MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

E-mail: perezfranklin@hotmail.com


Place Where MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT was Filed:
District Court, City and County of Denver, State of Colorado
Case Number 96 CV 6563
Courtroom 9

Date MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT was Filed:
Approximately March 1997

Persons who wrote MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT and who acted as Attorneys for State Defendants:

Address, Telephone, & FAX for State Attorneys:
1525 Sherman Street, 5th Floor
Telephone: (303) 866-5240
FAX: (303) 866-5443

Plaintiff: Franklin Perez

Defendants:
THE COLORADO STATE PATROL; RANDY RAHNE, individually, and in his official capacity as a Colorado State Trooper; GERALD LINCOLN, individually, and in his official capacity as a Colorado State Trooper; and, TIMOTHY McCLINCHY, individually, and in his capacity as a Colorado State Trooper


Contents of Web Page:
The MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT filed by the State of Colorado in response to my Verified Complaint and Jury Demand as well as my comments & rebuttals to the State of Colorado's MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

How can you view my comments & rebuttals?
Just click on the hyperlinked parts that link to "Rebuttal_?" - where "?" is my rebuttal number. Please note that not all hyperlinks in this web page are rebuttals - only the ones that link to "Rebuttal_?".


COMES NOW the defendants, by and through the Attorney General of the State of Colorado and for their Motion to Dismiss the Complaint pursuant to C.R.C.P. 12(b)(1) and 12(b)(5) or in the Alternative Motion for Summary Judgment pursuant to C.R.C.P. 56, state and allege as follows:

STATEMENT OF THE CASE

Plaintiff has brought suit against three Colorado State Troopers and the Colorado State Patrol apparantly claiming that his civil rights were violated when he was given a traffic citation. He claims a 42 U.S.C. @ 1983 violation; false arrest; and numerous state tort actions as a result of the traffic citation.

Plaintiff was stopped for a traffic investigation based on his erratic driving. He was given a roadside sobriety test, was found not to be under the influence of alcohol or drugs and was issued a traffic citation for careless driving. (See Plaintiff's Complaint.)

The traffic stop was made because the State Troopers observed plaintiff driving erratically and thus they had probable cause to stop him. (See affidavit of Trooper Gerald Lincoln attached as Exihibit A and affidavit of Trooper Randy Rahne attached as Exhibit B). The Colorado State Patrol has no policy permitting "profile stops", nor does it allow such. All stops must be based on probable cause to stop the vehicle based on observed violations. (See affidavit of Major King attached as Exihibit C).

The traffic stop of plaintiff was based on his erratic driving and had nothing to do with his race, age or sex. (See affidavits attached as Exihibits A and B).

STANDARDS OF REVIEW

a. Motion to Dismiss pursuant to C.R.C.P. 12(b)(1).

Defendant, Colorado State Patrol, is an agency of the State of Colorado. @ 24-33.5-201 to 26 C.R.S. (1988 Repl. Vol 10A). Defendants Gerald Lincoln, Randy Rahne, and Timothy McClinchy are State Troopers and are therefore State employees. As such, claims which sound in tort or could sound in tort against the State Defendants are subject to the Colorado Governmantal Immunity Act, @ @ 24-10-101 to 120, C.R.S. (1988 and 1994 Cum. Supp.) ("GIA").

The partial waivers of sovereign immunity set forth in the GIA at @ 24-10-106(1), C.R.S. (1988) define the subject matter jurisdiction of the courts to hear tort claims against public entities. State v. MST&T, 869 P.2d 1289, 1291 (Colo. 1994). A complaint which fails to state a claim within one of the partial waivers must be dismissed for lack of subject matter jurisdiction. C.R.C.P. 12(b)(1); Trinity Broadcasting Co. v. City of Westminster, 848 P.2d 91 (Colo. 1993). The rationale in Trinity has recently been extended by the Colorado Supreme Court to the issue of whether there is a waiver under the GIA. Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995).

This court lacks subject matter jurisdiction over any of the plaintiff's State law tort claims because the factual allegations set forth in the complaint do not implicate any area in which governmental immunity is waived in the GIA. When a factual attack is made on the jurisdictional allegations of the complaint, the court may receive any competent evidence pertaining to the motion. Trinity, 848 P.2d at 924.

