Ulibarri et al v. Denver, Colorado, The City and County of et al

Filing 339

ORDER Addressing Outstanding Issues by Senior Judge Ortrie D. Smith on 10/13/11. (odslc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
DEBBIE ULIBARRI, et al.,
Plaintiffs,
vs.
CITY & COUNTY OF DENVER, et al.,
Defendants.

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Case No. 07-CV-1814-ODS

ORDER ADDRESSING OUTSTANDING ISSUES
On August 24, 2011, the Court issued an Order that, inter alia, summarized the
status of the case and invited the parties to express their agreement or disagreement
with the Court’s understanding. The Court has reviewed the parties’ response and reexamined the Record in this case. The Court now resolves the outstanding differences.
First is the issue of the statute of limitations as it relates to claims asserted by
Shawn Vigil’s estate and by his mother. To place the issues in context, the Court notes
that Vigil was arrested on August 17, 2005, and taken to the Pre-arraignment Detention
Facility (“PADF”). He had an initial appearance before a Denver County Court Judge on
August 18, and was transferred from the PADF to the Denver County Jail on August 25.
Vigil was found hanging in his cell on September 27, 2005, and died on October 1.
Second Amended Complaint, ¶¶ 36, 38. This lawsuit was filed on August 28, 2007.
In an Order dated September 30, 2010, the Honorable Walker D. Miller
dismissed Vigil’s claims based on his arrest as time-barred. Defendant contends Vigil’s
claims involving the PADF are also time-barred, and there seems to be little dispute on
this point. Judge Miller indicated as much in an Order dated June 28, 2011, and
Plaintiffs do not contend there is an independent claim arising from Vigil’s treatment at
the PADF. To the extent Defendant is arguing that evidence of events at the PADF
should be excluded, this is a different issue – one that was addressed in Judge Miller’s
June 28, 2011, Order, particularly on page nine. The undersigned adheres to Judge
Miller’s conclusion that such evidence should not be categorically rejected, that some of

this evidence may be admitted, that “trial objections . . . may be raised,” and that the
parties should propose limiting instructions to guide the jury’s consideration of such
evidence. The Court further states it will entertain motions in limine directed to such
evidence (so long as such motions are particularized and do not seek to generally
exclude all such evidence); while the Court may still end up deferring consideration of
the objections until trial, the effort may still prove useful as it will, at a minimum, further
educate and alert the Court to these issues.
Vigil’s mother’s claim for wrongful death is a different matter. This claim had to
“be commenced within two years after the cause of action accrues.” C.R.S. § 13-80102(1)(d). Significantly, “[a] cause of action for wrongful death shall be considered to
accrue on the date of death.” Id. § 13-80-108(2). The limitation period is not defined by
the alleged causes of the death: the only requirement is that the suit be brought within
two years of the death. The wrongful death claim is timely.1
The second matter to be addressed is the scope of Sarah Burke’s claims. The
Court summarized Judge Miller’s orders as holding she had claims regarding “actions
taken during her arrest and the manner in which her release from custody was handled
(but no claims based on her treatment while she was at the Pre-Arraignment Detention
Facility.”). The Court adheres to its view that this is an accurate summary of Judge
Miller’s rulings. Burke emphasizes Judge Miller’s observation regarding her treatment
(or lack thereof) for her diabetes and the allegation that Burke became hypoglycemic –
but these observations were made during the discussion of Burke’s arrest, not her
treatment at the PADF. The events described on page 34 of Judge Miller’s September
30, 2010, Order form the basis for Burke’s claim regarding her arrest, and as stated
initially this claim will be allowed. However, with respect to Burke’s treatment while at
the PADF, Judge Miller found uncontroverted evidence established Burke “adequately

