CASE NO.

16-1042
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
CATRICE THOMAS, as the surviving biological
daughter and surviving heir of the decedent
MARTEL C. THOMAS (12/18/47),) and on behalf
of the ESTATE OF MARTEL ) THOMAS,
Plaintiff - Appellants
v.
MAYOR FOR THE CITY & COUNTY OF
DENVER, COLORADO, acting in their official
capacity; EXECUTIVE DIRECTOR OF THE
DEPARTMENT OF PUBLIC SAFETY FOR THE
CITY & COUNTY OF DENVER, COLORADO,
acting in their official capacity; and JOHN DOE(s)
or JANE DOE(s), as employees of the City and
County of Denver, Colorado,
Defendant - Appellees

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On Appeal from the United States District Court For the District of Colorado
The Honorable Michael E. Hegarty, United States Magistrate Judge
District Court Case No. 1:15-cv-00906-MEH

APPELLANTS OPENING BRIEF

Respectfully submitted May 13, 2016,

Oral Argument is not requested.

DISTRICT ORDERS ATTACHED

THE EVANS FIRM, LLC

/s/ Michael D. Evans
12605 East Euclid Drive, Suite #209,
Centennial, CO 80111-6437
P: 303-221-3634 | F: 303-221-3063
info@theevansfirm.com

TABLE OF CONTENTS
TABLE OF CONTENTS .........................................................................................i
ATTACHMENTS .....................................................................................................i
TABLE OF AUTHORITIES ..................................................................................2
PRIOR OR RELATED APPEALS ........................................................................6
STATEMENT OF JURISDICTION......................................................................6
STATEMENT OF THE ISSUES............................................................................7
STATEMENT OF THE CASE ...............................................................................7
STATEMENT OF THE FACTS ..........................................................................11
SUMMARY OF THE ARGUMENT ...................................................................17
ARGUMENT ..........................................................................................................19
CONCLUSION ......................................................................................................35
ATTACHMENTS
Thomas et. al. v. C & C Denver et. al, 1:15-cv-00906-MEH,
Order denying appellants R. 59 motion to reconsider 2/9/16 [Doc 56]
Thomas et. al. v. C & C Denver et. al, 1:15-cv-00906-MEH,
Order dismissing appellants federal claims against appellee 1/11/16 [Doc
49]

TABLE OF AUTHORITIES
Cases
Adickes v. S. H. Kress & Co., 398 U.S. 144, 176 (1970) .......................................22
Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) ..................................24
Anderson v. Creighton, 483 U.S. 635, 639 (1987) ........................................... 24, 26
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ...........................................................19
Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) ....................................... 22, 23
Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 570 (2007) .................19
Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984) ...............21
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) ....................................19
Carey v. Piphus, 435 U.S. 247 (1978) .....................................................................22
Cillo v. City of Greenwood Village, 739 F.3d 45, 461(10th Cir. 2013) .................21
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) ......................................33
County of Santa Fe, New Mexico v. Public Service Company of New Mexico, 311
F.3d 1031, 1034 (10th Cir. 2002) .................................................................. 18, 20
Curtis Ambulance of Fla. Inc. v Bd. Of County Commrs, 811 F. 2d 1371, 1374
(10th Cir. 1987) ....................................................................................................20
Delta Sales Yard v. Patten, 892 P.2d 297, 300 (Colo. 1995)...................................27
Deray v. City of Colo. Springs, Colo., No. 11-cv-02639-MSK-CBS, 2012 WL
1901220, at *6 (D. Colo. May 25, 2012) .............................................................16
2

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003)...........................18
Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980) ........................................22
Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984) ............................................22
Graves v. Thomas, 450 F.3d 1215, 1220 (10th Cir. 2006) ............................... 16, 18
Hallstrom v. City of Garden City, 991 F.2d 1473, 1482 n.22 (9th Cir. 1993) ........30
Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982) ....................................................23
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)....................................20
Jeffries v. State of Kansas, Dept. of Social and Rehab. Servs., 147 F. 3d 1220,
1228 (10th Cir. 1998) ...........................................................................................21
Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) ............................................19
Leake v. Cain, 720 P.2d 152 (Colo. 1986) ..............................................................32
Leatherman v. Tarrant County Narcotics, 507 U.S. 163, 168 (1993) .............. 23, 33
Messerschmidt v. Millender, 132 S.Ct. 1235, 1244-45 (2012) ........................ 24, 26
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)...........................................20
Mondragon v. Thompson, 519 F.3d 1078, 1084 (10th Cir. 2008) ................... 23, 30
Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d 422, 424 (Colo. App. 1982) .............26
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) ........................25
Pearson v. Callahan, 555 U.S. 223, 231 (2009) .......................................................23
Salmon v. Schwarz, 948 F.2d 1131, 1137 (10th Cir. 1991) ....................................25
Schueur v. Rhodes, 416 U.S. 232, 236 (1974) ........................................................19
3

Sutton v. Utah State Sch. for the Deaf & Blind, 173 F. 3d 1226, 1236 (10th Cir.
1999) .....................................................................................................................20
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) ..........................................19
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) ................20
Thomas et. al. v. Denver et. al., 1:15-cv-00906-MEH ............................................17
Tolan v. Cotton, 134 S.Ct. 1861 (2014)...................................................................25
Trujillo v. Atmos Energy Corp., 896 F.Supp.2d 949 (2012) ...................................21
Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995) .....................................21
Whitcomb v. Denver, 731 P.2d 749, 751 (Colo. App. 1986) ..................................32
Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997) .................................21
Zinemon v. Burch, 494 U.S. 113, 118 (1990) .........................................................18
Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989) .....................................25
Statutes & Rules
28 U.S.C. 1291 ........................................................................................................5
28 U.S.C. 1441 ........................................................................................................9
28 U.S.C. 1446 ........................................................................................................9
28 U.S.C. 1331 ......................................................................................................9
42 U.S.C. 1983-1988 .................................................................................. passim
C.R.S. 13-20-101 ......................................................................................... 5, 9, 10
C.R.S. 13-80-103(1)(c) ...........................................................................................8
4

