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Kelly Boren vs. The City and County of Denver

Kelly Boren vs. The City and County of Denver

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Published by: Nick on Sep 20, 2011
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08/05/2013

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DISTRICT COURT, CITY & COUNTY OF DENVER STATE OF COLORADO1437 Bannock StreetDenver,Colorado80202
KELLY BOREN
,Plaintiff,
v.
The
CITY AND COUNTY OF DENVER 
, a municipality,Officer 
RICKY NIXON
,in his individual and official capacity,Officer 
KEVIN DEVINE
, in his individual and officialcapacity,Officer 
JOHN DOEONE,
Denver Police Department InternalAffairs Bureau Police Officer, in his/her individual and officialcapacity, andOfficer 
JOHN DOETWO,
Denver Police Department InternalAffairs Bureau Police Officer, in his/her individual and officialcapacity,Defendants.

Attorneys for Plaintiff Qusair Mohamedbhai, # 35390Siddhartha H. Rathod, #38883KILLMER, LANE & NEWMAN, LLP1543 Champa St., Ste. 400Denver, CO 80202(303) 571-1000 (phone)(303) 571-1001 (fax)qmohamedbhai@kln-law.comsrathod@kln-law.comCase No:Division:
COMPLAINTAND JURY DEMAND
Kelly Boren(“Plaintiff” or “Ms. Boren”),by and through her attorneys,Qusair Mohamedbhaiand Siddhartha H. Rathodof K 
ILLMER 
,L
ANE
&N
EWMAN
,LLP,allegesthefollowing Complaint and Jury Demand against the City and County of Denver (“Denver”),Ricky Nixon(“OfficerNixon”),and Kevin Devine(“Officer Devine”), and John DoeDenver Police
 
2Department Internal Affairs Bureau Officers Oneand Two(“John Doe IAB Officers”)(collectively referred to as “Defendants”)and in support statesas follows:
I. INTRODUCTION
1.On July 12, 2009, at approximately 1:00 a.m., Ms. Boren was entering the Denver Diner restaurant with her friend Sharelle Thomas, when Ms. Thomas was suddenly shoved from behind by Officer Devine. When Ms. Thomas complained about Officer Devine’s conduct,Officer Devine threatened her with his baton, grabbed her by the arm and violently threw her tothe ground. At the same time Officer Devine grabbed Ms. Boren by the throat and threw her  back and onto the ground. Officer Nixon then pinned Ms. Thomas to the ground. When Officer  Nixon finally released Ms. Thomas, he proceeded to pepper spray Ms. Boren, Ms. Thomas, andothers. Ms. Boren had visible injuries to her arms and face. Defendants conspired tomaliciously and vindictively prosecute Ms. Boren, causing two false charges to be broughtagainst her. Based on Defendants’ failure to produce exculpatory evidence, and fabrication of inculpatory evidence, Ms. Boren eventually pled guilty to a Municipal Code violation.Unbeknownst to Ms. Boren, the actions of Officer Devine and Officer Nixon were captured by aHigh Activity Location Observation (“HALO”) camera. Among other reason, based on newlydiscovered exculpatory evidence that was never produced to Ms. Boren or her attorneys, despite being in the possession of Defendants, Ms. Boren is attempting to withdraw her guilty plea.2.This is an actionfor damages and injunctive relief against Defendants foviolating Ms. Boren’s rights under the First, Fourth and Fourteenth Amendments of theConstitution of the United States. Defendants violated Ms. Boren’s Fourth Amendment rightswhen they intentionally, knowingly, recklessly, and with deliberate indifference to her constitutional rights, subjected her to an intrusive, unjustified, and illegal seizure without any basis for believing she was engaged in criminal activity. Defendants violated Ms. Boren’s rightswhen they arrested her without probable cause by means of excessive force, unnecessarily andindiscriminately using pepper spray on her. Defendants conspired to violate Ms. Boren’sconstitutional rights when they maliciously and vindictively arrested and prosecuted her.Defendants hid and or destroyed exculpatory evidence and fabricated inculpatory evidence.
II. JURISDICTION AND VENUE
3.This action arises under the Constitution and laws of the United States and is brought pursuant to Title 42 U.S.C. §§1983, 1985 and 1986. Jurisdiction is conferred on thisCourt pursuant to Title 28 U.S.C. § 1331. Jurisdiction supporting Plaintiff’s claim for attorneyfees and costs is conferred by 42 U.S.C. § 1988.4.Venue is proper in this Court pursuant to COLO. R. CIV. P. 98(c), in that all othe events alleged herein occurred within the City and County of Denver.5.The Court has jurisdiction over the claims asserted herein pursuant to C.R.S. § 13-1-124,Title 42 U.S.C. Sections 1983, 1985 and 1986, and other applicable law.
 
3
III. PARTIES
6.At all times relevant to the subject matter of this litigation, Ms. Ortega was acitizen of the United States of America and a resident of the State of Colorado.7.Denver is a Colorado municipal corporation. Denver’s Department of Safety isresponsible for the oversight, supervision, and training of the Denver Police Department(“DPD”). Denver was at all relevant timesthe employer of Officer Nixon and Officer Devineand is a proper entity to be sued under 42 U.S.C. § 1983, 1985 and 1986.8.At all times relevant to the subject matter of this litigation, Officer Nixonwasacitizen of the United States, a resident of Colorado and was acting under color of state law in hiscapacity as a law enforcement officer employed by Denver.9.At all times relevant to the subject matter of this litigation, Officer Devine wasacitizen of the United States, a resident of Colorado and was acting under color of state law in hiscapacity as a law enforcement officer employed by Denver.10.At all times relevant to the subject matter of this litigation, John Doe IAB Officerswere citizens of the United States, residents of Colorado and were acting under color of state lawin their capacities as a law enforcement officersemployed by Denver.
IV. BACKGROUND AND FACTUAL ALLEGATIONS
11.On July 11, 2009, Ana Ortega, Kristal Carrillo, Mariam Pena, and Cintia Vindelwere socializinginlower downtown Denver. The four women were having fun,and the night proceeded without incident.12.In the early morningof July 12, 2009, the group went to the Denver Diner restaurant. The Denver Diner was very busy that morning, and the group placed their names onthe waitlist.13.All four women were in a long line to use thediner’srestroom. Ms. Ortega andMs. Carrillo entered the bathroom together.14.An unknown woman who was waiting in line for the restroom observed Ms.Ortega and Ms. Carrillo enter thebathroomtogether. The unknown woman uttered homophobic profanities to Ms. Ortega and Ms. Carrillo.15.Moments laterthe unknown woman shoved Ms. Ortega and Ms. Carrillo.16.Ashoving match ensued between Ms. Carrillo and the unknown woman. Ms.Ortega was not involved in the altercation.17.Officer Nixon, in Denver police uniform, working as off duty securityattheDenver Dinerapproached and violently grabbedMs. Carrillo. Officer Nixon proceeded to punch

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