Consideration of such evidence does not convert the motion to one for summary judgment. Id. When considering a motion to dismiss for lack of subject matter jurisdiction, the Plaintiff bears the burden of proving such jurisdiction; therefore such a motion differs from one for summary judgment under Rule 56 and one for failure to state a claim upon which relief can be granted under rule 12(b)(5). The difference is that in motion to dismiss for lack of subject matter jurisdiction, there is no presumption of the truth of the well plead allegations of fact in the complaint. Id. at 925. Also, a dispute as to a material issue of fact does not preclude the Court from ruling as the court becomes the trier of fact on this issue. Lafitte v. State Highway Department, 885 P2d 338 (Colo. App. 1994).

In order to survive a motion to dismiss for lack of subject matter jurisdiction, and bring his claim within the waiver of governmental immunity in @ 24-10-106(1), the Plaintiff may not merely make allegations of tort claims within the waivers of immunity. He must prove these allegations. Trinity, supra. Since the supreme court in Trinity, supra, has made the Court the trier of fact on these issues, the Court must hold an evidentiary hearing on this matter prior to letting the case go to trial. The burden of proof is on the plaintiffs. See Trinity at p. 925. Since no evidence exists which can establish the required elements against the State defendants, the plaintiff's state law tort claims must be as to the State defendants.

b. Motion to Dismiss pursuant C.R.C.P. Rule 12(b)(5).

A motion to dismiss under C.R.C.P. 12(b)(5) is viewed with disfavor and should be granted only if it is beyond doubt that plaintiffs are not entitled to any relief under the facts pleaded Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099 (Colo. 1991). In addition, the ruling court may consider only those matters contained in the Complaint and must not go beyond the confines of the pleading. Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286, 1290 (Colo. 1992); McDonald v. Lakewood Country Club, 461 P.2d 437, 440 (Colo. 1969).

In this case, taking all the allegations of the Complaint as true, the complaint fails to state a cause of action upon which any relief can be granted. This matter must be dismissed.

c. Motion for Summary Judgment pursuant to C.R.C.P. Rule 56.

C.R.C.P. 56(c) provides that "judgment sought shall be rendered forthwith if the pleadings ... together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A valid purpose for this interlocutory procedure is to save expense of litigants and time connected with trial when the indisputed facts indicate that a party could not prevail. O.C. Kinney, Inc. v. Paul Hardman, Inc., 151 Colo. 571, 379 P.2d 628 (1963). When a party is entitled to prevail as a matter of law, summary judgment is proper. Danelle v. City of Englewood, 740 P.2d 536 (Colo. App. 1987); Happy Canyon Investment Co. v. Title Insurance Co. of Minnesota, 38 Colo. App. 385, 560 P.2d 819 (1976); Phelps v. Gates, 40 Colo. App. 504, 580 P.2d 1268 (1978).

In this case the material facts are not in dispute. Applying the law to these facts reveals entitlement to judgment as matter of law in favor of the defendants on all of the plaintiff's claims.

ARGUMENT

I. TORT CLAIMS

A. THE COLORADO GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFF'S CLAIMS TWO THROUGH NINE: MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(1)

The defendants, the Colorado State Patrol, et. al., fall under the Colorado Governmental Immunity Act @ 24-10-101 to 120, C.R.S. (1988 and 1996 Cum. Supp.) ("GIA"). As such, claims which sound in tort or could sound in tort against them are subject to the GIA.

The Colorado Supreme Court applied the GIA in Moody v. Ungerer, 885 P.2d 200 (Colo. 1994). There, Colorado State Trooper Moody stopped plaintiff, a county employee, from driving a road grader along a highway during rush hour. The road grader's progression impeded rush hour traffic. Trooper Moody asked Ungerer to produce his driver's license, but did not issue Ungerer a traffic citation. Instead, the trooper retained plaintiff's license and instructed him to proceed to the county shop. The trooper then followed plaintiff, who drove the road grader. At the shop, Trooper Moody contacted Ungerer's supervisor and complained about the delay caused by the plaintiff's actions. After their discussion, Trooper Moody returned plaintiff's license and did not charge Ungerer with a violation of motor vehicle laws. Ungerer accordingly filed a claim for relief against Trooper Moody, alleging false arrest. The Colorado Supreme Court denied plaintiff's claim and held that the state trooper was immune from liability under the Governmental Immunity Act. Ungerer, 885 P.2d at 205. The court also found that Trooper Moody's actions did not constitute willful and wanton conduct. Id. See also Jarvis v. Deyoe, 892 P.2d 398 (Colo. Ct. App. 1994), cert. denied (Apr. 3, 1995) (Police officer's failure to offer motorists, a minor driver and passenger, a ride home at night after issuing citation for driving unregistered car and ordering driver not to drive car, did not approach level of conduct required to abrogate immunity from tort claims under Colorado GIA, though motorists were assaulted after the stop); and City of Lakewood v. Brace, 919 P.2d 231 (Colo. 1996).

The facts in this case are almost identical with those in Ungerer. In both cases, plaintiffs bring suit against Colorado State Troopers for actions taken within the scope of their employment and under the color of state law. Both plaintiffs allege the state tort claim of false arrest. This type of tort claim is not waived under the Colorado GIA. In addition, the defendant troopers in the present case did not commit a willful or wanton tort. Their actions proved even less egregious than those of Trooper Moody. In Ungerer, Trooper Moody took Ungerer's driver's license, only to remand it after following Ungerer some distance and then talking to Ungerer's supervisor at the county shop. Here, the defendant troopers took Perez's license only briefly, for identification purposes. They remanded the license immediately and at the same location. Further, Trooper Moody ended his traffic stop by following plaintiff's vehicle to its destination, instead of issuing the driver a citation. Here, the defendant troopers decided to issue a citation instead of forcing Perez to reenter his vehicle, order him to the police station, and follow him there. In the present case, the troopers did not discuss Perez's traffic violation with outside parties, such as a supervisor. As in Ungerer, then, the present allegations of false arrest enumerated in plaintiff's complaint do not set forth a willful and wanton state tort claim which avoids the sovereign immunity bar contained in the Colorado Governmantal Immunity Act.

Further, plaintiff's other claims for damages are in the nature of a tort or could be brought in the nature of a tort. C.R.S. @ 24-10-102. Claims three through nine, and the damages therein, exist in the Restatement of Torts, Second (1965) : Negligent Infliction of Emotional Distress (@@ 46-48); Negligence, Negligent Supervision, Negligent Training (@@ 281-328); Outrageous Conduct (@46); Malicious Prosecution (@@ 653-673). These claims do not fall within a waived area. C.R.S. @ 24-10-106(1) and therefore must be dismissed for lack of subject matter jurisdiction. When compared to the facts in Ungerer, where the Court held that the acts of Trooper Moody were not willful or wanton as a matter of law, Ungerer 885 P.2d at 205, the facts in this case likewise show that the alleged torts are neither willful nor wanton.
Because plaintiff's claims for damages are in the nature of tort or could have been brought in the nature of tort, and because there is no waiver for this type of claim in @ 24-10-106, the defendants are immune from plaintiff's damages claims. Therefore, this Court lacks subject matter jurisdiction over Perez's claims, and they must be dismissed pursuant to C.R.C.P. 12(b)(1).

B. THE COLORADO GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFF'S CLAIMS TWO THROUGH NINE: MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(5)

Because plaintiff's claims for damages are in the nature of tort or could have been brought in the nature of tort, and because there is no waiver of this type of claim in @ 24-10-106, and because the defendants are immune from plaintiff's damages claims, this Court must dismiss plaintiff's claims pursuant to C.R.C.P. 12(b)(5).

II. QUALIFIED IMMUNITY FROM 1983 CLAIM: MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

For plaintiff's first claim, this Court must grant plaintiff's motion to dismiss, or, in the alternative, grant plaintiff's motion for summary judgment.

A. STATE TROOPERS' ACTIONS DID NOT VIOLATE CONSTITUTIONAL LAWS GOVERNING SEIZURE, DUE PROCESS, OR LIBERTY

In Ungerer, the plaintiff filed a claim for damages under 42 U.S.C. @ 1983 against Trooper Moody. Plaintiff alleged a violation of his constitutional right to be free from an unreasonable seizure, as well as his right to due process of law. The Colorado Supreme Court held that, in order to state a claim for relief under 42 U.S.C. @ 1983, a plaintiff must establish that he was deprived of a right, privilege, or immunity secured by the federal constitution or federal laws by a person acting under the color of state law. Ungerer, 885 P.2d at 201. In the context of an allegedly illegal search, plaintiff must not only prove that there was a seizure but that the seizure was unreasonable. Id. at 202. Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. When a police officer who is acting under color of state law is charged with a violation of a plaintiff's federal rights, the officer can assert qualified immunity. Id. In evaluating a police officer's claim of qualified immunity, a reviewing court must determine whether the right allegedly violated was clearly established such that a reasonable officer would understand that the right was violated. Id. This requires a specific inquiry, rather than a general one bases upon abstract facts. Id.