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Apparently, the statute – passed in 1986 – altered prior rulings of Colorado
courts holding that “a wrongful death claim must be filed within two years from the date
the [wrongful act] resulting in death is discovered, or in the exercise of reasonable
diligence should have been discovered, or within one year from such death, whichever
event is later.” Rauschenberger v. Radetsky, 745 P.2d 640, 643 & n.4 (Colo. 1987).
This case discussed the status of Colorado law before section 13-80-102(1)(d) applied.
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was able to communicate her medical needs and her current status regarding her
insulin status and need for food. Therefore, I conclude that writing was an equally
effective means of communication in this process.” September 30 Order at 37. Judge
Miller differentiated this issue from “the problems Burke had upon release,” but as
stated these issues are still in the case. Later, Judge Miller indicated he was denying
summary judgment “to the extent it is based on [Burke’s] treatment at the PADF,” but he
did so to preserve the claim insofar as it related to her release as he had already
specifically held the matter related to Burke’s treatment while in custody at the PADF
was no longer an issue.
The third issue is the matter of standing for Colorado Cross-Disability Coalition
(“CCDC”) and the Colorado Association of the Deaf (“CAD”). Judge Miller concluded
these entities have standing, but noted that “since standing is essential to the assertion
of the claims, Defendants are not precluded from raising this issue again.” September
30 Order at 41 & n.7. Events subsequent to Judge Miller’s ruling might change the
conclusion on this issue (for instance, a ruling in favor of Defendant on a particular
claim), but there have been no such events. The Court adheres to Judge Miller’s
conclusion that, presently, it appears these entities have standing to seek injunctive
relief. Of course, standing is a jurisdictional concept, and jurisdiction has to exist
throughout the case. E.g., Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006).2
Further development of the Record or future events may affect the analysis, but at
present – for the reasons stated by Judge Miller – it appears the entities have standing.
The Court nonetheless takes this opportunity to address some of Defendant’s
arguments. To have standing, an organization must demonstrate, inter alia, that one or
more of its members would otherwise have standing to sue. Defendant contends this is
not established, in part because (1) the individual plaintiffs in this case do not have
standing to seek injunctive relief and (2) the individual plaintiffs in this case have not
been shown to be members of CCDC or CAD. These points are irrelevant, as they

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The Court rejects Plaintiff’s intimation that the issue can somehow be waived.
Jurisdiction – including standing – is an issue that cannot be waived. E.g., City of
Colorado Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir. 2009).
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have no bearing on whether there are one or more members of these organizations who
would have standing. In this regard, Defendant contends there is no real or immediate
threat that anyone else will be subjected to the same treatment as the individual
plaintiffs, but this is a matter that cannot be decided in Defendant’s favor at this
juncture. See September 30 Order at 42.
The final issue to be addressed is the scope of injunctive relief that can be
sought. The Court noted that “the scope of injunctive relief that may be sought should
be limited to relief related to the individual plaintiff’s surviving claims. The Court
reaches this conclusion because there are no claims asserted independently by CCDC
or CAD.” Plaintiffs ask the Court to reserve any decision on this issue until the close of
evidence, which is the proper course. However, the Court’s initial observation is valid:
CCDC and CAD have no claims of their own. It is true they have asserted claims, but
the claims they have asserted are entirely dependent on the individual plaintiffs’ claims.
For instance, there is no longer a claim of failure to accommodate diabetic detainees at
the PADF because the only such claim – belonging to Burke – was disposed of on
summary judgment. While the scope of injunctive relief is dictated by the violation
established, there is no claim left in the case that permits establishment of a claim
regarding treatment of diabetic detainees, so it is impossible for CCDC and CAD to
obtain injunctive relief on such a claim.
Similarly, it seems that if Defendant prevails at trial with respect to the individuals’
claims, there remains nothing to support CCDC’s and CAD’s claim for relief. The
pleadings do not seem to justify a request for injunctive relief based on the treatment
previously suffered by other, unnamed individuals. If an individual plaintiff’s claim is
successful, the entities may be permitted to present additional evidence (for the Court’s
consideration, because the Court will decide the issue of injunctive relief). However,
CCDC and CAD have asserted no claim for liability – and hence, no claim for relief –
independent of the individual plaintiffs’ claims.

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With these additional explanations, the Court adheres to the summary set forth in
its August 24 Order. An order establishing deadlines in conjunction with the March
2012 trial will be issued shortly.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: October 13, 2011

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