Sisneros v. County of Pueblo et al

Filing 195

ORDER. The 168 , 169 motion for summary judgment is granted in part. The Court grants summary judgment to defendant Taylor on plaintiff's § 1983 claims and reserves judgment on the state law claims addressed in the motion. All of plainti ff's claims against defendants Pueblo County Sheriff's Office and Pueblo County Sheriff's Detention Center are dismissed. On or before 5/19/2011, the parties may file briefs not exceeding five pages on the question of whether this Court can and should retain supplemental jurisdiction over the remaining state law claims. By Judge Philip A. Brimmer on 5/9/11. (mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Case No. 09-cv-01646-PAB-MJW
GEORGE SISNEROS,
Plaintiff,
v.
OFFICE OF PUEBLO COUNTY SHERIFF,
KIRK M. TAYLOR, Pueblo County Sheriff,
PUEBLO COUNTY SHERIFF’S DETENTION CENTER,
JOHN and JANE DOE deputies and employees, (to be later specifically identified) of
Pueblo County Sheriff and Detention Center,
CORRECTIONAL HEALTHCARE MANAGEMENT, INC., a corporation authorized to
conduct business in the State of Colorado,
JOHN DOE (to be later specifically identified), individually and in his capacity as an
agent or employee of Correctional Healthcare Management, Inc.,
JANE DOE (to be later specifically identified), individually and in her capacity as an
agent or employee of Correctional Healthcare Management, Inc.,
JOHN/JANE DOE, physicians and medical treatment providers (to be later specifically
identified) at the Pueblo County Sheriff’s Detention Center,
CITY OF PUEBLO,
JAMES W. BILLINGS, JR., Chief of Police of Pueblo,
CATHOLIC HEALTH INITIATIVES COLORADO, d/b/a St. Mary-Corwin Medical Center
of Pueblo, Colorado,
PETER ELLIOTT, M.D., and
JOHN/JANE DOE physicians and medical treatment providers (to be later specifically
identified) at St. Mary-Corwin Medical Center,
Defendants.

ORDER

This matter is before the Court on the motion for summary judgment [Docket
Nos. 168, 169] filed by defendants Office of Pueblo County Sheriff, Kirk M. Taylor, and
Pueblo County Sheriff’s Detention Center. The motion is fully briefed and ripe for
disposition.

I. BACKGROUND
The following facts, unless otherwise indicated, are not in dispute. On July 18,
2007 at around 11:00 a.m., plaintiff began drinking in an alley in Pueblo, Colorado.
After drinking a 40-ounce bottle of beer, plaintiff entered the East Side Tavern, where
he drank “a couple of beers.” Docket No. 169 at 4, ¶ 2; Docket No. 175 at 2. Upon
leaving the East Side Tavern, plaintiff and a friend purchased and drank more alcohol
and went to the friend’s house from between 1:00 p.m. and 2:00 p.m. Plaintiff then
returned to the alley near the East Side Tavern and may have passed out in the alley
for some period of time upon his return.
Shortly before 10:00 p.m. that evening, an unidentified man offered plaintiff a
two-inch folding knife. Plaintiff, who was still intoxicated at the time, put the knife in his
pocket and then attempted to enter the East Side Tavern. Dwayne Williams, who
worked at the East Side Tavern, would not permit plaintiff to enter the bar, at which time
plaintiff pulled out the knife and pointed it at Mr. Williams. Mr. Williams went back
inside the East Side Tavern, and plaintiff walked over to and leaned against a nearby
building.1
Shortly after 10:00 p.m. that evening, defendant Ronald Oreskovich, a police
officer for the City of Pueblo, received a dispatch that plaintiff was “in front of the East
Side Tavern waving a knife around.” Docket No. 169 at 5, ¶ 14; Docket No. 175 at 2.
Oreskovich arrived at the East Side Tavern a few moments later and recognized
1