C.R.S. 16-2.5-101 .................................................................................................28

C.R.S. 18-1-901 ....................................................................................................28
C.R.S. 24-10-106 ....................................................................................................9
C.R.S. 24-10-118 ..................................................................................... 18, 27, 35
C.R.S. 24-72-301 et. seq. ........................................................................................8
C.R.S. 13-21-200 et. seq. ........................................................................... 5, 9, 10
C.R.S. 16-4- 105,-106 .................................................................. 7, 18, 28, 29, 30
Colo. Const. Art. II, sect. 25 ....................................................................................31
F.R.A.P. 4(a) ..............................................................................................................5
Fed. R. Civ. P. 12(b)(1)........................................................................................5, 10
Fed. R. Civ. P. 12(b)(6).................................................................................... passim
Fed. R. Civ. P. 56 .............................................................................................. 21, 22
Fed. R. of Civ. P. 8...................................................................................................24
U.S. Const. Amend XIV ............................................................................... 9, 31, 35
U.S. Const. Amend. VII ...........................................................................................22
Other Authorities
Colorado Legislative Council Staff 4/26/12 Memorandum: Pretrial Services ........32
U.S. Department of Justices National Institute of Justice Pretrial Services
Programs: Responsibilities and Potential ....................................................... 32,33

PRIOR OR RELATED APPEALS

None.
STATEMENT OF JURISDICTION
Jurisdiction in the Tenth Circuit Court of Appeals is appropriate per 28
U.S.C. 1291 and F.R.A.P. 4(a). This appeal was timely brought 2/6/16 and
involves a review of a final decision of the United States District Court for the
District of Colorado in 1:15-cv-00906-MEH on 1/11/16.
On January 11, 2016, Hon. Hegarty dismissed all federal claims against
defendant-appellee Ms. White-Gordon on her Motion under Fed. R. Civ. P.
12(b)(6) and 12(b)(1) finding no violation of 42 U.S.C. 1983-1988 and
remanded the remaining State law claims (wrongful death C.R.S. 13-21-200 et.
seq., and survival C.R.S. 13-20-101) back to Denver District Court for litigation
in 2014CV34470. Attached and at App. Vol. I pgs. 20-40, Order dismiss 1/11/16
[Doc 49].
On January 15, 2016, Thomas et. al. moved Hon. Hegarty to reconsider.
App. Vol. I pgs. 15-17, Pl. mtn. to recon. 1/15/16 [Doc 51]. Without the courts
response, plaintiff-appellants Thomas et. al. timely filed their Notice of Appeal on
February 6, 2016. App. Vol. I pgs. 9-10, Notice of Appeal 2/6/16 [Doc 53]. On
February 9, 2016, Hon. Hegarty denied reconsideration. App. Vol. I pgs. 5-8,
Order deny recon. 2/9/16 [Doc 56]. This appeal of 1:15-cv-00906-MEH follows.
6

STATEMENT OF THE ISSUES

WHETHER THE PLAINTIFF-APPELLANTS THOMAS ET. AL. PLEAD
ADEQUATE AND PLAUSIBLE CLAIMS AGAINST GOVERNMENTAL
EMPLOYEE WHITE-GORDON UNDER 42 U.S.C. 1983-1988, WHOM WAS
RESPONSIBLE FOR PUBLIC SAFETY AND WANTONLY ALLOWED A
MAN KNOWN TO HAVE AN EXTENSIVE CRIMINAL HISTORY TO
COMMIT AT LEAST FOUR (4) ADDITIONAL VIOLENT FELONY
OFFENSES OVER SERVERAL MONTHS, ALL WHILE ON BOND FOR
ATTEMPTED MURDER WITH A GUN AND WHILE UNDER THE
DEFENDANT-APPELLEES

INTENSIVE

PRETRIAL

SUPERVISION,

ENDING WITH THE SHOOTING DEATH OF THOMAS, DEPRIVING A

MEMBER OF THE PROTECTED PUBLIC OF HIS LIFE.
Raised and ruled on in Thomas et. al. v. Denver et. al., 1:15-cv-00906 on
1/11/16 in Order dismissing federal claims. Attached and at App. Vol. I pgs. 2040, Order dismiss 1/11/16 [Doc 49].
STATEMENT OF THE CASE
Early November 26, 2013, Martel Thomas (12/18/47) was murdered in his
home by gunshots fired by an intruder named Kenneth Mackey. App. Vol. II pgs.
7

5-16, Pl. 2nd Amend. Comp. 10/6/15 [Doc 31], pgs. 110-113, [Doc 45-7]. At the
time, Mackey was on bond for a separate attempted murder with use of a gun, and
pursuant to the authority granted under C.R.S. 16-4- 105,-106, was placed on
intensive supervision and global position ankle monitoring (G.P.S.) with the
Denver Department of Public Safetys Pretrial Services Department and its
employee, Yolanda White-Gordon (defendant-appellee). App. Vol. III pgs. 36-44
[Doc 45-1], pgs. 100-108 [Doc 45-7]. Mackey was known to have an extensive
criminal history, and it was later discovered that during the several months he was
under pretrial supervision, committed at least four (4) more violent felony offenses,
ending with Mr. Thomas death. App. Vol. II pgs. 5-16, Pl. 2nd Amend Comp.
10/6/15 [Doc 31]; App. Vol. III pgs. 5-35, Pl. resp. to mtn. to dismiss 11/28/15
[Doc 45].
Throughout, the plaintiff-appellants have been repeatedly denied timely
access to critical information possessed exclusively by the City and County of
Denver. Between February 6, 2014 and September 3, 2015, countless attempts
were made to procure facts, evidence, and court transcripts that could identify
potentially liable individuals and employees, the terms and conditions of Mackeys
supervision, the activity log of supervision, relevant GPS coordinates, and any
other information that would assist the plaintiff-appellants in understanding and
preparing a case. App. Vol. III pgs. 48-68 [Doc 45-3]. Pre-trial court transcripts
8

for Mackeys criminal prosecution for Thomas death in Arapahoe County

2013CR2631 were denied for several months. App. Vol. III pgs. 72-76 [Doc 455,-6]. Access to Mackeys Denver pretrial supervision files were denied for well
over a year.

At hearing September 26, 2014, plaintiff-appellants was denied

declaratory relief by the Denver District Court in 2014CV33504 under the open
records State law, C.R.S. 24-72-301 et. seq. to gain access to said records. App.
Vol. III pgs. 77-120 [Doc 45-7]. Stays of discovery were also entered in the below
case 1:15-cv-00906-MEH on May 7, 2015 [Doc 15] and November 20, 2015.
App. Vol. II pgs. 40-42, Order re stay 11/20/15 [Doc 44]. All of the foregoing
substantially frustrated and impeded the plaintiff-appellants ability to investigate
and seek relief through the judicial process, especially given a one (1) year State
statute of limitations under C.R.S. 13-80-103(1)(c).
On November 15, 2014, Thomas et. al. timely filed civil rights claims under
42 USC 1983-1988 and State wrongful death & survival claims under C.R.S.
13-21-200 et. seq., 13-20-101 against both Denver and its then-unknown Doe
employees / agents in Denver District Court, 2014CV34470 with the evidence that
was then available.
On April 28, 2015, Denver removed to federal court [Doc 1] in 1:15-cv00906-MEH per 28 U.S.C. 1331, 1441, and 1446. By July 29, 2015, Hon.
Hegarty dismissed all federal and State claims [Doc 24] against Denver on the
9

