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Shapiro v. Rynek

United States District Court, D. Colorado

January 11, 2017

ANTHONY D. SHAPIRO, Plaintiff,
v.
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

         Before 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.

         I. BACKGROUND

         As 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.)

         As the 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.)

         At one 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).

         This 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 physique.”
3. Therefore, Doane might be the officer responsible.

(Id. (citations omitted).)

         This 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.

         Despite 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 opportunity.” (Id.)

         The 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.

         Not 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 ...


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