IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 09-cv-00405-JLK-MEH

NICK LYNCH,

Plaintiff,

vs.

ADAM BARRETT, STEPHEN KENFIELD, MICHAEL MORELOCK, ABBEGAYLE DORN

and THE CITY AND COUNTY OF DENVER,

Dorn?

Defendants.

SECOND AMENDED COMPLAINT AND JURY DEMAND

Plaintiff Nick Lynch, by and through his attorney Robert M. Liechty of CROSS LIECHTY

LANE PC, brings his second amended complaint as follows:

1. Plaintiff Lynch lives in Lakewood, Colorado. Defendants Adam Barrett, Stephen

Kenfield, Michael Morelock and Abbegayle Dorn are police officers for the City and County of

Denver police department. The City and County of Denver is the municipal entity responsible

for the Denver police department.

2. Mr. Lynch alleges that the above four named officers have knowledge regarding

which officers used excessive force against Mr. Lynch, as described below. Upon this

allegation, Mr. Lynch asserts a claim under 42 U.S.C. §1983 that his 1st or 14th amendment

rights were deprived because these officers intentionally impeded his access to court by not
disclosing who used the unreasonable force against him. Therefore, jurisdiction is proper under

28 U.S.C. § 1331.

3. In the late evening of March 29, 2008, Mr. Lynch was standing in line outside

Pat’s, a club in lower downtown Denver located near the corner of Market Street and 16th St.

He became involved in a dispute with a Mr. Henkenberns and believed that Mr. Henkenberns

was going to strike him. Mr. Lynch preemptively struck Mr. Henkenberns, knocking Mr.

Henkenberns to the ground. Mr. Lynch then left the area.

4. Mr. Henkenberns followed Mr. Lynch and approximately 4 blocks later flagged

down a passing police officer. At this point, Mr. Lynch fled because he did not want to be

falsely charged with assault for having to defend himself. Mr. Lynch hid behind some bushes

alongside a building near 20th Street and Larimer Street.

5. Eventually, approximately 3-6 officers discovered where Mr. Lynch was hiding

and approached him. Upon seeing that he had been discovered, Mr. Lynch rose from behind the

bushes and took a few steps toward the officers with his hands raised. He then turned around,

still with his hands raised, at which point an unknown officer threw him face down in the bushes.

At least one officer struck him while he was on the ground, hitting him at least 6 times on the

back of his left thigh with a baton or flashlight, causing permanent damage. Because Mr. Lynch

was thrown face down into the bushes, he could not identify who threw him in the bushes or who

struck him with the baton.

6. Stephen Kenfield, Adam Barrett, Michael Morelock and Abbegayle Dorn were

present and witnessed the arrest. They know which Denver police officer unnecessarily threw

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Mr. Lynch into the bushes and which officer struck Mr. Lynch. Nonetheless, they have

deliberately chosen not to reveal that information.

7. Mr. Lynch had brought the instant claim of denial of access to court in his first

two complaints, but that claim was dismissed without prejudice because it was not ripe until this

Court could determine that Mr. Lynch could not otherwise obtain recovery.

8. Mr. Lynch also brought claims of unreasonable force and failure to intervene to

prevent the unreasonable force against Officers Morelock, Barrett and Kenfield, which resulted

in a dismissal in favor of the officers on February 3, 2011, because Mr. Lynch could not provide

sufficient evidence as to which officer used the unreasonable force and because he could not

provide sufficient evidence as to which officers were in a position to have prevented the use of

this force. Therefore, Mr. Lynch has not been able to obtain relief in this Court for the injuries

he suffered on March 30, 2008. Therefore, his denial of access to court claim accrued on

February 3, 2011.

9. The four named police officers have knowledge regarding who used the

unreasonable force against Mr. Lynch and they are intentionally maintaining their silence

regarding this knowledge, thus preventing Mr. Lynch from obtaining recovery in this Court.

10. In the 15 months before the incident, Officer Morelock had up to seven

complaints of either critical incident review, unnecessary force, discourtesy, impartial attitude, or

conduct prejudicial brought against him. According to another source, Officer Morelock had 21

complaints of excessive force brought against him in his first two years in the police department.

The police department did not sustain any complaint against him. In the two years before the

incident, Adam Barrett had at least five complaints of conduct prejudicial, improper procedure,

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police harassment, or unnecessary force brought against him. The police department did not

sustain any of these complaints.

11. The officers know that if they do not reveal their knowledge of what happened

with Mr. Lynch, they can prevent Mr. Lynch from obtaining relief in court against them

regarding the use of force claim. Furthermore, the officers know that the police department will

not discipline nor terminate them for maintaining this silence. Therefore, the officers have

conspired to maintain their silence as to who used unreasonable force against Mr. Lynch to

protect themselves from liability.

12. The City has deliberately chosen to take the side of the officers in cases such as

this one, even where there is strong circumstantial evidence that the officers are covering up

what happened. As a result, the officers know that if they conspire to maintain their silence

regarding the use of unreasonable force against a citizen, the officers will not be disciplined and

are allowed to maintain such a conspiracy without suffering consequences.

13. In the instant case, Mr. Lynch filed a complaint with the police department’s

bureau of internal affairs. Although the department had substantial evidence that Mr. Lynch

suffered injuries during the incident, and although the department knew that the defendant

officers were present on the scene and would know who had used the force against Mr. Lynch,

the department deliberately chose not to discipline any officer for the cover-up.

