* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CAROL COSSIO, as guardian and legal representative of SAHRIE CAROL COLON; DONTE ELOY COLON, minor children of Yvonne Cossio, deceased,

Plaintiff-Appellant,

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

Defendants-Appellees. No. 97-1148 (D.C. No. 96-K-1493) (D. Colo.) 1997 WL 129289

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s decision gra nting defendants summary judgment on her claims stemming from the shooting d eath of her daughter. This court will review a summary judgment decision de no vo, 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 m aterial 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 Rob ert Ortiz answered a call concerning an unwanted party in plaintiff’s home, a nd removed the unwanted party, Jerome Perea, from the home, but did not arr est him. Mr. Perea returned a short time later and killed plaintiff’s daughter. Plaintiff asserts claims under 42 U.S.C. § 1983, al leging 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 children1 Plaintiff conceded, before the district court, thather state law wrongful

death claims against the City, and her state law ne gligence claims asserted against both defendants, were barred by sovereign immunity. Further, plaintiff voluntarily dismissed her claim against the City ba sed upon respondeat superior liability. These claims are, therefore, not before this court on appeal. -3- for deprivation of familial association and a Color ado law claim against Officer Ortiz for wrongful death. 1 On appeal, plaintiff argues that the district courterred in granting defendants summary judgment on these claims and als o asserts that the district court should have allowed further discovery prior t o 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 co urt’s well-reasoned decision dated March 19, 1997. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge