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Cassady v. Goering

January 31, 2006

THOMAS J. CASSADY, PLAINTIFF,
v.
STEVEN E. GOERING, INDIVIDUALLY AND AS SHERIFF OF KIT CARSON COUNTY, COLORADO; AND WILLIS E. BODEN, INDIVIDUALLY AND AS DEPUTY SHERIFF OF KIT CARSON COUNTY, COLORADO, DEFENDANTS.



The opinion of the court was delivered by: Judge Walker D. Miller

ORDER ON MOTION FOR RECONSIDERATION

This case is before me on plaintiff Thomas J. Cassady's motion asking that I reconsider my summary judgment order, issued July 21, 2005. I have considered the parties' written arguments and find that oral argument is not required. For the reasons that follow, the motion will be denied.

In my July 2005 order, I granted Defendants' motion for summary judgment in part to dismiss Cassady's third, fourth, seventh, and eighth claims. I also dismissed his first claim to the extent it relied on allegations that his arrest and the warrant authorizing a search of his property were not supported by probable cause. Cassady now contends my ruling on the probable cause issue was in error because I failed to recognize that his expert witness's report created a disputed fact concerning whether the complaining witness was telling the truth and because Defendants failed to determine whether the complaining witness had a reasonable basis to know that the plants which he allegedly saw on Cassady's property were marijuana. In his reply to Defendants' response, Cassady raises for the first time the allegation that Defendant Steven Goering obstructed justice and abused the judicial process in connection with his deposition testimony about reports generated concerning Cassady's arrest. I will address these arguments in turn.

The Federal Rules of Civil Procedure do not recognize a motion for reconsideration. Because no judgment has entered in this case, Cassady's motion must be construed as a motion for relief from my order pursuant to Fed. R. Civ. P. 60(b). See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (motion for reconsideration should be construed either as motion to alter or amend a judgment pursuant to Rule 59(e) or as Rule 60(b) motion for relief from judgment). Rule 60(b), however, is "not available to allow a party merely to reargue an issue previously addressed by the court when the reargument merely advances new arguments or supporting facts which were available for presentation at the time of the original argument."FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)). All three issues raised by Cassady were, or could have been, presented in his response to the Defendants' motion for summary judgment and therefore, although discussed below, are not proper grounds for relief from my summary judgment order.

Cassady first asserts that his expert witness's report, which sets forth the opinion that Cassady's arrest was not supported by probable cause, raised "a fact question of the jury regarding the presence of special circumstances suggesting that [the complaining witness] was not telling the truth." Motion for Reconsideration, at 3. Contrary to Cassady's false assumption and argument, I did review Exhibit N, Cassady's expert's report, and I did address the question of whether there were circumstances that required that the Defendants treat the complaining witness's complaint with caution or skepticism. July 2005 Order, at 10. Further, I expressly found that the information Defendants had prior to Cassady's arrest was not disputed and I discussed the same facts set forth in the expert report. Id. at 9-11. Based upon this evidence, I reached the legal conclusion, with which Cassady's expert disagrees, that a reasonable officer could have believed probable cause existed for Cassady's arrest.

Cassady's stretch to convert a legal opinion on probable cause, based upon uncontested facts, into a factual dispute to avoid summary judgment is particularly egregious given the rule prohibiting an expert witness from testifying as to ultimate legal conclusions. Specht v. Jensen, 853 F.2d 805, 807-809 (10th Cir. 1988) (admission of legal expert's opinion that defendants' conduct violated the law was reversible error).

Cassady's second argument is that Defendants should have assessed the basis for the complaining witness's claim that he saw marijuana on Cassady's property. He cites to 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.4(b), at 245 (4th ed. 2004), and cases cited therein. The complaining witness's statement to Defendant Boden that he knew what marijuana looked like because he had seen pictures of it may not rise to the level of the showings set forth in the cases relied on, but it was sufficient (particularly given the fact that pictures of marijuana are not rare) to permit Defendants to rely on his information. Cf. United States v. House, 604 F.2d 1135, 1141-42 (8th Cir. 1979) (information from informant sufficient to establish probable cause were informant had proven reliable in past despite lack of assertion concerning information about subject matter of previous tips or about how informant identified the drugs).

Cassady raises for the first time in his reply the issue of Goering's alleged perjury in his deposition as grounds for vacating my summary judgment order and allowing all of Cassady's claims to proceed to trial. Not only could this argument have been raised in his response to the summary judgment motion,*fn1 but it was not presented in Cassady's motion for reconsideration and was thus waived. Ward v. Utah, 389 F.3d 1293, 1246 (10th Cir. 2005) (arguments first raised in a reply brief are waived).

Defendants have filed a motion to strike the references to obstruction of justice. Because I will deny the motion for reconsideration on all grounds, the motion to strike is mooted in part. I will deny the motion as moot but permit the parties to address the need for a hearing on the issue of the alleged perjury at the trial preparation conference scheduled for February 1, 2006.

Accordingly it is ordered:

1. The motion for reconsideration, filed August 9, 2005, is denied.

2. The motion to strike references, filed September 26, 2005, is denied as moot without prejudice to a renewed request for a hearing on the issue of obstruction of justice by defendant Goering.

DATED at Denver, Colorado, on January 31, 2006.

Walker D. Miller United States ...


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