Leyba v. Strom et al

Filing 80

ORDER Granting 56 Motion for Summary Judgment by Defendant Ronald Armstrong; Granting 65 Motion for Summary Judgment by Defendant Daniel Strom. By Magistrate Judge Kathleen M. Tafoya on 09/13/2019.(ksena)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–00239–KMT
DANIEL LEYBA,
Plaintiff,
v.
CORRECTIONAL OFFICER DANIEL STROM, in his individual capacity, and
LIEUTENANT RONALD ARMSTRONG, in his individual capacity,
Defendants.

ORDER

This case comes before the court on the following motions:
1. “Motion for Summary Judgment by Defendant Ronald Armstrong” (Doc. No. 56
[Armstrong Mot.], filed October 30, 2018), to which Plaintiff filed a response (Doc. No. 71
[Resp. Armstrong Mot.], filed January 12, 2019) and Defendant Armstrong filed a reply (Doc.
No. 77 [Armstrong Reply]); and
2. “Motion for Summary Judgment by Defendant Daniel Strom” (Doc. No. 65
[Strom Mot.], filed November 20, 2018), to which Plaintiff filed a response (Doc. No. 72 [Resp.
Strom Mot.], filed January 12, 2019). Defendant Strom did not file reply.

STATEMENT OF THE CASE
Plaintiff Daniel Leyba alleges two Eighth Amendment claims under 42 U.S.C. § 1983.
(Doc. No. 1 [Compl..) Plaintiff’s First Claim for Relief is a claim for “Excessive Force, Cruel &
Unusual Punishment” against Correctional Officer Defendant Daniel Strom only, based on
Plaintiff’s allegation that on January 27, 2015, while he was an inmate at the Buena Vista
Correctional Complex (“BVCC”) of the Colorado Department of Corrections (“CDOC”), he was
assaulted by Defendant Strom. (Id. at 13–15.) Plaintiff’s Second Claim for Relief is a claim for
“Failure to Train, Failure to Supervise, Failure to Investigate, Policies/Customs/Practices
Causing Violation” against Defendant Armstrong as Defendant Strom’s supervisor. (Id. at 16–
20.)1
UNDISPUTED FACTS
On January 27, 2015, in the inmate medication line at Buena Vista Correctional Complex
(“BVCC”), where Plaintiff is incarcerated within the Colorado Department of Corrections
(“CDOC”), Plaintiff was hit by Defendant Strom at the top of the right kneecap area. (See
1

In describing the nature of his claims in the Complaint, Plaintiff states, “Lieutenant Armstrong
. . . [is] sued for [his] deliberate indifference to Plaintiff’s safety, well-being and physical health
when [he] participated and assisted in having Mr. Leyba stuck in segregation for several days in
an effort to demoralize him and preclude him from being able to document the assault, his
wrongful placement in administrative segregation, his injuries, and DOC’s continued wrongful
refusal to provide him with medical treatment for his injuries.” (Compl., ¶ 3.) Unlike for a pro
se plaintiff, the court is not required to liberally construe a represented party’s pleadings. See
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir.1997) (federal court must construe a
pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to
pleadings filed by lawyers.”). Moreover, even for a pro se plaintiff, “courts may not rewrite a
complaint to include claims that were never presented, nor may courts construct the plaintiff’s
legal arguments for him.” Fick v. US Bank Nat. Ass’n, No. 11-CV-03184-WYD-KLM, 2012
WL 5464592, at *4 (D. Colo. Sept. 10, 2012), report and recommendation adopted sub nom.
Fick v. US Bank Nat. Assoc., No. 11-CV-03184-WYD-KLM, 2012 WL 5464614 (D. Colo. Nov.
8, 2012). Plaintiff has not explicity stated a claim for relief related to these allegations against
Defendant Armstrong, and the court declines to rewrite Plaintiff’s complaint.
2