defendants Motion finding immunity under the C.G.I.A. (C.R.S. 24-10-106) and
no violation of the U.S. Const. Amend XIV. Leave was granted to amend the
Complaint for the Doe defendants.
On September 4, 2015, Denver finally disclosed the pretrial service records
of Kenneth Mackey, which contained the identity of the individual who was
primarily responsible for supervising Mackey, the terms and conditions of
Mackeys supervision, the activity log of supervision, etc.
Thereafter, on October 6, 2015, Thomas et. al. amended their Complaint to
identify the defendant-appellee, Ms. Yolanda White-Gordon. App. Vol. II pgs. 516, Pl. 2nd Amend Comp. 10/6/15 [Doc 31]. The defendant-appellee moved to
dismiss on November 6, 2015. App. Vol. II pgs. 17-32, Def. mtn. to dismiss
11/6/15 [Doc 38]. The plaintiff-appellants responded and this appeal closely tracks
that response. App. Vol. III pgs. 5-35, Pl. resp. to mtn. to dismiss 11/28/15 [Doc
45]. Defendant-appellee replied. App. Vol. I pgs. 82-97, Def. reply support mtn. to
dismiss 12/11/16 [Doc 47]. Plaintiff-appellant found persuasive case law and filed
a supplement of legal authority and precedent with the U.S. District Court on
January 3, 2016. App. Vol. I pgs. 39-81, Pl. notice of supp. auth. 1/3/16 [Doc 48].
On January 11, 2016, Hon. Hegarty dismissed all federal claims against
defendant-appellee Ms. White-Gordon on her Motion under Fed. R. Civ. P.
12(b)(6) and 12(b)(1) finding no violation of 42 U.S.C. 1983-1988 and
10

remanded the remaining State law claims (wrongful death C.R.S. 13-21-200 et.
seq., and survival C.R.S. 13-20-101) back to Denver District Court for litigation
in 2014CV34470. Attached and at App. Vol. I pgs. 20-40, Order dismiss 1/11/16
[Doc 49].
On January 15, 2016, Thomas et. al. moved Hon. Hegarty to reconsider.
App. Vol. I pgs. 15-17, Pl. mtn. to recon. 1/15/16 [Doc 51]. Without a response
from the court, plaintiff-appellants Thomas et. al. timely filed their Notice of
Appeal on February 6, 2016. App. Vol. I pgs. 9-10, Notice of Appeal 2/6/16 [Doc
53].On February 9, 2016, Hon. Hegarty denied reconsideration. App. Vol. I pgs.
5-8, Order deny recon. 2/9/16 [Doc 56].

This appeal of 1:15-cv-00906-MEH

follows.
STATEMENT OF THE FACTS
The following facts appear in the record in the operative 2nd Amended
Complaint (App. Vol. II pgs. 5-16, [Doc 31]) and plaintiffs Response to
defendants Motion to Dismiss (App. Vol. III pgs. 5-35, [Doc 45]), and must be
construed in the light most favorable to the plaintiff-appellants:
1. On November 26, 2013, Martel C. Thomas died of multiple gun-shot wounds
inflicted by Kenneth D. Mackey (10/16/71). App. Vol. II pgs. 5-16, Pl. 2nd
Amend. Comp. 10/6/15 [Doc 31], pgs. 110-113, [Doc 45-7].
2. The Department of Public Safety is a governmental agency in the City and
11

County of Denver, Colorado.

3. A goal of the Department of Public Safety is public safety.
4. Denver Pretrial Services is part of the Department of Public Safety.
5. Denver Pretrial Services provides services to those accused of crimes awaiting
trial.
6. These services act as either an alternative, or in addition to, bond.
7. The types of services provided by Denver Pretrial Services are usually courtordered.
8. A type of service offered by Denver Pretrial Services includes intensive
supervision.
9. Intensive supervision may include the use and monitoring of a Global
Positioning Satellite, or G.P.S. bracelet, on an individual.
10.On or about May 29, 2013, Kenneth D. Mackey (10/16/71) was charged in
Denver District Court 2013CR2626 with the following crimes:
Attempted Murder 1 after deliberation, C.R.S. 18-3-102(1)(a); 18-2101 (F2);
Attempted Murder 1 after deliberation, C.R.S. 18-3-102(1)(a); 18-2101 (F2);
Menacing, C.R.S. 18-3-206(1)(a)-(b) (F5);
Menacing, C.R.S. 18-3-206(1)(a)-(b) (F5);
Possession of a Weapon by a Previous Offender, C.R.S. 18-12-108(1)
(F6);
Possession of a Weapon by a Previous Offender, C.R.S. 18-12-108(1)
(F6);
Possession of a Weapon by a Previous Offender, C.R.S. 18-12-108(1)
12

(F6).
- Easily accessible public record per F.R.E. 201
11.The underlying facts 2013CR2626 involved Mackey physically assaulting a
female while in possession of a gun. App. Vol. III pgs. 36-44 [Doc 45-1],
pgs. 100-108 [Doc 45-7]; easily accessible public record per F.R.E. 201.
a. Mackey was subsequently found guilty on April 1, 2014 of
Possession of a Weapon Previous Offender, C.R.S. 18-12-108(1)
(F6).
12.On or about May 29, 2013, Mackey was court-ordered in 2013CR2626 to
receive intensive supervision services by Denver Pretrial Services and be
placed on a G.P.S. bracelet. App. Vol. III pgs. 36-44 [Doc 45-1], pgs. 100-108
[Doc 45-7].
13.The nature of the offense and types of charges in 13CR2626 was, at all relevant
times, known to Ms. White-Gordon as it was the very case he was being
supervised for. It was also public record. App. Vol. III pgs. 36-44 [Doc 45-1],
pgs. 100-108 [Doc 45-7].
14.There was never any change in Mackeys terms and conditions with Denver
Pretrial Supervision between May 29, 2013 and November 26, 2013.
15.Yolanda White-Gordon is and was at all relevant times an employee or agent of