Plaintiff disputes this fact to the extent it is based upon what Officer Ronald
Oreskovich, who arrived shortly thereafter, “saw or believed.” Docket No. 175 at 2.
Plaintiff, however, does not dispute that he was leaning against a nearby building or cite
evidence to the contrary.
2

plaintiff.2 Oreskovich saw plaintiff holding a paper bag in his hand in which he
suspected there was a beer can.3 Oreskovich claims that he also saw what he thought
was a knife in plaintiff’s left hand.4 Oreskovich drew his firearm with his right hand and
aimed it at plaintiff. He approached plaintiff while giving loud commands for plaintiff to
drop what he had in his hand. Plaintiff did not comply. Rather, he turned so that his left
hand was by his side, hidden from Oreskovich’s view, and began walking away from
Oreskovich.5 Oreskovich “used his left hand to grab [plaintiff] by his right shoulder and
forcefully pushed him to the ground.” Docket No. 169 at 6; Docket No. 175 at 2. As
plaintiff was falling to the ground, Oreskovich also saw a knife fall to the ground.
Oreskovich put his left knee on plaintiff’s back to restrain him. Oreskovich saw
blood on the ground and that plaintiff had injured his face and, therefore, radioed a
request for medical assistance. An ambulance transported plaintiff to the hospital.
Plaintiff does not recall being transferred to the hospital. Upon waking up in the
hospital emergency room, plaintiff felt numb and that his legs were not functioning
properly.
After interviewing witnesses at the East Side Tavern, Oreskovich went to the
hospital, intending to charge plaintiff with felony menacing. Upon arrival, Oreskovich

2

Plaintiff disputes this fact to the extent it is based upon what Oreskovich “saw or
believed,” but does not specifically dispute that Oreskovish recognized him or offer
evidence to refute what Oreskovish testified he saw. Docket No. 175 at 2.
3

See supra n.1 & n.2.

4

See supra n.1, n.2 & n.3.

5

Plaintiff does not dispute that he moved in this manner. He does dispute that he
was “‘hiding’ an object in his hand from Officer Oreskovich.” Docket No. 175 at 2.
3

learned that plaintiff had been treated for a laceration above his right eye. Medical
personnel determined that plaintiff had a blood alcohol level of 0.336 percent. At about
1:20 a.m. on July 19, 2007, the hospital cleared plaintiff for discharge and a nurse
wheeled plaintiff to Oreskovich’s patrol car and helped plaintiff get in the back seat with
his hands cuffed in front of him. Plaintiff does not recall leaving the hospital.
Oreskovich called dispatch to inform the Pueblo County Sheriff’s Office Detention
Center that plaintiff would need assistance getting out of the patrol car. Oreskovich and
plaintiff arrived at the detention center shortly after 1:30 a.m., where multiple sheriff’s
deputies removed plaintiff from the car and transported him into the jail.
Once inside the jail, plaintiff was searched and placed in a chair while he was
processed.6 Because plaintiff was intoxicated and not moving his legs, deputies
dragged him into a holding cell and dropped him on the floor, resulting in a cut to
plaintiff’s left eye.7 Nurses at the jail examined plaintiff’s cut and then plaintiff was taken
back to the hospital for treatment. A hospital employee told one of the deputies that
there was nothing wrong with plaintiff. After having the laceration over his eye treated,
plaintiff was medically cleared by hospital personnel and returned to the jail.

6

Plaintiff had been brought to the jail approximately 50 prior times. Occasionally,
he was permitted to sleep in the jail until he was sober, when he would be released.
7

Defendants contend that they dropped him inadvertently. Plaintiff disputes that
it was inadvertent. Furthermore, in support of his claims, plaintiff relies upon an earlier
act of the deputies permitting him to fall to the ground. See Docket No. 175 at 11.
Plaintiff did not provide his own statement of undisputed facts or cite the record in
support of these contentions. The events described, however, are revealed by the
videotape supplied by defendants. For the reasons stated below, the acts of the
deputies, without the submission of any other evidence, is insufficient to overcome the
present motion for summary judgment by their supervisor, defendant Taylor.
4