Armstrong Mot., Ex. B (Leyba Dep.) at 16:17–18:3, 11:16–12:1; and Ex. E (videos of incident
and the medication line).) Previously, on January 5, 2015, Plaintiff was injured while playing
basketball, and was diagnosed on January 16, 2015, with a meniscus tear, which caused pain and
made it difficult to walk. (Ex. B at 9:11–11:10, 113:17–114:19.)
During the January 27, 2015 incident, Defendant Strom’s hit caused Plaintiff to stumble
backwards, but Plaintiff did not fall down, and he was able to walk or “hobble off.” (Ex. E; Ex.
B, at 22:2–8.) Plaintiff testified that Defendant Strom’s hit caused pain at a 6 or 7 level on a tenpoint scale, although Investigator William Flint from the CDOC Inspector General’s Office
reported that Plaintiff said in February 2015 his pain was a 4 on the ten-point scale. (Ex. B at
20:11–25, 64:25–65:10; Ex. M (Inspector General Report), at Bates No. 1567.) Plaintiff testified
that Defendant Strom’s hit left a bruise on the top of the knee cap the size of a “knuckle” that
lasted for one and one-half weeks. (Ex. B at 18:1–9, 21:1–16.)
After he had been hit by Defendant Strom, Plaintiff did not speak to the nurse who was
present at the medication line about being hit and needing treatment. (Id. at 22:25–23:2.) He did
not request medical service via kite until he was put into a segregation cell the next day. (Id. at
41:7–25, 77:3–14.) Plaintiff testified he had trouble walking2 after being hit, but walked to his
living unit and upstairs to his cell on the second tier. (Id. at 23:10–21.) Plaintiff walked down
the stairs that evening to participate in the canteen, walked back up the stairs, and walked back
down the stairs the next morning so he could work in the kitchen. (Id. at 28:9–29:10, 40:18–
41:4.)

2

Plaintiff disputes this fact and states that his injured knee caused him to “limp” and “hobble.”
(Resp. Armstrong Mot., ¶ 9.) However, Plaintiff did not use the words “limp” or “hobble” in
these portions of his deposition.
3

Defendant Strom had been employed since about May 2013 as a Correctional Officer I
working in the East Unit at BVCC, under supervision of two Sergeants and Defendant Lt.
Armstrong. (Ex. D (Strom Dep.), at 10:4–5, 13:1–6; Ex. A (Armstrong Decl., ¶¶ 2–4.) Alison
Swegart was a Correctional Officer I at BVCC from January 2012 until June 2015. (Ex. C
(Swegart Dep.), at 5:13–6:20.) She worked with Defendant Strom and the other supervisors,
including Defendant Armstrong, on the swing shift. (Id. at 8:24–10:12, 11:13–12:17.)
Officer Swegart was supervising the medication line with Defendant Strom when she saw
him strike Plaintiff in his right leg, “kind of where his knee was.” (Id. at 51:24–52:8.) She
testified that Plaintiff’s reaction was his leg buckled “a little bit” but he did not fall down, and he
asked Officer Swegart if she saw the punch; she could not remember whether Plaintiff appeared
to be in pain or cried out. (Id. at 52:22–53:19, 84:9–15.) Officer Swegart testified the “next”
thing that happened was that she left the medication line area and went upstairs to Defendant
Armstrong and “made him pull up the cameras” so he could see “what had just happened,” so
she was not able to see Plaintiff walk out of the room. (Id. at 53:20–54:14, 59:1–7, 66:22–67:14,
84:16–85:6.) When Officer Swegart reported to Armstrong, he was eager to see the video. (Id.
at 54:20–55:20.)
Defendant Armstrong left BVCC just after 7:00 p.m. on January 27, 2015, and began his
medical leave for open heart surgery in February. He did not work for BVCC again until his
leave ended on March 23, 2015. He never saw or spoke to Defendant Strom or Plaintiff again.
(Ex. A, ¶ 8; Exs. K and L (Armstrong time and medical records).) Plaintiff was moved to a
segregation cell at about 11:15 a.m. on January 28, 2015, and walked downstairs and 300 feet to
get there. (Ex. B at 43:11–44:17.)

4

Plaintiff was moved to Cellhouse 5 at the Colorado Territorial Correctional Facility
(“CTCF”) on January 30, 2015, and to Arkansas Valley Correctional Facility (“AVCF”) on
March 2, 2015. (Id. at 52:5–24, 37:2–4.) Plaintiff testified that he filled out kites requesting
treatment for an injury from Defendant Strom at BVCC on January 28, 2015, and at CTCF in
February 2015. (Id. at 41:5–15, 52:25–53:13.) CDOC medical records indicate that Plaintiff
failed to appear for a medical appointment at CTCF on February 19, 2015 (Ex. N (Select
Medical Records), at Bates No. 217), did not inform the AVCF intake nurse about the alleged
injury by Defendant Strom (but did tell her about the basketball injury) (Ex. B at 123:4–124:10;
Ex. N at Bates No. 230), never told AVCF medical staff that he had an injury from Defendant
Strom (Ex. B, at 126:10–13), and attended medical appointments in March through May 2015 at
AVCF for other problems but did not raise the alleged injury by Defendant Strom. (Id. at
124:25–129:10; Ex. N at Bates Nos. 239, 253, 251, and 264.)
STANDARD OF REVIEW
Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of showing an absence of evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the
moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a
genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver,
36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party
may not rest solely on the allegations in the pleadings, but must instead designate “specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P.

