Estate of James Strong Jr., The et al v. City of Northglenn, Colorado, The et al

Filing 103

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE By Magistrate Judge S. Kato Crews on 12/14/18 re 81 MOTION for Sanctions Pursuant to Fed.R.Civ.P. 11(c) filed by Nicholas Wilson, Jason Schlenker. The Court RECOMMENDS that: Defendants Motion for Sanctions Pursuant to Fed. R. Civ. P. 11(c) [ECF. #81] be GRANTED; the false arrest claims (Claims Seven and Nine) against Wilson and Schlenker be DISMISSED, WITH PREJUDICE; Wilson and Schlenker be awarded their reasonable attorneys fees a nd costs associated with preparing, filing, and addressing the Motion;the fee award issue against counsel for Plaintiffs, J. Benton Stewart II. Defendants have ten days from the date Judge Martinez issues an order on this Recommendation to submit an affidavit of fees and costs; and, Mr. Stewart have 10 days from the date Defendants file their affidavit to submit a response over the reasonableness of the claimed fees and costs. (nmarb, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:17-cv-1276-WJM-SKC
THE ESTATE OF JAMES STRONG JR.,
LANHISHA RICHMOND, Individually and as Natural Parent of minors J.S. and T.S.R.,
MARCUS STRONG, and
HOWARD MITCHELL JR.,
Plaintiffs,
v.
CITY OF NORTHGLENN, COLORADO,
CITY OF THORNTON, COLORADO,
CITY OF WESTMINSTER, COLORADO,
NICHOLAS WILSON,
JASON SCHLENKER; and
ADAM NIELSEN,
Defendants.

RECOMMENDATION RE: MOTION FOR SANCTIONS [ECF. #81]
Magistrate Judge S. Kato Crews
This Recommendation addresses Defendants Nicholas Wilson (“Wilson”) and
Jason Schlenker’s (“Schlenker”) Motion for Sanctions Pursuant to Fed. R. Civ. P. 11(c)
(“Motion”), filed on June 19, 2018. [ECF. #81.] Plaintiffs did not file a response. The Motion
was referred to the Magistrate Judge by Memorandum dated June 19, 2018. [ECF. #82.]
Having reviewed the Motion, the entire case file, and the prevailing law, the Court
RECOMMENDS the Motion be GRANTED and the false arrest claims against these
Defendants be dismissed for failure to comply with Rule 11. The Court FURTHER

RECOMMENDS an award of reasonable attorney’s fees and costs to Wilson and
Schlenker (collectively, “Defendants”) to be paid by Plaintiffs’ attorney.
BACKGROUND
This civil action arises out of the fatal shooting of James Strong, Jr. (“Strong”), by
local police officers. On a night in May 2015, Strong, various of his family members, and
a friend, were asleep in Strong’s home when police officers (including Wilson and
Schlenker) entered on a “no knock warrant.” [See ECF. #84 at p.2.] Strong picked up a
gun and fired at what he believed to be an intruder entering his bedroom. The “intruder”
was Wilson, who returned fire. [Id.] At some point, Schlenker entered the bedroom and
repeatedly shot Strong. [Id.] Strong died from his injuries. [Id.] Following the shooting,
police officers handcuffed and jailed the Plaintiffs, and took the minor children from the
home and placed them in state custody. [Id.]
Plaintiffs filed their Amended Complaint on August 15, 2017 [ECF. #33]. They
asserted nine claims against the municipal and individual defendants. Pertinent to this
Recommendation, Lanhisha Richmond (“Richmond”) and Howard Mitchell, Jr. (“Mitchell”)
(collectively, “Plaintiffs”), brought false arrest claims against Wilson and Schlenker. 1 They
alleged that Wilson and Schlenker “restricted their freedom of movement, imposing an
unlawful [restraint] upon them, arresting them, and transporting them to the police station
to be detained in a cell . . . in violation of [their] Fourth and Fourteenth Amendment” rights.
[ECF. #33 at ¶¶141-49, 161-96.]

1

Marcus Strong also asserted a false arrest claim. The Court dismissed his claim
because he failed to appear at his deposition. [ECF. #83; ECF. #86.]
2

During their respective depositions, 2 Richmond and Mitchell testified they did not
know the identity of the officers who placed them in restraints and took them to the police
station. [ECF. #81-1 (Richmond deposition); ECF. #81-2 (Mitchell deposition).] In
addition, Wilson and Schlenker submitted affidavits stating they were not involved in the
detention, transport, or questioning of Richmond, Mitchell, or the minor children. 3 [ECF.
#81-3 (Wilson affidavit); ECF. #81-4 (Schlenker affidavit).]
On June 19, 2018, Defendants moved to dismiss the false arrest claims as lacking
factual support in violation of Fed. R. Civ. P. 11. [ECF. #81 at pp.4-5.] They also requested
an award of reasonable attorney’s fees incurred in filing the Motion and conducting
discovery on these claims. [Id. pp.5-6.] When Plaintiffs failed to file a response to the
Motion, this Court issued an Order to Show Cause as to why the Motion should not be
granted. [ECF. #96.] Plaintiffs did not respond to the show cause order. Therefore, the
Motion stands unopposed.
LEGAL STANDARDS
Rule 11 provides that by presenting a pleading, written motion, or other paper, to
the court, “an attorney…certifies that to the best of the person's knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances:” (1) the filing is
not presented for any improper purpose; (2) the claims and legal contentions are
warranted by existing law or a non-frivolous argument for the extension, modification or
reversal of existing law; and, (3) “the factual contentions have evidentiary support, or, if

2

Richmond’s deposition occurred on January 30, 2018. Mitchell’s occurred on February
1, 2018.
3 Wilson’s affidavit is dated May 17, 2018. Schlenker’s is dated May 21, 2018.
3

specifically so identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery.” Fed. R. Civ. P. 11(b). See also Monument Builders
of Greater Kansas City, Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1484-85
(10th Cir. 1989) (Rule 11 requires counsel to conduct a reasonable inquiry).
Rule 11 establishes a standard of objective reasonableness. Adamson v. Bowen,
855 F.2d 668, 673 (10th Cir. 1988). The test for imposition of Rule 11 sanctions is whether
counsel’s conduct was reasonable under the circumstances of the case. Ridder v. City of
Springfield, 109 F.3d 288, 293 (6th Cir. 1997). It does not require a finding of subjective
bad faith on the part of the offending attorney. Cf. Scott v. Boeing Co., 204 F.R.D. 698,
700 (D. Kan. 2002) (noting that an attorney’s subjective good faith belief in the merits of
an argument will not suffice to satisfy the standard of objective reasonableness).
The duty of candor established under Rule 11 exposes counsel to sanctions for
continuing to advocate a position after learning that it ceases to have merit or is no longer
tenable. Young v. Corbin, 889 F. Supp. 582, 585 (N.D.N.Y. 1995). Ultimately, Rule 11
seeks to curb abuses of the litigation process. Bus. Guides, Inc. v. Chromatic Commc’ns
Enters., Inc., 498 U.S. 533, 542 (1991). A Rule 11 violation occurs where it is patently
clear that a claim has absolutely no chance of success under the existing precedents,
and where no reasonable argument can be advanced to extend, modify, or reverse the
law as it stands. Harrison v. Luse, 760 F. Supp. 1394, 1399 (D. Colo. 1991).

4

Further, Rule 11 is not intended to function as a fee-shifting provision or to reward
parties who are victimized by litigation. See, e.g., Tidik v. Ritsema, 938 F. Supp. 416, 426
(E.D. Mich. 1996); Watson v. City of Salem, 934 F. Supp. 666, 667 (D.N.J. 1996). 4
[I]n determining whether (and what) sanctions are appropriate, a court
should consider: “(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; ... (3) the culpability of the
litigant,” [and] (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance.” Before
a court orders dispositive sanctions, it should also consider the efficacy of
lesser sanctions.
Grady v. Broderson, No. 13-cv-00752-REB-NYW, 2015 WL 1384371, at *4 (D. Colo. Mar.
23, 2015) (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)). “[T]he
Ehrenhaus factors should be considered even in cases that do not involve dispositive
sanctions.” Id. (citing Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102
(D. Colo. 1996)).
ANALYSIS
A.

