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As of: October 8, 2021 1:51 AM Z
Alexander v. Lucas
United States Court of Appeals for the Tenth Circuit
December 21, 2007, Filed
No. 07-6106
Reporter
259 Fed. Appx. 145 *; 2007 U.S. App. LEXIS 29745 **
ALVIN LYNN ALEXANDER, Plaintiff-Appellant, v.
HONORABLE TOM A. LUCAS; HONORABLE
GARY L. LUMPKIN; CLEVELAND COUNTY
DISTRICT COURT; and OKLAHOMA COURT OF
CRIMINAL APPEALS, Defendants-Appellees.
Notice: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
Subsequent History: US Supreme Court certiorari
denied by Alexander v. Lucas, 128 S. Ct. 1486,
170 L. Ed. 2d 306, 2008 U.S. LEXIS 2294 (U.S.,
Mar. 3, 2008)
Prior History: [**1] (D.C. No. CV-06-1386-HE).
(W.D. Okla.).
Alexander v. Lucas, 2007 U.S. Dist. LEXIS 26043
(W.D. Okla., Apr. 9, 2007)
Core Terms
district court, post-conviction, invalidity, state court
Case Summary
Procedural Posture
Plaintiff state prisoner appealed from the United
States District Court for the Western District of
Oklahoma, which dismissed his 42 U.S.C.S. §
1983 suit against defendants, state judges and
their respective courts. The prisoner argued that
the Oklahoma courts incorrectly applied state law
to preclude consideration of his petition for
postconviction relief, thus depriving him of his
constitutional right to due process.
Overview
The prisoner's complaint recounted and reargued
the claims for relief underlying his state petition for
postconviction relief. The district court dismissed
the complaint as barred by Heck v. Humphrey for
improperly using 42 U.S.C.S. § 1983 as a vehicle
to challenge the validity of a conviction. The
magistrate also stated that, to the extent the
prisoner's suit could be construed as challenging
an unfavorable state court decision, such a suit
was foreclosed under the Rooker-Feldman
doctrine. Acknowledging the ambiguity of the
prisoner's complaint, the court affirmed the district
court's dismissal. The prisoner acknowledged that
his suit sought review and rejection of the
Oklahoma state courts' judgments regarding his
postconviction petitions for relief. In essence, he
asked the court to vacate the state courts'
dismissal of his petition and order a rehearing. The
court ruled that neither it nor the district court had
jurisdiction to do so. Because the appeal failed to
state a claim on which relief could be granted, the
court assessed, for purposes of 28 U.S.C.S. §
1915(g), one strike in addition to the strike
assessed by the district court.
Outcome
The court affirmed the district court's dismissal and
dismissed the appeal.
LexisNexis® Headnotes
EXHIBIT A
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 1 of 106
Page 2 of 4
Civil Rights Law > Protection of
Rights > Section 1983 Actions > Scope
HN1[] Protection of Rights, Section 1983
Actions
If judgment in favor of a prisoner plaintiff in a 42
U.S.C.S. § 1983 damages suit would necessarily
imply the invalidity of his conviction or sentence,
then the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or
sentence has already been invalidated.
Civil Procedure > ... > Preclusion of
Judgments > Full Faith & Credit > Rooker-
Feldman Doctrine
HN2[] Full Faith & Credit, Rooker-Feldman
Doctrine
Under the Rooker-Feldman doctrine, federal
district courts have no jurisdiction to consider suits
that amount to appeals of state-court judgments.
The doctrine applies to cases brought by state-
court losers complaining of injuries caused by
state-court judgments rendered before the federal
district court proceedings commenced and inviting
district court review and rejection of those
judgments.
Counsel: For ALVIN LYNN ALEXANDER (#
84116), Plaintiff - Appellant: Alvin Lynn Alexander,
Lexington, OK.
Judges: Before LUCERO, HARTZ, and
GORSUCH, Circuit Judges.
Opinion by: Neil M. Gorsuch
Opinion
[*146] ORDER AND JUDGMENT *
*After examining appellant's brief and the appellate record,
this panel has determined unanimously that oral argument
would not materially assist the determination of this appeal.
See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The
Alvin Lynn Alexander, a state prisoner in
Oklahoma, claims that the Oklahoma state courts
acted unconstitutionally in applying procedural bars
under state law to preclude Mr. Alexander's petition
for post-conviction relief, and he seeks declaratory
and injunctive relief by way of 42 U.S.C. § 1983.
The district court dismissed Mr. Alexander's action
for lack of jurisdiction, holding that Mr. Alexander's
suit is either an improper Section 1983 [**2] suit
because it seeks to invalidate the underlying
conviction, or it is barred by the Rooker-Feldman
doctrine because it seeks direct review of a state
court's final judgment. For substantially the same
reasons expressed by the district court, we affirm
the dismissal of Mr. Alexander's suit.
* * *
In 1995, Mr. Alexander pled guilty to a charge of
second degree murder in the District Court of
Cleveland County, Oklahoma, and was sentenced
to fifty years' imprisonment. Although Mr.
Alexander did not appeal his conviction, he has,
while incarcerated, submitted several petitions for
post-conviction relief in Oklahoma state court, all of
which have been denied. In the most recent state
court petition, Mr. Alexander argued that: (1) the
trial court lacked jurisdiction to convict him
because the district attorney failed to plead and
prove the felony DUI conviction underlying the
felony-murder charge on which Mr. Alexander was
convicted; (2) the district court failed to make a
determination of Mr. Alexander's competency to
enter a [*147] plea; and (3) the district court
therefore lacked jurisdiction to accept Mr.
Alexander's plea. The District Court of Cleveland
County denied Mr. Alexander's petition [**3] for
relief, citing Oklahoma's Post-Conviction
Procedure Act, Okla. Stat. tit. 22 § 1080 et seq., as
well as state court precedent interpreting that Act,
which preclude petitions for post-conviction relief
based on arguments that could have been, but
were not, raised on direct appeal. The Oklahoma
case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent except
under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
259 Fed. Appx. 145, *145; 2007 U.S. App. LEXIS 29745, **1
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 2 of 106
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Court of Criminal Appeals affirmed the district
court's judgment on the same grounds.
Unsuccessful in seeking relief from the Oklahoma
state courts, Mr. Alexander brought suit in federal
court pursuant to 42 U.S.C. § 1983, naming as
defendants the judges presiding over his trial court
and appellate proceedings, as well as their
respective courts. In his complaint, Mr. Alexander
argues that the Oklahoma courts incorrectly
applied state law to preclude consideration of his
petition for post-conviction relief, thus depriving
him of his constitutional right to due process. Along
the way, Mr. Alexander's complaint also recounts
and re-argues the claims for relief underlying his
state petition.
The case was referred to a magistrate judge for
initial consideration, pursuant to 28 U.S.C. §
636(b)(1)(B),(C). The magistrate judge construed
Mr. Alexander's suit as essentially attacking the
constitutionality, [**4] and thus validity, of his
conviction. As such, the magistrate recommended
that the district court dismiss the case, pursuant to
Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364,
129 L. Ed. 2d 383 (1994), for improperly using
Section 1983 as a vehicle to challenge the validity
of a conviction. In a footnote, the magistrate also
stated that, to the extent Mr. Alexander's suit can
be construed as challenging an unfavorable state
court decision (referring to the decision on Mr.
Alexander's most recent post-conviction relief
petition), such a suit is foreclosed under the
Rooker-Feldman doctrine. See Jan. 19, 2007,
Report and Recommendation. The district court
accepted the magistrate judge's recommendation
and dismissed the case, stating that it was barred
either under Heck or the Rooker-Feldman doctrine,
depending on how the suit is construed. See Apr.
9, 2007, Dist. Ct. Order. Mr. Alexander filed a
timely notice of appeal.
* * *
Affording solicitous consideration to Mr.
Alexander's pro se court filings, as we are bound to
do,see Van Deelen v. Johnson, 497 F.3d 1151,
1153 n.1 (10th Cir. 2007), we acknowledge the
ambiguity of Mr. Alexander's complaint before the
district court. At some points, the complaint seems
to focus on [**5] the constitutionality and validity of
the Oklahoma state courts' application of
procedural bars to Mr. Alexander's post-conviction
petitions for relief. See generally Dec. 15, 2006,
Complaint. At other points, it seems to contest the
constitutionality and validity of the conviction itself.
See id. We need not conclusively determine the
actual nature of Mr. Alexander's complaint for,
construed either way, we are constrained to affirm
the district court's dismissal.
If Mr. Alexander's suit is meant to directly attack
the validity of his conviction, then we must dismiss
the suit as an improper use of Section 1983. In
Heck, the Supreme Court stated that, HN1[] if
judgment in favor of the prisoner plaintiff in a
Section 1983 damages suit "would necessarily
imply the invalidity of his conviction or sentence[,
then] the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or
sentence has already been invalidated." 512 U.S.
at 487;see also Edwards v. Balisok, 520 U.S. 641,
648, 117 S. Ct. 1584, [*148] 137 L. Ed. 2d 906
(1997) (extending the rule in Heck to Section 1983
claims that, like Mr. Alexander's, seek declaratory
relief). In his complaint, Mr. Alexander makes a
number of arguments that would, if accepted
[**6] by a court, clearly indicate the invalidity of his
conviction. For example, Mr. Alexander argues that
the state trial court never had jurisdiction to accept
a plea and enter a judgment of conviction.
Moreover, Mr. Alexander has never demonstrated
that his conviction has already been invalidated. As
such, Mr. Alexander's suit, construed in this way,
has no proper basis as a Section 1983 claim.
Mr. Alexander, however, argues emphatically in his
brief on appeal that his suit does not challenge the
validity of his conviction but instead only
challenges the Oklahoma courts' application of
procedural bars to dismiss his post-conviction
petitions for relief. Such an interpretation of his
complaint is confirmed in part by the complaint's
request for relief, which expressly seeks only a
declaration that the state courts' review procedure
is unconstitutional and an injunction ordering a re-
hearing on his post-conviction petition and ordering
the courts to comply with the Fourteenth
Amendment. Nowhere does Mr. Alexander
259 Fed. Appx. 145, *147; 2007 U.S. App. LEXIS 29745, **3
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specifically ask for the court to declare his
conviction unconstitutional or invalid, even if his
complaint includes arguments that seek to
demonstrate such invalidity. If we accept [**7] Mr.
Alexander's contention on appeal, we must agree
with him that his suit is not precluded under Heck
or its progeny. But construed in this way, Mr.
Alexander's suit must be dismissed on the other
grounds stated by the district court - namely,
pursuant to the Rooker-Feldman doctrine.
HN2[] Under this doctrine, federal district courts
have no jurisdiction to consider suits "that amount
to appeals of state-court judgments." Bolden v. City
of Topeka, 441 F.3d 1129, 1139 (10th Cir. 2006).
As the Supreme Court has stated, the doctrine
applies to "cases brought by state-court losers
complaining of injuries caused by state-court
judgments rendered before the [federal] district
court proceedings commenced and inviting district
court review and rejection of those judgments."
Exxon Mobil Corp. v. Saudi Basic Indus., Corp.,
544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d
454 (2005).1 Mr. Alexander readily acknowledges
that his suit seeks review and rejection of the
Oklahoma state courts' judgments regarding his
post-conviction petitions for relief. In essence, he
asks that we vacate the state courts' dismissal of
his petition and order a re-hearing. Neither we nor
the district court have jurisdiction to do so. The
only federal review [**8] that Mr. Alexander can
seek is by writ of certiorari to the Supreme Court.
See Exxon Mobil, 544 U.S. at 285-86;28 U.S.C. §
1257. We are therefore bound to affirm the district
court's dismissal even if we construe Mr.
Alexander's complaint exactly as he contends.
1 We note that the scope of the Rooker-Feldman doctrine has
been clarified in recent years and that we no longer apply it
unless the federal suit commenced after the state court
appeals process had run its full course. See Guttman v.
Khalsa, 446 F.3d 1027, 1031-32 (10th Cir. 2006). In
Oklahoma, the Court of Criminal Appeals is the state's highest
court for criminal matters. See Okla. Const. art. 7 § 4;Okla.
Stat. tit. 20 § 40. Its judgment on Mr. Alexander's appeal was
entered on November 21, 2006, and Mr. Alexander filed his
complaint in federal court on December 15, 2006. As such, Mr.
Alexander's suit clearly falls within the scope of Rooker-
Feldman.
* * *
Because Mr. Alexander's appeal fails to state a
claim on which relief may be granted, we assess,
for purposes of 28 U.S.C. § 1915(g), one strike in
addition to [*149] the strike assessed by the
district court. We note that the district court granted
Mr. Alexander's request to proceed [**9] in forma
pauperis, but we wish to remind Mr. Alexander of
his obligation to continue making partial payments
until the entire filing fee for this appeal is paid. See
id.§ 1915(a),(b). The appeal is dismissed. 2
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
End of Document
2 In his brief on appeal, Mr. Alexander asks that a certificate of
appealability be granted. Because a certificate of appealability
is not necessary for a prisoner civil rights appeal, we need not
consider that request. See, e.g., Lawson v. Engleman, 67 Fed.
Appx. 524, 527 n.4 (10th Cir. 2003).
259 Fed. Appx. 145, *148; 2007 U.S. App. LEXIS 29745, **6
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 4 of 106
Positive
As of: October 8, 2021 1:53 AM Z
Cochran v. City of Wichita
United States District Court for the District of Kansas
September 26, 2018, Decided; September 26, 2018, Filed
Case No. 18-1132-JWB
Reporter
2018 U.S. Dist. LEXIS 165825 *; 2018 WL 4637237
MICHAEL T. COCHRAN, Plaintiff, v. CITY OF
WICHITA, et al., Defendants.
Subsequent History: Affirmed by Cochran v. City
of Wichita, 2019 U.S. App. LEXIS 19455 (10th Cir.
Kan., June 28, 2019)
Prior History:Cochran v. City of Wichita, 2018
U.S. Dist. LEXIS 94175 (D. Kan., June 5, 2018)
Core Terms
allegations, ordinance, camping, motion to dismiss,
deprivation, constitutional right, statute of
limitations, rights, homeless, shelter, tent, fail to
state a claim, belongings, violates, notice,
conspiracy, moped, subject matter jurisdiction,
complaint alleges, conclusory, conspired, enact,
savings, theft, substantially similar, prior complaint,
post-deprivation, pertaining, questioned, municipal
Counsel: [*1] Michael T. Cochran, Plaintiff, Pro
se.
Judges: JOHN W. BROOMES, UNITED STATES
DISTRICT JUDGE.
Opinion by: JOHN W. BROOMES
Opinion
MEMORANDUM AND ORDER
This case comes before the court on Defendants'
motion to dismiss (Doc. 24). The motion has been
fully briefed and is ripe for decision. (Docs. 26, 27,
30, 31.) Defendants' motion is GRANTED for the
reasons stated herein.
I. Facts and Procedural History
Plaintiff is homeless and proceeding pro se in this
action. Plaintiff brings this action pursuant to 42
U.S.C. § 1985. Plaintiff's complaint alleges that
Defendants, members of the Wichita City Council
and several Wichita Police Department officers,
conspired to enact Chapter 5.20 of the City Code
which prohibits camping on public property.
