Department, Daryl Gates individually and in his official capacity as the police department's former chief, William Kohnke in his official capacity as the police department's current chief, and Diane Sexton individually and in her official capacity as a Greenwood Village Police Department detective (collectively "Greenwood").
Pursuant to Fed.R.Civ.P. 12(b)(6), Sueann Ocrant, Arapahoe County and Greenwood separately have moved to dismiss the plaintiffs' claims and action. The City of Greenwood Village further has moved to strike the plaintiffs' prayer for punitive damages sought under the § 1983 claims. Plaintiffs have responded by opposing the motions to dismiss, and by withdrawing their prayer for punitive damages.
The parties have fully briefed the issues and oral argument would not materially facilitate the decision process. Jurisdiction is alleged to exist under 28 U.S.C. §§ 1331 and 1343, as well as this court's pendent jurisdiction.
In their amended complaint, the plaintiffs allege the following facts. On May 20, 1984, Sueann Ocrant found her husband Lawrence Ocrant lying in his bed on his left side. Dried blood trailed from a hole in his right temple. In Ocrant's right hand was a nickel-plated revolver positioned near his face.
Responding to a call from Sueann Ocrant, Greenwood Village police officer N.S. Meneses arrived at about 10:28 a.m. at the home of Lawrence and Sueann Ocrant. When he checked Lawrence Ocrant, Meneses discerned no vital signs. Meneses radioed for assistance, and Greenwood Village police chief Daryl Gates arrived at about 10:35 a.m. Detective Diane Sexton arrived shortly thereafter.
After his arrival, Gates instructed Meneses, who was controlling entry into the home, not to allow the County Coroner to enter until Gates approved his entry. Arapahoe County deputy coroner Ken Wilks arrived at the home at approximately 10:48 a.m. When he was denied entry into the Ocrant house, Wilks summoned Chief Deputy Coroner Gabe Goldsmith, who arrived at approximately 11:08 a.m. Gates allowed Goldsmith immediate entry, and about fifteen minutes later, allowed Wilks to enter. After an examination, Wilks pronounced Lawrence Ocrant dead.
Gates supervised the investigation, but it was conducted primarily by Sexton and police captain Billy Davis. The police initially took from the home as evidence a nickel-plated Smith & Wesson .32 caliber revolver, three cartridges, a spent bullet casing, a cassette tape found in Lawrence Ocrant's study and linen from his bed.
At 11:00 a.m. Sueann Ocrant was transported to Swedish Medical Center (Swedish) for observation. One-half hour later Lawrence Ocrant's body was taken to the Arapahoe County Coroner's Office located at Bullock Mortuary. One hour later Gates and Sexton left the house to meet with Sueann Ocrant at Swedish.
Following her release from Swedish, Sueann Ocrant went to a friend's home where Gates and Sexton met with her. Sueann Ocrant informed them that a second gun was in her house. Gates and Sexton then returned to the house and retrieved the second gun.
On May 23, 1984, Lawrence Ocrant's body was cremated. The Greenwood Village Police Department and the Arapahoe County Coroner's Office listed the death as a possible suicide. The cause of death later was reported in the media as suicide.
Plaintiffs assert that the investigation was deficient in the following respects: (1) the Arapahoe County Coroner was initially barred from entering the Ocrant home on May 20, 1984; (2) no autopsy was ordered or performed; (3) ballistics tests were not ordered or performed; (4) Sueann Ocrant was not interviewed by the police until May 28, 1984, eight days after her husband's death; (5) Lawrence Ocrant's hands were not bagged to preserve evidence for a trace metal detection test (TMDT); (6) the results of the TMDT performed on Lawrence Ocrant were not compared to the weapon found in his hand; (7) no TMDT or antimony testing was performed on Sueann Ocrant; (8) no fingerprint testing for comparison to fingerprints other than Lawrence Ocrant's was performed; (9) at Sueann Ocrant's request, the two guns and other evidence seized from the Ocrant home were destroyed by the Greenwood Village Police Department on June 1, 1984.
Alleged improprieties in the investigation were reviewed by the 1989 Arapahoe County Statutory Grand Jury. On December 14, 1989, the grand jury issued a report, but did not make it public.
On June 14, 1990, Chief Judge Joyce Steinhardt of Colorado's Eighteenth Judicial District ordered disclosed to the plaintiffs a one line portion of the grand jury report concluding that Lawrence Ocrant's death was a homicide. Pursuant to Colo. Rev.Stat. § 24-10-109, the plaintiffs notified the defendants of their intent to sue on June 20, 1990. On March 29, 1991, the plaintiffs commenced this action.
Pursuant to Fed.R.Civ.P. 12(b)(6), Greenwood, Arapahoe County and Sueann Ocrant separately have moved to dismiss the plaintiffs' claims and action. Defendants' arguments substantially duplicate one another. I first address the defendants' arguments directed to the plaintiffs' federal claims and thereafter those seeking dismissal of the pendent state tort claims.
In considering a Rule 12(b)(6) motion, the complaint must be construed liberally, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and its factual allegations must be assumed to be true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Dismissal of a claim is improper unless it appears beyond doubt that the plaintiffs can prove no set of facts that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In their amended complaint, the plaintiffs assert three claims under 42 U.S.C. § 1983. Pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have moved to dismiss each claim, arguing: (1) that neither the Greenwood Village Police Department nor the Arapahoe County Coroner's Office is a "person" within the purview of § 1983 (); (2) that the plaintiffs have failed adequately to state any of the three § 1983 claims asserted (all defendants' motions); (3) that the § 1983 claims are time barred (Arapahoe County's and Sueann Ocrant's motions); and (4) that Gates and Sexton are qualifiedly immune from § 1983 liability (Greenwood's motion).
As preliminary matters, I note that Greenwood originally moved to dismiss the official capacity claims asserted against defendants Kohnke and Barnard. Subsequently, in open court, the plaintiffs stipulated to dismiss their claims and action as against Kohnke, Barnard and Gould. That stipulated motion was granted. Accordingly, Greenwood's motion to dismiss these official capacity claims will be denied as moot.
I further note that the plaintiffs assert claims against Gates in his official capacity as the former chief of the Greenwood Village Police Department. Because Gates no longer has an official capacity, the official capacity claims against Gates must be dismissed. See Kentucky v. Graham, 473 U.S. 159, 166 n. 11, 105 S.Ct. 3099, 3105, n. 11, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 470 n. 18, 105 S.Ct. 873, 877 n. 18, 83 L.Ed.2d 878 (1985). Plaintiffs shall amend the case caption accordingly.
Greenwood and Arapahoe County respectively assert that neither the Greenwood Village Police Department (police department) nor the Arapahoe County Coroner's Office (coroner's office) is a "person" within the meaning of § 1983.1
While Greenwood concedes that the City of Greenwood Village is a proper defendant potentially liable under § 1983 for the acts of its police department personnel, (Greenwood's supplemental brief, p. 3), it notes that the police department is merely the city's agent established under the Greenwood Village City...
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