Whether Plaintiffs or their Counsel Violated Rule 11
The first question is whether Plaintiffs violated Rule 11 by bringing and maintaining

their false arrest claims against Wilson and Schlenker. For the reasons stated below in

4

Rule 11 imposes certain procedural requirements on parties seeking sanctions. A party
must submit the motion for sanctions separately from other motions or requests and
specifically describe the conduct that allegedly violates Rule 11(b). The party must serve
the motion on the opposing party. If, after 21 days, the offending party does not withdraw
the challenged conduct, the party seeking sanctions may file its motion for sanctions with
the court. See Fed. R. Civ. P. 11(c)(2). It is undisputed that Defendants Wilson and
Schlenker fully complied with the procedural requirements of Rule 11 prior to filing its
motion. [ECF. #81 at ¶13; ECF. #81-5.]
5

Section B, the Court finds that Plaintiff’s counsel, J. Benton Stewart II (“Stewart”), has
violated Rule 11.
In reaching this conclusion, in addition to the conduct surrounding the Motion, the
Court has also considered Stewart’s clear pattern of delinquencies and disregard for the
Court’s time, its orders, and its deadlines, as well as his demonstrated lack of candor in
his representations to the Court. Judge Martinez described some of these failures in detail
in a prior Order:
Plaintiffs’ counsel’s near failure to timely submit a motion for leave to file an
amended complaint within a generous sixty-day period, and failure to
actually amend claims which were previously dismissed by the Court are
merely the latest actions which give this Court pause. Plaintiffs’ Motion
failed to even acknowledge the possible untimeliness of its filing until the
reply brief. The Court notes that Plaintiffs’ benefitted from a procedural fluke
and, absent those unusual circumstances, the Court would have had no
choice but to deny any further attempts by Plaintiffs to amend their
complaint.
Plaintiffs’ counsel has also failed to respond to an e-mail from Judge
Hegarty regarding availability for a status conference, missed a May 24,
2018 status conference before Judge Hegarty, and neglected to file a
response to Defendants’ motion for sanctions against Marcus Strong for
failure to appear at his deposition. (ECF No. 83 at 1–2.) Judge Hegarty
issued a recommendation to grant Defendants’ first motion for sanctions for
failure of Marcus Strong to appear for his deposition, and Defendants
recently filed a second motion for sanctions seeking to dismiss the majority
of the claims in the action. (ECF No. 83; see ECF No. 67; ECF No. 81.)
Plaintiffs’ counsel’s pattern of missed deadlines demonstrates a lack of
familiarity with the District of Colorado Local Rules and a lack of
professionalism in the face of the gravity of the claims in this case. See
generally, D.C.COLO.LCivR; D.C.COLO.LAttyR.
Plaintiffs’ counsel’s lack of compliance with scheduling deadlines and lack
of diligence in representing Plaintiffs in this action has impacted the orderly
and expeditious disposition of this litigation. See Dietz, 136 S. Ct. at 1891.
In light of the seriousness of the claims in this case, and in the interests of
justice, judicial efficiency, and effective docket management, the Court in
its discretion directs Mr. Stewart to immediately associate himself with co6

counsel local to Colorado with significant experience in federal § 1983
litigation to assist in the future prosecution of this case. 5
[ECF. #84.]
B.

Dismissal with Prejudice is Appropriate
1.

Degree of prejudice to the Defendants

Based on Plaintiffs’ respective deposition testimony, and Wilson’s and Schlenker’s
corresponding affidavits, Plaintiffs lack critical proof to sustain their false arrest claims.
There is no factual or evidentiary support for Plaintiffs’ allegation that Wilson and
Schlenker arrested or detained them. There is no question Wilson and Schlenker have
been prejudiced by Plaintiffs’ false arrest claims. They have been forced to defend these
claims since the case’s inception, all while Plaintiffs lacked evidence of Wilson’s and
Schlenker’s personal participation in Plaintiffs’ arrest and detention. And they were forced
to defend these claims even after Plaintiffs admitted they lacked evidence, and after
Plaintiffs had a reasonable opportunity for further investigation or discovery once Wilson
and Schlenker produced their affidavits.
At a minimum, it should have been patently clear to Plaintiffs that their false arrest
claims had no chance of success when they understood they could not identify Wilson or
Schlenker as the officers who restrained or detained them. Plaintiffs have made no
argument that they are somehow attempting to advance, extend, or modify applicable
law. In fact, the opposite is true because they have since indicated a desire to voluntarily

5

Despite the order to associate with local counsel, Stewart has not done so.
7

withdraw these claims while still ignoring the Motion and this Court’s Order to Show
Cause. This factor favors dismissal with prejudice.
2.

