Lyall et al v. City of Denver et al
ORDER granting 61 Motion to Dismiss Individual Defendants Sued Only In Their Official Capacities. The Clerk and parties shall amend the caption and all future filings in this case to reflect that Defendants Michael B. Hancock, Robert C. White, Jose Cornejo, Evan Dreyer, and Antonio Lopez are DISMISSED in all capacities. ORDERED by Judge William J. Martinez on 03/08/2017. (cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2155-WJM-CBS
JERRY RODERICK BURTON,
CHRISTOPHER FARRELL, and
CITY OF DENVER, a municipal corporation;
MICHAEL B. HANCOCK, in his official capacity as mayor of the City of Denver;
ROBERT C. WHITE, in his official capacity as Chief of Police for the City of Denver;
JOSE CORNEJO, in his official capacity as Public Works Manager for the City of
EVAN DREYER; in his official capacity as the Mayor’s Chief of Staff; and,
ANTONIO LOPEZ, in his official capacity as a Denver Police Commander,
ORDER GRANTING MOTION TO DISMISS INDIVIDUAL DEFENDANTS SUED ONLY
IN THEIR OFFICIAL CAPACITIES
Before the Court is the Official Capacity Defendants’ Motion to Dismiss. (ECF
No. 61.) The “Official Capacity Defendants” comprise all of the Defendants except
Denver itself. These Defendants, all of whom are Denver employees, correctly note
that “‘[a] suit against a municipality and a suit against a municipal official acting in his or
her official capacity are the same.’ Watson v. City of Kansas City, 857 F.2d 690, 695
(10th Cir. 1988).” (ECF No. 61 at 3 (alteration in original).) The Official Capacity
Defendants therefore ask that the claims against them be dismissed as duplicative of
the claims asserted against Denver.1
Plaintiffs’ response—really Plaintiffs’ counsel’s response—is unique, to say the
least. In relevant part, it reads:
Our system depends on private attorneys and firms looking
out their office windows and not turning their backs on what
they see. But it costs money not to turn your back. When a
private attorney takes on a large scale civil rights case like
this one, the actual and opportunity costs exceed six figures.
No one takes on cases like this for money, but if we do
reach a point where attorney’s fees are recouped pursuant
to Lodestar and 42 U.S.C. § 1988, then the Court will review
the performance, i.e. whether liability was found.
Taking declaratory judgement [sic], for example, the
dismissal of [the Official Capacity Defendants], would result
in fewer potential findings of liability and thus less attorney’s
fees, which would disincentivize private attorneys and firms
from representing the poor.
Plaintiffs are seeking declaratory judgment against these
Defendants for good reason, i.e. they are the ones engaged
in the Homeless Sweeps. There is an art to crafting
effective declaratory judgement and dismissing these
Defendants would take the paint brush, or the quill, from the
Court’s hands. There is a meaningful real-world difference
between issuing declaratory judgment against only the City
versus issuing declaratory judgment against the City and the
Police Department and the Department of Public Works, etc.
(ECF No. 63 ¶¶ 1–4 (citations omitted; emphasis in original).)
There is simply no authority to support this position. The Court would be
After the Official Capacity Defendants filed the motion at issue here, Plaintiffs filed a
motion to amend their complaint. (See ECF No. 69.) That motion to amend does not moot the
Official Capacity Defendants’ current motion because Plaintiffs’ proposed amended complaint
still names the Official Capacity Defendants as defendants in their official capacities only.
committing error to award greater attorneys’ fees based on the fact that a plaintiff
prevailed against indisputably redundant parties. As for “real-world difference,” an
injunction against Denver would be binding on all of its departments. That would
seemingly be better than an injunction against specific departments—assuming this
Court could even issue an injunction against discrete departments, which is highly
If Plaintiffs’ counsel means to say that dismissal of the Official Capacity
Defendants will deprive him of the publicity value of having a large number of Denver
officials subject to an injunction order of this Court, that concern has no legal
The Official Capacity Defendants’ Motion to Dismiss (ECF No. 61) is GRANTED;
The Clerk and parties shall amend the caption and all future filings in this case to
reflect that Defendants Michael B. Hancock, Robert C. W hite, Jose Cornejo,
Evan Dreyer, and Antonio Lopez are DISMISSED in all capacities.
Dated this 8th day of March, 2017.
BY THE COURT:
William J. Martínez
United States District Judge
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