Grant v. Scott et al

Filing 39

ORDER denying 36 Motion to Exclude. By Magistrate Judge Kathleen M. Tafoya on 9/30/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–00153–MSK–KMT

LARRY NEIL GRANT,
Plaintiff,
v.
LT. BERNADETTE SCOTT,
LT. DENNY OWENS,
LT. FELSIEN,
SGT. CLEMENT, and
C/O BEHRENDSEN,
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion to Exclude” (Doc. No. 36) filed
September 26, 2013. Defendants filed their response on September 30, 2013. (Doc. No. 38.)
Plaintiff seeks to exclude the Colorado Attorney General’s office from representing the
defendants. Colorado Revised Statute § 24-31-101(1)(a) provides that the Attorney General of
the State of Colorado is to appear “for the State” in all actions, civil and criminal in which the
State “is a party or interested” when “required to do so by the Governor. . . . ” The Department
of Corrections is a state agency. Colo. Rev. Stat. § 17-1-101(1). The State of Colorado is
divided into “principal departments.” Colo. Const. Art. IV, section 22. The Colorado
Department of Corrections is one of those principal departments of the State of Colorado created

pursuant to Colo. Rev. Stat. §§ 24-1-110 and 24-1-128.5(1). A state agency is a “public entity,”
which is defined as including “the state, . . . and every other kind of district, agency,
instrumentality, or political subdivision thereof organized pursuant to law. . . .” Colo. Rev. Stat.
§ 24-10-103 (5). The state defendants are public employees because they are employees of a
“public entity. . . .” Colo. Rev. Stat. § 24-10-103(4)(a). State defendants are “correctional
officials,” which are defined as “any employee(s) of a correctional facility.” Colo. Rev. Stat. §
24-4.1-302 (1.5).
The Colorado Attorney General has a statutory duty to defend state employees sued for
acts arising out of the performance of the employee’s official duties:
Upon the request of any employee in the state personnel system, it is the duty of
the attorney general to represent such employee in any civil action or
administrative proceeding instituted against such employee, either in his official
or individual capacity if the action or proceeding arises out of the performance of
such employee’s official duties as determined by the attorney general and if the
action or proceeding has not been brought by the state personnel director or the
appointing authority of such employee seeking dismissal or other disciplinary
action; except that the attorney general shall not represent any such employee in
any action brought under section 24-50.5-105.
Colo. Rev. Stat. § 24-31-101 (4). .
As employees of a state agency, Defendants are entitled to representation in the defense
of any action arising out of the performance of their duties and within the scope of their
employment. See e.g. Colo. Rev. Stat. §§ 24-10-110 (1) and 24-10-118 (1). Only if the Attorney
General or a court determines that the public employee’s acts did not arise out of the scope of his
or her employment, or was willful and wanton, or the employee failed to cooperate with the state

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when it attempted to defend him or her, would the state not provide a defense through the
Attorney General. Defendants state there are no such issues present here.
Therefore, it is ORDERED that Plaintiff’s “Motion to Exclude” (Doc. No. 36) is
DENIED.
Dated this30th day of September, 2013.

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