Section 5.20.020 states in pertinent part:
"Unlawful Camping. It is unlawful and a public
nuisance for any person or persons to camp in
or upon any public property or public right of
way, unless such person or persons have been
granted a temporary permit allowing such
activity as set forth in Section 5.20.040 of this
chapter, or the individual or individuals are
deemed homeless and there are no
appropriate shelters available for them."
(Doc. 30, Exh. 1 at 6.)
The applicable camping code sections were
enacted "to maintain streets, parks [*2] and other
public property and areas within the City of Wichita
in a clean, sanitary and accessible condition and to
adequately protect the health, safety and public
welfare of the community...." (Id. at 5.)1 Plaintiff has
not been charged with a violation of Chapter 5.20.
Plaintiff alleges that he arrived in Wichita, Kansas,
1 The court takes judicial notice of Ordinance 49-515, which
sets forth Chapter 5.20 of the City of Wichita Code. See
Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1504
(10th Cir. 1997) (appropriate for a court to take judicial notice
of a municipal code).
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 5 of 106
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in June 2015. In August, Plaintiff set up a tent with
his belongings on the City of Wichita's ("City")
property located at 6919 E. Osie Cir. Plaintiff did
not observe any signs that stated that the property
belonged to the City. Plaintiff was never told by
anyone that he was trespassing or that camping
was illegal on the property. On February 15-17,
2016, Plaintiff observed a white van parked outside
his tent with a license plate number that began with
"CNR." On February 19, 2016, Plaintiff returned to
his tent and discovered that all of his property was
missing. Plaintiff was forced to go to a shelter as a
result. (Doc. 1 at 4-5.)
On February 21, Plaintiff returned to the area
where his campsite had been to look for evidence
of who took his belongings. While at the E. Osie
location, Plaintiff observed a tent with a "notice to
vacate" sign that included a phone number [*3] for
the Wichita Police Department's Homeless
Outreach Team ("HOT Team"). Plaintiff returned to
the winter shelter. On February 22, Plaintiff called
the HOT Team line and spoke with Defendant Lisa
Berg. Plaintiff asked if the HOT Team had taken
his belongings. Berg asked Plaintiff where the
belongings had been and then informed Plaintiff of
the no camping ordinance. Berg allegedly told
Plaintiff that they could take whatever they wanted
from whomever they wanted to. Plaintiff told Berg
that he didn't get a notice although there was a
notice on another person's tent. Berg allegedly
stated that if one person got notice then they all got
notice. Berg then stated that she had no idea if
they had removed any of his property. Plaintiff left
his phone number with Berg so that she could
check into his property claim but she did not call
him back. (Doc. 1 at 5-7.)
Based on a liberal reading of Plaintiff's complaint,
Plaintiff assumes, based on the presence of the
white van and the notice to vacate sign on a
different tent, that his tent and belongings were
taken or disposed of by an unknown member of
the HOT Team. Due to the removal or theft of
Plaintiff's tent and belongings, Plaintiff alleges [*4]
that he was "forcefully interned" at the over-flow
shelter until March 31 and then "forcibly interned"
at the Union Gospel Mission until May 27, 2016,
both under cruel and unusual conditions. (Doc. 1 at
8.) On the evening of May 26, Plaintiff stayed at
the shelter and parked his moped in the parking
lot. On May 27, Plaintiff went to the parking lot and
his moped was gone. Plaintiff reported the theft to
the Wichita police. Plaintiff's complaint does not
allege that an individual Defendant or City
employee removed his moped. Plaintiff has not
returned to the Mission. Plaintiff alleges that he lost
his job due to the theft of his moped.2 (Doc. 1 at 8.)
On November 15, 2016, Defendant Nate
Schwiethale, an officer with the HOT Team, was
responding to a complaint about someone sleeping
outside in an area in downtown Wichita.
Schwiethale approached Plaintiff and questioned
him regarding the complaint. Plaintiff accused
Schwiethale of taking his property. Plaintiff alleges
that Schwiethale stated that Plaintiff would not be
arrested and that he was there to help Plaintiff.
Schwiethale allegedly admitted to the use and
possession of a white van for the HOT Team and
stated that the police can [*5] take anything they
want. (Doc. 1 at 9-10.)
On June 5, 2017, Plaintiff filed a lengthy complaint
in this court asserting numerous claims against
several defendants. (See Case No. 17-CV-1127,
Doc. 1.) Plaintiff's complaint included claims
against the same Defendants named in this action.
Plaintiff also made similar allegations of a
conspiracy in enacting the no camping ordinance
and violations of his constitutional rights. (See id.)
Magistrate Judge Birzer determined that Plaintiff's
complaint failed to comply with Fed. R. Civ. P. 8
and ordered Plaintiff to file an amended complaint
that complied with the rule or face dismissal.
Plaintiff filed an amended complaint that was 207
pages long and raised the issues discussed herein
in addition to other allegations and claims against
several other government officials. (See Case No.
17-CV-1127, Doc. 15.) Judge Melgren dismissed
Plaintiff's amended complaint, without prejudice,
for failing to comply with Rule 8. (See Case No. 17-
2 As best the court can determine from the complaint, Plaintiff's
logic is that all the foregoing calamities, most of which did not
involve a Defendant or City Employee, give rise to claims
against the Defendants because the alleged enforcement of
the disputed ordinance is the event that somehow set all these
events in motion.
2018 U.S. Dist. LEXIS 165825, *2
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 6 of 106
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CV-1127, Doc. 21.)
Plaintiff's complaint in this case alleges a violation
of 42 U.S.C. § 1985 due to Defendants' alleged
conspiracy to enact the camping ordinance.
Plaintiff further alleges that the camping ordinance
deprives him of various rights under the [*6] First,
Fourth,Fifth,Sixth,Eighth,Ninth and Fourteenth
Amendments to the Constitution. Plaintiff contends
that he has a constitutional right to be homeless.
Plaintiff alleges that all Defendants conspired to
enact the ordinance, deprived him of his property
and forcibly interned him at the shelter.
Defendants have now all moved to dismiss.
Defendants contend that Plaintiff's claims are
subject to dismissal under Rules 12(b)(1) and
12(b)(6).
II. Standards Under Rule 12(b)(1)
"Different standards apply to a motion to dismiss
based on lack of subject matter jurisdiction under
Rule 12(b)(1) and a motion to dismiss for failure to
state a claim under Rule 12(b)(6)."Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th
Cir. 2012). When the court is faced with motions
for dismissal relying on both Rule 12(b)(1) and
12(b)(6), the court must first determine that it has
subject matter jurisdiction over the controversy
before reviewing the merits of the case under Rule
12(b)(6). Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct.
773, 90 L. Ed. 939 (1946). Because federal courts
are courts of limited jurisdiction, a presumption
exists against jurisdiction, and "the burden of
establishing the contrary rests upon the party
asserting jurisdiction." Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct.
1673, 128 L. Ed. 2d 391 (1994). Therefore, the
court will first review the challenge to subject
matter jurisdiction.
"Motions to dismiss for lack of subject matter
jurisdiction generally take one of two forms: (1) a
facial attack on the sufficiency of the complaint's
allegations as to [*7] subject matter jurisdiction; or
(2) a challenge to the actual facts upon which
subject matter jurisdiction is based." City of
Albuquerque v. U.S. Dep't of Interior, 379 F.3d
901, 906 (10th Cir. 2004) (internal citations
omitted). If the motion challenges the sufficiency of
the complaint's jurisdictional allegations, such as in
this case, the court must accept all such
allegations as true. Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). If there is a challenge
to the actual facts, the court has discretion to allow
affidavits and other documents to resolve disputed
facts.Id. at 1003.In this matter, the court has only
considered the ordinance, which may be
considered on a motion to dismiss as it is a
municipal law and referenced in Plaintiff's
complaint. See Zimomra, 111 F.3d at 1504.
