Sisneros v. County of Pueblo et al

Filing 229

ORDER denying 206 Defendant Ronald M. Oreskovich's Motion for Entry of Judgment for Costs and Fees C.R.S. § 24-10-110(5)(c), as set forth in this order, by Magistrate Judge Michael J. Watanabe on 1/6/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-01646-PAB-MJW
GEORGE SISNEROS,
Plaintiff,
v.
COUNTY OF PUEBLO,
OFFICE OF PUEBLO COUNTY SHERIFF,
KIRK M. TAYLOR, Pueblo County Sheriff,
PUEBLO COUNTY SHERIFF’S DETENTION CENTER,
JOHN/JANE DOE deputies and employees (to be later specifically identified)
of Peublo 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 by and through its POLICE DEPARTMENT,
JAMES W. BILLINGS, JR., CHIEF OF POLICE OF PUEBLO,
OFFICER RONALD M. ORESKOVICH,
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 REGARDING
DEFENDANT RONALD M. ORESKOVICH’S MOTION FOR ENTRY OF JUDGMENT
FOR COSTS AND FEES UNDER C.R.S. § 24-10-110(5)(C)
(DOCKET NO. 206)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant Ronald M. Oreskovich’s Motion for

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Entry of Judgment for Costs and Fees Under C.R.S. § 24-10-110(5)(c) (docket no. 206).
The court has reviewed the subject motion (docket no. 206), the response (docket no.
223), and the reply (docket no. 227). In addition, the court has taken judicial notice of
the court’s file and has considered applicable Federal Rules of Civil Procedure and case
law. The court now being fully informed makes the following findings of fact,
conclusions of law, and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That on June 10, 2011, a Final Judgment was entered in this case.
Judge Brimmer granted Defendant Ronald M. Oreskovich’s Motion
for Summary Judgment filed May 12, 2010, and plaintiff’s claims
against Defendant Ronald M. Oreskovich were dismissed. See
docket no. 205;

5.

That Defendant Oreskovich is the prevailing party for the purposes
of Fed. R. Civ. P. 54(d)(1). See also Price v. Cochran, 66 Fed.
Appx. 781, 790-91 (10th Cir. May 12, 2003) (upholding an award of
costs under Fed. R. Civ. P. 54(d)(1) against plaintiff in favor of
defendants where defendants were granted summary judgment on

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all of plaintiff’s 42 U.S.C. § 1983 civil rights claims);
6.

That on August 9, 2011, the Clerk of Court taxed costs in favor of
Defendant Oreskovich and against Plaintiff Sisneros in the amount
of $4,323.74. See docket no. 226. Therefore, to the extent that
Defendant Oreskovich seeks costs in the subject motion (docket
no. 206), that portion of the motion should be denied as moot;

7.

That Plaintiff filed his Original Complaint on July 10, 2009 [docket
no. 1]. He filed a First Amended Complaint on July 27, 2009
[docket no. 6], followed by a Second Amended Complaint on
November 30, 2009 [docket no. 77], and a Third Amended
Complaint on December 30, 2009 [docket no. 94];

8.

That Defendant Officer Ronald M. Oreskovich is a peace officer as
defined in § 16-2.5-105, C.R.S.; and

9.

That Plaintiff’s state-law claims against the law enforcement
Defendants including Defendant Oreskovich are stated in his Third
Claim for Relief in the Third Amended Complaint [docket no. 94],
where he alleged the torts of “willful and wanton assault, battery,
brutality and outrageous conduct.” (docket no. 94 at 13, ¶ 60).
Such claims are consistent with common law torts in Colorado.
See Bohrer v. DeHart, 943 P.2d 1220, 1224 (Colo. App. 1996).
The only reference in Plaintiff’s Third Amended Complaint [docket
no. 94] for “exemplary damages” is contained in the concluding
paragraph in the Third Amended Complaint [docket no. 94] where

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Plaintiff requests entry of judgment in his favor and seeks awards
including compensatory damages, “exemplary damages,” costs and
attorney fees.

I find that Defendant Oreskovich’s request for attorney fees is
governed by the Liability for Peace Officers Act (“LPOA”), § 29-5111, C.R.S., and not the Governmental Immunity Act (“GIA”), § 2410-110 (5)(c), C.R.S. See Brown v. Gray, 227 F.3d 1278, 1294
(10th Cir. 2000). The LPOA does not have a fee-shifting provision
with respect to an unsuccessful plaintiff except for § 29-5-111(1),
C.R.S, which requires a “reserve” peace officer to reimburse a
municipality for the costs of his defense, if the reserve officer is
shown to have acted willfully and wantonly or otherwise outside the
scope of his duties. See id. at 1294. Defendant Oreskovich,
however, is not a reserve peace officer;

I also find that the “exemplary damages” reference in the
concluding paragraph of the Third Amended Complaint [docket no.
94] is not a claim for relief under Fed. R. Civ. P. 8(a)(2) and is not
an actionable claim for exemplary damages under § 13-21102(1.5)(a), C.R.S. Moreover, even if § 24-10-110(5)(c), C.R.S.,
were applicable to this factual situation, the Plaintiff did not seek or
obtain leave of court to plead a state-law claim for exemplary

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damages as required under § 13-21-102(1.5)(a), C.R.S., and
therefore Defendant Oreskovich’s request for attorney fees as
provided in subsection § 24-10-110(5)(c) is without merit;
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Defendant Ronald M. Oreskovich’s Motion for Entry of
Judgment for Costs and Fees C.R.S. § 24-10-110(5)(c) [docket no.
206] is DENIED; and

2.

That each party shall pay their own attorney fees and costs for this
motion.
Done this 6th day of January, 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE