Bauman v. Teller County, Colorado et al
MEMORANDUM OPINION AND ORDER: the Cripple Creek Defendants' Combined Motion for Summary Judgment 42 is granted. Defendant April Peterson and Defendant City of Cripple Creek shall be dismissed from this civil action, by Judge Richard P. Matsch on 3/18/2014. (rpmcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 12-cv-2735-RPM
TELLER COUNTY, COLORADO,
THE CITY OF CRIPPLE CREEK, COLORADO,
MIKE ENSMINGER, Teller County Sheriff, in his individual and official capacity,
STAN BISHOP, Teller County Undersheriff, in his individual and official capacity,
JOSH WEATHERILL, Teller County Sheriff’s Office Deputy and Member of Teller County
Emergency Response Team, in his individual and official capacity,
NICK HARTBAUER, Teller County Sheriff’s Office Deputy and Member of Teller County
Emergency Response Team, in his individual and official capacity,
JESSE BAKER, Tactical Medic of the Teller County Emergency Response Team, in his
individual and official capacity, and
APRIL PETERSON, Cripple Creek Chief of Police, in her individual and official capacity,
MEMORANDUM OPINION AND ORDER
Plaintiff Paul Bauman claims damages for injuries sustained when Teller County
Sheriff’s Deputies stormed a van Bauman was sleeping in, forced him out and onto the
ground, flex-cuffed him, and made him remain on the ground even though he had vomited
and was experiencing discomfort from his pacemaker. Bauman brings this action pursuant to
42 U.S.C. § 1983 and asserts three Fourth Amendment claims against all Defendants in
connection with the incident:
(1) unlawful entry; (2) excessive force; and (3) false
arrest/unlawful seizure. [Doc. 1 at 10-20.]
The Cripple Creek Defendants are the City of Cripple Creek and April Peterson, who was
a Sergeant with the Cripple Creek Police Department during the events in question, and is
now the Cripple Creek Chief of Police. Bauman claims that she is liable as a supervisor
because she set in motion the series of events that led to the constitutional violations, and that
she is liable for failing to intervene because she was in close enough proximity to Bauman to
see the actions of the Teller County Sheriff’s Deputies and did nothing to stop them.
Bauman premises the City of Cripple Creek’s liability upon its alleged failure to adequately
train its police officers, upon Peterson’s actions during the incident as the final municipal
decision-maker, and upon an unconstitutional practice or custom.
Peterson has moved for summary judgment, claiming qualified immunity. The City of
Cripple Creek also seeks summary judgment and claims that municipal liability should not
attach because there is no evidence in the record linking Bauman’s injuries to a municipal
policy or practice.
A. Undisputed Facts
On October 19, 2010, the City of Cripple Creek Police Department was notified of a
large firearm theft at a home within the City; 62 long guns (two of them .50 caliber and one
having a computerized sighting system), 24 handguns, and over 10,000 rounds of
ammunition were reported missing. At the time, the then-Chief of Police for Cripple Creek
was on vacation. Sergeant April Peterson responded to the call. Peterson contacted the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to assist the investigation.
The next day, Peterson was at the house where the firearms and ammunition had been
stolen when Thomas Graham approached her.
Peterson knew Thomas Graham was a
convicted felon with domestic violence charges, drug charges, weapons offenses/violations,
and charges of making false reports to law enforcement; and that he had a reputation for
intoxication with a history of fighting law enforcement and possessing weapons. Peterson
also knew that Graham had occasionally provided useful information to police.
During their conversation at the house, Graham told Peterson that he had been contacted
to buy guns that he believed were related to the theft. Graham would not identify who
contacted him, but told Peterson he could “make this happen.” Then, ATF Agents Greg
Cooper and Peter Merenyi arrived. Graham became skittish and immediately left.
Graham called Peterson shortly thereafter and told her that he was going to set a “drop”
meeting with the people who contacted him. Graham told Peterson that the meeting would
happen at 9:00 p.m. at his RV. Peterson said that the location was too dangerous and that the
meeting should not occur in the City of Cripple Creek. Graham said he would change the
location. Peterson thought Graham sounded agitated and excited during the conversation.