In order to withstand a motion to dismiss for failure
to state a claim, a complaint must contain enough
allegations of fact to state a claim to relief that is
plausible on its face. Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)). All well-pleaded
facts and the reasonable inferences derived from
those facts are viewed in the light most favorable
to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278,
1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007).
III. Analysis
a. Subject Matter Jurisdiction
Article III of the Constitution limits federal courts'
jurisdiction to certain cases and controversies.
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408,
133 S. Ct. 1138, 1146, 185 L. Ed. 2d 264 (2013).
Plaintiff must establish standing in order [*8] to
invoke this court's jurisdiction. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130,
2136, 119 L. Ed. 2d 351 (1992). A court reviews
standing for claims that seek both retrospective
relief and prospective relief. See Dias v. City & Cty.
of Denver, 567 F.3d 1169, 1176-78 (10th Cir.
2009). To establish standing, there must be an
"injury in fact"; Plaintiff must show a causal
2018 U.S. Dist. LEXIS 165825, *5
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Page 4 of 10
connection between the injury and the conduct
complained of; and it must be likely that Plaintiff's
injury will be "redressed by a favorable decision."
Lujan, 504 U.S. at 560-61;see also D.L.S. v. Utah,
374 F.3d 971, 974 (10th Cir. 2004).
Under the "injury in fact" prong, Plaintiff's injury
"must be actual or imminent, not conjectural or
hypothetical." D.L.S, 374 F.3d at 974. "Allegations
of possible future injury do not satisfy the injury in
fact requirement, though a plaintiff need not
expose himself to actual arrest or prosecution to be
entitled to challenge a statute that he claims deters
the exercise of his constitutional rights." Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1087-
88 (10th Cir. 2006) (internal quotation marks and
citations omitted).
Defendants argue that Plaintiff does not have
standing because he has not been charged with a
violation of the ordinance, he has not alleged that
he was forced into a shelter to avoid a citation or
that he was denied a camping permit. (Doc. 30 at
7.) Plaintiff responds that he has sufficiently
alleged standing in that his property was taken
without notice or due process. (Doc. [*9] 31 at 8.)
Liberally construing his complaint, Plaintiff alleges
that he has been detained by the HOT Team and
questioned because of camping in violation of the
ordinance. (Doc. 1 at 9-10.) Plaintiff's complaint
further alleges that as a result of his status as a
homeless person he is subject to criminal
punishment for violating the camping ordinance if
there are beds available at the shelter. (Id. at 12,
14.)
Plaintiff's complaint seeks both injunctive relief and
damages for alleged constitutional violations. "To
establish standing to seek prospective relief, a
plaintiff must show a continuing injury; standing for
retrospective relief can be based on past injuries."
Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176
(10th Cir. 2009). "When a plaintiff challenges the
validity of a criminal statute under which he has not
been prosecuted, he must show a 'real and
immediate threat' of his future prosecution under
that statute to satisfy the injury in fact requirement."
D.L.S., 374 F.3d at 974 (citing Faustin v. City and
County of Denver, Colo., 268 F.3d 942, 948 (10th
Cir. 2001)).3
Due to Plaintiff's allegations regarding encounters
with the HOT Team and his continued status as a
homeless individual in the city, the court finds that
Plaintiff has standing to seek prospective relief.
The complaint alleges that other homeless
campers have received notices to vacate the [*10]
area in which Plaintiff camps. He also alleges that
he has had contact with HOT Team members who
indicate an intent to continue enforcing the
ordinance in the future. (Doc. 1 at 9-10.) The court
further finds that Plaintiff has standing to assert
claims for his alleged injuries that occurred in the
past.
Therefore, Defendants' motion to dismiss on the
basis that Plaintiff's complaint lacks subject matter
jurisdiction is denied.
b. Statute of Limitations
Defendants assert that several claims are barred
by the statute of limitations and that Plaintiff's filing
of his previous complaint in Case No. 17-CV-1127
did not toll the statute of limitations. Plaintiff argues
that the filing of his previous action tolled the
statute of limitations and, in any event, the statute
of limitations did not begin to run until his moped
was stolen. (Doc. 31 at 9-10.)
The applicable statute of limitations in §§ 1983 and
1985 actions is determined from looking at the
appropriate Kansas statute of limitations. See
Hardin v. Straub, 490 U.S. 536, 538, 109 S. Ct.
1998, 2000, 104 L. Ed. 2d 582 (1989).In Kansas,
K.S.A. § 60-513(a), governing personal injury
actions, is the application statute of limitations for
claims under 42 U.S.C. § 1983 and § 1985.Brown
v. Unified School Dist. 501, Topeka Public
Schools, 465 F .3d 1184, 1188 (10th Cir. 2006).
3 The government cites to various opinions, outside of the
Tenth Circuit, to argue that standing to establish a violation of
an anti-camping statute can only be met in certain ways. (Doc.
30 at 6-7.) The Tenth Circuit, however, has set forth standing
requirements to challenge municipal laws. This is the
applicable standard and the court is not persuaded that a
different standard would apply due to the content of the
particular municipal law.
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The accrual of Plaintiff's claim, however, is a
question of federal [*11] law. Mondragón v.
Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).
Plaintiff's claim accrues when he knows, or should
know, that his rights have been violated. Kripp v.
Luton, 466 F.3d 1171, 1175 (10th Cir. 2006).With
respect to a conspiracy claim, the statute of
limitations "runs separately from each overt act of
the conspiracy that allegedly caused injury."
O'Connor v. St. John's Coll., 290 F. App'x 137, 141
(10th Cir. 2008). Therefore, the court will review all
alleged conduct to determine whether it is barred
by the statute of limitations. Plaintiff's claims are
timely if the acts alleged to have violated his rights
occurred within two years of filing his complaint or
if the claims have been tolled under Kansas law.
Plaintiff's complaint alleges the following acts: 1)
passage of the ordinance in 2013; 2) removal of
his tent and items on February 19, 2016; 3) a
phone conversation with Officer Berg on February
22, 2016; 4) theft of his moped on May 26, 2016;
and 5) an interaction with Schwiethale on
November 15, 2016. Defendants assert that the
only allegations that are timely are the theft of his
moped and an interaction with Schwiethale.
Plaintiff's complaint was filed on May 9, 2018.
Under Kansas law, however, the savings statute
will toll the statute of limitations if the requirements
set forth in K.S.A. § 60-518 have been satisfied.
Taylor v. Casey, 182 F. Supp. 2d 1096, 1102 (D.
Kan. 2002). Section 60-518 requires the following:
1) the [*12] first action was commenced within due
time, 2) the first action failed "otherwise than upon
the merits," 3) and the new action was commenced
within six months of the failure. Id. The two actions
must also be substantially similar. Estate of
Hammers v. Douglas Cty., Kan. Bd. of Comm'rs,
303 F. Supp. 3d 1134, 1153 (D. Kan. 2018).
Case No. 17-CV-1127 was filed on June 5, 2017.
Even if the remaining elements are established,
section 60-518 would not save Plaintiff's claim
pertaining to the passage of the ordinance in 2013
as it was clearly untimely in 2017. Under federal
law, it is the overt act that begins the running of the
statute and not the theft of the moped as asserted
by Plaintiff. See O'Connor, 290 F. App'x at 141.
Therefore, this claim is barred by the statute of
limitations. The other four overt acts, however, all
occurred within two years of the filing of the original
complaint.4 The remaining elements are satisfied
because the action was not dismissed on the
merits and the instant action was filed within six
months of the dismissal.
Defendants assert that the savings statute does
not save these claims because the two actions are
not substantially similar. See Estate of Hammers,
303 F. Supp. 3d at 1153. Defendants argue that
the claims are not substantially similar as there are
"fewer defendants and the claims asserted are
different in nature." (Doc. 30 at [*13] 9.)
Defendants, however, fail to explain how the
claims are different in nature. A review of the prior
complaint shows that Plaintiff's allegations
pertaining to the camping ordinance are contained
therein. The prior complaint also included all of the
defendants that are in this action. The prior
complaint, however, had significantly more
defendants and claims than are contained in the
current complaint. Plaintiff argues that Defendants'
logic would simply have him refile his prior
complaint which would clearly be subject to
dismissal. (Doc. 31 at 10.)
The court finds that the claims stated in this action
are substantially similar to claims raised in the prior
complaint. The differences in the complaints are
due to Plaintiff reducing the number of claims and
defendants named in the present action. The court
finds that the elimination of claims and defendants
does not lead to the conclusion that the actions are
not substantially similar; they are similar as to the
claims and defendants that Plaintiff has elected to
pursue. By contrast, it seems rather ridiculous to
conclude that a mere reduction in claims and
defendants, while no new claims or new parties are
added, would preclude application [*14] of the
savings statute with respect to the claims and
defendants in the new case. See Marten v.
Godwin, No. 08-4031-EFM, 2009 U.S. Dist. LEXIS
4 The court notes that service was not completed on the
defendants in the prior action because the court stayed
service. Therefore, the delay of service was not due to inaction
on Plaintiff's part.
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71023, 2009 WL 2475257, at *2-3 and n. 16 (D.
Kan. Aug. 12, 2009) (discussing cases)
("Furthermore, as a practical matter, such an
interpretation is illogical. As pointed out by William
Westerbeke and Stephen McAllister in Survey of
Kansas Tort Law: Part 1,49 U. Kan. L. Rev. 1037,
1136 (June 2001), 'requiring the continuation of
litigation against the individual defendants even
though the plaintiff no longer believes the claim
against him is legitimate conditions the use of the
savings clause upon court-ordered malicious
prosecution.'")
Therefore, with the exception of the 2013 overt act
of passing the camping ordinance, Plaintiff's
remaining allegations are not barred by the statute
of limitations.
c.Section 1985 - All Defendants
Defendants move to dismiss Plaintiff's claims
pursuant to section 1985 on the basis that the
allegations fail to state a claim upon which relief
can be granted. Plaintiff's complaint alleges that
Defendants conspired to violate his constitutional
rights by enacting the ordinance, depriving him of
his property and depriving him of other
constitutional rights as a result of the ordinance.
Section 1985(3) provides a remedy for a
conspiracy to violate a person's [*15] civil rights.
O'Connor, 290 F. App'x at 141.The elements of a
section 1985 claim are: "(1) a conspiracy; (2) to
deprive plaintiff of equal protection or equal
privileges and immunities; (3) an act in furtherance
of the conspiracy; and (4) an injury or deprivation
resulting therefrom." Tilton v. Richardson, 6 F.3d
683, 686 (10th Cir. 1993), cert. denied,510 U.S.
1093, 114 S. Ct. 925, 127 L. Ed. 2d 218 (1994).
With respect to allegations of a conspiracy, the
Tenth Circuit requires a plaintiff to allege a
sufficient factual basis to support the existence of
an agreement and concerted action between the
co-conspirators. Abercrombie v. City of Catoosa,
896 F.2d 1228, 1230-31 (10th Cir. 1990)."Section
1985(3) conspiracy claims cannot stand on 'vague
and conclusory allegations'; but rather, 'must be
pled with some degree of specificity.'" O'Connor,
290 F. App'x at 141.
Plaintiff argues that he has alleged that the
concerted action is the drafting and passing of the
ordinance. (See Doc. 31 at 14.) As discussed, any
action based on this alleged conduct is barred by
the statute of limitations. Plaintiff's allegations do
not contain any instances of alleged concerted
action or agreement to deprive Plaintiff of his
constitutional rights after 2013. Rather, Plaintiff's
complaint merely includes conclusory statements
that Defendants conspired to violate his rights.
Therefore, Plaintiff's claims against Defendants for
conspiring together to deprive Plaintiff [*16] of his
constitutional rights fail to state a claim.
d.Section 1983 - City Council Members and
Mayor
Although Plaintiff does not specifically identify 42
U.S.C. § 1983 in his complaint, Plaintiff's complaint
clearly alleges that all Defendants violated his
constitutional rights. Section 1983 is the statute
that provides a "remedy for constitutional violations
committed by state officials." Gallagher v. Neil
Young Freedom Concert, 49 F.3d 1442, 1447
(10th Cir. 1995).
Defendants move for dismissal of all Section 1983
claims on the basis that Plaintiff has failed to state
a claim. Plaintiff's allegations pertaining to the city
council members and the mayor all state as
follows:
Plaintiff claims that City of Wichita, City Council
Member District I, Lavonta Williams5; did under
color of law and/or in her individual capacity,
did with malicious intent, and/or wanton
misconduct, and/or with reckless disregard
violated Plaintiff's rights under the U.S.
Constitution by conspiring with other members
of the city council and members of the Wichita
Police Department and then voting for on or
about June 21, 2013 for the passage of
Wichita City Ordinance, Chapter 5.20 Camping
5 Plaintiff's complaint sets forth a new section for each named
Defendant. The allegations, however, pertaining to the city
council members and the mayor are identical in each section.
(See Doc. 1 at 17-41.)
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on Public Property Without A Permit violating
and depriving Plaintiff of rights under the
following Amendments of the U. S.
Constitution[.]
(Doc. 1 at 17-18.) [*17]
Clearly, the allegations surrounding these
Defendants pertain to their actions in passing the
ordinance back in June 2013. As Plaintiff's claims
regarding that action are untimely and Plaintiff has
failed to allege any actions taken by Defendants
Williams, Meitzner, Clendenin, Blubaugh, Fry,
Miller and Longwell after 2013, the Section 1983
claims against these Defendants are dismissed as
barred by the statute of limitations.
e.Section 1983 - Defendants Stull and
Nienstedt
Defendants move for dismissal of the claims
against Wichita Police Officers Stull and Nienstedt
on the basis that Plaintiff's complaint wholly lacks
any factual allegations regarding these
Defendants. The court agrees. Plaintiff's complaint
alleges that these officers conspired to enact the
camping ordinance, seized his belongings and
moped6, and forced him to stay in the shelter.
(Doc. 1 at 50-53; 57-61.) The allegation regarding
the enacting of the ordinance is barred by the
statute of limitations. The remaining allegations are
all conclusory. It is clear by the facts alleged in the
complaint that Plaintiff has failed to allege any
actual conduct by Defendants Stull and Nienstedt.
In order to state a claim against a public official, a
plaintiff [*18] may not rely on the theory of
respondeat superior for the actions of co-workers
or subordinates. Rather, Plaintiff must plead facts
6 Plaintiff's conclusory claims are identical against each named
Defendant. (Doc. 1 at 50-53; 57-61.) However, the facts
alleged do not state any allegations of specific conduct
regarding these defendants and the seizure of Plaintiff's
property. The complaint implies that some member of the HOT
Team seized Plaintiff's tent but there is no allegation of who
actually removed the tent. Plaintiff appears to blame the theft
of his moped on the HOT Team because he was forced to go
to the Shelter but not because a member of the HOT Team
actually seized his moped.
showing that Stull and Nienstedt, through their own
individual actions, have violated the Constitution.
Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct.
