United States District Court, D. Colorado
JUDY RIGG, as personal representative of the ESTATE OF ROBERT RIGG, Plaintiff,
CITY OF LAKEWOOD, Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RAYMOND P. MOORE, District Judge.
THIS MATTER is before the Court on Defendant City of Lakewood's Motion for Summary Judgment (ECF No. 76) (the "Motion"). Plaintiff Judy Rigg ("Plaintiff"), as personal representative of the Estate of Robert Rigg, brings this action pursuant to 42 U.S.C. § 1983, against Defendant City of Lakewood ("Defendant"). For the reasons set forth below, Defendant's Motion is GRANTED.
I. JURISDICTION AND LEGAL STANDARD
This case is based on federal question jurisdiction pursuant to 42 U.S.C. § 1331, having been removed from state court. This Court has subject matter jurisdiction as Plaintiff's claim is made pursuant to 42 U.S.C. § 1983.
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine issue of material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
II. PROCEDURAL HISTORY AND FACTS
Plaintiff, the widow and personal representative of the estate of Robert Rigg, filed her complaint in state court in September 2011, and it was removed to this court in November 2011. The complaint was filed by Ms. Rigg in both her personal capacity and as personal representative of Mr. Rigg's estate. Originally, the complaint alleged liability against multiple parties in connection with the death of Robert Rigg. Defendants filed a Motion to Dismiss on December 16, 2011 (ECF No. 13), and U.S. District Court Judge R. Brooke Jackson ruled on it by dismissing with prejudice Plaintiff's claims against the Lakewood Police Department and the Denver Police Department, and dismissing with prejudice the wrongful death claims against the City of Lakewood and the City and County of Denver. (ECF No. 25 at 5.) Additionally, the claim against the two municipalities under 42 U.S.C. § 1983 was dismissed without prejudice and with leave to amend. ( Id. ) The dismissal of the § 1983 claim was predicated upon the total failure to allege that the constitutional violation being advanced was pursuant to a custom or practice of the municipality.
A Motion for Reconsideration was filed asking for leave to amend without filing a new action, and Judge Jackson clarified via text only entry that "[t]he Court's intention was to permit plaintiffs to file an amended complaint in this case." (ECF No. 27.) Plaintiff, solely as personal representative, then filed an amended complaint asserting a § 1983 claim only against the City of Lakewood (ECF No. 29), Defendant filed an answer, and eventually an amended answer (ECF No. 39). Defendant filed two Motions to strike Plaintiff's experts (ECF Nos. 74, 75), and also the instant Motion for Summary Judgment (ECF No. 76).
The relevant facts, taken in the light most favorable to Plaintiff, are as follows: On September 9, 2009, at approximately 11:50 a.m., Robert Rigg struck a public bus while driving his vehicle. (ECF No. 97 at 2.) After striking the bus, Mr. Rigg did not remain at the scene. Although he stopped momentarily and was confronted by witnesses, Mr. Rigg drove away quickly and continued westbound on West Alameda Avenue towards the City of Lakewood. ( Id. ) At 11:56 a.m., the City of Lakewood Police Department dispatch unit was notified that an officer was following a vehicle traveling westbound in eastbound lanes that had potentially been involved in a hit and run. ( Id. ) Dispatch was notified that the vehicle, which was identified as a red 1980s Mustang coupe, refused to yield. ( Id. at 3.) At 11:58 a.m., City of Lakewood Police Agent Robert Albrets, responding to the scene, placed his police vehicle in a position which prevented the Mustang from proceeding. ( Id. ) Once it had stopped, Agent Albrets exited his vehicle and went to the passenger side window of the Mustang, where he observed Mr. Rigg wearing his seatbelt, with his left hand on the steering wheel. ( Id. at 3-4.) Additional police responded to Mr. Rigg's vehicle and, according to Plaintiff, "Lakewood Police Officers observed that Robert Rigg was unresponsive, incoherent, confused, dazed, unable to move, and sweating profusely, so much so that his clothes and car seat were soaking wet." ( Id. at 4.)
