Smith v. City and County of Denver, Colorado et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 24-cv-01636-SKC-CYC
ELIJAH SMITH,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, COLORADO,
MIKE’S RESTAURANT GROUP d/b/a HAYTER’S & CO.,
ADAM GLASBY, in his individual capacity, and
ERNEST SANDOVAL, in his individual capacity,
Defendants.
ORDER OVERRULING CITY AND COUNTY OF DENVER’S
OBJECTION TO DISCOVERY ORDER (DKT. 70)
The above-referenced Objection (Dkt. 70) to Magistrate Judge Cyrus Y.
Chung’s February 3, 2025 discovery order (Dkt. 65) is now before the Court. Plaintiff
filed a Response. Dkt. 73. Because Judge Chung’s discovery order is neither clearly
erroneous nor contrary to law, the Objection is overruled.
BACKGROUND
Plaintiff alleges that on the night of June 12, 2023, his friend became involved
in a physical altercation outside a local restaurant. Plaintiff claims he attempted to
defend his friend when Plaintiff was grabbed from behind by Defendant Adam
Glasby, an off-duty Denver police officer working as a bouncer for the restaurant.
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Plaintiff alleges Glasby lifted him off the ground and slammed him headfirst into the
concrete, causing injuries. Plaintiff also sued Denver under 42 U.S.C. § 1983
asserting a Monell claim and arguing that it is liable for Glasby’s alleged use of
excessive force on Plaintiff. Plaintiff’s Monell claim asserts a pattern and practice of
excessive force within the Denver Police Department (DPD), as well as a custom or
policy in which it tolerates and accepts the excessive use of force based on an alleged
failure to adequately investigate or discipline police officers for alleged instances of
excessive force.
During discovery, and in relevant part, Plaintiff served Denver with his
Interrogatory No. 1 and Request for Production No. 5. These requests ask Denver to
identify, describe, and provide all documents for every complaint (formal or informal)
of excessive force, failure to render aid, battery, intentional infliction of emotional
distress/outrageous conduct, negligence, and/or negligent hiring and supervision
made against Denver and its employees from June 1, 2013 to the present. Denver
objected 	to 	these 	requests 	on 	the 	basis 	that 	they 	are 	overly 	broad, 	unduly
burdensome, and disproportionate to the needs of this case. Denver also objected to
the extent the requests sought irrelevant information, information protected by law
enforcement privilege, and might infringe on employees’ right to privacy. But it did
initially produce the Internal Affairs (“IA”) resumes of Glasby and Defendant
Sandoval which list and describe the IA complaints made against each of them, as
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well as IA files for the respective investigations of each Defendant related to the June
2023 incident.
The parties raised their unresolved disputes over these discovery requests with
Judge Chung. Denver submitted its Discovery Dispute Statement to Judge Chung as
part of the informal discovery resolution process. Dkt. 70-2. In its statement, Denver
raised numerous arguments regarding these two discovery requests, including:
[T]his request is vastly overbroad and disproportional to the needs of the
case. This request is not sufficiently specific to allow Defendants to
comply through reasonable efforts, particularly considering the breadth
of the request. The request is not limited to claims which are sufficiently
similar to the claims here. Further, the request is not limited to claims
against the Denver Police Department, but also requests Denver provide
responses as to all Denver employees and contractors as well as the
Denver Sheriff’s Department.
Dkt. 70-1, pp.3-4. It further argued “the only relevant complaints would be those
which involve allegations substantially similar to those here – namely, claims related
to off-duty Denver Police Department officers engaged in work as a bouncer where
there are allegations of excessive force or claims involving officers engaging in
criminal 	conduct.” 	Id. 	at 	p.5. 	And 	finally, 	it 	argued: 	the 	12-year 	period 	of
documentation Plaintiff requests is vastly overbroad because it is too temporally
removed from the incident and irrelevant to the claims and defenses; incidents
occurring after an incident cannot be used to show an unconstitutional policy; the
requests should be limited to founded complaints or meritorious lawsuits; and, the
process to parse-out complaints would require employee review and create an undue
burden. Id. at pp.5-7. Denver asked the magistrate judge to “significantly narrow the
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scope of Plaintiff’s request regarding IA files and complaints to incidents sufficiently
similar to this case, formal complaints, and to incidents occurring within a reasonable
timeframe.” Id. at p.7.
After a discovery hearing, Judge Chung narrowed the scope of these discovery
requests and ordered as follows:
With respect to Interrogatory No. 1 and Document Request No 5, the
City and County of Denver shall produce claims of excessive force and
failure to render aide related to the Denver Police Department for the
period of 5 years prior to the incident and up to September 2, 2025, as
specified on the record.
Dkt. 65.
STANDARD OF REVIEW
Upon a timely objection, a district judge may modify or set aside a magistrate
judge’s order on a non-dispositive matter to the extent the order is “clearly erroneous
or contrary to law.” Fed. R. Civ. P. 72(a). This standard requires affirmance unless
the district judge is left with the “definite and firm conviction” that a mistake was
made. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)
(cleaned up). This is a high bar. Box Elder Kids, LLC v. Anadarko E & P Onshore,
LLC, No. 20-cv-2352-WJM-JPO, 2024 WL 3963505, at *5 (D. Colo. Aug. 16, 2024). It
leaves no room for modifying or setting aside a magistrate judge's non-dispositive
order simply because the district judge might have ruled differently in deciding the
matter in the first instance. Id.
