Carbajal v. Warner et al

Filing 162

ORDER. Plaintiffs Combined Motion for Leave to Substitute Service Pursuant to Colo. R. Civ. P. Rule 4(f), Substitution of Parties Pursuant to Fed. R. Civ. P. Rule 25, and Unopposed Motion for Extension of Time to Respond to Rule 12 Motions 144 is DENIED. By Magistrate Judge Kristen L. Mix on 5/16/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
VICTORIA CARBAJAL, and
DEAN CARBAJAL,
Plaintiffs,
v.
SEVENTH JUDICIAL DISTRICT, a political subdivision of the State of Colorado,
DELTA COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of
the State of Colorado,
MYRL SERRA, former District Attorney of the Seventh Judicial District, in his individual
capacity,
SHERRI PRICE, Deputy District Attorney of the Seventh Judicial District, in her
individual and official capacities,
PATRICIA KRAMER, former Deputy District Attorney of the Seventh Judicial District, in
her individual capacity,
JEFF HERRON, private counsel, in his individual capacity,
STEVEN PATRICK, District Court Judge of the Seventh Judicial District, in his individual
and official capacities,
CHARLES GREENACRE, District Court Judge of the Seventh Judicial District, in his
individual and official capacities,
SANDRA MILLER, Magistrate/County Court Judge of the Seventh Judicial District, in
her individual capacity,
JAMES SCHUM, District Court Judge of the Seventh Judicial District, in his individual
and official capacities,
MANDY ALLEN, Court Clerk of the Seventh Judicial District, in her individual and official
capacities,
CAROL WARNER, Chief Probation Officer of the Seventh Judicial District, in her
individual and official capacities,
RICK MAHRE, Probation Officer of the Seventh Judicial District, in his individual and
official capacities,
DAVID ROMERO, Probation Officer of the Seventh Judicial District, in his individual and
official capacities,
JOE QUINTANA, Probation Officer of the Seventh Judicial District, in his individual and
official capacities,
UNKNOWN DELTA SHERIFF, in his individual and official capacities,
BILL RAILEY, Captain in the Delta Sheriff’s Department, in his individual and official
capacities,
CHRIS WELDON, Sergeant in the Delta Sheriff’s Department, in his individual and
official capacities,
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DEPUTY HATCH, Deputy Sheriff in the Delta Sheriff’s Department, in his individual and
official capacities,
B. WOLFE, Deputy Sheriff in the Delta Sheriff’s Department, in his individual and official
capacities,
BRIAN SHROEDER, Deputy Sheriff in the Delta Sheriff’s Department, in his individual
and official capacities,
CITY OF DENVER, a municipality of the State of Colorado,
DENVER CHIEF OF POLICE, in his individual and official capacities,
GILBERTO LUCIO, Detective in the Denver Police Department, in his individual and
official capacities,
LAURIE FREUND, Detective in the Denver Police Department, in her individual and
official capacities,
JAMES DIXON, Police Officer in the Denver Police Department, in his individual and
official capacities,
ADAM BARRETT, Police Officer in the Denver Police Department, in his individual and
official capacities,
SGT. SPEERMAN, Sergeant in the Denver Police Department, in his individual and
official capacities,
JOEL SMITH, Police Officer in the Denver Police Department, in his individual and
official capacities,
ABBEGAYLE DORN, Police Officer in the Denver Police Department, in her individual
and official capacities,
JESSE REMBERT, Police Officer in the Denver Police Department, in his individual and
official capacities,
JAY LOPEZ, Police Officer in the Denver Police Department, in his individual and official
capacities,
MICHAEL ONEILL, Police Officer in the Denver Police Department, in his individual and
official capacities,
BRIAN ONEILL, Police Officer in the Denver Police Department, in his individual and
official capacities,
JEFFREY WATTS, Senior Detective Investigator for the Second Judicial District, in his
individual and official capacities,
EDDIE GRUNINGER, Detective Investigator for the Second Judicial District, in his
individual and official capacities,
COLORADO DEPARTMENT OF CORRECTIONS, a political subdivision of the State of
Colorado,
UNKNOWN CORRECTIONAL OFFICER 1, Correctional/Parole Officer in the Colorado
Department of Corrections, in his individual and official capacities,
UNKNOWN CORRECTIONAL OFFICER 2, Correctional/Parole Officer in the Colorado
Department of Corrections, in his individual and official capacities,
CITY OF WESTMINSTER, a municipality of the State of Colorado,
UNKNOWN WESTMINSTER POLICE OFFICER 1, in his individual and official
capacities,
UNKNOWN WESTMINSTER POLICE OFFICER 2, in his individual and official
capacities,
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CITY OF ARVADA, a municipality of the State of Colorado,
ARVADA CHIEF OF POLICE, in his individual and official capacities,
PATRICK MEESTER, Police Officer in the Arvada Police Department, in his individual
and official capacities,
A.J. DEANDREA, Sergeant in the Arvada Police Department, in his individual and
official capacities,
JOURDAN LOPEZ-BASGALL, Police Officer in the Arvada Police Department, in his
individual and official capacities, and
GREGORY SULLIVAN, in his individual capacity, jointly and severally,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Combined Motion for Leave to
Substitute Service Pursuant to Colo. R. Civ. P. Rule 4(f), Substitution of Parties
Pursuant to Fed. R. Civ. P. Rule 25, and Unopposed Motion for Extension of Time to
Respond to Rule 12 Motions [Docket No. 144; Filed May 3, 2011] (the “Motion”). The
Motion contains three separate requests for relief. First, Plaintiffs request that they be
granted until June 15, 2011 to respond to Defendants’ pending motions to dismiss [Docket
Nos. 128, 135, 137, 141 & 142].1 On May 5, 2011, the Court ordered that Plaintiffs shall
file a response to each motion to dismiss on or before June 20, 2011. Minute Order
[Docket No. 150]. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ first request for relief is DENIED as moot.
Next, Plaintiffs seek to substitute Dan Hotsenpiller for Defendants Myrl Serra, Sherri
Price, and Patricia Kramer pursuant to Fed. R. Civ. P. 25. Plaintiffs represent that