5

56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper
disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party.
Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson,
477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary
judgment stage of litigation, a plaintiff’s version of the facts must find support in the record.
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d
at 1312.
ANALYSIS
A. Excessive Force
“[A]n excessive force claim involves two prongs: (1) an objective prong that asks if the
alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and
(2) a subjective prong under which the plaintiff must show that the officials act[ed] with a

6

sufficiently culpable state of mind.” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003)
(internal quotation marks and citation omitted).
In their motions, Defendants, citing Marshall v. Milyard, 415 F. App’x 850 (10th Cir.
2011), address only the objective prong of Plaintiff’s excessive force claim.3
The Tenth Circuit summarized the plaintiff’s claims in Marshall as follows:
Lieutenant Bade approached [the plaintiff, Mr. Marshall,] at the shower on June
11, 2007, and told him to lock down in his cell. When he asked why he needed to
lock down, Lieutenant Bade replied that he was not sure. Mr. Marshall retorted
that “per the Co[d]e of Penal Disciplinary Book your order must give notice and it
must be reasonable in nature.” Lieutenant Bade replied, “I don’t care[. G]o lock
down.” As Mr. Marshall began walking toward his cell to lock down, Lieutenant
Bade grabbed his upper right arm. He turned and told Lieutenant Bade, “[D]o not
put your hands on me.” Lieutenant Bade then ordered him to “turn around and
cuff up.” Mr. Marshall did not resist being handcuffed but remarked, “[A]ll you
had to do was ask me first before you put your hands on me for no reason. I was
walking to the cell to lock down.” Lieutenant Bade and another officer then
escorted Mr. Marshall about 1,200 feet to see Captain M. Negley, the shift
commander, with Lieutenant Bade holding Mr. Marshall’s right arm and the other
officer holding his left arm. As they were walking, Lieutenant Bade put his
fingernails deep into Mr. Marshall's right arm. Lieutenant Bade injured him, as
documented by a prison medical form attached to his amended complaint. That
form, dated June 11, 2007, indicated that he had a three-by-four-centimeter bruise
on the inside of his upper right arm and a four-by-five-centimeter red area on the
outside of that arm.
Id. at 851 (alterations, other than first alteration, in original) (internal citations omitted). The
Court affirmed the District Court’s dismissal of the plaintiff’s excessive force claim pursuant to
Federal Rule of Procedure 12(b)(6), stating,
An action by a prison guard may be malevolent, yet not amount to cruel and
unusual punishment. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). As the
Court made clear in Hudson, “not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s
Constitutional rights.” Id. (internal quotation marks omitted). Thus, even if a use
3

Defendant Strom’s motion is copied, nearly word-for-word, from Defendant Armstrong’s
motion.
7

of force is deemed unnecessary after the fact, if it was both de minimis and “not
of a sort repugnant to the conscience of mankind,” it will not sustain an excessive
force claim . . . .
Id. at 852–53. The Court relied upon Norton v. City of Marietta, 432 F.3d 1143, 1156 (10th Cir.
2005) (allegations that guards injured a prisoner “by grabbing him around the neck and twisting
it” were not objectively harmful enough to establish a constitutional violation), and cases from
other circuit courts. Id. at 853.
Since Marshall, the Tenth Circuit also affirmed the dismissal of a plaintiff’s excessive
force claim in Rhoten v. Werholtz, 243 F. App’x 364 (10th Cir. 2016), where a plaintiff alleged
that, during a pat down search, an officer “slammed [him] against the wall[,] squeezed [his]
nipples real hard, squeezed [his] buttocks, and pulled on [his] testicles real hard, causing him a
great deal of discomfort and pain,” and then denied him a pass to seek medical treatment. Id. at
365. The Court held the officer’s use of force was de minimis. Id. at 365, 367 (alterations in
original).
Here, the undisputed evidence shows that, on January 27, 2015, Defendant Strom struck
Plaintiff once at about the top of the kneecap. (Armstrong Mot., Ex. B at 18:1–3, 15–17; Ex. E.)
The contact caused Plaintiff to stumble backwards, but he did not fall down. (Id., Ex. B at 22:2–
5; Ex. E.) Officer Swegart testified that the hit caused Plaintiff’s leg to buckle “a little bit” but
he was able to speak to her, and she did not remember him crying out or appearing to be in pain.
(Id., Ex. C at 52:22–53:19. 84:9–15; Ex. E.) Based on this undisputed evidence, the court finds,
just as in Marshall and Rhoten, that Defendant Strom’s use of force was de minimis.
Moreover, the court notes that, while the “Eighth Amendment does not require a showing
of ‘significant injury’ in the excessive-force context,” Hudson, 503 U.S. at 14, the extent of a