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ANALYSIS
There is little daylight, if any, between the matters Denver raises now in its
Objection to the discovery order and the arguments it made before Judge Chung. To
be sure, in its Objection, Denver refers back to arguments it made before Judge
Chung, to include referring this Court back to Denver’s original discovery dispute
statement. Dkt. 70, p.4 (“As Denver argued in its dispute statement, the production
should be limited to substantially similar situations, like those involving the same
types of force[.]”), p.5 (“Denver has also argued Plaintiff’s Monell discovery should be
limited to ‘sustained’ allegations[.]”), p.6 (“For these reasons, and incorporating its
earlier arguments made to the Magistrate Judge, Denver asks this Court to sustain
this objection.”).
A party can’t simply raise the same arguments that the magistrate judge
considered and expect the reviewing court to treat the filing seriously. Rosado–Lebron
v. Comm’r of Soc. Sec., 193 F. Supp. 2d 415, 418 (D.P.R. 2002). It “is improper for an
objecting party to attempt to relitigate the entire content of the hearing before the
Magistrate Judge by submitting papers to a district court which are nothing more
than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge.” In re Blue Cross Blue Shield Antitrust Litig., No.
2:13-CV-20000-RDP, 2017 WL 11539508, at *2 (N.D. Ala. Jan. 20, 2017) (cleaned up).
See also MedEnvios Healthcare, Inc. v. United States Dep’t of Health & Hum. Servs.,
No. 23-20068-CIV, 2024 WL 551837, at *2 (S.D. Fla. Feb. 12, 2024) (parties are not
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to be afforded a second bite at the apple when they file objections); Wheeler v. BMW
of N. Am. LLC, No. 3:20-CV-36-RJC-DSC, 2022 WL 301537, at *2–3 (W.D.N.C. Feb.
1, 2022) (“Defendant’s Objection largely makes, and relies on, the same arguments
already presented to and rejected by the Magistrate Judge rather than sufficiently
presenting to the Court the reasons that the Magistrate Judge’s Order is clearly
erroneous or contrary to law.”).
The arguments presented in Denver’s Objection appear to be the same
arguments presented to, and considered by, Judge Chung. See Guiden v. Leatt Corp.,
No. 5:10-CV-00175, 2013 WL 4500319, at *6 (W.D. Ky. Aug. 21, 2013) (“The
arguments now advanced . . . appear to be the exact same arguments previously
considered and rejected by the Magistrate Judge.”). With those arguments in mind,
Judge Chung issued a discovery order that placed limits on the scope of Interrogatory
No. 1 and Document Request No. 5, both temporally and by subject matter. And those
limitations, though unsatisfying to Denver, are neither clearly erroneous nor contrary
to law. Indeed, a core premise of Denver’s arguments is that it “shouldn’t be required
to produce – at great burden – a host of materials that won’t likely be admissible,
even in the best case for Plaintiff.” Dkt. 70 at p.8. But this argument ignores that a
party is entitled to discover information relevant to asserted claims and defenses and
proportional to the needs of the case regardless of its admissibility. Fed. R. Civ. P.
26(b)(1).
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To the extent Denver complains about the burden resulting from the discovery
order, first, it argued undue burden to Judge Chung and received the benefit of his
discretion which limited the scope of the discovery requests. This Court finds those
limitations are neither clearly erroneous nor contrary to law.
Second, Denver’s burden argument raised in the Objection is further based on
new information not presented to the magistrate judge, and therefore, the new
argument is improper for this Court’s consideration.1 See Fry v. City of Northglenn,
No. 16-CV-02318-PAB-KLM, 2018 WL 1010942, at *3 (D. Colo. Feb. 22, 2018)
(“Because plaintiff did not present this argument to the magistrate judge, the Court
need not consider it.”); United States v. Ledford, No. 07-cv-01568-WYD-KMT, 2010
WL 749843, at *8 (D. Colo. Mar. 3, 2010) (arguments not brought to the attention of
the magistrate judge will not be considered on review of non-dispositive motions);
City of Wichita v. Aero Holdings, Inc., 192 F.R.D. 300, 302 (D. Kan. 2000) (review of
objection to magistrate judge’s order on non-dispositive motion is not a de novo review
allowing a second shot based on new arguments).
1 Denver concedes, based on a search it ran to comply with the discovery order, that
“this information (the number of total files, pages, and videos) was not before the
Magistrate Judge when the discovery Order was issued.” Dkt. 70, p.8. Because this
Court has referred discovery matters to the magistrate judge under 28 U.S.C. § 636
and Fed. R. Civ. P. 72(a), the proper approach to address the new information
resulting from Denver’s search would be to seek either a status conference or
clarification from the magistrate judge in light of the new information bearing on
compliance with his discovery order. Within the context of Denver’s Objection,
however, 	this 	newly 	discovered 	information 	that 	was 	never 	presented 	to 	the
magistrate judge cannot be considered in a hindsight view to support a finding of
clear error or legal contrariness.
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* 	* 	*
For the reasons shared above, the Court finds nothing in the Objection meets
Denver’s high burden of demonstrating Judge Chung’s discovery order is clearly
erroneous or contrary to law. The Objection is OVERRULED. The Motion to Stay at
Dkt. 74 is DENIED as MOOT.
DATED: April 11, 2025
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
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