1

The Court notes that Plaintiffs have already filed a Response [Docket No. 155] to
Defendant Sullivan’s Motion to Dismiss [Docket No. 128].

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Defendant Kramer has died and Defendants Serra and Price have left their positions in the
District Attorney’s Office for the Seventh Judicial District. Motion [#144] at 6. Plaintiffs
represent that Dan Hotsenpiller is the “acting and present District Attorney for the Seventh
Judicial District.” Id. Plaintiffs assert that because Defendants Kramer, Serra, and Price
held official positions in the District Attorney’s Office, Mr. Hotsenpiller is their successor
within the meaning of Fed. R. Civ. P. 25. There are two problems with Plaintiffs’ request
for substitution. First, Plaintiffs have only stated claims against Defendants Serra and
Kramer in their individual capacities. Second Amended Complaint [Docket No. 119] at 1
(naming Defendants Serra and Kramer as follows: “Myrl Serra, Former District Attorney of
the Seventh Judicial District, in his individual capacities [sic],” and “Patricia Kramer, Former
Deputy District Attorney of the Seventh Judicial District, in her individual capacity”). Fed.
R. Civ. P. 25 does not provide for substitution of a current public official for a defendant
former public official who is being sued only in his or her individual capacity.
Second, Plaintiffs state that Defendant Price was the “Deputy District Attorney of the
Seventh Judicial District,” Second Amended Complaint [#119] at 1, and Dan Hotsenpiller
is the “acting and present District Attorney for the Seventh Judicial District,” Motion [#144]
at 6. Based on these statements, it is clear that Mr. Hotsenpiller does not hold an official
position in the District Attorney’s Office that is identical or equivalent to the position formerly
held by Defendant Price. Moreover, Plaintiffs’ claims against Defendant Price in her official
capacity are treated as claims against the public entity for which she worked, the District
Attorney’s Office for the Seventh Judicial District. Kentucky v. Graham, 473 U.S. 159, 166
(1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official personally, for the real party in interest
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is the entity.”). Accordingly, there is no need to substitute Dan Hotsenpiller for Defendant
Price in her official capacity as doing so would have no effect on the analysis or outcome
of Plaintiffs’ claims. See Saleh v. Federal Bureau of Prisons, et al., No. 05-cv-02467-EWNKLM, Docket No. 196 at 9-12 (D. Colo. July 29, 2008) (unreported decision)
(Recommendation of United States Magistrate Judge). Further, Plaintiffs have separately
named the Seventh Judicial District as a Defendant. See id.; see also McLin v. City of
Chicago, 742 F. Supp. 994, 997 (N.D. Ill. 1990) (“Because the [entity] is already a
defendant, dismissing [the individual defendants in their official capacities] does not
prejudice plaintiffs, and it clarifies and streamlines the pleadings.”). The Court concludes
that Plaintiffs have adequately pled their claims against the Seventh Judicial District and
its District Attorney’s Office. Therefore,
IT IS FURTHER ORDERED that Plaintiffs’ second request for relief is DENIED.
Finally, Plaintiffs request that the Court order the Attorney General of Colorado to
accept service on behalf of Defendants Unknown Correctional Officers 1 and 2 and the City
Attorney for the City of Westminster to accept service on behalf of Defendants Unknown
Westminster Police Officers 1 and 2. These Defendants are being sued in their official and
individual capacities. The Court finds that ordering substitution of service is inappropriate
at this juncture. Plaintiffs will have the opportunity to identify the unknown Defendants
during the discovery process, which will commence after the Scheduling Conference. Once
these Defendants are identified, Plaintiffs must attempt to properly serve them.
Accordingly,
IT IS FURTHER ORDERED that Plaintiffs third request for relief is DENIED without

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prejudice.
As set forth above,
IT IS FURTHER ORDERED that the Motion [#144] is DENIED.

DATED: May 16, 2011

BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

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