United States District Court, D. Colorado
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,
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.
Kato Crews, United States Magistrate Judge.
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.
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
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. 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,
their respective depositions,  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. [ECF. #81-3 (Wilson affidavit); ECF. #81-4
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
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 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
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
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.
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).
[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.
Whether Plaintiffs or their Counsel Violated Rule 11
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 Section
B, the Court finds that Plaintiff's counsel, ...