13

the City and County of Denver with Denver Pretrial Services.1

16.At all relevant times, Ms. White-Gordon was the primary and / or designated
person assigned to Mackey. 2 App. Vol. III pgs. 46-47 [Doc 45-2].
17.No extraordinary circumstances existed to prevent Ms. White-Gordon from
performing her duties and responsibilities with Denver Pretrial Services at any
relevant time.
18.An individuals prior criminal history is a significant factor considered by
Denver Pretrial Services and assessing public safety.
19.As of May 29, 2013, Mackey had the following significant prior criminal
convictions (excluding traffic offenses or charges dismissed as a result of a
plea):
Denver 2012CR2356: Reckless Endangerment, C.R.S. 18-3-208 (M3)
98 days jail;
Denver 2000CR2304: Robbery, C.R.S. 18-4-301(1) (F4) 9 years
prison;
Denver 2000CR2131: Robbery, C.R.S. 18-4-301(1) (F4) 9 years
prison;
Denver 1998CR3044: Trespass 1 dwelling, C.R.S. 18-4-502 (F5) 3
years prison, probation revoked;
Denver 1996CR1931: Poss/sale Sched. I Contrl'd Subst., C.R.S. 18-18405(2)(a)(I) (F4) 4 years prison, probation revoked.
- Easily accessible public record per F.R.E. 201

There is no instance where the defendant-appellee Ms. Yolanda White-Gordon ever

denied or disputed this allegation in the record, nor has she filed an Answer.
2 There is no instance where the defendant-appellee Ms. Yolanda White-Gordon ever
denied or disputed this allegation in the record, nor has she filed an Answer.
1

14

20.Mackeys criminal history is, and was at all relevant times, known to Denver
Pretrial Services through Ms. White-Gordon. It is also a matter of public
record.
21.On or about October 7, 2013, Mackey is accused of having committed Motor
Vehicle Theft/agg 2-$1000-$20,000, C.R.S. 18-4-409(4)(b) (F6) in Denver
District Court 2013CR6389. Easily accessible public record per F.R.E. 201.
22.Mackey was wearing his G.P.S. bracelet on October 7, 2013.
23.Mackeys G.P.S. bracelet was functioning properly on October 7, 2013.
24.Mackey was under intensive supervision by Denver Pretrial Services through
Ms. White-Gordon on October 7, 2013.
25.No action was taken against Mackey by Denver Pretrial Services through Ms.
White-Gordon. App. Vol. III pgs. 46-47 [Doc 45-2].
26.On or about November 6, 2013, Mackey is accused of Eluding a Police Officer,
C.R.S. 42-4-1413 in Denver County Court 2014M413. Easily accessible
public record per F.R.E. 201.
27.Mackey was wearing his G.P.S. bracelet on November 6, 2013.
28.Mackeys G.P.S. bracelet was functioning properly on November 6, 2013.
29.Mackey was under intensive supervision by Denver Pretrial Services through
Ms. White-Gordon on November 6, 2013.
30.No action was taken against Mackey by Denver Pretrial Services through Ms.
15

White-Gordon. App. Vol. III pgs. 46-47 [Doc 45-2].

31.On or about November 24, 2013, Mackey is accused of having committed the
following crimes in Denver District Court 2014CR1603:
Kidnapping 2 Victim Sex Offense, C.R.S. 18-3-302(1),(3) (F2);
Robbery Aggravated Possession of a Weapon, C.R.S. 18-4-302(1)(d)
(F3);
Robbery Aggravated Possession of a Weapon, C.R.S. 18-4-302(1)(d)
(F3).
- Easily accessible public record per F.R.E. 201.

32.Mackey was wearing his G.P.S. bracelet on November 24, 2013.

33.Mackeys G.P.S. bracelet was functioning properly on November 24, 2013.
34.Mackey was under intensive supervision by Denver Pretrial Services through
Ms. White-Gordon on November 24, 2013.
35.No action was taken against Mackey by Denver Pretrial Services through Ms.
White-Gordon. App. Vol. III pgs. 46-47 [Doc 45-2].
36.Mackey was charged with murdering Mr. Thomas in Arapahoe County District
Court 2013CR2631.
37.The underlying facts of Mr. Thomas death involved Mackey breaking into Mr.
Thomas home with a gun at approximately 2:30 a.m. on the morning of
November 26, 2013 to steal drugs, money, or both.
38.On April 8, 2015 Mackey was found guilty beyond a reasonable doubt of
murdering Mr. Thomas by a 12 member jury in 2013CR2631.
16

39.Mackey was wearing his G.P.S. bracelet on November 26, 2013.

40.Mackeys G.P.S. bracelet was functioning properly on November 26, 2013.
41.Mackey was under intensive supervision by Denver Pretrial Services through
Ms. White-Gordon on November 26, 2013.
42.The following is a complete log of Ms. White-Gordons interactions with
Mackey while on intensive pretrial supervision produced by the defendant(s)
for the first time in September 2015. App. Vol. III pgs. 46-47 [Doc 45-2].
43.On April 8, 2015, Mackey was found guilty on all counts for Mr. Thomas
death in Arapahoe County 2013CR2631. That action is a matter of public
record and subject to F.R.E. 201.
44.Subsequently, the jurors in the criminal trial were asked whether the
defendant(s) in this action should be held responsible for failing to adequately
supervise Kenneth Mackey. The unequivocal answer of these jurors, having
heard all the evidence in the criminal case, was Yes. 3 App. Vol. III pgs. 121122, [Doc 45-9]
SUMMARY OF THE ARGUMENT
Any governmental employee responsible for public safety whom knowingly
and wantonly allows a man with four (4) prior felony convictions, and on bond for
attempted murder charges, to commit at least four (4) more violent felony offenses
At a minimum, this affidavit presents a genuine question of material fact and illustrates
that a reasonable juror could find the moving defendant liable for her failure to act.

17

- including another homicide - all while under her intensive supervision for
several months should shock the conscience of any federal or state judge.
Apparently that was not the case with U.S. District Court magistrate Hon.
Hegarty. Plaintiff-appellants federal claims were dismissed precisely because
Hon. Hegarty felt these facts (difficult as they were to obtain from Denver) were
not egregious and outrageous enough to shock his conscience that a substantive
due process violation occurred through deprivation of a protected interest. Citing
the support of Deray v. City of Colo. Springs, Colo., No. 11-cv-02639-MSK-CBS,
2012 WL 1901220, at *6 (D. Colo. May 25, 2012) (quoting Graves v. Thomas, 450
F.3d 1215, 1220 (10th Cir. 2006) (death of eluding driver who lost control during
high speed police chase), Hon. Hegarty stated, Based on Tenth Circuit precedent,
the Court finds these allegations insufficient to show the affirmative conduct
necessary to state plausible due process claims.and the defendant is entitled to
qualified immunity from such claims. Thomas et. al. v. Denver et. al., 1:15-cv00906-MEH Order of dismissal 1/11/16 [Doc 49] pgs. 16-18.
The U.S. District Court magistrate Hon. Hegarty erred in dismissing
plaintiff-appellants federal claims under 42 U.S.C. 1983-1988 because the
alleged facts and evidence in the record show that even the most derelict
government employee would not have acted the way the defendant-appellee did.
Ms. White-Gordon created an objectively unreasonable and dangerous situation
18

that allowed Mr. Martel Thomas to be murdered in public. His death was a
foreseeable result of her reckless and wanton dereliction of duties with Denver
pretrial services and its stated purpose and goals. Colorado law imposes statutory
duties upon pretrial supervision employees pursuant to C.R.S. 16-4-105, -106.
Denvers Department of Public Safety had complete and reckless disregard for the
publics, and Mr. Thomas safety while supervising Kenneth Mackey. As such,
the defendant-appellee is not entitled to enjoy the benefit of over-reaching
immunity found in C.R.S. 24-10-118(1).
ARGUMENT
PLAINTIFF-APPELLANTS THOMAS ET. AL. PLEAD ADEQUATE
AND PLAUSIBLE CLAIMS AGAINST GOVERNMENTAL EMPLOYEE
WHITE-GORDON

UNDER

42

U.S.C.

1983-1988,

WHOM

WAS

RESPONSIBLE FOR PUBLIC SAFETY AND WANTONLY ALLOWED A

MAN KNOWN TO HAVE AN EXTENSIVE CRIMINAL HISTORY TO
COMMIT AT LEAST FOUR (4) ADDITIONAL VIOLENT FELONY
OFFENSES OVER SERVERAL MONTHS, ALL WHILE ON BOND FOR
ATTEMPTED MURDER WITH A GUN AND WHILE UNDER THE
DEFENDANT-APPELLEES

INTENSIVE

PRETRIAL

SUPERVISION,

ENDING WITH THE SHOOTING DEATH OF THOMAS, DEPRIVING A

MEMBER OF THE PROTECTED PUBLIC OF HIS LIFE.
19

Appellate Standard of Review

A district court's grant of summary judgment is reviewed by the appellate
court de novo. Graves v. Thomas, 450 F.3d 1215, 1217 (10th Cir. 2006) (citing
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).
Legal Authority
R. 12(b)(6)
In ruling on a motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court must assume as true all well-pleaded facts in the plaintiffs
complaint and view such in the light most favorable to the plaintiffs. County of
Santa Fe, New Mexico v. Public Service Company of New Mexico, 311 F.3d
1031, 1034 (10th Cir. 2002); Zinemon v. Burch, 494 U.S. 113, 118 (1990);
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Specific facts are not
necessary. Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007). The statement
need only give the defendant fair notice of the claim and the grounds upon which it
rests. Id. at 1186.
Rule 12(b)(6) does not require detailed factual allegations, it simply requires
enough to state a plausible claim rather than a merely speculative one. Bell
Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible
claim is a claim that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
20

678 (2009). Allegations that are purely conclusory are not entitled to an
assumption of truth. Id. at 681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised above the speculative level,
he has met the threshold pleading standard. See Twombly, 550 U.S. at 556;
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
The issue in reviewing the sufficiency of the plaintiffs complaint is not
whether the plaintiffs will prevail, but whether he is entitled to offer evidence to
support his claims. Schueur v. Rhodes, 416 U.S. 232, 236 (1974). The courts
function on a Rule 12(b)(6) motion is to assess whether the plaintiffs complaint
alone is legally sufficient to state a claim for which relief may be granted while
granting all reasonable inferences in favor of the plaintiffs. Miller v. Glanz, 948
F.2d 1562, 1565 (10th Cir. 1991); Curtis Ambulance of Fla. Inc. v Bd. Of County
Commrs, 811 F. 2d 1371, 1374 (10th Cir. 1987). A 12(b)(6) motion should not be
granted unless it appears beyond a doubt that the plaintiffs can prove no set of facts
in support of her claim which would entitle her to relief. County of Sante Fe, 311
F.3d at 1034, citing Sutton v. Utah State Sch. for the Deaf & Blind, 173 F. 3d
1226, 1236 (10th Cir. 1999).
R. 56 Summary Judgment
The court must consider the complaint in its entirety as well as other sources
courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss. In
21

particular, it may consider documents incorporated into the complaint by reference

and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007). A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). Holt v. United States, 46 F.3d 1000, 1003
(10th Cir. 1995) (internal citations omitted). In such instances, a courts reference
to evidence outside the pleadings does not convert the motion to a Fed. R. Civ. P.
56 motion. Id.
Here, the U.S. District Court had to must treat the defendant-appellees
Motion to Dismiss [Doc 36] as a Motion for Summary Judgment, still viewing
facts in the light most favorable to the nonmoving party, resolving all factual
disputes and reasonable inferences in favor of the plaintiffs. Cillo v. City of
Greenwood Village, 739 F.3d 45, 461(10th Cir. 2013). Summary judgment is only
appropriate if the record contains no evidence of a genuine issue of material fact
and demonstrates that the moving party is entitled to judgment as a matter of law.
Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997). Summary Judgment
may be granted only if there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
party that moves for summary judgment bears the burden of proving that no
genuine issue of material fact exists on all claims for which it seeks summary
22

judgment. Trujillo v. Atmos Energy Corp., 896 F.Supp.2d 949 (2012). The Tenth
Circuit has emphasized that the non-movant is given wide birth to prove a factual
controversy exists. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995);
Jeffries v. State of Kansas, Dept. of Social and Rehab. Servs., 147 F. 3d 1220,
1228 (10th Cir. 1998).
"Where different ultimate inferences may be drawn from the evidence
presented by the parties, the case is not one for summary judgment." Brown v.
Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984). The right to
confront, cross-examine and impeach adverse witnesses is one of the most
fundamental rights sought to be preserved by the U.S. Const. Amend. VII
provision for jury trials in civil cases. The advantages of trial before a live jury
with live witnesses, and all the possibilities of considering the human factors,
should not be eliminated by substituting trial by affidavit and the sterile bareness of
summary judgment. It is only when the witnesses are present and subject to crossexamination that their credibility and the weight to be given their testimony can be
appraised. Trial by affidavit is no substitute for trial by jury which so long has been
the hallmark of even handed justice. Adickes v. S. H. Kress & Co., 398 U.S.
144, 176 (1970) (Black, J., concurring); see also, Fisher v. Shamburg, 624 F.2d
156, 162 (10th Cir. 1980).
Federal 1983 Actions
23