When determining if Ungerer had a clearly established right existed, the Court found no law stating that when an officer retains a license, the seizure is per se unreasonable and the traffic stop becomes a violation of the driver's constitutional rights. Id. at 203-204. A traffic stop is a limited seizure within the meaning of the Fourth Amendment. Id. at 204. The reasonableness of a traffic stop turns on the facts and circumstances of each case, and in particular on the public interest served by the seizure, the nature and scope of the intrusion, and the objective facts upon which the law enforcement officer relied in light of his knowledge and experience. ID. The Court found that Trooper Moody's actions were reasonable. Id. As a result, the Court denied plaintiff's @ 1983 claim and held that the state trooper was entitled to qualified immunity. Id. at 205.

The facts of the present case are on all fours with those of Ungerer. Both cases involve state troopers detaining the plaintiffs at traffic stops. Both cases involve the state trooper seizing the plaintiff's driver's license. In Ungerer, the Court found it reasonable that Trooper Moody did not detain Ungerer and his road grader on the highway during rush hour, but in the interest of safety directed Ungerer not to further impede traffic. Here, the defendant Troopers likewise acted as any reasonable officer would. In the interest of safety, they pulled over Perez's erratically and hazardously driven vehicle, preventing an accident with drivers on the highway. Every officer knows that dangerously driven vehicles will likely collide with other vehicles unless stopped. The troopers then took plaintiff's license in order to systematically commence a check on the identity of the vehicle's driver. Such a course of events occurs in every traffic stop, in order to reasonably protect the security of citizens. The troopers then conducted a roadside sobriety check based on the erratic driving. They had probable cause to do this.

In Jarvis v. Deyoe, 892 P.2d 398, 399-400 (Colo. Ct. App. 1995), the Colorado Court of Appeals found no clearly established right in the form of a liberty interest. In that case, a Parker police officer stopped a car driven by a minor and carrying one minor passenger. The officer concluded that the automobile's license plate had been altered and he issued a citation to the driver. Ordering the driver to park the car and cease driving it, the officer did not offer the minors a ride home. Later on, some men assaulted the minors. The minors brought a 42 U.S.C. @ 1983 suit against the officer, alleging violation of rights and privileges secured by the Fifth and Fourteenth amendments. Holding that no clearly established right existed, the Court strictly limited their analysis of "clearly established rights" and declined to find a liberty interest for the two minor plaintiffs in Jarvis. Id. at 399-400. Further, in Jarvis the Court reasoned that no precedent existed which would have made it apparent to a reasonable police officer that by allowing plaintiffs to seek their own way home, he was exposing them to such danger as to violate their due process rights. Id. at 400.

The present case involves a traffic stop by an officer, as it did in Jarvis. Here, the traffic stop, license check, and sobriety tests were as routine as the traffic stop in Jarvis. No reasonable officer would consider this a violation of Perez's liberty or due process interests. If it were, such a breach of constitutional rights would be occuring every day, whenever an officer who spots erratic or dangerous driving indicative of substance abuse, stops that driver, and inquires into the driver's identity and sobriety. This reason supports limited finding of "clearly established rights" such as occurred in Jarvis.

Because the Court found no clearly established right under the narrow analysis of Jarvis or in the parallel facts of Ungerer, it cannot find a clearly established right in the present case. Accordingly, as the Court dismissed the case in Ungerer, this Court must also grant defendant's motion for dismissal pursuant to C.R.C.P. 12(b)(5) or (1), or motion for summary judgment, pursuant to C.R.C.P. Rule 56.

B. STATE TROOPERS' ACTIONS DID NOT VIOLATE THE EQUAL PROTECTION CLAUSE

The Court in Wilkenson v. State, 830 P.2d 1121, 1126 (Colo. App. 1992) declined to recognize a clearly established right of employment when a parole board member filed action claiming that his civil rights were violated when the patrol board was abolished and he was not appointed to the newly created parole board. Plaintiff filed suit under 42 U.S.C. @ 1983. The Court in Wilkerson did not decide the issue of a clearly established equal protection right, but an employment right. However, both the plaintiff in Wilkerson and the plaintiff here allege violation of a clearly established right by way of racial discrimination. Wilkerson serves to point out the added burden on plaintiffs who allege discrimination in 1983 claims. The Court emphasized the motive in Wilkerson. They held that the plaintiff carries the burden of convincing the court that the law was "clearly established." Id. They went on to reason that, while the question of qualified immunity generally turns on objective factors, inquiry into subjective factors is not excluded when the applicable substantive law makes the official's state of mind an essential element of plaintiff's claim. Id. at 1127. They continued: "Here, the racial animus claim requires that plaintiff prove defendants acted with an improper motive in not appointing (the plaintiff) to the new Board." Id. at 1127.

The clearly established right to equal protection in a traffic stop hinges on the subjective motivation of officers in making that traffic stop. Therefore, the racial animus which plaintiff claims that the officers had at the time of the traffic stop and detainment must be proven by plaintiff. However, the State Trooper defendants treated plaintiff as similarly situated reckless drivers or those drivers who appear to be under the influence of drugs or alcohol. It was plaintiff's driving inability, not his nationality, that was apparent to the officer's driving behind and ahead of plaintiff. Plaintiff fails to carry the burden described in Jarvis, of proving that a discriminatory motivation violated a clearly established right. Plaintiff's complaint fails to carry this burden, especially in light of the obvious facts and the troopers' affidavits attached as Exihibits "A" and "B" which show that probable cause motivated the stop and detainment. See also Part C: Probable Cause, below. Due to plaintiff's dangerous driving, as witnessed by the troopers, the officers stopped plaintiff and inquired into Perez's identity and sobriety. As communication gaps (and/or lack of Perez's cooperation in communicating with the officers at the traffic stop) developed, the state troopers also inquired into Perez's nationality and ability to understand the English language. This however, does not rise to the level of an equal protection violation. Further, Perez cannot meet his burden of proving that a racially discrimatory profile exists which guided the defendant troopers' actions in stopping and detaining Perez. No profile exists. See Exhibit "C" Affidavit by Major King. The plaintiff has not met his burden to prove that an unconstitutional profile stop was made in this case. See Whitfield v. Bd. of County Commissioners, 837 F. Supp. 338 (C. Colo. 1993).

C. PROBABLE CAUSE EXISTED FOR THE TRAFFIC STOP, DETAINMENT, AND INVESTIGATION OF PLAINTIFF AND/OR PLAINTIFF'S VEHICLE, IN ADDITION TO THE CHARGES OF CARELESS DRIVING

As can be seen from the attached affidavits of Troopers Gerald Lincoln and Randy Rahne, they had probable cause for a traffic stop of plaintiff based on their observations of his erratic driving.

Whether or not the charges could be sustained at trial is a different inquiry than whether they were instituted in the first place in violation of clearly established law, and plaintiff has failed to show this. In order to proceed on a claim of false arrest or malicious prosecution under @ 1983, a plaintiff must demonstrate that the defendant acted without probable cause. Easton v. Boulder, 776 F.2d 1441, 1448 (10th Cir. 1985); Winslow v. Romer, 759 F. Supp. 670, 675 (D. Colo. 1991). The question is not simply whether probable cause existed for plaintiff's arrest, but rather whether a reasonable police official could have believed the arrest to be lawful, in light of clearly established law and the information the official possessed.

Plaintiff must provide credible evidence that the troopers did not have cause to stop him and ticket him for careless driving. He has not and can not do this. Plaintiff must also offer evidence that would support a charge of malicious prosecution. See Anthony v. Baker, 767 F.2d 657 (10th Cir. 1985).

Since plaintiff has failed to sustain his burden of proof on these claims, defendants are entitled to have these claims dismissed.

CONCLUSION

As can be seen from the foregoing all of the plaintiff's State law tort claims must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) as there is no waiver of the defendants' governmental immunity. Additionally all of the plaintiff's claims fail to state a course of action and are therefore subject to dismissal pursuant to Rule 12(b)(5).

Finally, all of the plaintiff's claims are subject to summary judgment in favor of the defendants. No material facts are in dispute and as a matter of law judgment must be entered in favor of defendants.


Below are my numbered comments & rebuttals to the MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT:

