Hubbard v. Nestor

          ORDER

          SCOTT T. VARHOLAK MAGISTRATE JUDGE

         This civil action is before the Court on Plaintiff's Motion to Strike New Arguments and Affidavit Raised in Defendants' Reply in the Matter of Their Motion for Summary Judgment (the “Motion to Strike”) [#165], which was referred to this Court for resolution [#167]. This Court has carefully considered the Motion to Strike and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion to Strike. For the following reasons, the Motion to Strike is GRANTED IN PART and DENIED IN PART.

         I. Background

         Plaintiff brings claims for alleged violations of his Fourteenth Amendment right to Due Process and violation of his Fourth and Fifth Amendment rights while he was detained at the Lincoln County Jail. [See #61 at 4-5] On October 12, 2018, Defendants filed a Motion for Summary Judgment (the “Summary Judgment Motion”) seeking summary judgment in their favor on all of Plaintiff's remaining claims in the lawsuit. [#153] More specifically, Defendants argue that (1) Plaintiff was not entitled to a hearing prior to being relocated within the Lincoln County Jail, because the relocation was related to maintaining the order, safety, and security of the jail, its staff, and other inmates; (2) Plaintiff's Fourth Amendment rights were not violated, because he did not have a reasonable expectation of privacy in his jail cell and he has not established the violation of any rights under the Fifth Amendment; (3) Plaintiff failed to exhaust his administrative remedies prior to bringing this lawsuit; (4) Defendants are entitled to qualified immunity; and (5) Defendant Sheriff Tom Nestor is not liable in his official capacity, because Plaintiff failed to prove any underlying constitutional violation and Sheriff Nestor is entitled to qualified immunity. [Id.] On November 11, 2018, Plaintiff filed his Response to Defendants' Motion for Summary Judgment (the “Summary Judgment Response”). [#157] On December 3, 2018, Defendants filed their Reply in the Matter of Their Motion for Summary Judgment (the “Summary Judgment Reply”). [#164] In support of the Summary Judgment Reply, Defendants submitted some additional deposition transcript excerpts and the Affidavit of Michael Yowell, the Captain of the Lincoln County Jail, dated December 3, 2018 (the “Yowell Affidavit”). [#164-1]

         On December 24, 2018, Plaintiff filed the instant Motion to Strike, arguing that Defendants' Summary Judgment Reply and the Yowell Affidavit contain new arguments and evidence that were not raised in the Summary Judgment Motion and thus should be stricken. [#165] In the alternative, Plaintiff requests leave to file a sur-reply to address the new arguments. [Id. at 5-6] On January 14, 2019, Defendants filed a response to the Motion to Strike [#169], and Plaintiff then filed a reply in support of the Motion to Strike [#171].

         II. LEGAL STANDARD

         As the Tenth Circuit has explained, the consideration by the Court of issues raised for the first time in a reply brief “robs the [other party] of the opportunity to demonstrate that the record does not support [the moving party's] factual assertions and to present an analysis of the pertinent legal precedent that may compel a contrary result.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). As a result, “arguments raised for the first time in a reply brief are generally deemed waived, ” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011), and district courts within the Tenth Circuit have granted motions to strike such newly raised arguments, see Sarl v. Sprint Nextel Corp., No. CIV.A. 09-2269-CM, 2011 WL 346083, at *3 n.2 (D. Kan. Feb. 2, 2011) (collecting cases “stri[king] exhibits and arguments from [ ] reply brief[s] when the exhibits and discussion were raised for the first time in a reply brief”). If not stricken, the Tenth Circuit has instructed that “[g]enerally, the nonmoving party should be given an opportunity to respond to new material raised for the first time in the movant's reply.” Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). In accord with these principles, Judge Arguello's Civil Practice Standards expressly state that “[a] motion to strike another party's motion should not be filed when an opposing response could adequately address the issues presented by that party's motion.” CMA Civ. Practice Standard 7.1A(a).