Upon his return to the jail at approximately 3:00 a.m., two deputies placed
plaintiff in a wheelchair, moved him into a holding cell, and placed him reclining against
a wall. Around 5:30 or 6:00 p.m., plaintiff informed a deputy that he could not walk.8
The deputy attempted to assist plaintiff to stand. When he could not, she immediately
called for medical assistance. Plaintiff, who was still intoxicated at the time, was
assessed at the jail clinic and then transported in a neck collar and backboard to a
different hospital than where he was treated the evening before, arriving at
approximately 6:30 p.m. At the hospital, plaintiff was diagnosed with central cord
syndrome which has resulted in plaintiff being paralyzed.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and

8

In response to the motion, plaintiff argues that, “[a]t 11:00 a.m., the Detention
Center’s lay medical agents noted Plaintiff’s complaint that his legs, feet and arms were
numb and that all morning long he had been unable to move.” Docket No. 175 at 13.
Plaintiff, however, did not contest the defendants’ recitation of the chronology, provide
his own statement of undisputed facts, or cite the record in support of his argument.
5

preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
III. DISCUSSION
As a preliminary matter, defendants Office of Pueblo County Sheriff and Pueblo
County Sheriff’s Detention Center contend that, because they are not separate entities
from the elected Pueblo County Sheriff, defendant Taylor, all claims must be dismissed
against them, which plaintiff does not dispute. The Court, therefore, will dismiss all
claims against defendants Pueblo County Sheriff’s Office and Pueblo County Sheriff’s
Detention Center. The following discussion will therefore be limited to plaintiff’s claims
against defendant Taylor.
A. Federal Law Claims
In the motion for summary judgment, defendant Taylor seeks summary judgment
on plaintiff’s claims of excessive force brought pursuant to 42 U.S.C. § 1983. In regard
to plaintiff § 1983 claims, defendant Taylor asserts the defense of qualified immunity.
Upon a public official’s assertion of a qualified immunity defense, plaintiff bears a
“heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque, 549 F.3d
1269, 1277 (10th Cir. 2008). Under the first prong of the analysis, the plaintiff is
required to “establish that the defendant’s actions violated a constitutional or statutory

6

right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of
whether a violation occurred under the first prong of the qualified immunity analysis
turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights,
509 F.3d 1278, 1282-83 (10th Cir. 2007).
Under the second prong, the plaintiff must show that the right at issue was
“clearly established” at the time of the defendant’s alleged misconduct. Saucier v. Katz,
533 U.S. 194, 201 (2001). “A plaintiff can demonstrate that a constitutional right is
clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or
the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th
Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)) (internal
quotation marks omitted).9 However, “contrary authority from other circuits does not
preclude a finding that the law in this circuit was clearly established, if the contrary
authority can be distinguished.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001).
The Court may exercise its discretion “in deciding which of the two prongs of the

9

In Prison Legal News, Inc. v. Simmons, 401 F. Supp. 2d 1181, 1189-90 (D. Kan.
2005), the court noted that the quoted language “from other circuits” appears to be a
misquote of the Tenth Circuit’s decision in Medina v. City and County of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992), where the court used the language “from other
courts.” That misquote first appeared in Murrell v. School District No. 1, Denver, Colo.,
186 F.3d 1238, 1251 (10th Cir. 1999), and has since appeared repeatedly in Tenth
Circuit cases. The Prison Legal News court, though concluding that the “misquote was
merely a scrivener's error” and was not meant as a substantive change to the legal
standard, added that “the fact that this error has not been discussed in a reported case
from the Tenth Circuit suggests that the error may not be very significant.” 401 F.
Supp. 2d at 1191. “In other words, although the circuit may be willing to consider cases
from courts beyond the federal appellate courts, the focus should normally be on cases
decided by other circuits.” Id.
7