8

plaintiff’s injury “may . . . provide some indication of the amount of force applied,” Wilkins v.
Gaddy, 559 U.S. 34, 37. In Marshall, the Court determined that evidence showing only areas of
redness and bruising further supported the Court’s ruling conclusion that the defendant used only
de minimis force. Marshall, 415 F. App’x at 853 (citing other cases that relied, in part,
prisoners’ minor injuries in concluding force was de minimis).
Here, the undisputed evidence shows that Defendant Strom’s hit left a bruise on the top
of Plaintiff’s knee cap the size of a “knuckle” that lasted for a week and a half. (Armstrong
Mot., Ex. B at 18:1–9, 21:1–16.) Plaintiff claimed the hit made him “hobble.” (Id. at 22:6–8.)
However, Plaintiff testified he was in the medication line in the first place “because [his] knee
was pretty swollen, and [he] could barely walk on it.” (Id. at 9:21–23.) In any event, Plaintiff
walked from the area (id., Ex. E), and he testified that, for the eighteen hours after Defendant
Strom hit him, he walked repeatedly, including multiple trips up and down stairs, and 300 feet to
the segregation cell. (Id., Ex. B at 23:10–21; 28:9–29:10; 43:11–44:17.) Plaintiff did not ask for
treatment from the nurse who was present in the medication area at the time, and he did not
request medical treatment by a kite until the next day after he was moved to a segregation cell.
(Id. at 22:25–23:3; 41:7–24; 77:3–14.) Moreover, Plaintiff claims that he submitted kites to
request medical treatment at BVCC and, after his January 30 transfer, at CTCF; however, CDOC
medical records indicate that Plaintiff failed to appear for a medical appointment at CTCF on
February 19, 2015. (Id. at 52:5–24; 37:2–4; 41:5–15; 52:25–53:13; Ex. N at Bates No. 217.)
Further, Plaintiff admitted that he told no one at AVCF (after his March 2, 2015, transfer) about
his alleged injury from Defendant Strom, not even the intake nurse whom he told about his
January 5 basketball injury, even though he saw medical personnel at AVCF numerous times to

9

treat other conditions. (Id. at 123:4–124:10; 126:10–13; 124:25–129:10; Ex. N at Bates Nos.
230, 239, 253, 251, 264.)
The undisputed evidence, which shows that Defendant Strom’s hit to Plaintiff’s knee
caused little or no injury, is further support that the force used by Defendant Strom’s was de
minimis and not objectively harmful enough to rise to the level of cruel and unusual punishment
under the Eighth Amendment. See Marshall, 415 F. App’x at 853 (medical form showing only
areas of redness and bruising supported conclusion that force used was de minimis).4
Plaintiff has failed to meet his burden of demonstrating a genuine issue for trial on his
Excessive Force claim, Concrete Works, Inc., 36 F.3d at 1518, and Defendant Strom is entitled
to summary judgment.
B. Failure to Train, Supervise, Investigate
Plaintiff attempts to impose liability on Defendant Armstrong in his position as
Defendant Strom’s supervisor for failure “to train and supervise correctional officers and medical
staff to ensure the safety and well-being of prisoners such as Plaintiff” and for failure “to
appropriately screen out patently inappropriate correctional officer hires.” (Compl., ¶ 56.)
Because personal participation is an essential element, Plaintiff must show that each
named Defendant personally caused the deprivation of a federal right. See, e.g., Kentucky v.
4

In his responses, Plaintiff argues that the cases cited by the defendants in support of their
motions to dismiss the excessive force claim are distinguishable because they involve prison
guards who used force while engaged in a proper penological activity such as restoring order,
while Defendant Strom was not so engaged, thus making his force excessive. (Resp. Armstrong
Mot and Resp. Strom Mot. at 13-17.) However, Plaintiff confuses the separate subjective and
objective prongs of an excessive force claim, and Defendants challenge only the objective prong.
See Graham v. Sheriff of Logan Cnty., 741 F. 3d 1118, 1123 (10th Cir. 2013) (explaining that a
plaintiff must show under the subjective prong that the official acted with a sufficiently culpable
state of mind, which turns on whether he acted “maliciously and sadistically” to cause harm,
including acting without a “penological purpose.”)
10