         III. ANALYSIS

         Plaintiff's Motion to Strike argues that Defendants' Summary Judgment Reply and the Yowell Affidavit include new arguments not presented in Defendants' Summary Judgment Motion. [#165] Specifically, Plaintiff contends that (1) Defendants' Summary Judgment Reply argues for the first time that Plaintiff is “not a typical ‘pre-trial detainee', in that he was a parolee (and, therefore, still a ‘constructive prisoner')” [#165 at 4 (quoting #164 at 8-9)]; (2) the Yowell Affidavit contends for the first time that Lincoln County Jail supervisors “needed additional time to come up with a plan to manage [Plaintiff] given his behavior.” [id. at 2 (quoting #164-1 at 12, ¶ 17)]; and (3) Defendants' Summary Judgment Reply includes new arguments for why Plaintiff's Monell claims should be dismissed [id. at 5 (citing #164 at 14-15)].^[1] Plaintiff argues that Defendants' failure to include these arguments in the Summary Judgment Motion “strip[ped] [Plaintiff] of an opportunity to respond” to them. [Id. at 2-3] As a result, Plaintiff contends that the Court should strike these new arguments or, in the alternative, grant Plaintiff leave to file a sur-reply to respond to them. [Id. at 3, 5-6] The Court addresses each of the challenged arguments in turn.

         A. Argument that Plaintiff Was a Parolee

         In the Summary Judgment Reply, Defendants contend that “while Plaintiff was a pretrial detainee with respect to the criminal charge he received for making a ‘shank' while being held in the Limon Correctional Facility, he was transported to the [Lincoln County] Jail as a parolee on his prior charges in order to face his new charge, and remained on that status while he was an inmate at the Jail.” [#164 at 8] Defendants further note that “[i]n Colorado, ‘a parolee is considered to be under a restraint imposed by law and is not a free person, but rather, a constructive prisoner of the state and under the control of the appropriate state officials.'” [Id. (quoting People v. Gallegos, 914 P.2d 449, 450 (Colo.App. 1995)] In response to the Motion to Strike, Defendants contend that this is not a new argument, because Defendants included the following undisputed fact in the Summary Judgment Motion: “Plaintiff was awaiting trial on a charge of ‘possession of dangerous contraband,' from actions he allegedly took while an inmate at the Limon Correctional Facility” and also included a citation at the end of this statement referring to evidence that “clearly identifies that Plaintiff was paroled to the Lincoln County Jail and was, therefore, also a parolee.” [#169 at 3] The Court finds this argument unpersuasive. Defendants cannot incorporate by reference into their motion every factual statement included in the cited evidence. Notably, neither the word “parole” nor “parolee” appear anywhere in Defendants' Summary Judgment Motion.

         Even if the factual premise that Plaintiff was a parolee at the time he was detained at the Lincoln County Jail had been sufficiently set forth in the Summary Judgment Motion, Defendants failed to cite to any of the relevant legal authority included in the Summary Judgment Reply regarding the legal status of parolees. As this Court has previously explained in this case, the standard for a Fourteenth Amendment violation is different for pretrial detainees than for convicted prisoners: “‘the Fourteenth Amendment's guarantee of due process prohibits any punishment of those awaiting trial,' whereas ‘[p]unishment may be constitutionally acceptable for persons convicted of crimes-at least so long as it doesn't amount to “cruel and unusual” punishment.'” [#61 at 10 (quoting Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013)] In their Summary Judgment Motion, Defendants analyze Plaintiff's Fourteenth Amendment claims solely under the standard applicable to pretrial detainees. [#153 at 10-15] To the extent Defendants intend-for the first time in their Summary Judgment Reply-to argue that the Fourteenth Amendment standards applicable to pretrial detainees do not apply to Plaintiff because he was a parolee at the time he was detained at the Lincoln County Jail, Defendants have waived this argument. See Harrell, 642 F.3d at 918 (“[A]rguments raised for the first time in a reply brief are generally deemed waived.”). The Court further finds that this new argument cannot adequately be addressed by allowing Plaintiff to file a sur-reply because it introduces entirely new factual issues and legal theories into the case.

         Accordingly, the Court GRANTS the Motion to Strike to the extent it seeks to strike Defendants' argument that “Plaintiff was not a typical ‘pre-trial detainee', in that he was a parolee (and, therefore, still a ‘constructive prisoner'), who was on pre-trial status for a new charge” while detained at the Lincoln County Jail and that argument will not be considered by this Court in connection with Defendants' Summary Judgment Motion.

         B. Argument that Jail Supervisors Required ...