United States District Court, D. Colorado
TERRELL S. HUBBARD, Plaintiff,
v.
TOM NESTOR, MICHAEL YOWELL, WADE ADAMS, DERIK MATTHESON, and COLE BRITTON, Defendants.
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 ...