qualified immunity analysis should be addressed first in light of the circumstances.”
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009).
Here, the Court will begin by addressing whether plaintiff has identified evidence
that defendant Taylor violated his constitutional rights. Plaintiff’s excessive force claims
arise out of the force applied by defendant Taylor’s subordinates. Plaintiff does not
contend that defendant Taylor had any interaction with him. Therefore, in order to
proceed against defendant Taylor, plaintiff must identify evidence connecting Taylor to
the conduct at issue, as personal participation is an essential allegation in a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).
To establish personal participation by defendant Taylor, there must be evidence
that he caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). In other words, there must be an affirmative link between the alleged
constitutional violation and defendant Taylor’s participation, control or direction, or
failure to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.
1993). Defendant Taylor may not be held liable for the unconstitutional conduct of his
subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, --- U.S. ----,
129 S. Ct. 1937, 1948 (2009). The record must contain evidence that would permit a
jury to find “not only that the official’s subordinates violated the Constitution, but that the
official by virtue of his own conduct and state of mind did so as well.” Dodds v.
Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949).
Therefore, in order to succeed in a § 1983 suit against a government official for conduct
that arises out of his or her supervisory responsibilities, a plaintiff must allege and

8

demonstrate that: “(1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish the
alleged constitutional deprivation.” Id. at 1199. Here, plaintiff relies entirely upon the
conduct of the deputies and attempts to infer participation by Taylor from such
conduct.10 He points to no evidence, however, that defendant Taylor either
“promulgated, created, implemented or possessed responsibility for the continued
operation of a policy” that resulted in the force applied or that he “acted with the state of
mind required to establish the alleged constitutional deprivation.”
Plaintiff argues that “the policy of inadequately training or supervising law
enforcement officers may serve as a basis for § 1983 liability, where the failure to train
or supervise amounts to ‘deliberate indifference.’” Docket No. 175 at 7 (citing City of
Canton v. Harris, 489 U.S. 378, 385 (1989)).
In order to prevail on a claim against a municipality for failure to train its
police officers in the use of force, a plaintiff must first prove that the training
was in fact inadequate, and then satisfy the following requirements: (1) the
officers exceeded constitutional limitations on the use of force; (2) the use
of force arose under circumstances that constitute a usual and recurring
situation with which police officers must deal; (3) the inadequate training
demonstrates a deliberate indifference on the part of the city toward persons
with whom the police officers come in contact; and (4) there is a direct causal
link between the constitutional deprivation and inadequate training.
Rossiter v. Robinson, 716 F. Supp. 2d 1018, 1027 (D. Colo. 2010) (citing Carr v. Castle,
337 F.3d 1221, 1228 (10th Cir. 2003)); cf. Seybold v. Cooke, No.
10

Plaintiff has never brought the deputies involved into this case, having only
named “John/Jane Doe deputies and employees (to later be specifically identified) of
Pueblo County Sheriff and Detention Center” as defendants. See Docket No. 94 (Third
Amended Complaint) at 1.
9

08-cv-00916-DME-MJW, 2010 WL 685798, at *10 (D. Colo. Feb. 23, 2010) (“As to her
claim against the Sheriff in his official capacity, the Court will treat that claim as one
against a local government entity.”).
Plaintiff has identified no evidence that the “training was in fact inadequate,” that
such training demonstrates a “deliberate indifference” on the part of defendant Taylor,
or that it was causally linked to the alleged violation. In fact, there is absolutely no
evidence regarding the nature of training received by the deputies in this case or
defendant Taylor’s supervision of his employees. Plaintiff simply speculates, and
supplies an expert report doing the same,11 that the conduct of the deputies establishes
that they were inadequately trained and supervised. Cf. City of Canton, Ohio v. Harris,
489 U.S. 378, 387 (1989) (“Nor, without more, would a city automatically be liable under
§ 1983 if one of its employees happened to apply the policy in an unconstitutional
manner, for liability would then rest on respondeat superior.”). It is insufficient,
however, to simply identify potential violations by subordinates. In the absence of any
evidence of personal participation by defendant Taylor or regarding any failure to train