Interference with the judicial process

The Court also concludes that Plaintiffs’ failure to withdraw these claims has
interfered with the judicial process. Plaintiffs failed to withdraw these claims when
requested by defense counsel, and failed to file a response opposing the Motion. Because
Plaintiffs failed to file a response, the Court spent time trying to obtain Plaintiffs’ position
on these issues by issuing a show cause order, which Plaintiffs also ignored. [ECF. #96.]
The Court also devoted time and judicial resources to review the docket in some detail to
rule on the Motion because Plaintiffs failed to assist the Court’s review by filing a response
to the Motion or a response to the show cause order. It is hard to fathom how failing to
respond to orders of the federal district court would not interfere with the judicial process.
This factor favors dismissal with prejudice.
3.

Culpability of the litigants

While Plaintiffs ignored the Motion and Order to Show Cause, they did file a
response opposing Defendants’ subsequent Motion for Summary Judgment, which raises
the same issues concerning the false arrest claims. In Plaintiffs’ response opposing the
summary judgment motion, Stewart argues that his former co-counsel (who has since
withdrawn from this case) was responsible for asserting the false arrest claims. [See ECF.
#97 at p.27.] This deflection is inexplicable and reflects a lack of candor to the Court.
Stewart has been Plaintiffs’ counsel since the inception of this case. He personally signed
both the original and amended complaints, each containing the false arrest claims. [ECF.

8

#1 at p.33; ECF. #33 at p.26]. Stewart also attended Richmond’s and Mitchell’s
depositions where they each unequivocally testified that they did not know who arrested
or detained them. By February 1, 2018, at the latest, Stewart should have known that
these claims were not sustainable. But it was not until October 2018, and after Stewart
failed to respond to the Motion, and after he failed to respond to the Order to Show Cause,
that Plaintiffs indicated any intent to abandon these claims. [ECF. #94 (final pretrial order
listing only the excessive use of force claims).]
It is unclear whether Richmond and Mitchell know of the Motion. In his prior Order
denying the motion to amend, Judge Martinez outlined his concerns regarding Stewart’s
ability to adequately represent Plaintiffs’ interests. [ECF. #84.] Judge Martinez instructed
Stewart to serve a copy of that Order on his clients and then file a certificate of service
with the Court indicating he had done so. [Id.] Stewart never filed that certificate.
Regardless of whether Plaintiffs know of the Motion, they surely knew they could not
identify Wilson or Schlenker as the officers who arrested and detained them. Thus, the
Court finds that Plaintiffs share some culpability in permitting these claims to be brought
and maintained on their behalf. This factor favors dismissal with prejudice.
4.

Warning

The fourth factor asks whether the litigant was warned that dismissal was a likely
sanction. King v. Fleming, 899 F.3d 1140, 1153 (10th Cir. 2018). The Court finds Plaintiffs
were sufficiently warned. The first warning came when Defendants served Plaintiffs with
a copy of the Motion in accord with Rule 11’s safe-harbor provision. [ECF. #81-5.] The
second warning came with this Court’s Order to Show Cause directed to Plaintiffs to show

9

cause why the Motion (which sought dismissal) should not be granted. [ECF. #96.]
Plaintiffs ignored both. This factor favors dismissal with prejudice.
5.

Efficacy of a lesser sanction

Because “dismissal is a severe sanction and is not ordinarily warranted if lesser
sanctions would be effective,” this Court must consider the potential utility of lesser
sanctions. If a lesser sanction would be effective, dismissal is less justifiable. King, 899
F.3d at 1153 (internal quotation marks omitted).
Here, there is good reason for dismissal with prejudice over a lesser sanction.
According to their own deposition testimony, Plaintiffs do not know who arrested or
detained them, and therefore, they will not be able to establish Wilson’s or Schlenker’s
personal participation. Indeed, Plaintiffs’ attempt to now abandon these claims after
incurring the Court’s time to address the Motion is concession enough that no lesser
sanction is warranted. This factor favors dismissal with prejudice as the most effective
sanction under the circumstances.
C.