14. Even though the City states that an officer may be terminated for lying regarding

what happened during an incident, the officers know that the City does not enforce this policy

and that only in exceptional circumstances will the department even discipline an officer for

lying.

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 FIRST CLAIM

15. Plaintiff incorporates the above allegations herein.

16. Mr. Lynch voluntarily surrendered and there was no need for the use of any force

to take Mr. Lynch into custody, either by throwing Mr. Lynch in the bushes or by striking him

with the baton. This use of force by the unknown Denver police officer or officers was

unreasonable and violated Mr. Lynch’s fourth amendment rights.

17. As a result of this violation, Mr. Lynch suffered multiple injuries to various parts

of his body and permanent injuries to his left leg and would be entitled to recovery under 42

U.S.C. §1983.

18. Officers Barrett, Kenfield, Morelock and Dorn know which officer or officers

used the unreasonable force against Mr. Lynch and they have intentionally not revealed the

identity of that officer or officers. Such failure to disclose the identity of the offending officers

prevented Mr. Lynch from obtaining his lawful recovery in the above-referenced trial and

violates his right of access to the courts under either the 1st or 14th (or both) Amendments,

which states a claim under 42 U.S.C. §1983.

19. In addition, Officers Barrett, Kenfield, Morelock and Dorn conspired to

intentionally not reveal the identity of the offending officers, which conspiracy violated Mr.

Lynch’s constitutional right of access to court and states a claim under 42 U.S.C. §1983

20. As a result of the constitutional violation, Mr. Lynch has suffered losses by not

being able to obtain recovery for injuries to various parts of his body and permanent injuries to

his left leg, as well as for mental pain and suffering, inconvenience, and loss of enjoyment of life

caused by the use of force and caused by the cover up.

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 21. Mr. Lynch is entitled to his attorney’s fees pursuant to 42 U.S.C. §1988 to

prosecute this claim and to prosecute the underlying claim, which underlying prosecution was

necessary to obtain the relief herein.

SECOND CLAIM

22. Plaintiff incorporates the above allegations herein.

23. The police department for the City and County of Denver has adopted an official

practice or custom of not disciplining officers unless the evidence against them is clear.

Although prior complaints of misconduct were brought against Officers Morelock and Barrett in

the two years prior to the incident, none of those complaints were sustained and the officers

received no directive to correct their behavior. As a result, the officers believed they could

conduct themselves without oversight.

24. Even though there may be significant circumstantial evidence that a Denver

police officer or officers have used unreasonable force, the City will not discipline the officers

absent conclusive direct evidence of who used the force. In addition, the City has adopted a

practice that it will not discipline officers involved in a cover-up or lying about what occurred.

This unsupportable bias in favor of the officers demonstrates a deliberate indifference to the

rights of citizens such as Mr. Lynch.

25. The officers know this practice of the City which is a direct cause of the officers

covering up who beat Mr. Lynch in the instant case.

26. Because of this practice, the officers herein knew that they were free to maintain

their silence regarding what they knew of the use of force against Mr. Lynch because they knew

that they would not receive discipline or termination for maintaining this agreed-upon silence.

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This practice caused the officers herein to violate Mr. Lynch’s constitutional right of access to

court, as described above, and states a claim under 42 U.S.C. §1983 against the City.

27. As a result of this practice or custom, Mr. Lynch has been injured as described

above. He is also entitled to his attorney’s fees for prosecuting this claim and for prosecuting the

underlying claim regarding the use of force.

THIRD CLAIM

28. Plaintiff incorporates the above allegations herein.

29. Officers Barrett, Kenfield, Morelock and Dorn knew that they were engaging in

prohibited conduct with the knowledge that they may be acting in violation of federal law when

they intentionally failed to disclose who used the force against Mr. Lynch. Thus, they are

subject to punitive damages under federal law.

WHEREFORE, Plaintiff Lynch respectfully requests that this Court enter judgment in his

favor and for costs, interest, attorney’s fees and such other relief as this Court may deem proper.

PLAINTIFF REQUESTS A JURY TRIAL.

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Dated this: February 14, 2011

A Duly Signed Original is Available at:

CROSS LIECHTY LANE PC

By: s/ Robert M. Liechty

Robert M. Liechty
7100 E. Belleview Ave., Suite G-11
Greenwood Village, Colorado 80111
Tel: (303) 333-4122
Email: rliechty@crossliechty.com
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE
I hereby certify that on this February 14, 2011, a true and correct copy of the above and
foregoing SECOND AMENDED COMPLAINT AND JURY DEMAND was, unless
otherwise indicated, filed electronically with the Court who provides notice to the following:

Wendy Shea, Esq.

Denver City Attorney’s Office
Litigation Section
201 West Colfax Ave., Dept. 1108
Denver, CO 80202-5332
E-mail: wendy.shea@denvergov.org
Dlefiling.litigation@denvergov.org

Douglas Jewell, Esq.

Sean T. Olson, Esq.
BRUNO, COLIN, JEWELL & LOWE, P.C.
1999 Broadway, Suite 3100
Denver, CO 80202
Email: ldjewell@bcjlpc.com
solson@bcjlpc.com

Reid J. Elkus, Esq.

ELKUS & SISSON P.C.
1660 Lincoln St., Suite 1750
Denver, CO 80264
Email: relkus@elkusandsisson.com
s/ Linda L. DeVico