The elements of a 1983 claim are the deprivation of rights secured by the
Constitution or federal law, and action occurring under color of state law. Garcia
v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984). In considering 1983 claims,
courts look to the common law of torts for guidance. Section 1983 provides a
federal civil cause of action against state officials for the deprivation of any rights,
privileges, or immunities secured by the Constitution. Claims under 1983 are
often analytically similar to although still distinct from common law torts.
Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (internal quotations omitted).
Since Carey v. Piphus, 435 U.S. 247 (1978), courts have used the common law of
torts as a starting point for determining the contours of claims of constitutional
violations under 1983. In other words, the common law tort while not entirely
imported into 1983 provides a useful guidepost in making sense of alleged
constitutional injuries. Id. at 913 914 (internal citation and quotations omitted).
Indeed, the Tenth Circuit has held that a plaintiffs need not use specific language
describing the tort analogous to a 1983 claim in a complaint when the facts pled
support the claim. See Mondragon v. Thompson, 519 F.3d 1078, 1084 (10th Cir.
2008).
Any heightened pleading standard in complaints against municipal
corporations in 1983 cases was specifically barred by the United States Supreme
Court in Leatherman v. Tarrant County Narcotics, 507 U.S. 163, 168 (1993). The
24

Supreme Court found that a heightened pleading standard was impossible to

square with the notice pleading set up by Fed. R. Civ. P. 8(a)(2), which requires
that a complaint include only a short and plain statement of the claim showing
that the pleader is entitled to relief.
Qualified Immunity
The doctrine of qualified immunity protects government officials 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. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, (1982)). Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments, and
protects all but the plainly incompetent or those who knowingly violate the
law. Messerschmidt v. Millender, 132 S.Ct. 1235, 1244-45 (2012). [W]hether
an official protected by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the objective legal
reasonableness of the action, assessed in light of the legal rules that were clearly
established at the time it was taken. Id. 132 S.Ct. at 1245 (quoting Anderson v.
Creighton, 483 U.S. 635, 639 (1987)).
Once a defendant pleads qualified immunity, the plaintiffs initially bears a
two - part burden. First, the plaintiffs must demonstrate that the defendants
25

actions violated a constitutional or statutory right. Second, the plaintiffs must

show that the constitutional or statutory rights the defendant allegedly violated
were clearly established at the time of the conduct at issue.

Albright v.

Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (internal citations omitted). To
satisfy the second part of this burden, a plaintiffs must show that the contours of
the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Id. at 1535. Although the specific action at
issue does not have to have previously been held unlawful, in the light of pre existing law the unlawfulness must be apparent. Id.
Summary Judgment In Qualified Immunity
At the summary judgment stage in a qualified immunity case, the court may
not weigh evidence and must resolve genuine disputes of material fact in favor of
the nonmoving party. Tolan v. Cotton, 134 S.Ct. 1861 (2014). If there are disputed
issues of material fact it prevents the Court from summarily judging the plaintiffs
constitutional claims. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th
Cir. 2002). A qualified immunity defense will not succeed in inducing a court to
grant summary judgment when the facts . . ., considered collectively, present an
incomplete picture of the [relevant] circumstances. Olsen, 312 F.3d at 1314
(quoting Salmon v. Schwarz, 948 F.2d 1131, 1137 (10th Cir. 1991)) (alterations in
original).
26

ARGUMENT
The record is rife with disputed issues of material fact that should have
prevented the U.S. District Court from summarily judging plaintiff-appellants
claims. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002). A
qualified immunity defense will not succeed in inducing a court to grant summary
judgment when the facts..., considered collectively, present an incomplete picture
of the [relevant] circumstances. Olsen, 312 F.3d at 1314 (quoting Salmon v.
Schwarz, 948 F.2d 1131, 1137 (10th Cir. 1991)) (alterations in original). See
Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989) (denying summary
judgment based on qualified immunity because of genuine issues of material fact
precluding a judicial determination of whether [the officers] conduct was
objectively reasonable).
An individual governmental employee does not have sovereign immunity
under State law for wanton acts or omissions causing injury per C.R.S. 24-10118(1).

[W]hether an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light of the legal rules
that were clearly established at the time it was taken. Messerschmidt. 132 S.Ct.
at 1245 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). Wrongful
conduct by persons acting under the color of state law cannot be immunized by
27

state law under 42 U.S.C. 1983. Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d
422, 424 (Colo. App. 1982).

The law only protects all but the plainly

incompetent or those who knowingly violate the law. Messerschmidt v.

Millender, 132 S.Ct. 1235, 1244-45 (2012).
Ms. White-Gordon clearly fits this characterization.

Specifically, Ms.

White-Gordon knew Kenneth Mackey to be a legitimate danger to the community someone she was aware carried a substantial risk of harm or danger people in the
public. Ms. White-Gordon failed to supervise and monitor Mackey in accordance
with the terms and conditions ordered by the Denver County Court (intensive
supervision and G.P.S. monitoring), as well as the standard and generally accepted
practices and procedures of pretrial services.

Despite the high risk potential

Mackey specifically posed, combined with the gravity of harm and danger that
could be inflicted, Ms. White-Gordon recklessly ignored those consequences. She
allowed an individual with four (4) prior felony convictions whom was already
on bond for attempted murder charges with a gun - to commit at least four (4) more
violent felony offenses, all while under her intensive supervision. The fourth and
last offense was the murder of Mr. Thomas a death that would certainly have
been prevented but for the defendant. Her log of interaction with Mackey was the
antithesis of intensive supervision. App. Vol. III pgs. 46-47 [Doc 45-2]. The
aforementioned facts are viewed in the light most favorable to plaintiff-appellants.
28

Denver Pretrial Services, and its employees are law enforcement officials
which means they have both the authority, means, and resources to effectuate their
stated purpose and goals (public safety). See Delta Sales Yard v. Patten, 892 P.2d
297, 300 (Colo. 1995) (analyzing C.R.S. 18-1-901(3)); C.R.S. 16-2.5-101 (a
peace officer has the authority to enforce all laws of the state of Colorado while
acting within the scope of his or her authority and in the performance of his or her
duties.)
Colorado law imposes statutory duties upon pretrial supervision employees
pursuant to C.R.S. 16-4-105(8), -106. Under C.R.S. 16-4-105(8) (emphasis
added):
(8) In addition to the conditions specified in this section, the court may impose any
additional conditions on the conduct of the person released that will assist in obtaining
the appearance of the person in court and the safety of any person or persons and the
community. These conditions may include, but are not limited to, supervision by a
qualified person or organization or supervision by a pretrial services program established
pursuant to section 16-4-106. While under the supervision of a qualified organization or
pretrial services program, the conditions of release imposed by the court may include, but
are not limited to:
a. Periodic telephone contact with the program;
b. Periodic office visits by the person to the pretrial services program or
organization;
c. Periodic visits to the person's home by the program or organization;
d. Mental health or substance abuse treatment for the person, including residential
treatment if the defendant consents to the treatment;
e. Periodic alcohol or drug testing of the person;
f. Domestic violence counseling for the defendant if the defendant consents to the
counseling;
g. Electronic or global position monitoring of the person;
h. Pretrial work release for the person; and
i. Other supervision techniques shown by research to increase court appearance and
public safety rates for persons released on bond.