Police officers ordered Mr. Rigg to get out of the car, and he did not respond. ( Id. ) Agent Albrets and Detective Storrs opened the driver's side door of the Mustang and pulled Mr. Rigg out of the car. ( Id. ) Agent Albrets noted that Mr. Rigg was hot and extremely sweaty. ( Id. ) When the officers attempted to handcuff Mr. Rigg, he pulled away briefly. ( Id. ) Mr. Rigg was searched, and a small bottle with then unidentified white pills and a worn off label was found in his pocket. ( Id. at 5.) These pills were later determined to be nitroglycerin medication, prescribed for Mr. Rigg. ( Id. ) It is undisputed by the parties that "[d]ue to his erratic driving, likely involvement in a hit and run accident, lack of response to presence and commands and physical symptoms, Agent Albrets suspected Mr. Rigg was under the influence of an unknown drug." ( Id. ) Mr. Rigg was placed in the back seat of the police vehicle, and he pulled his legs into the car. ( Id. ) At 12:01 hours, a request was made for the City of Lakewood Dispatch ("Dispatch") to have a drug recognition agent meet Agent Albrets and Mr. Rigg in the booking area of the Lakewood Police Department. ( Id. at 6.) At 12:03 p.m., Agent Albrets reported that he was transporting Mr. Rigg to the City of Lakewood Police Station. ( Id. )
Plaintiff contends that while en route to the police station, Agent Albrets observed Mr. Rigg drooling and breathing heavily, looking "like he was sorta passed out or something, " and was concerned that Mr. Rigg was experiencing excited delirium. ( Id., ECF No. 98 at 44.) Accordingly, he requested that medical personnel be called. At 12:06 hours, Dispatch spoke with West Metro Fire Department ("West Metro") and asked that paramedics meet Agent Albrets and Mr. Rigg at the City of Lakewood Police Department booking area. ( Id. ) According to Plaintiff, West Metro was also told that Mr. Rigg was complaining of shortness of breath and chest pains. ( Id. )
After West Metro was on its way to the police station, Sergeant Collett radioed Agent Albrets and asked Albrets to call him on a private line. (ECF No. 97 at 7.) Sergeant Collett instructed Agent Albrets to take Mr. Rigg directly to St. Anthony's Hospital ("St. Anthony's"). ( Id. ) Agent Albrets pulled into the booking area at the Lakewood Police Station, turned around, and left the station for St. Anthony's. ( Id. ) Sergeant Collett instructed Dispatch to cancel the request to West Metro, which was approximately one mile away from the police station, and confirmed that Agent Albrets would take Mr. Rigg to St. Anthony's, approximately a ten minute drive from the police station. ( Id. ) At 12:07 p.m., Agent Albrets told Dispatch that he was heading to St. Anthony's. ( Id. at 8.)
At 12:08 p.m., Agent Albrets told Dispatch that Mr. Rigg was "not looking too good, " and requested permission to "run hot" with lights and sirens to St. Anthony's. ( Id. ) This request was denied according to Plaintiff, and Sergeant Collett instructed Agent Albrets to pull over and wait for the paramedics. ( Id. ) At 12:09 p.m., Dispatch called West Metro and asked them to meet Agent Albrets at Bayaud and Wadsworth, and they re-routed. ( Id. ) At 12:11, Agent Albrets informed Dispatch to tell the paramedics that he was stopping at a parking lot at 98 Wadsworth Boulevard. ( Id. ) At 12:11, Dispatch asked West Metro for an estimated time of arrival, and West Metro said four minutes. ( Id. ) While Agent Albrets was waiting for the ambulance, other police personnel came upon the scene, removed Mr. Rigg from Agent Albrets' vehicle, and began performing CPR on Mr. Rigg. (ECF No. 75-1 at 8.) At 12:13, Dispatch was informed that Mr. Rigg was ...