  1. I was not driving in an erratic manner!!! It was stop-and-go traffic! It was rush-hour traffic! There were times when the traffic was alow and times when traffic was not so slow and other times when it was a grinding halt! When I saw that there was space in front of me, I moved up; when I saw that there was no space in front of me, I backed off! That is not careless or erratic driving, that is careful driving!!!
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  2. I was coerced and forced into taking the roadside sobriety test, which is suppose to be voluntary!!!! They don't bother to state that in there affidavits!!! (See Exhibits A and B.) They also don't bother to state that I was ordered by Colorado State Trooper Randy Rahne to open my mouth while he looked inside with a flashlight!!!! In fact, Colorado State Trooper Timothy McClinchy has not even bothered to sign an affidavit. I wonder why? When I stated to Colorado State Trooper Randy Rahne that "I must respectfully state this is turning into harassment" for the second or third time, Colorado State Trooper Timothy McClinchy ordered me in a load and intimidating fashion to "shut up and cooperate." If this is not coercion to compel someone to do something that is by law voluntary, I don't know what is!!!! What was I to do!!! Resist them!! That would have been suicidal!!! That would probably land me in a jail cell where god knows what types of creeps I might ne around inside a jail cell and perhaps face the very real possibility of being physically hurt or perhaps worse - raped and sodomized!!!
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  3. The plaintiffs had probable bull s--- to stop me!!! Again, blatant lie!! I was not driving erratically!!!!!!
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  4. Perhaps the "Colorado State Patrol has no policy permitting 'profile stops'," but they should have a policy against being coerced to take roadside tests that are voluntary, being told to "shut up and cooperate" in a load and intimidating manner, and being ordered to open one's mouth and have someone look with a flashlight after checking 0.000 on a breathalizer test!!!!!
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  5. I guess the question of probable cause in my case is going to rest on my word versus the Colorado State Troopers' words. It will be a question of credibility. Some of the statements that the troopers made in their affidavits can be proven to be false. The one glaring statement that can be shown to be totally false is Colorado State Trooper Gerald Lincoln's remark in his affidavit that "[w]e also considered the possibility that he was not from the United States because he spoke with an accent." In my case, this is a totally off-the-wall statement to make and conclude. Anyone who has a simple 5 minute conversation with me will clearly notice that I do not speak English with a foreign or any accent!!! If they could make such an off-the-wall statement like that in my case, then this lends itself to them having a credibility problem. If they could make a totally false statement about me in one aspect of this stoppage, then they are fully capable of making other false statements about me. God knows what other false statements about me they are capable of saying. This lends tremendous doubt to the rest of the Colorado State Troopers' statements about me and casts a tremendous doubt on their credibility.
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  6. I was not driving in an erratic manner!!! Perhaps the stoppage was not based on race, age, or sex, but the treatment that I got during the stoppage was not done in a respectful manner. And the comment by Colorado State Trooper Randy Rahne that I looked as if I've never lived in this country smacks to me that I am being signaled out as an outsider. Perhaps he was trying to (a) let me know that I am an outsider in this country due to my physical appearance, which I have been told by friends and acquaintances looks Hispanic and/or (b) give mw some type of hint that since I look as if I've never lived in this country, I really do not know how police work is done in this country and should therefore blindly do whatever a police officer tells me to do just because he/she says to do it. I guess if a police officer tells me to "shut up and cooperate" simply for saying two to three times "Officer, I have to respectfully state this is turning into harassment," then I should do it, according to the Colorado State Troopers' attitudes, even though the actions I was coerced and compelled to do were suppose to be voluntary. If they would have had any respect for me, they should have simply told me that the only thing I really had to do was to take either a breathalizer or blood test; but no, they had to ridicule me and make me look like some buffoon and clown in the middle of the highway by coercing and compelling me to take the roadside tests, which are suppose to be voluntary!!!! Also, was it really necessary to compel me to open my mouth, compel me to move it in various angles, and look inside with a flashlight?? That is a serious invasion of my privacy!!! Also, one of the troopers (most likely) or the unidentified Denver police officer went into my car without my permission to get my car ownership and insurance identification papers; another extreme violation of my privacy and not to mention a violation of my fourth amendment right to unreasonable search and seizure!!! Is this perhaps one of the reasons Colorado State Trooper Timothy McClinchy has not bothered to respond to my charges (like the other officers)??? Because he's afraid that he went into my car without my permission??? Or was it perhaps his "shut up and cooperate" statement he made to me in a threatening and intimidating manner??? I guess that might be the reason they transferred Colorado State Trooper Timothy McClinchy to the State Capitol in Denver - to spare the Colorado State Patrol another embarrassing situation!!!
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  7. Please note that no law is above the United States Constitution!!!
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  8. Really!! Then what court am I suppose to go for my grievances? Some other court? This is not the correct court to take my grievances for Civil Rights violations? If not, then why did the court decide to have it in its docket? Also, it seems that the Defendants' attorney is hiding his clients behind the all-encompassing Colorado Governmental Immunity Act.
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  9. I believe the attorneys' fees that I have suffered in defending myself is sufficient proof of damage done to me!!! Monetary as well as emotional!! Emotional stress in the sense that I faced the very real possibility of being sent to jail for a careless driving offense that I did not commit. Isn't that proof enough? What more proof of damage does Mr. Kay want? Should I perhaps have refused to do what the officers ordered me to do and then have a stick shoved up my anus (like the Haitian immigrant in New York City) or perhaps be arrested and thrown in jail or perhaps endure some more verbal threats for not following orders that they were not authorized to compel me to do?
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  10. I would have been more than happy to testify in an evidentiary hearing, but due to financial reasons after firing my ex-attorney, Larry D. Sather, because of his unethical and unprofessional behavior towards me and being suspended for one month for cheating his former clients. Perhaps then, when a judge hears me speak and sees me in person and sees that I am not some low-life street punk or gang-banger trying to make trouble for the sake of trouble and hears me speak English with no accent and sees that I have no problem reading, writing, speaking, and listening English, then maybe a judge and a jury would begin to ask how in the world Colorado State Trooper Gerald Lincoln could have made his off-the-wall statement that I spoke with an accent and Colorado State Trooper Randy Rahne's statement in his affidavit that I had a "Middle Eastern appearance," another off-the-wall statement to make. Perhaps the judge might have concluded that if these so-called fine outstanding member's of Colorado's finest are capable of making such off-the-wall assertions, which can be proven very easily by someone seeing me and talking to me for five minutes, then it is very conceivable that they could be very capable of making other off-the-wall and totally false statements about my so-called erratic driving and perhaps the judge would not have dismissed my lawsuit against these so-called fine outstanding police officers who show one face when the light shines on them and show a totally different face and another demeanor to some helpless motorist (just trying to return home after having a long day at work) when no cameras, lights, or witnesses are around.
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  11. Everything I have to say against the police officers are in the Verified Complaint and Jury Demand filed in the Denver District Court.
    [Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  12. The "cause of action" is something that perhaps will never be known. Has it ever occurred to Mr. Gregg Kay the possibility that certain people commit evil acts upon other people for no rhyme or reason. I don't know with 100% assurance why these so-called fine outstanding officers decided to stop me, trump up the careless driving citation against me, tell me to "shut up and cooperate", compel me to open my mouth and have someone look into my mouth with a flashlight, and compel me to perform roadside tests that are suppose to be voluntary!!! Perhaps they did it to impress each other off, perhaps they saw some random victim to pick on and that victim was me, or perhaps I fit some ethnic profile and they stopped me for that reason. There is no way to determine why they did what they did to me. Perhaps in 500 years from now, we will be able to build a machine that reads peoples' minds; that is the only way we will ever know the "cause of action" in this specific case.
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  13. Some of the off-the-wall statements by the police officers render the rest of their testimony as being not credible, and so therefore, I deserve to have this case proceed and be judged by a jury of my peers.
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  14. Ah! But if it can be shown that one or more statements made by the defendants are totally false, then this puts the police officers' credibility in question with respect to the other statements made by the officers in their affidavits. So, since some of the material facts presented by the police officers in their affidavits - as can be seen in Exhibits A and B - are in dispute and can be proved beyond a reasonable doubt that they are totally false, then the facts do no automatically reveal "entitlement to judgment as matter of law in favor of the defendants on all of plaintiff's claims."
    [Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  15. It sounds to me that Mr. Gregg Kay is trying to fit a square peg into a round circle. Yes, there were some instances of my stoppage that were similar to the stoppage in Ungerer, but just because there were some things that were similar does not mean that "[t]he facts in this case are almost identical with those in Ungerer"; this would be similar to saying that a dog is almost identical to a human being just because they both have lungs, a heart, a brain, are warm-blooded creatures, and have locomation!! Peel the onion, though, and one can clearly see that my stoppage incident was very different than Mr. Ungerer's. Mr. Ungerer received no traffic citation and did not have to carry the monetary expense of hiring an attorney to defend himself on a charge he did not commit. He did not have to wind up missing work days to go to court!! He was not compelled and coerced to do roadside sobriety tests that are suppose to be voluntary - and I do mean coerced and compelled!! Colorado State Trooper Timothy McClinchy's intimidating statement to "shut up and cooperate" in response to my "Officer, I have to respectfully state this is turning into harassment" statements was nowhere near what Mr. Ungerer suffered. At least Mr. Ungerer was getting paid while on the job as he was instructed to go to the county shop - I was not!! Mr. Ungerer did not have his fourth amendment right to unreasonable search & seizure violated - I did. One of the police officers involved in my stoppage must have gone into my car without my permission because Colorado State Trooper Timothy McClinchy in the final moments of my ordeal gave me back my driver's license, car ownership, and insurance identification papers, but the only thing of the mentioned items that I gave was my driver's license to the Denver Police officer. That means that one of the police officers, most likely Colorado State Trooper Timothy McClinchy, must have gone into my car to get my car ownership and insurance identification papers without my permission. Mr. Ungerer was not coerced and compelled to open his mouth while a police officer, Colorado State Trooper Randy Rahne, looked inside with a flashlight and be told to open his mouth in various positions - I did!!!! Mr. Ungerer was functioning as a county employee during his stoppage - I was just a private citizen returning from a long day's work who just wanted to go home! So, in conclusion, my case is in fact very different from Mr. Ungerer's!!!!!
    [Go back to place in MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT that starts with
    "After their discussion, Trooper Moody returned plaintiff's...." or "The facts in this case are almost identical with those in Ungerer. In both cases...."]