Defendants are Entitled to an Award of Attorney’s Fees against Stewart
Neither Plaintiffs nor Stewart have provided the Court with any information that

might mitigate their responsibility for the fees and costs associated with the Motion. As
noted above, it is unclear whether Plaintiffs know of the Motion or Stewart’s conduct in
this case. What is clear, however, is Stewart signed the complaint and amended
complaint each of which asserted the false arrest claims, he failed to timely withdraw
those claims against the dearth of evidence to support them, he failed to respond to the
Motion, and he ignored this Court’s Order to Show Cause. Under these circumstances,

10

an award of fees and costs is warranted as a Rule 11 sanction against Stewart only and
not the individual Plaintiffs. To be sure, it is not only Stewart’s conduct as relates to this
Motion that supports an award of fees and costs, but it is also his history of blatant
indifference to the rules and obligations pertaining to these judicial proceedings that
convinces the Court that no other sanction would be effective.
When imposing attorney’s fees as a sanction under Rule 11, the Tenth Circuit has
highlighted four factors for a court to consider: (1) the reasonableness of the fee; (2) the
minimum amount required to deter misconduct; (3) the offender’s ability to pay; and (4)
“other” factors as the court sees fit, such as the offending party’s history, experience, and
ability; the severity of the violation; and the risk of chilling zealous advocacy. King, 899
F.3d at 1155 (citing White v. Gen. Motors Corp., 908 F.2d 675, 684085 (10th Cir. 1990)). 6
Moreover, in awarding sanctions, the Court must be mindful of D.C.COLO.LCivR 54.3,
which provides that a motion for attorney’s fees shall include “a detailed description of the
services rendered, [and] the amount of time spent,” as well as “a summary of relevant
qualifications and experience.”
Regarding the first factor and Local Rule 54.3, Defendants shall file an affidavit in
accordance with the local rules within ten days of Judge Martinez’s order on this
Recommendation, and Stewart may file a response opposing the reasonableness of the
fees within ten days after Defendants’ file the affidavit.

6

The Court’s previous analysis of the Ehrenhaus factors also weighs heavily in favor of
an award of attorney’s fees.
11

Regarding the second factor, while Defendants seek fees related to filing the
Motion and conducting discovery on the false arrest claims, the Court finds the minimum
amount required to deter this misconduct is an award of fees and costs limited to those
incurred to prepare, file, and otherwise address the Motion. See Fed. R. Civ. P. 11(c)(4).
Regarding the third factor, the Court lacks information on the matter. But that is not
to say that this factor weighs in Stewart’s favor. Rather, because Stewart has twice
elected not to provide this Court with any mitigating information regarding sanctions, the
Court concludes that this factor is neutral. See King, 899 F.3d at 1156 (trial court did not
abuse its discretion by not weighing this factor in the plaintiffs’ favor where there was no
evidence regarding ability to pay).
Regarding the fourth and final factor, as discussed above, Stewart’s failure to
oppose the Motion and failure to respond to the Court’s Order to Show Cause (in addition
to his overall pattern of dereliction over the course of these judicial proceedings) weighs
in favor of a fee award.
CONCLUSION
For the above reasons, the Court RECOMMENDS that:
•

Defendants’ Motion for Sanctions Pursuant to Fed. R. Civ. P. 11(c) [ECF.
#81] be GRANTED;

•

the false arrest claims (Claims Seven and Nine) against Wilson and
Schlenker be DISMISSED, WITH PREJUDICE;

•

Wilson and Schlenker be awarded their reasonable attorney’s fees and
costs associated with preparing, filing, and addressing the Motion;

12

•

the fee award issue against counsel for Plaintiffs, J. Benton Stewart II;

•

Defendants have ten days from the date Judge Martinez issues an order
on this Recommendation to submit an affidavit of fees and costs; and,

•

Mr. Stewart have 10 days from the date Defendants file their affidavit to
submit a response over the reasonableness of the claimed fees and costs.

DATED: December 14, 2018.

BY THE COURT:

S. Kato Crews
United States Magistrate Judge
District of Colorado
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties
have fourteen (14) days after service of this recommendation to serve and file
specific written objections to the above recommendation with the District Judge
assigned to the case. A party may respond to another party's objections within
fourteen (14) days after being served with a copy. The District Judge need not
consider frivolous, conclusive, or general objections. A party's failure to file and
serve such written, specific objections waives de novo review of the
recommendation by the District Judge, and waives appellate review of both factual
and legal questions. Thomas v. Arn, 474 U.S. 140, 148–53 (1985); Makin v. Colorado
Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411,
1412–13 (10th Cir. 1996).
13