11

Plaintiff has submitted an expert affidavit of Mark Pogrebin, Ph.D., a professor
of criminal justice and public affairs at the University of Colorado at Denver. See
Docket No. 175-1. Pogrebin opines that the deputies used excessive force and that
“their use of excessive force so openly conducted and without any fear for
organizational discipline leads this expert to believe that such unsupervised excessive
use of forceful behavior with inmates is condoned by the jail’s administration.” Docket
No. 175-1 at 3-4, ¶ 29. First, this again attempts to infer involvement by defendant
Taylor from nothing more than the use of force by the deputies. This is a thinly veiled
attempt to support liability on a respondeat superior theory. Furthermore, and in any
event, Pogrebin cites no evidence that the deputies were not in fact disciplined. There
is simply no evidence regarding what sort of training the deputies received prior to the
incident or what occurred afterward that would support an inference of involvement by
defendant Taylor.
10

or supervise by defendant Taylor, plaintiff may not proceed on his excessive force
claims against him in either his individual or official capacities.12 And, in light of that
failure to identify evidence of a constitutional violation by defendant Taylor, there is no
need to address whether the alleged violation was clearly established at the time.
B. State Law Claims
Plaintiff has also brought what he has described as “State Law Claims” against
defendant Taylor for “willful and wanton assault, battery, brutality and outrageous
conduct.” Docket No. 94 at 13, ¶ 60. Furthermore, the only other remaining claims in
this case are state law claims against other defendants. Pursuant to 28 U.S.C.
§ 1367(a), the Court has supplemental jurisdiction over these state law claims, but “may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if,” as is
the case here, “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3).
As a general proposition, “[p]endent jurisdiction is exercised on a discretionary
basis, keeping in mind considerations of judicial economy, convenience and fairness to
the litigants.” Bauchman v. West High School, 132 F.3d 542, 549 (10th Cir. 1997). In
the specific context of § 1367(c)(3), however, the Tenth Circuit has concluded that, “[i]f
federal claims are dismissed before trial, leaving only issues of state law, ‘the federal
12

In City of Canton, the Supreme Court stated that, “[i]n virtually every instance
where a person has had his or her constitutional rights violated by a city employee, a
§ 1983 plaintiff will be able to point to something the city ‘could have done’ to prevent
the unfortunate incident.” City of Canton, 489 U.S. at 392 (citations omitted). The
Supreme Court sought to avoid “engag[ing] the federal courts in an endless exercise of
second-guessing municipal employee-training programs.” Id. Here, even assuming the
Court were permitted to engage in such second guessing, plaintiff provides no evidence
upon which any such scrutiny could be based.
11

court should decline the exercise of jurisdiction by dismissing the case without
prejudice.’” Id. (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988)).
The reason courts should dismiss such claims is that “‘[n]otions of comity and
federalism demand that a state court try its own lawsuits, absent compelling reasons to
the contrary.’” Id. at 1230 (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995)).
A court’s exercise of discretion, it would seem, is limited to determining whether
compelling reasons justify retaining jurisdiction. In Kosak v. Catholic Health Initiatives
of Colo., 2009 WL 3497782 (D. Colo. Oct. 28, 2009), the court retained supplemental
jurisdiction over state claims, weighing the “values of judicial economy, convenience,
fairness, and comity,” and granted summary judgment on all the pending federal and
state claims. Id. at *7-8 (citing City of Chicago v. International College of Surgeons,
522 U.S. 156, 173 (1997)). The Kosak court concluded that, “[i]f this Court remands the
action and does not address the substantive merits of the summary judgment motion –
a motion on which the Court is otherwise prepared to rule – both parties would be
disadvantaged by the inevitable delay that would almost certainly result from remand.”
Id. at *8. In this case, where the Court is prepared to rule on defendant Taylor’s
pending summary judgment motion on the state law claims, but where the state law
claims against the remaining defendants are not ripe for resolution, traditional
considerations of judicial economy do not clearly justify the exercise of supplemental
jurisdiction. In any event, recent opinions of the Tenth Circuit appear to foreclose the
Court from considering such factors as compelling reasons to retain jurisdiction. See
Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010); Endris v. Sheridan County