1937, 1948, 173 L. Ed. 2d 868 (2009).Plaintiff's
complaint must "make clear exactly who is alleged
to have done what to whom, to provide each
individual with fair notice as to the basis of the
claim against him or her." Robbins v. Oklahoma,
519 F.3d 1242, 1250 (10th Cir. 2008) (citing
Twombly, 127 S. Ct. at 1970-71 n. 10).
Plaintiff's claims against Stull and Nienstedt do not
allege any actions that they have taken with
respect to Plaintiff's rights. Therefore, Plaintiff's
claims against Stull and Nienstedt must be
dismissed.
f. Defendant Berg
Defendants move to dismiss claims against Officer
Berg on the basis that they fail to state a claim and
that she is entitled to qualified immunity. The sole
facts pertaining to Defendant Berg revolve around
a phone call between Berg and Plaintiff. In that
call, Plaintiff alleges that Berg advised Plaintiff of
the no camping ordinance, claimed that the City
may take whatever they want and failed to call him
back. (Doc. 1 at 6-7.) These allegations fail to state
a claim. Although Berg allegedly stated that the
City can take what it wants, there [*19] are no
facts in the complaint that allege that Berg took
Plaintiff's property. Moreover, Berg's failure to call
Plaintiff, in and of itself, does not violate his
constitutional rights nor does Plaintiff allege any
cognizable injury due to Berg's actions.
The court finds that the allegations in the complaint
fail to state a claim under section 1983 against
Defendant Berg.
g. Defendant Schwiethale
Defendants move to dismiss claims against Officer
Schwiethale on the basis that they fail to state a
claim and that Schwiethale is entitled to qualified
immunity. With respect to Schwiethale's actions,
the complaint alleges that Schwiethale questioned
him early on the morning of November 15, 2016.
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Plaintiff allegedly had permission to sleep on the
property and Schwiethale had been dispatched to
the area in response to a complaint about an
individual sleeping on the property. Plaintiff claims
that Schwiethale asked him questions on
November 15 and on three other occasions. (Doc.
1 at 9-10.) Plaintiff was never arrested by
Schwiethale or any other Wichita officer for a
violation of the camping ordinance. Plaintiff alleges
that Schwiethale's conduct violated his
constitutional rights.
Plaintiff's allegations [*20] clearly state that
Schwiethale was investigating a report of someone
sleeping in violation of the camping ordinance. "An
officer can stop and briefly detain a person for
investigative purposes if the officer has a
reasonable suspicion supported by articulable facts
that criminal activity may be afoot, even if the
officer lacks probable cause." Cortez v. McCauley,
478 F.3d 1108, 1115 (10th Cir. 2007). Therefore,
his actions did not violate Plaintiff's Fourth
Amendment rights. Moreover, Plaintiff was not
arrested nor has Plaintiff alleged any other
actionable injury due to Schwiethale's questioning.
Plaintiff's complaint fails to identify the
circumstances of the other interactions with
Schwiethale.
Therefore, Plaintiff has failed to state a claim as
the allegations do not establish a constitutional
violation.7
h. City of Wichita
Defendants also move for dismissal of Plaintiff's
claims against the City and the claims against the
individual City Defendants in their official capacity.
Plaintiff responds that he has not brought any
claims against the City and consents to the
dismissal of the City from this action. (Doc. 28 at
53-54; 31 at 16-17). Plaintiff also does not oppose
the dismissal of the official capacity claims against
7 Because Plaintiff's complaint fails to sufficiently allege a
violation of his constitutional rights by the officers named in the
complaint, the officers would also be entitled to qualified
immunity. Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct.
808, 816, 172 L. Ed. 2d 565 (2009).
the individual Defendants. (Doc. [*21] 31 at 16-
17.)
The court notes that Plaintiff is proceeding pro se.
A court is to liberally construe a pro se Plaintiff's
pleadings. Hall v. Bellmon, 935 F.2d 1106, 1109
(10th Cir. 1991). However, the court is not to
assume a role of advocate or craft legal theories.
Id. at 1110.Therefore, the court's role cannot be to
force Plaintiff to proceed against the City to seek
the relief that he is requesting in his complaint.
Plaintiff has clearly stated that he is unopposed to
dismissing the City from this action and refers to
claims against the City as "nonexistent." (Doc. 31
at 17.) Therefore, Defendants' motion to dismiss
the claims against the City is granted as
uncontested.8
Alternatively, the court grants Defendants' motion
to dismiss for the reasons stated in Defendants'
memorandum. (Doc. 30 at 17-29.)9 With respect to
the actions taken by the individual Defendants, the
claims against the City are subject to dismissal as
the court has determined that Plaintiff's complaint
fails to allege that a state actor violated Plaintiff's
constitutional rights. See Estate of Larsen v. Murr,
511 F.3d 1255, 1264 (10th Cir. 2008) ("without the
predicate constitutional harm inflicted by an officer,
no municipal liability exists.")
Plaintiff's complaint also contends that the camping
ordinance violates his rights [*22] under the First,
Fourth,Fifth,Sixth,Eighth,Ninth and Fourteenth
Amendments. (Doc. 1 at 10-16.) Plaintiff's
allegations are wholly conclusory and fail to state a
claim. Plaintiff's claims are based on his alleged
constitutional right to be homeless. The Supreme
Court has not held that there is a constitutional
8 The official capacity claims are subject to dismissal as they
are redundant of any claims against the City. See, e.g.,
Stewart v. City of Prairie Vill., Kan., 904 F. Supp. 2d 1143,
1161 (D. Kan. 2012).
9 Plaintiff points out that Defendants' heading in section IX of
their brief states that the ordinances do not violate
"Defendant's" constitutional rights. (Doc. 31 at 17.) This is
clearly a typographical error as the substance of the argument
in the entire section discusses the sufficiency of Plaintiff's
claims against the City. (Doc. 30 at 17-29.)
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Page 9 of 10
right to be homeless. Moreover, courts have not
recognized the homeless as a suspect class. See
Sanchez v. City of Fresno, 914 F. Supp. 2d 1079,
1108-09 (E.D. Cal. 2012) (discussing cases);
Anderson v. Herbert, No. 2:13-CV-211, 2014 U.S.
Dist. LEXIS 166371, 2014 WL 6769907, at *5 (D.
Utah Dec. 1, 2014). This court declines to find that
Plaintiff, as a homeless man, is a member of a
suspect class.
With respect to the allegations that the ordinance
violates Plaintiff's constitutional rights, Plaintiff's
allegations are conclusory. Although Plaintiff
alleges that the ordinance violates his First
Amendment rights, he fails to identify how the First
Amendment applies to the conduct targeted by the
ordinance. See Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 n. 5 104 S. Ct.
3065, 82 L. Ed. 2d 221 (1984) (it is a plaintiff's
burden to identify how the First Amendment
applies to conduct). Plaintiff's conclusory
allegations regarding other constitutional violations
meet a similar fate. Plaintiff merely restates the
rights under those amendments and claims that
the camping ordinance violates the same. That is
not sufficient to state a claim. Twombly, 550 U.S.
at 555, 127 S. Ct. at 1965.
In [*23] Joel v. City of Orlando, 232 F.3d 1353
(11th Cir. 2000), the Eleventh Circuit upheld a no
camping ordinance. The court held that the
ordinance did not violate the Eighth Amendment by
criminalizing involuntary behavior. Id. at 1362. The
court reasoned that the Constitution allows the city
to regulate where camping occurs and that it was
not criminalizing homelessness because the city
shelters had never reached capacity and never
turned an individual away. See id. In cases that
found a violation of the Eighth Amendment, the
courts explicitly relied on the lack of shelter space
and reasoned that the ordinances were
criminalizing involuntary behavior. Id. The camping
ordinance at issue does not criminalize involuntary
behavior as an individual cannot be charged with a
violation of the camping ordinance when there are
no open beds in a shelter. Therefore, the camping
ordinance specifically targets voluntary conduct
and does not violate Plaintiff's Eighth Amendment
rights.See id.
Finally, Plaintiff claims that the ordinance is overly
broad and unconstitutionally vague. Plaintiff,
however, wholly fails to identify how it is overly
broad or unconstitutionally vague. Therefore,
Plaintiff's complaint fails to state a claim.
i. Taking of Property
Liberally construed, Plaintiff's complaint alleges
that the [*24] City, presumably an unknown officer
with the HOT Team, removed his tent and
belongings without Due Process. Plaintiff's
complaint fails to state this claim against the City
because Plaintiff has failed to sufficiently allege
that an officer or other City employee removed his
property. Plaintiff's vague allegations regarding the
white van seen two days prior to the removal of his
tent do not sufficiently allege that a City officer
removed his property. Nevertheless, even if
Plaintiff's complaint could be construed to allege
that an officer of the City removed Plaintiff's tent
and belongings, Plaintiff's complaint fails to state a
claim under federal law for the following reasons:
1) Plaintiff has failed to allege a municipal policy
behind the removal of his property and 2) Plaintiff
has failed to allege that he lacks an adequate
remedy under state law.
With respect to any removal or seizure of Plaintiff's
property, Plaintiff has failed to allege a municipal
policy that was the moving force behind the alleged
deprivation. As the camping ordinance does not
authorize such action, the ordinance cannot be the
basis to establish a municipal policy. Rather,
Plaintiff must allege a policy or [*25] custom of the
City to deprive belongings without notice in order to
state a claim. Larsen, 511 F.3d at 1264. Plaintiff
has not done so.
Moreover, although Plaintiff's complaint does not
specifically allege who took action in removing the
property, the law is well settled that Plaintiff must
allege facts showing the lack of an adequate state
remedy for the deprivation in order to state a
Fourteenth Amendment claim for violation of due
process.Gee v. Pacheco, 627 F.3d 1178, 1194
(10th Cir. 2010) (citing Hudson v. Palmer, 468 U.S.
517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393
(1984)). "[A]n unauthorized intentional deprivation
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of property by a state employee does not constitute
a violation of the procedural requirements of the
Due Process Clause of the Fourteenth Amendment
if a meaningful post-deprivation remedy for the loss
is available," and "the state's action is not complete
until and unless it provides or refuses to provide a
suitable post-deprivation remedy." Id. (quoting
Hudson, 468 U.S. at 533).Kansas law provides
post-deprivation remedies to individuals who
believe they have suffered a tortious loss at the
hands of state officials. Haynes v. Attorney
General of Kan., No. 03-4209, 2005 U.S. Dist.
LEXIS 24391, 2005 WL 2704956 at *5 (D. Kan.
2005). Plaintiff could have filed a claim for replevin,
conversion, or a claim under the Kansas Tort
Claims Act. Roman v. FNU LNU Unknown State &
Local Officials, Barton Cty., Kan., No. 12-3065-
SAC, 2012 U.S. Dist. LEXIS 75797, 2012 WL
1970384, at *4 (D. Kan. June 1, 2012). These
procedures satisfy process and are adequate post-
deprivation remedies for the harm alleged in
Plaintiff's complaint. See id.
Because Plaintiff's complaint does not allege
that [*26] tort actions available under state law are
an inadequate remedy, there is no constitutional
deprivation of property without due process of law
for purposes of the Fourteenth Amendment or §
1983. Pacheco v. Wagnon, 2008 U.S. Dist. LEXIS
23762, 2008 WL 755059 at *5 (D. Kan. 2008);
Roman, 2012 U.S. Dist. LEXIS 75797, 2012 WL
1970384, at *4 ("when a plaintiff alleges
deprivation of a property interest occurring as a
result of 'a random, unauthorized act,' the
Fourteenth Amendment's due process requirement
is satisfied if the state provides an adequate post-
deprivation remedy.") Nor is there any taking of
property in violation of the Fifth Amendment.See
City of Monterey v. Del Monte Dues at Monterey,
Ltd., 526 U.S. 687, 714-15, 119 S. Ct. 1624, 1640-
41, 143 L. Ed. 2d 882 (1999);Wilson v. United
States, 29 F. App'x 495, 496-97 (10th Cir. 2002).
Plaintiff has not alleged a plausible constitutional
deprivation of property claim.
IV. Conclusion
Defendants' motion to dismiss (Doc. 24) is
GRANTED. Plaintiff's motion to deny/strike
Defendants' motion to dismiss (Doc. 27) is
DENIED AS MOOT. IT IS SO ORDERED this 26th
day of September, 2018.
/s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
End of Document
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Positive
As of: October 8, 2021 1:52 AM Z
Galbreath v. City of Oklahoma
United States Court of Appeals for the Tenth Circuit
June 11, 2014, Filed
No. 12-6295
Reporter
568 Fed. Appx. 534 *; 2014 U.S. App. LEXIS 10824 **; 2014 WL 2598657
ALLEN GALBREATH, Plaintiff - Appellant, v. THE
CITY OF OKLAHOMA CITY; KEVIN PARTON,
Defendants - Appellees.
Notice: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
Prior History: [**1] (D.C. No. 5:11-CV-01336-
HE). (W.D. Okla.).
Galbreath v. City of Okla., 2012 U.S. Dist. LEXIS
152652 (W.D. Okla., Oct. 24, 2012)
Core Terms
ordinance, district court, arrest, summary
judgment, disorderly conduct, vagueness,
unconstitutionally vague, municipal, alarm, as-
applied, qualified immunity, exercises, declaratory,
morning, cane, void-for-vagueness, ballet, grant
summary judgment, reasonable person, adequate
notice, fair notice, notice
Case Summary
Overview
HOLDINGS: [1]-The district court erred in granting
summary judgment to the city in an arrestee's
action alleging that City of Oklahoma City, Okla.,
Ordinance No. 22210, § 30-81(b) (2003) was
unconstitutionally vague as applied because a
reasonable jury could conclude that the arrestee
lacked fair notice that his conduct in the park could
lead to criminal sanctions under the ordinance; [2]-
Nothing in the plain language of the ordinance
suggested that singing and performing
choreographed ballet moves in the park with a 3-
foot cane while wearing high heels would cause
public alarm; [3]-The ordinance's plain language
failed to give the arrestee notice that any public
alarm caused by the morning exercises would be
without justification; [4]-The ordinance lacked a
scienter requirement, which could have mitigated
the indefiniteness of the other terms when applied
to the arrestee's conduct.
Outcome
Summary judgment reversed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Summary
Judgment Review > General Overview
HN1[] Appeals, Summary Judgment Review
When the case comes to the court of appeals from
summary judgment, it recites the facts in the light
most favorable to the non-moving party, resolving
all factual disputes and reasonable inferences in
his or her favor.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > General Overview
Civil Procedure > Appeals > Summary
Judgment Review > Standards of Review
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HN2[] Summary Judgment, Entitlement as
Matter of Law
The court of appeals reviews a district court's grant
of summary judgment de novo, using the same
standard applied by the district court pursuant to
Fed. R. Civ. P. 56(a).
Civil Procedure > Judgments > Summary
Judgment > Evidentiary Considerations
HN3[] Summary Judgment, Evidentiary
Considerations
The court of appeals must view facts in the light
most favorable to the non-moving party, resolving
all factual disputes and reasonable inferences in
his or her favor.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > General Overview
HN4[] Summary Judgment, Entitlement as
Matter of Law
Summary judgment shall be granted if there is no
genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of
law.Fed. R. Civ. P. 56(a).
