Cossio v. City/County Denver

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 6 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

CAROL COSSIO, as guardian and
legal representative of SAHRIE
CAROL COLON; DONTE ELOY
COLON, minor children of Yvonne
Cossio, deceased, No. 97-1148
(D.C. No. 96-K-1493)
Plaintiff-Appellant, (D. Colo.)
1997 WL 129289
v.

CITY AND COUNTY OF DENVER;
ROBERT ORTIZ, individually and in
his capacity as an officer of Denver
Police Department,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff appeals the district court’s decision granting defendants summary

judgment on her claims stemming from the shooting death of her daughter. This

court will review a summary judgment decision de novo, viewing the record in the

light most favorable to the nonmoving party. See Sprague v. Thorn Americas,

Inc., 129 F.3d 1355, 1360-61 (10th Cir. 1997). Summary judgment is appropriate

only if there are no genuinely disputed issues of material fact and the moving

party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

Plaintiff alleges that defendant police officer Robert Ortiz answered a call

concerning an unwanted party in plaintiff’s home, and removed the unwanted

party, Jerome Perea, from the home, but did not arrest him. Mr. Perea returned a

short time later and killed plaintiff’s daughter.

Plaintiff asserts claims under 42 U.S.C. § 1983, alleging that defendants

deprived her decedent of equal protection of the law, by treating calls concerning

domestic violence differently than other calls, and deprived the decedent of due

process by creating a dangerous situation and then not rendering necessary

assistance. Plaintiff also asserts a § 1983 claim on behalf of decedent’s children

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for deprivation of familial association and a Colorado law claim against Officer

Ortiz for wrongful death. 1

On appeal, plaintiff argues that the district court erred in granting

defendants summary judgment on these claims and also asserts that the district

court should have allowed further discovery prior to ruling on defendants’

summary judgment motion. Upon review of the record and the parties’ appellate

arguments, we affirm the entry of summary judgment in favor of defendants for

substantially the reasons stated in the district court’s well-reasoned decision dated

March 19, 1997.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

Entered for the Court

Monroe G. McKay
Circuit Judge

1
Plaintiff conceded, before the district court, that her state law wrongful
death claims against the City, and her state law negligence claims asserted against
both defendants, were barred by sovereign immunity. Further, plaintiff
voluntarily dismissed her claim against the City based upon respondeat superior
liability. These claims are, therefore, not before this court on appeal.

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