United States District Court, D. Colorado
ANTHONY D. SHAPIRO, Plaintiff,
MARCUS RYNEK, in his individual capacity, and STEVEN DOANE, in his individual capacity, Defendants.
ORDER DENYING MOTION TO DISQUALIFY
William Martínez United States District Judge
the Court is Plaintiff's Motion to Disqualify
Defendants' Counsel Pursuant to Colorado Rules of
Professional Conduct Rule 1.7 (“Motion to
Disqualify”). (ECF No. 138.) For the reasons explained
below, this Motion is denied.
summarized in this Court's Order Denying Defendants'
Motion for Summary Judgment (“Summary Judgment
Order”), this case involves an accusation that
Plaintiff Anthony Shapiro (“Shapiro”), a Colorado
Department of Corrections (“CDOC”) inmate housed
at the Sterling Correctional Facility
(“Sterling”), was unconstitutionally strip
searched before being placed on a transport bus on December
6, 2012. (ECF No. 131 at 3-4.) Specifically, Shapiro claims
that he was strip searched in front of other inmates, rather
than privately. (See id.)
Court stated in the Summary Judgment Order, “The
parties agree that the strip search was ordered and performed
by one male prison guard acting alone. Whether that guard was
[Defendant] Rynek or [Defendant] Doane (or someone else) is
somewhat uncertain . . . .” (Id. at 4.) Rynek
was a CDOC officer assigned to Sterling, while Doane was a
CDOC officer assigned to the Northern Transport Unit
(“NTU”), a special CDOC division charged with
transporting prisoners in a certain geographic region.
(Id. at 11-12.)
point in this litigation, Shapiro positively identified Rynek
as the guard who performed the strip search. (Id. at
10.) Apparently Shapiro has since backpedaled from his
previous certainty (see ECF No. 144 at 3), and his
counsel is prepared to pursue an argument that the strip
search may have been performed by Doane (ECF No. 131 at 11).
argument runs as follows:
1. Rynek denies conducting the strip search and asserts that
any strip search performed would have been done by the NTU
officers in charge of driving the offenders to Denver. The
three NTU officers present that day, including Doane, also
testified that NTU officers are responsible for strip
searching inmates prior to transport. And Sterling's
warden similarly testified that NTU conducts the
pre-transport strip searches.
2. The officer in question “was white” and had
“a medium to muscular build.” Allegedly, Doane
was the only white NTU officer present on the morning in
question, and has “a medium to muscular
3. Therefore, Doane might be the officer responsible.
(Id. (citations omitted).)
state of affairs led the Court to express some concern
regarding Rynek's and Doane's joint representation by
the Colorado Attorney General's Office, given Rynek's
and Doane's apparent motive to point fingers at each
other. (Id. at 13-14.) Specifically, Rynek had a
motive to accuse the NTU, and the only NTU officer still a
defendant in this case is Doane; while Doane had a motive to
highlight Shapiro's positive identification of Rynek.
(Id.) Representation by the same attorneys would
make such arguments difficult.
this, the Court acknowledged that it “does not have a
comprehensive view of the evidence and arguments to be
presented at trial. Therefore the Court cannot say with
certainty that a non-waivable conflict of interest exists
here.” (Id. at 14.) The Court nonetheless
“strongly encourage[d] Defendants' counsel to seek
an outside opinion on this matter at their earliest possible
Court issued its Summary Judgment Order on September 16,
2016. On December 9, 2016, Defendants' counsel filed a
“notice” informing the Court that they had
obtained an opinion from the attorneys in the Attorney
General's Office that regularly review cases for
conflicts of interest, and those attorneys saw no conflict in
continuing joint representation of Defendants. (See
generally ECF No. 135.) This is so primarily because
Doane, although he has no specific memory of searching
Shapiro, nonetheless agrees with Rynek that any
strip search which occurred was performed by NTU officers
such as himself, albeit in private. (Id. at 4-5.) In
other words, Rynek's position is that he was not involved
at all, whereas Doane's position is that he may have been
involved but no public strip search occurred.
satisfied with this explanation, Shapiro filed the Motion to
Disqualify at issue here on December 26, 2016. (ECF No. 138.)
This matter is set for a Final Trial Preparation Conference
on February 3, 2017, and a ...