Graham, 473 U.S. 159, 166 (1985). A defendant is personally involved in an alleged
constitutional violation only if there is an “affirmative link” between his or her conduct and the
described violation. Stidham v. Peace Officer Stds & Training, 265 F.3d 1144, 1156 (10th Cir.
2001). Because of the “affirmative link” requirement, a defendant in a position of general
supervisory authority cannot be held vicariously liable for constitutional violations committed by
his subordinates. Serna v. Colo. Dep’t of Corr., 455, F.3d 1146, 1151 (10th Cir. 2006)
(“Supervisors are only liable under § 1983 for their own culpable involvement in the violation of
a person's constitutional rights.”).
However, a defendant in a supervisory position may be personally involved in an alleged
constitutional violation committed by his or her subordinates in two situations. First, supervisor
liability may arise when the supervisor was personally involved in directing the subordinates to
take the action that resulted in the alleged constitutional violation. Woodward v. City of
Worland, 977 F.2d 1392, 1400 (10th Cir. 1992). Second, supervisor liability may arise when the
supervisor had actual knowledge that the subordinates were committing the alleged
constitutional violation and acquiesced in its commission. Id. (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (stating that supervisor liability requires
“allegations of personal direction or of actual knowledge and acquiescence”)).
Under the second situation liability can be imposed upon a “defendant-supervisor who
creates, promulgates, implements, or in some other way possesses responsibility for the
continued operation of a policy[,] the enforcement (by the defendant-supervisor or [his]
subordinates) of which subjects, or causes to be subjected that plaintiff to the deprivation of any
rights secured by the Constitution.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).

11

When an official is sued under § 1983 for conduct “arising from his or her superintendent
responsibilities,” the plaintiff must demonstrate not only that a subordinate employee violated his
rights but that the supervising official “by virtue of his own conduct and state of mind did so as
well.” Id. at 1197 (citing Iqbal, 556 U.S. at 662).
Here, Plaintiff has failed to demonstrate that Defendant Strom violated his Eighth
Amendment rights by using excessive force. Therefore, his claim against Defendant Armstrong
in his position as Defendant Strom’s supervisor also must fail, id., and Defendant Armstrong is
granted summary judgment on the claim.
C. Qualified Immunity
Finally, Defendant Armstrong asserts he is entitled to qualified immunity.5 Qualified
immunity is an affirmative defense against § 1983 damage claims available to public officials
sued in their individual capacities. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine
protects officials from civil liability for conduct that does not violate clearly established rights of
which a reasonable person would have known. Id. As a government official at the time the
alleged wrongful acts occurred, being sued in his individual capacity, Defendant Armstrong is
entitled to invoke a qualified immunity defense to Plaintiff’s claims. See id. at 231; Johnson v.
Jones, 515 U.S. 304, 307 (1995) (noting that police officers were “government officials—
entitled to assert a qualified immunity defense”). In resolving a motion to dismiss based on
qualified immunity, a court looks at: “[1] whether the facts that a plaintiff has alleged . . . make
out a violation of a constitutional right, and [2] whether the right at issue was clearly established
at the time of defendant’s alleged misconduct.” Leverington v. City of Colo. Springs, 643 F.3d

5

Defendant Strom does not raise qualified immunity in his motion.
12

719, 732 (10th Cir. 2011) (quoting Pearson, 555 U.S. at 232) (internal quotations omitted).
Once a defendant invokes qualified immunity, the burden to prove both parts of this test rests
with the plaintiff, and the court must grant the defendant qualified immunity if the plaintiff fails
to satisfy either part. Dodds, 614 F.3d at 1191. Where no constitutional right has been violated
“no further inquiry is necessary and the defendant is entitled to qualified immunity.” Hesse v.
Town of Jackson, Wyo., 541 F.3d 1240, 1244 (10th Cir. 2008) (quotations omitted).
Because Plaintiff has not established that Defendant Armstrong’s actions violated a
constitutional Defendant Armstrong is entitled to qualified immunity. Leverington, 643 F.3d at
732; Dodds, 614 F.3d at 1191.
WHEREFORE, for the foregoing reasons, it is
ORDERED that the “Motion for Summary Judgment by Defendant Ronald Armstrong”
(Doc. No. 56) and the “Motion for Summary Judgment by Defendant Daniel Strom” (Doc. No.
65) are GRANTED; it is further
ORDERED that judgment shall enter in favor of the defendants and against the plaintiff
on all claims for relief and causes of action asserted in this case. It is further
ORDERED that the defendants are awarded their costs to be taxed by the Clerk of Court
in the time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and C.COLO.LCivR 54.1.
Dated this 13th day of September, 2019.

13