Peterson then contacted the Teller County Sheriff’s Office to inform them of her
conversations with Graham and to ask for assistance. Peterson advised the Sheriff’s Office
that Graham had changed the plan regarding the “drop” several times, and that she and the
ATF Agents had started to wonder if Graham himself had the guns. Peterson also said that
Teller County’s tactical team may be needed because there was not enough manpower to
cover the scene of the “drop” meeting, which potentially involved a dozen people and a large
quantity of firearms and ammunition.
Teller County Undersheriff Stanley Bishop told
Peterson that the Teller County Emergency Response Team (“ER Team”) was on its way and
would assemble at the Cripple Creek Police Department.
Around 5:00 p.m., Graham called Peterson and told her there was “a problem” and that
he needed to speak with her at a nearby casino. Peterson went to the casino but Graham did
not appear. Meanwhile, the ATF Agents and Cripple Creek Police Officers Parks and
Bausman were conducting surveillance on the dirt lot where Graham’s RV was parked. A
silver van was also parked in the lot. Around the time Graham was supposed to be meeting
Peterson at the casino, the observing officers saw Graham arrive at the lot, go to the silver
van, open the door, and go inside. The officers believed Graham was highly intoxicated,
based on his movements. A few minutes later, Graham’s girlfriend left the RV and sat in the
van; she was looking around the lot, leading the officers to suspect she was acting as a lookout. It is unclear how long Graham and his girlfriend were in the van. They exited the van
along with another male (later identified as Bauman), who walked with them to the RV, and
then returned to the van and appeared to go to sleep. Officer Bausman communicated this
information to Peterson by telephone; Peterson then relayed it to Teller County Sheriff Mike
Ensminger and Undersheriff Bishop. Peterson also told Ensminger and Bishop that there
was a possibility that weapons could be in the van.
Around dusk, Peterson, Sheriff Ensminger, Undersheriff Bishop, and members of the
Teller County ER Team arrived in the vicinity of the dirt lot where Graham’s RV and the
silver van were parked. Peterson, Ensminger, Bishop, Deputy Sheriff Joshua Weatherill (the
senior member of the Teller County ER Team), and the ATF Agents conferred about their
plan of action. At about 6:30 p.m., it was decided (who decided is in dispute) that Peterson,
Bishop, ATF Agent Merenyi and another Cripple Creek officer would go to the RV and talk
to Graham to determine why he did not show up to meet Peterson at the casino; check on his
physical safety; and see if he had any other information regarding the firearm theft. It was
further decided (again, it is disputed who decided) that the Teller County ER Team members
would “cover” (the meaning of which is disputed) the silver van while the conversation with
Graham took place.
Deputy Weatherill instructed the other ER Team members regarding
Peterson did not directly provide orders or instructions to Deputy
Weatherill or the Teller County ER Team.
As Peterson and others approached the RV, Deputy Michael Romero saw Graham’s
girlfriend at the window and asked to see her hands. She did not comply. Several Teller
County deputies entered the RV, engaged in a short altercation with Graham, and eventually
handcuffed and removed him from the RV.
At the same time, Deputies Weatherill and Nick Hartbauer and two other Teller County
ER Team members approached the silver van.
Weatherill and Hartbauer gave oral
commands to the individual later identified as the Bauman to show his hands. Bauman did
so. Weatherill then commanded Bauman to exit the vehicle. Bauman did not comply.
Weatherill and Hartbauer entered the van, grasped Bauman by his wrists, and forced him out
of the back of the van and onto the ground. Teller County Tactical Medic Jesse Baker
approached the scene and, according to Weatherill’s instruction, placed Bauman in flexcuffs. The deputies patted Bauman down for weapons. Bauman told them that he had a
pacemaker implant and was feeling uncomfortable.
An ambulance was immediately
requested. Bauman was transported to Penrose St. Francis hospital and then flown to St.
Anthony’s Hospital in Denver.
Peterson did not have verbal or physical contact with Bauman during the sequence of
events described above and she did not witness the Teller County ER Team’s apprehension
Teller County Deputy Hartbauer and Tactical Medic Baker received briefing information
only from Deputy Weatherill. They did not speak with Peterson on the night of the incident.
B. Disputed Facts
Plaintiff claims that when Sheriff Ensminger and Undersheriff Bishop arrived in Cripple
Creek, Peterson told a police dispatcher to tell them that she thought the subjects at the
parking lot being observed by Officer Bausman were “moving the guns out of the van right
now.” [Doc. 47 ¶ 33.] Defendants admit that Peterson made that statement to the policy
dispatcher but claim there is no evidence establishing that the dispatcher relayed the
information to Ensminger and Bishop; Defendants offer deposition testimony of Bishop and
Weatherill stating that they were only aware of the “possibility” of guns in the van. [See
Doc. 52 ¶ 33.] For the purposes of this Motion, it is assumed that Peterson’s statement was
known to Ensminger and Bishop.
Defendants assert that the decision to check on Graham and have the Teller County ER
Team cover the adjacent silver van was made collectively by the officers at the scene. [See
Doc. 42 ¶¶ 7-8.] Plaintiff claims that Peterson decided on that course of action herself. [See
Doc. 47 ¶¶ 7-8.] Undersheriff Bishop testified that he, Peterson, Sheriff Ensminger, and
Deputy Weatherill discussed the plan together; he did not say whether Peterson made the
decision to have the Teller County ER Team cover the van. [See Doc. 42, Ex. E at 62:1763:17.] Bishop also testified that Peterson “kept saying she [wanted] to do a welfare check”
on Graham, and that “we agreed that we would go with her” to the RV and that the Teller
County ER Team “would secure the van.” [Doc. 47, Ex. C at 52:1-16.] The Court will
assume that Peterson decided that the ER Team would secure Bauman’s van.
Bauman claims that it was pre-determined that the ER Team was going to extract and
flex-cuff the person believed to be in the van, relying on the deposition testimony of Deputy
Weatherill. [See Doc. 47 ¶ 9 (citing Doc. 47, Ex. D at 48:3-16).] Deputy Weatherill’s
testimony tends to prove only that he himself believed that the ER Team was ordered to
“secure” the individual in the van, and that “secure” meant using flex-cuffs. [See Doc. 47,
Ex. D at 57:24-58:25.] Weatherill’s interpretation is undercut by Undersheriff Bishop’s
testimony that he told the ER Team to “secure the van,” without any discussion of flex-cuffs.
[See Doc. 42, Ex. E at 63:18-64:20.] Weatherill’s testimony does not establish or support a
reasonable inference that Peterson gave an order to or expected the ER Team to extract and
flex-cuff the person in the van.
The parties dispute who was in charge of the Teller County ER Team. Defendants state
that when the Teller County ER Team is called for an agency assist, the commander of the
ER Team is in charge of the ER Team, even if the commanding officer of the requesting
agency is otherwise in charge of the scene. [Doc. 42 ¶ 14.] Defendants assert that, while
Peterson was in charge of the investigation and the overall scene, senior Teller County
officials (Sheriff Ensminger, Undersheriff Bishop, and Deputy Weatherill) remained in
charge of the ER Team.
Testimony from Peterson, Undersheriff Bishop, and Deputy
Weatherill corroborates that delineation of authority.1
See Doc. 52, Ex. J at 114:24-115:6 (Peterson Depo.) (Q. And then in terms of – what was your understanding, on
October 20, 2010, who would be, I guess, the commanding officer at the scene when you requested assistance? A.
In regard to the investigation, it would have been myself and ATF. When it came to calling out the tactical team,
that is a specialized team, and the sheriff’s office is responsible for that team.”); Doc. 42, Ex. E at 30:20-31:13
(Bishop Depo.) (Q. When you respond to a request for assist . . . who’s in charge then of the scene? A. The scene
would be in charge – it’s the – would be that municipality. . . . Q. Okay. What – so you said ‘the scene.’ So that
makes me think that you’re thinking other aspects of that would not have been under the guise of Cripple Creek
Police Department, so – A. Our ERT team . . . Q. And the ERT team is under the Teller County Sheriff’s Office?
A. Yes.”); Doc. 47, Ex. D at 77:5-21 (Weatherill Depo.) (“Q. What was your understanding of who was in charge
at this scene on October 20, 2010? . . . A. Sergeant Peterson – different roles. Sergeant Peterson being in charge of
contacting Thomas Graham, the sheriff and undersheriff being in charge of the ERT team.”); id. at 91:2-6 (“A. So if
we go in to assist Cripple Creek Police Department with something, that chief of police is not in charge and dictates
what the emergency response team does. The emergency response team is dictated and ran by the Teller County
Plaintiff claims that, pursuant to an Intergovernmental Agreement (“IA”) between the
Cripple Creek Police and the Teller County Sheriff’s Office, Peterson was in charge of all
Teller County officers because she was the Commanding Officer of Cripple Creek at the time
and the scene was in her jurisdiction. The IA stated:
Upon entering the jurisdiction of the Requesting Agency, an employee of the Responding
Agency shall report immediately to the Commanding Officer of the Requesting Agency,
and shall be under the direction and control of said Commanding Officer. . . . Nothing in
this section shall prohibit or restrict the authority of superior officers from the
Responding Agency to command subordinated officers of the Responding Agency while
they are in the jurisdiction of the Requesting Agency, under the overall command of the
Commanding Officer of the Requesting Agency.
[Doc. 47 ¶ 14; id., Ex. G ¶¶ 4(A), (C).] Defendants deny that the Intergovernmental
Agreement was in effect in October 2010, but the deposition testimony they cite to is
inconclusive.2 Defendants also offer testimony from Peterson and Undersheriff Bishop that,
regardless of whether the Agreement was in effect, in practice Cripple Creek always remains
responsible for Cripple Creek personnel, and Teller County remains responsible for Teller
County personnel. [See Doc. 52 ¶14; id., Ex. J at 114:19-23 (Peterson Depo.); id., Ex. L at
36:7-16 (Bishop Depo.).]
Based on the parties’ conflicting evidence, a reasonable juror could find that Peterson,
who was undoubtedly in charge of the overall scene, was a “supervisor” of the Teller County
ER Team during the events in question. However, there is no evidence that she exercised
See Doc. 52, Ex. L at 34:22-35:2 (Bishop Depo.) (“Q. So is it your testimony that you don’t think that that
agreement was in effect in October of 2010? A. I don’t know that it was in effect.”); Doc. 52, Ex. J at 113:1-15
(Peterson Depo.) (“Q. Do you know if this intergovernmental agreement was in effect on or about October 20,
2010? A. Technically, it wouldn’t have been because this individual was no longer a sheriff. Q. Do you know if
there was a different similar kind of agreement in effect? A. Not to my knowledge. Q. If you go back to the last
page of this exhibit [the Intergovernmental Agreement], it says, “Termination, any Agency may withdraw from
Agreement at any time upon 30 days’ advance written notice to all other parties hereto.” Are you aware of any
written notice that was ever given to the Cripple Creek Police Department terminating this agreement? A. No, I am
that authority by ordering Teller County Deputies Weatherill and Hartbauer to remove
Bauman from the van and flex-cuff him.
1. Peterson’s Liability as a Supervisor
“Each Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A plaintiff seeking to hold
an official liable as a supervisor therefore must show an “affirmative link” between the
supervisor and the constitutional violation. Dodds v. Richardson, 614 F.3d 1185, 1195 (10th
Cir. 2010). There are three elements required to establish a successful § 1983 claim against a
defendant based on her supervisory responsibilities: (1) personal involvement; (2) causation,
and (3) state of mind. Id. Here, assuming the first two elements are satisfied, the Court
concludes that Bauman has failed to create a genuine issue of material fact as to Peterson’s
state of mind and that Peterson is entitled to judgment as a matter of law.
A plaintiff can establish a culpable state of mind by showing that “the supervisor acted
knowingly or with ‘deliberate indifference’ that a constitutional violation would occur.”
Serna v. Colo. Dept. of Corrs., 455 F.3d 1146, 1154 (10th Cir. 2006).
indifference requires that the official “both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and she must also draw the inference.”
Id. at 1154-55. Mere negligence is not enough. Id. at 1151.
