Barrientos-Sanabria v. Lake County, Colorado et al

Filing 82

ORDER; Defendants' 80 Motion for Partial Summary Judgment is DENIED, by Magistrate Judge Kristen L. Mix on 12/5/2012.(klmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00838-KLM
OSVALDO BARRIENTOS-SANABRIA,
Plaintiff,
v.
EDWARD HOLTE, in his individual and official capacity,
ROD FENSKE, in his official capacity,
ANTONIO LOBATO, in his individual and official capacity, and
AARON D’MIZE, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Partial Summary
Judgment [Docket No. 80; Filed December 3, 2012] (the “Motion”). Plaintiff has not filed
a response but the deadline for doing so has not expired.1
Defendants seek summary judgment on Plaintiff’s excessive force claim. They
contend that because Plaintiff does not intend to call any medical witnesses at trial, treating
or expert, he cannot prove medical causation or the extent of the internal injuries he has
alleged. [#80] at 4-7. They further argue that without medical testimony he cannot
establish that the condition of his wrists from handcuffing rose to the level of an actual
injury. Id.
A jury trial in this matter is set to begin less than one week from now, on December
10, 2012. The dispositive motion deadline was March 20, 2012. [#25] at 6. Defendants
1

The Court may rule on a motion at any time after it is filed. D.C.COLO.LCivR 7.1C.

have not sought leave to amend the deadline or to file an untimely summary judgment
motion. They simply assert that they could not have presented this issue sooner because
they just recently learned that Plaintiff does not intend to call any medical witnesses at trial.
[#80] at 1. The e-mails attached to the Motion, however, show that Plaintiff informed
Defendants of his intention not to call any medical witnesses on November 9, 2012, 23
days before Defendants filed the instant Motion. [#80-1] at 1. Defendants fail to offer any
reason for waiting 23 days to file the Motion. Moreover, Plaintiff may testify regarding his
alleged injuries. Expert medical testimony is not a prerequisite to recovery on an excessive
force claim. See Lynch v. L’Oreal USA S/D, Inc., No. 1:11-cv-01343-RBJ-MWJ, 2012 WL
4356231, at *3 (D.Colo. 2012) (citing Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir. 1957)
which held that “a lay witness is competent to testify concerning those physical injuries and
conditions which are susceptible to observation by an ordinary person.”). Accordingly,
IT IS HEREBY ORDERED that the Motion [#80] is DENIED.
Dated: December 5, 2012