29

Similarly, under C.R.S. 16-4-106, states: (emphasis added):

(1) The chief judge of any judicial district may order a person who is eligible for bond or
other pretrial release to be evaluated by a pretrial services program established pursuant
to this section, which program may advise the court if the person is bond eligible, may
provide information that enables the court to make an appropriate decision on bond and
conditions of release, and may recommend conditions of release consistent with this
section. The chief judge may make such order in any or all of the counties of the chief
judge's judicial district.

(3) To reduce barriers to the pretrial release of persons in custody whose release on bond
with appropriate
conditions reasonably assures court appearance and public safety, all counties and cities
are encouraged to develop a pretrial services program in consultation with the chief judge
of the judicial district in an effort to establish a pretrial services program that may be
utilized by the district court of such county or city and county.
(4) Any pretrial services program approved pursuant to this section must meet the
following criteria:
(a) The program must establish a procedure for the screening of persons who are
detained due to an arrest for the alleged commission of a crime so that such
information may be provided to the judge who is setting the bond and conditions
of release. The program must provide information that provides the court with the
ability to make an appropriate initial bond decision that is based upon facts
relating to the person's risk of failure to appear for court and risk of danger to the
community.
(b) The program must make all reasonable attempts to provide the court with such
information delineated in this section as is appropriate to each individual person
seeking release from custody;
(c) The program, in conjunction with the community advisory board, must make
all reasonable efforts to implement an empirically developed pretrial risk
assessment tool and a structured decision-making design based upon the person's
charge and the risk assessment score;
(d) The program must work with all appropriate agencies and assist with all
efforts to comply with sections 24-4.1-302.5 and 24-4.1-303, C.R.S.
(5) Any pretrial services program may also include different methods and levels of
community-based supervision as a condition of release, and the program must use
established methods for persons who are released prior to trial in order to decrease
unnecessary pretrial detention. The program may include, but is not limited to, any of the
criteria as outlined in section 16-4-105 (8) as conditions for pretrial release.
(6) Commencing July 1, 2012, each pretrial services program established pursuant to this
section shall provide an annual report to the judicial department no later than November 1
of each year, regardless of whether the program existed prior to May 31, 1991. The
judicial department shall present an annual combined report to the house and senate
judiciary committees of the house of representatives and the senate, or any successor
30

committees, of the general assembly. The report to the judicial department must include,
but is not limited to, the following information:

(d) The total number of closed cases in which the person was released from
custody, was supervised by the
program, and was not charged with a new criminal offense that was alleged to
have occurred while under supervision and that carried the possibility of a
sentence to jail or imprisonment;
.

There is no doubt the defendant was operating under the color of state law.
The plaintiffs 1983 action arises out of common law and state tort claims.
Plaintiffs statutory wrongful death and survival claims arise from Colorado state
law. While a violation of state law, in and of itself, does not provide the basis of a
1983 claim, the violation of a state law that causes a constitutional deprivation
may form the basis of a 1983 claim. Hallstrom v. City of Garden City, 991 F.2d
1473, 1482 n.22 (9th Cir. 1993). The deprivation of the constitutional right in this
case is life without due process of law. This is an expressly enumerated provision
of both U.S. Const. Amend XIV and Colo. Const. Art. II, sect. 25. Plaintiffs need
not use specific language describing the tort analogous to a 1983 claim in a
complaint when the facts pled support the claim. See Mondragon v. Thompson,
519 F.3d 1078, 1084 (10th Cir. 2008). Despite being law enforcement with a
defined statutory scope of duty the defendant-appellee still allowed this travesty to
occur. Based on the supervision records (or lack thereof) of Ms. White-Gordon, it
is no mystery how. App. Vol. III pgs. 46-47 [Doc 45-2].

31

Notwithstanding the foregoing State statutory duties, the primary function of

a pretrial supervision program is community safety through diligent supervision.
On April 26, 2012, the Colorado Legislative Council Staff issued a memorandum
which stated (emphasis added), Purpose of pretrial services programs. All
pretrial services programs must assess defendants and provide information and
recommendations to the court concerning the defendant's risk to public safety.
App. Vol. III pgs. 123-163, 125 3 [Doc 45-10] .
The U.S. Department of Justices National Institute of Justice is one of
many organizations that sets forth standards and practices for pretrial services
programs. Denver Pretrial Services publically maintains it strictly adheres to
these national standards.

In 2001, the Institute published Pretrial Service

Programs: Responsibilities and Potential, which provided the following guidance

(14 years ago when the internet and cell phones were still in their infancy):

Defendants on pretrial release pose two main types of risks: nonappearance for scheduled
court dates and commission of pretrial crime. Pretrial services programs, working with
the courts and other justice system agencies, can help manage and minimize these risks.
The reasons for nonappearance vary widely, but the majority of defendants who fail to
appear will return to court once contacted.
Pretrial services programs use three main approaches to manage the risk that some
defendants may fail to appear for scheduled court events:
o Gathering information relevant to assessing the risk of nonappearance and
initiating follow-up action if a court date is missed.
o Using monitoring and reminder techniques to try to anticipate and avoid
nonappearance.
o Immediately contacting a defendant who misses a court appearance to resolve the
problem and minimize disruption of the court process.
Pretrial services programs manage the risks to public safety by doing the following:
o Monitoring released defendants compliance with conditions designed to
minimize the risk of pretrial crime.
32

o Providing direct intensive supervision of some categories of defendants.

o Responding promptly to information indicating a defendant has violated
conditions imposed by the court.
Conditions of release should be related to the type of risk posed by the released
defendant. Examples of types of conditions used include the following:
o Requirements for phone or in person check-ins with the pretrial services program.
o Restrictions on a defendants movements, including curfews, stay away orders,
and electronic monitoring and house arrest.
o Testing and treatment for drug and alcohol abuse.
Defendants with substance abuse and mental health problems make up a significant
proportion of court case-loads and jail population. The key roles that pretrial services
programs can play in developing innovative programs to deal effectively with these
persons include the following:
o Obtaining essential information about their substance abuse and mental health
problems.
o Assessing the nature and extent of the risks of flight and dangerousness posed by
these defendants, taking into account the defendants substance abuse and mental
health needs and the clinical and programmatic resources that can be used to help
address the needs if the defendant is released.
o Monitoring the defendants compliance with any conditions of release.
o Coordinating the provision of treatment and other services to these defendants.