In Serna, an inmate at a high security prison sued the Director of Prisons (“Director
Gasko”) after the prison’s Special Operations Response team (“SORT team”) allegedly used
excessive force against the inmate following a report that he had a firearm in his cell. Id. at
1149. The Tenth Circuit concluded that the plaintiff had not established that Director Gasko
was deliberately indifferent because:
[t]he only record evidence is that Gasko believed the SORT team could safely and
effectively respond to the threat of prison violence arising from the report of a loaded
gun, and Serna has not challenged that evidence. Nor has [plaintiff] offered any evidence
that Gasko turned a blind eye to evidence that would contradict that belief, such as a
pattern or practice of constitutional abuses by his subordinates on prior occasions. . . .
The evidence shows only that Gasko, as a high-level supervisor, authorized the use of the
SORT team to respond to a dangerous situation at the warden's request. Nothing suggests
he wanted to harm Serna or to ignore harm done by his subordinates.
Id. at 1155. Here, Bauman has not offered any evidence showing that Peterson believed the
Teller County ER Team was somehow incapable of safely and effectively discharging its
duties in securing the van. Bauman has also not offered evidence showing that Peterson
turned a blind eye to a pattern of past abuses by Teller County’s ER Team, or that any past
abuses existed. There is also nothing in the record to suggest that Peterson wanted to harm
Bauman or to ignore harm done by the Teller County ER Team. The evidence shows only
that Peterson authorized (either personally, or collectively with the senior Teller County
officials at the scene) the Teller County ER Team to secure the van in uncertain
Bauman argues that Peterson was deliberately indifferent because she admitted that, in
deciding to approach Graham’s RV to speak with him, “she was putting herself, other law
enforcement officers, and the occupants of the vehicles in extreme danger.” [Doc. 47 at 19.]
The deliberate indifference standard is not met simply by showing that a tactical law
enforcement decision creates a general risk of bodily harm.
Police officers confront
dangerous situations every day, and must take actions in the interest of public and officer
safety that inevitably carry risks. Rather, it must be shown that the officer knew he was
creating a situation that created a substantial risk of “constitutional harm.” Serna, 455 F.3d
at 1155 (emphasis added); see also Dodds, 614 F.3d at 1206 (explaining that deliberate
indifference analysis “requires us to determine whether the facts support the view . . . that
Defendant knew his actions create a substantial risk of constitutional injury”). Peterson’s
decision to approach Graham’s RV carried risks, of course, but that does not support a
reasonable inference that she knew excessive force or an unlawful arrest of Bauman would
occur. The record shows that the officers and deputies had a legitimate goal of investigating
the disappearance of a large cache of firearms and checking on Graham’s well-being. Cf.
Dodds, 614 F.3d at 1206 (reasonable jury could conclude defendant was deliberately
indifferent in part because defendant “[did] not suggest any ‘legitimate goal’ behind”
conduct in question).
Bauman also argues that deliberate indifference can be inferred because Peterson
communicated to Sheriff Ensminger and Undersheriff Bishop that there were weapons in the
van, and failed to communicate that Bauman was sleeping in the van; thus, the Teller County
ER Team approached the van believing that it was a more-dangerous situation than it in fact
was. [See Doc. 47 at 19.] The record does not support Bauman’s assertion that Peterson
definitively said that guns were at the scene; the evidence tends to show that Peterson told
Ensminger and Bishop of the possibility of guns being there. [See Doc. 47 ¶ 33 (“I think
they are unloading the guns from a van right now . . . So tell him we think they are moving
the guns out of the van right now.”) (emphasis added).] Based on Graham’s history, his
apparent connection to the firearm theft, and his erratic behavior on the day of the incident,
that possibility was real. And as for the report that Bauman appeared to be sleeping in the
van, that did not foreclose the possibility that he was armed, or that he was pretending to
sleep and acting as a lookout for Graham. There is nothing in the record to suggest that
Peterson willfully ignored material information or purposefully spread misinformation.
Accordingly, the Court cannot conclude that a factual dispute exists as to Peterson’s
deliberate indifference. Summary judgment in favor of Peterson is warranted on Bauman’s
supervisory liability claim against her.
