Colorado Court of Appeals Opinions for Aug. 18

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Ditirro v. Sando, et al.

The Colorado Court of Appeals unanimously affirmed and remanded a case involving civil actions against a peace officer and their employer.

The appeals court considered whether Colorado’s statute that allows a civil action against a peace officer who subjects someone to the deprivation of individual rights under Colorado Revised Statute 13-21-131, also permits a cause of action against the employer of the officer. The appeals court held, for this particular case, the statute doesn’t allow for a plaintiff to file a direct action against the employer.

In 2020, the General Assembly created a law opening civil liability against an officer for violating a plaintiff’s civil rights. The statute is silent concerning whether a plaintiff can direct a claim against an officer’s employer.

The appeals court affirmed a district court’s judgment that dismissed the claims of Vincent Ditirro against the Adams County Sheriff’s Office and Commerce City Police Department for failing to state claims where relief can be granted. The appeals court also rejected Ditirro’s arguments and awarded appellate attorney fees to the four original defendants: Commerce City, Colorado State Patrol and troopers Matthew Sando and Caleb Simon. The appeals court also granted Commerce City’s request for an award for its costs related to the appeal.

On Aug. 7, 2018, Sando and Simon stopped the car Ditirro was driving on suspicion he was driving under the influence of alcohol. Ditirro was arrested after a sobriety test. Sando and Simon were accused of assaulting Ditirro during the arrest.

In 2020, Ditirro filed a complaint in district court against Adams County, Commerce City, Sando, Simon, the Colorado State Patrol and “Doe Defendants.” Ditirro made nine claims including four under federal statute 42. U.S.C. 1983 and five under state law. Commerce City removed the case to federal on grounds that the inclusion of the federal law claims would allow the court subject matter jurisdiction over the whole case.

While Commerce City had a pending motion in federal court, Ditirro filed an amended complaint that didn’t include the federal claims. The federal court didn’t have jurisdiction over the case and it was remanded to district court. Ditirro refiled his first amended complaint and asserted the five state law claims.

After multiple court dismissals, Ditirro filed a separate motion for leave to amend his first amended complaint where he wanted to reassert the same federal claims he voluntarily dismissed. The district court denied that. Ditirro filed for reconsideration which was also denied.

In June 2022, a division of the appeals court dismissed the portions of Ditirro’s appeal challenging the district court’s dismissal, based on lack of jurisdiction, of his claims against Sando, Simon and CSP. The division then deferred consideration of Sando, Simon and CSP’s requests for their appellate attorney fees until the appeals court adjudicated Commerce City’s request for appellate attorney’s fees. Adams County didn’t request an award for appellate fees. 

In the latest appeal, the Colorado Court of Appeals limited its review to whether the district court erred by granting Adams County and Commerce City’s motions to dismiss and whether it abused its discretion denying Ditirro leave to amend his first amended complaint, along with Ditirro’s motion for reconsideration.

The appeals court also considered Commerce City, Sando, Simon and CSP’s request for awards for appellate attorney fees, along with Commerce City’s request for an award of costs incurred on appeal.

As for Adams County and Commerce City’s motions to dismiss, the appeals court disagreed with Ditirro. Due to statute, the appeals court wrote Ditirro didn’t have a right to assert civil rights actions against the employers. The appeals court also ruled the district court didn’t abuse its discretion over the reamended amended complaint. The appeals court wrote the rules of civil procedure do not grant a plaintiff the right to amend a complaint if it’s already amended.

For the claim of the district court abusing its discretion by denying his motion to reconsider, the appeals court also disagreed with Ditirro. The appeals court concluded since the district court didn’t err by denying Ditirro’s motion to amend, it didn’t abuse its discretion in denying Ditirro’s motion for reconsideration.

The case was remanded to the district court to determine appellate attorney fees.

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