- App. Vol. III pgs. 164-285, Ch. 3 212-213 [Doc 45-11]

Pretrial supervision is an important, inherently dangerous duty. Here,
Denver Pretrial Services was ordered by the Denver County Court to place Mackey
on intensive supervision with a G.P.S. bracelet, which allegedly monitored his
every move because of the threat he posed to the community. App. Vol. III pgs.
36-44 [Doc 45-1], pgs. 100-108 [Doc 45-7]. This wasnt simply a suggestion, it
was mandated based on Mackeys aggravated criminal history, risk assessment,
and pending criminal charges. The Denver County Court and Denver Pretrial
Services knew there was a substantial risk Mackey would reoffend if released into
the public. Indeed, few individuals have the aggravated, violent criminal history
Mackey has.
33

Ms. White-Gordon was the only person known to the plaintiff-appellants

within Denver Pretrial Services to be responsible for the aforementioned duties,
and arguably had a special relationship with Mackey. App. Vol. III pgs. 46-47
[Doc 45-2]. Ms. White-Gordon was the first, only, and last line of defense the
community (and Mr. Thomas) had against such a dangerous individual like
Mackey. This is a special relationship. Whitcomb v. Denver, 731 P.2d 749, 751
(Colo. App. 1986); Leake v. Cain, 720 P.2d 152 (Colo. 1986) (there is a duty to
prevent a third person from harming another where a special relationship exists
between the actor and the wrongdoer or between the actor and the victim.) The
defendant-appellee gravely, and irretrievably failed to live up to her obligation.
See e.g. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) (inherent
liability in obviously dangerous activities). Plaintiff-appellant found persuasive
case law and filed a supplement of legal authority and precedent with the U.S.
District Court on January 3, 2016. App. Vol. I pgs. 39-81, Pl. notice of supp. auth.
1/3/16 [Doc 48].
There was no formal discovery in this case, and plaintiff-appellants went to
great lengths and effort to procure the little information they had that was withheld
in the sole possession and control of the City and County of Denver. App. Vol. III
pgs. 48-68 [Doc 45-3], pgs. 77-120 [Doc 45-7]; App. Vol. II pgs. 40-42, Order re
stay 11/20/15 [Doc 44]. The plaintiff-appellants are not required to prove each and
34

every fact pre-discovery as they would at trial.

Any heightened pleading

standard in complaints against municipal corporations in 1983 cases was

specifically barred by the United States Supreme Court in Leatherman v. Tarrant
County Narcotics, 507 U.S. 163, 168 (1993). Plaintiff-appellants operative
complaint and other evidence in the record clearly show that the defendantappellee engaged in reckless and wanton conduct. App. Vol. II pgs. 5-16, Pl. 2nd
Amend. Comp. 10/6/15 [Doc 31]; (App. Vol. III pgs. 5-35, Def. resp. to mtn. to
dismiss 11/28/15 [Doc 45]),
Even so, whether immunity for a governmental employee engaged in
reckless and wanton conduct is a fact-intensive question. The plaintiff-appellants
had requested a jury to be the finder of fact in this action. The culpable mental
state and behavior of the defendant-appellee is an ultimate issue of fact where the
U.S. District Court should not have interceded. The jury at Mackeys criminal trial
certainly agreed with the plaintiff-appellants argument on the defendantappellees liability. App. Vol. III pgs. 121-122, [Doc 45-9].
CONCLUSION
The alleged facts and evidence in the record (as difficult as they were to
obtain from Denver) are more than sufficient to show the affirmative conduct
necessary to state plausible due process claims under U.S. Const. Amend XIV and
42 U.S.C. 1983-1988.

As such, the defendant-appellee is not entitled to

35

qualified immunity in C.R.S. 24-10-118 from such claims given her wanton
conduct. The U.S. District court order dismissing plaintiff-appellants federal
claims on 1/11/16 [Doc 49] should be reversed and remanded for a trial on all
issues so triable.
Respectfully submitted this May 13, 2016:
THE EVANS FIRM, LLC

/s/ Michael D. Evans

Michael D. Evans, for the Appellant
Atty. Reg. # 39407
12605 East Euclid Drive, Ste. #209,
Centennial, CO 80111-6437
P: 303-221-3634 | F: 303-221-3063
info@theevansfirm.com

36

Certificate of Compliance
As required by Fed. R. App. P. 32(a)(7), I certify that this brief is
proportionally spaced and contains less than the proscribed maximum by rule at
7,333 words, exclusive of cover sheets, tables, and certificates.
Complete one of the following:
XX I relied on my word processor to obtain the count and it is Microsoft Word
2013;
I counted five characters per word, counting all characters including citations
and numerals.
I certify that the information on this form is true and correct to the best of
my knowledge and belief formed after reasonable inquiry.
Respectfully submitted this May 13, 2016:
THE EVANS FIRM, LLC

/s/ Michael D. Evans

Michael D. Evans, for the Appellant
Atty. Reg. # 39407

37

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS
I hereby certify that a copy of the foregoing APPELLANTS OPENING
BRIEF, attached Orders, and Appendices Vol I, II, and III, as submitted in
Digital Form via the courts ECF system, is an exact copy of the written document
filed with the Clerk and has been scanned for viruses with the Norton 365
Antivirus 2016 Edition and, according to the program, is free of viruses. In
addition, I certify all required privacy redactions have been made.
Respectfully submitted this May 13, 2016:
THE EVANS FIRM, LLC

/s/ Michael D. Evans

Michael D. Evans, for the Appellant
Atty. Reg. # 39407

38

CERTIFICATE OF SERVICE
Case #: 16-1042
Parties: Thomas et. al. v. C & C Denver
I hereby certify that on May 13, 2016 I electronically filed and served
through ECF the foregoing APPELLANTS OPENING BRIEF, attached
Orders, and Appendices Vol I, II, and III with the Clerk of Court and below
parties:
Hollie R. Birkholz
Assistant City Attorney | Litigation Section
City Attorney's Office | City and County of Denver
201 W. Colfax, Dept. 1108
Denver, CO 80202
(720) 913-3100
Fax: (720) 913-3190
Hollie.Birkholz@denvergov.org
Further I certify that within two (2) days of the above date I will or serve
seven (7) hard copies of the same with:
Clerk of the Court
Tenth Circuit Court of Appeals
1823 Stout Street
The Byron White U.S. Courthouse
Denver, CO 80257
THE EVANS FIRM, LLC

/s/ Michael D. Evans

Michael D. Evans, for the Appellant
Atty. Reg. # 39407

39