2. Failure to Intervene
Bauman asserts that Peterson is liable because she failed to intervene and stop the Teller
County ER Team from violating his rights. [See Doc. 47 at 22-23.] The Tenth Circuit has
articulated the following standard for this theory of liability:
[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in
their presence. An officer who fails to intercede is liable for the preventable harm caused
by the actions of the other officers where that officer observes or has reason to know: (1)
that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3)
that any constitutional violation has been committed by a law enforcement official. In
order for liability to attach, there must have been a realistic opportunity to intervene to
prevent the harm from occurring. Whether an officer had sufficient time to intercede or
was capable of preventing the harm being caused by another officer is an issue of fact for
the jury unless, considering all the evidence, a reasonable jury could not possibly
Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (emphasis added).
Peterson has offered an affidavit stating that she did not know in advance that the Teller
County ER Team was going to use force on the occupant of the van, and that she believed
“cover” or “securing” the van meant observing it and taking any action that might be
necessary for officer and public safety. [See Doc. 42, Ex. C ¶ 22.] Bauman disputes
Peterson’s assertion, but the evidence he offers does not create a genuine dispute of fact. See
supra at 7. Bauman also claims that a reasonable jury could conclude that Peterson had a
realistic opportunity to intervene. [See Doc. 47 at 23.] He does not support that claim with
record evidence, nor did he dispute the following fact in Defendants’ Motion for Summary
Judgment: “Peterson was positioned at Thomas Graham’s RV and did not witness any
incident involving Plaintiff.” [Doc. 42 ¶ 13; see Doc. 47 ¶ 13 (“Admit.”).] Accordingly, a
reasonable juror could not conclude that Peterson had a realistic opportunity to intervene to
prevent the Teller County Deputies from using force on Bauman; this forecloses Bauman’s
failure-to-intervene theory as a basis for recovery.
3. Municipal Liability
To establish municipal liability against the City of Cripple Creek, Bauman must prove:
(1) an underlying constitutional violation by Peterson and (2) that a municipal policy or
practice caused his alleged injuries. See Bd. of County Comm’rs v. Brown, 520 U.S. 397,
407 (1997). In his summary judgment briefing, Bauman asserted a failure-to-train theory in
support of the second element. [See Doc. 47 at 24-25.] To prevail on this theory, Bauman
must demonstrate, among other things, that the failure to train demonstrates deliberate
indifference on the part of the municipality toward persons with whom its police officers
come into contact. Allen v. Muskogee, 119 F.3d 837, 841-42 (10th Cir. 1997). According to
the Tenth Circuit:
[A] showing of specific incidents which establish a pattern of constitutional violations is
not necessary to put the City on notice that its training program is inadequate. Rather,
evidence of a single violation of federal rights, accompanied by a showing that a
municipality has failed to train its employees to handle recurring situations presenting an
obvious potential for such a violation, is sufficient to trigger municipal liability.
Id. at 842. Bauman has offered no evidence of a pattern of similar constitutional violations
by Cripple Creek Police. To establish deliberate indifference based solely on the incident at
issue here, Bauman would need to show that Cripple Creek has failed to adequately train its
employees on the use of force. See id. He has not offered any evidence in that regard.
Therefore, Bauman’s failure-to-train theory fails for lack of proof that Cripple Creek was
deliberately indifferent to the Fourth Amendment rights of persons within its jurisdiction.
At the hearing on Defendants’ Motion for Summary Judgment, Bauman hinted at two
additional bases for municipal liability—namely, that Peterson was the final decision-maker
for Cripple Creek as acting Chief of Police, and that therefore her decisions regarding the
investigation and tactics at the scene are attributable to the City; and that Cripple Creek has a
municipal practice or custom of tolerating “shoddy” police work. Assuming Peterson was
the City’s final decision-maker during the incident, Bauman has not created a genuine
dispute of fact as to Peterson’s deliberate indifference, as discussed above. Bauman’s second
theory fails because he has not offered any record evidence supporting his assertion that an
unconstitutional municipal practice or custom exists.
Accordingly, even if Bauman could establish an underlying constitutional violation by
Peterson, he has failed to show that a municipal policy or practice caused his alleged injuries.
Upon the foregoing, it is
ORDERED that the Cripple Creek Defendants’ Combined Motion for Summary
Judgment is granted. Defendant April Peterson and Defendant City of Cripple Creek shall be
dismissed from this civil action.
Dated: March 18, 2014.
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch
Senior District Judge
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