  16. So, the police officers' actions in my case are less egregious than in Mr. Ugerer's case!! That is pure bull s---!!! So their actions did not constitute a "willful and wanton" act!! Again, please note Rebuttal 15 to see if in fact the police officers actions were trully less egregious in my case than in Ungerer's case and were not "willful and wanton". I just don't get it! Being compelled to do something the officers had no right to compel me to do with respect to the roadside sobriety tests (via Colorado State Trooper Timothy McClinchy's "shut up and cooperate" statement), being compelled (as part of the voluntary roadside sobriety tests) to open my mouth and have it looked at with a flashlight, and having my fourth amendment right to unreasonable search & seizure violated, and then having to pay attorneys to defend me for something I did not do!!!! Is that less egregious?? I think not!!!!! Their actions during the stoppage were "willful and wanton" and exhibited outrageous conduct.
    [Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  17. Mr Gregg Kay is glossing over many of the particulars in my case. Please look at Rebuttal Items 15 and 16. He's trying to do a magician's act and have the reader concentrate on the seizing of a driver's license, which was common in both cases, and not addressing the other issues that were not similar to my case, such as going into my car without my permission, being compelled to perform roadside tests (via Colorado State Trooper Timothy McClinchy's "shut up and cooperate" statement) that are suppose to be voluntary, as well as being compelled (by Colorado State Trooper Randy Rahne) to open my mouth and have it looked at with a flashlight!!!!
    [Go back to place in MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT that starts with "The Colorado Supreme Court held that, in order to state a claim for relief under 42 U.S.C. @ 1983, a plaintiff must...." or "When determining if Ungerer had a clearly established right existed, the Court...." or "The facts of the present case are on all fours with those of Ungerer. Both cases involve state troopers...."]

  18. I was not driving erratically!!! Mr. Gregg Kay fails to emphasize that the roadside sobriety tests are only voluntary and fails to address the issue that I was coerced and compelled to do something that the Colorado State Troopers had no authority to make me do!!!! He completely glosses over this!!!
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  19. How in the world does the Jarvis vs. Deyoe case relate to my case??? I guess he's trying to say that if a certain right is not granted to me by some law or the constitution, then I have no such right. Ah! But in a nation that respects individual rights, law enforcement agencies cannot just do whatever the hell they want, especially if it involves compelling an individual to do something that they clearly have no authority to do. Then it stands to reason that if a police officer compels or coerces me to do something that he/she has no authority to compel me to do (such as the roadside sobriety tests), then it is the police officer who is guilty of wrongdoing!!! The police officer, who's job it is to uphold the law, now becomes the person who has broken the law and therefore, it is only right and just that that person be punished by the same laws they are sworn to uphold!!!
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  20. There was no forced sobriety test in Jarvis vs. Deyoe!! That case involved a minor who was driving a car who's license plate had been altered!!! How does that relate to my case!!!! Again, he fails to mention that I was compelled to do roadside sobriety tests that are suppose to be voluntary!!!!
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]

  21. I guess being compelled to do roadside sobriety tests that are suppose to be voluntary by police officers is something that is not a clearly established right, according to Mr. Gregg Kay, so the police officers should receive no punishment I deserve no compensation for the attorney (and other) expenses pertaining to something, the careless driving, that I did not do!!! So, according to Mr. Gregg Kay, any rights not granted to individual citizens are rights that they don't have at all! I see!! I guess also that going into my car to search for documents without my permission when the Colorado State Troopers clearly could have asked me for it, is not a fourth amendment right violation!!
    [
    Go back to MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.]


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