12

Police Dep’t, 2011 WL 441694 (10th Cir. Feb. 9, 2011) (unpublished).
In Brooks, after reaffirming that courts have discretion to determine whether to
exercise supplemental jurisdiction after dismissal of all federal claims, the court affirmed
the district court’s dismissal of the federal claims but reversed the district court’s
granting of summary judgment on state law claims. See Brooks, 614 F.3d at 1230.
Arguably, the Brooks decision was motivated by the fact that a potentially difficult
question of state law was presented by the case. See id. (concluding that the state law
claims where best left to the state court “including whether Colorado Revised Statute §
13-80-119 and/or § 18-1-707, as applied specifically to peace officers, require either
objective or subjective reasonable force”). But, since the Brooks decision, the Tenth
Circuit concluded in Endris that “any state-law claims for assault and battery or mental
and emotional distress were inappropriate subjects for the exercise of pendent
jurisdiction where all federal claims had been dismissed.” Endris, 2011 WL 441694, at
*2 (citing Brooks, 614 F.3d at 1229) (footnote omitted) (emphasis added). The Endris
court made no mention of either the complexity or novelty of those state law claims.
Furthermore, and in any event, complexity and novelty are independent bases for
declining to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(1).
In short, it is far from clear what, if any, discretion the Court retains to exercise
jurisdiction over the state law claims in this case. At least one commentator has stated
that “there is a substantial caselaw, handed down in a variety of situations, suggesting
in the aggregate that [when § 1367(c)(3) applies] judicial discretion is a particularly
important element. Here the ‘may’ in ‘may decline’ has a major role to play.” See David

13

D. Siegal, Commentary on 1988 Revision: The 1990 Adoption of § 1367, Codifying
“Supplemental” Jurisdiction, 28 U.S.C.A. § 1367, at 766 (2006).13 However, the Tenth
Circuit’s application of § 1367(c)(3) in Brooks and Endris suggests precisely the
opposite is true.
Here, the federal claims have been dismissed and a trial has yet to be scheduled
on the remaining state law claims. Consequently, even if potential delay were still a
valid consideration when determining whether to exercise supplemental jurisdiction
pursuant to § 1367(c)(3), it is not at all clear that dismissal of the state law claims
without prejudice will delay their ultimate resolution.14 However, the Court will permit
the parties to brief the issue, addressing the question of whether any compelling reason
consistent with the Brooks and Endris decisions supports the continued exercise of
supplemental jurisdiction in this case.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the motion for summary judgment [Docket Nos. 168, 169] filed
by defendants Office of Pueblo County Sheriff, Kirk M. Taylor, and Pueblo County

13

See id. (“The House Report of the Committee on the Judiciary (Report 101734, p. 29) said of subdivision (c) that it requires the district court, in exercising
discretion, to undertake, as it did under prior law, ‘a case-specific analysis.’”).
14

Cf. Brooks, 614 F.3d at 1230 (“Colorado law recognizes if a plaintiff asserts all
of his or her claims, including state law claims, in federal court, and the federal court
declines to exercise supplemental jurisdiction over the state claims, the plaintiff may
refile those claims in state court.”) (citations, quotation marks and alterations omitted);
see 28 U.S.C. § 1367(d) (providing that the state law statute of limitations “shall be
tolled while the claim is pending and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period”).
14

Sheriff’s Detention Center is GRANTED in part. The Court grants summary judgment
to defendant Taylor on plaintiff’s § 1983 claims and reserves judgment on the state law
claims addressed in the motion. It is further
ORDERED that all of plaintiff’s claims against defendants Pueblo County
Sheriff’s Office and Pueblo County Sheriff’s Detention Center are dismissed. It is
further
ORDERED that, on or before Thursday, May 19, 2011, the parties may file
briefs not exceeding five pages on the question of whether this Court can and should
retain supplemental jurisdiction over the remaining state law claims.

DATED May 9, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

15