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Materiality of Facts
HN5[] Entitlement as Matter of Law,
Materiality of Facts
A fact is material if, under governing law, it could
affect the outcome of the lawsuit.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Genuine Disputes
HN6[] Entitlement as Matter of Law, Genuine
Disputes
A factual dispute is genuine if a rational jury could
find in favor of the nonmoving party on the
evidence presented.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > General Overview
Civil Rights Law > Protection of
Rights > Immunity From Liability > Defenses
HN7[] Summary Judgment, Entitlement as
Matter of Law
At summary judgment, courts must grant qualified
immunity unless the plaintiff meets a two-part
burden to show (1) a reasonable jury could find
facts supporting a violation of a constitutional right,
which (2) was clearly established at the time of the
defendant's conduct. Courts may exercise their
sound discretion in deciding which of the two steps
of the qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
HN8[] Scope, Government Actions
Resolving 42 U.S.C.S. § 1983 claims against
municipalities requires consideration of whether
the city is responsible for harm caused by a
constitutional violation.
Governments > Local
Governments > Ordinances & Regulations
Governments > Legislation > Vagueness
HN9[] Local Governments, Ordinances &
Regulations
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An as-applied challenge to an ordinance can give
rise to municipal liability.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
HN10[] Scope, Government Actions
A city will not automatically be liable under 42
U.S.C.S. § 1983 if one of its employees happened
to apply a constitutional policy in an
unconstitutional manner.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
HN11[] Scope, Government Actions
Municipal entities may be subject to liability under
42 U.S.C.S. § 1983 if they make and enforce a law
that is unconstitutional as applied.
Criminal Law & Procedure > ... > Disruptive
Conduct > Disorderly Conduct & Disturbing the
Peace > General Overview
Governments > Local
Governments > Ordinances & Regulations
HN12[] Disruptive Conduct, Disorderly
Conduct & Disturbing the Peace
Oklahoma City's disorderly conduct ordinance,
Oklahoma City, Okla., Municipal Code § 30-81(b),
reflects the official policy of the municipality.
Official municipal policy includes the decisions of a
government's lawmakers.
Governments > Legislation > Vagueness
HN13[] Legislation, Vagueness
The question of whether a statute has been
rendered unconstitutionally vague as applied is a
question involving issues of law.
Constitutional Law > ... > Case or
Controversy > Constitutionality of
Legislation > General Overview
Constitutional Law > ... > Fundamental
Rights > Procedural Due Process > Scope of
Protection
HN14[] Case or Controversy,
Constitutionality of Legislation
To satisfy due process, a penal statute must define
the criminal offense (1) with sufficient definiteness
that ordinary people can understand what conduct
is prohibited and (2) in a manner that does not
encourage arbitrary and discriminatory
enforcement.
Governments > Local
Governments > Ordinances & Regulations
Governments > Legislation > Vagueness
HN15[] Local Governments, Ordinances &
Regulations
For an as-applied vagueness challenge, the court
of appeals must tether its analysis to the factual
context in which the ordinance was applied.
Criminal Law & Procedure > ... > Disruptive
Conduct > Disorderly Conduct & Disturbing the
Peace > Elements
HN16[] Disorderly Conduct & Disturbing the
Peace, Elements
A person is guilty of disorderly conduct, a Class "a"
offense, when such person causes public alarm
without justification. City of Oklahoma City, Okla.,
Ordinance No. 22210, § 30-81(b) (2003).
Constitutional Law > ... > Case or
Controversy > Constitutionality of
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Legislation > General Overview
Governments > Local
Governments > Ordinances & Regulations
Governments > Legislation > Vagueness
HN17[] Case or Controversy,
Constitutionality of Legislation
In evaluating the adequate notice element, the
court of appeals must determine whether a
reasonable person would have fair notice from the
language of the ordinance that the particular
conduct which he or she engaged in was
punishable. In an as-applied challenge, a statute is
unconstitutionally vague if it fails to put a defendant
on notice that his or her conduct was criminal. For
statutes involving criminal sanctions the
requirement for clarity is enhanced.
Governments > Legislation > Interpretation
HN18[] Legislation, Interpretation
"Alarm" defined as sudden fear or concern caused
by the realization of danger or an impending
setback.
Governments > Legislation > Interpretation
HN19[] Legislation, Interpretation
"Justification" is defined as a lawful or sufficient
reason for one's acts or omissions.
Constitutional Law > ... > Case or
Controversy > Constitutionality of
Legislation > General Overview
Criminal Law & Procedure > Criminal
Offenses > Acts & Mental States > General
Overview
Governments > Legislation > Vagueness
HN20[] Case or Controversy,
Constitutionality of Legislation
Fair notice concerns can be ameliorated by the fact
that the challenged statute contains a scienter
requirement. A scienter requirement may mitigate
a criminal law's vagueness by ensuring that it
punishes only those who are aware their conduct is
unlawful.
Counsel: For ALLEN GALBREATH, Plaintiff -
Appellant: John Spencer Bryan, Bryan & Terrill
Law, Tulsa, OK; Steven James Terrill, Bryan &
Terrill Law, Tulsa, OK.
For THE CITY OF OKLAHOMA CITY, Defendant -
Appellee: Richard C. Smith, Esq., Office of
Municipal Counselor, Litigation Division, Oklahoma
City, OK; Jennifer M. Warren, City of Oklahoma
City, Office of the Municipal Counselor, Oklahoma
City, OK.
For KEVIN PARTON, Defendant - Appellee:
Stacey Felkner, Fenton Fenton Smith Reneau &
Moon, Oklahoma City, OK; Susan Ann Knight,
Manchester & Knight, PLLC, Oklahoma City, OK.
Judges: Before GORSUCH, MATHESON, and
BACHARACH, Circuit Judges.
Opinion by: Scott M. Matheson, Jr.
Opinion
[*535] ORDER AND JUDGMENT*
Allen Galbreath was arrested for disorderly
conduct while performing his morning ballet
exercises in an Oklahoma City park. He brought a
civil rights action under 42 U.S.C. § 1983 against
the arresting officer and the City, alleging the arrest
lacked [**2] probable cause and the municipal
ordinance was unconstitutionally vague. Each
defendant moved for summary judgment, and Mr.
*This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
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Galbreath moved for declaratory judgment on his
claims against the City. The district court denied
Mr. Galbreath's motion and granted both
defendants' motions, holding (1) the arresting
officer had qualified immunity and (2) the disorderly
conduct ordinance was not unconstitutionally
vague as applied to Mr. Galbreath. Mr. Galbreath
now appeals. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm the first holding. As to the
second, we reverse and remand.
I.BACKGROUND
A.Factual History1
Mr. Galbreath is a "former dancer with the
Oklahoma Ballet." Aplt. Appx., Vol. I at 177.
Because of a debilitating hip condition, Mr.
Galbreath regularly performed ballet exercises as a
form of "physical therapy" at Goodholm Park in
Oklahoma City to improve his ambulatory function.
Id. at 124, 177 n.1. [**3] In June 2010, Mr.
Galbreath went to Goodholm Park to perform his
morning physical therapy exercises. He wore
"[o]versized gray pants, a fitted gray T-shirt, . . . a
red bandanna," and "high-heel shoe[s]." Id. at 129.
He also carried a walking cane roughly 3 feet in
length and a large red handbag.
Upon arriving at the park, Mr. Galbreath began
singing and performing dance moves using his
cane. Shortly thereafter, Mr. Galbreath fielded a
call from a friend and began laughing loudly. See
id. at 133, 288. A woman called 911 to report she
was at the park with her grandchildren and
concerned about a "man in high heels with a big
stick and a purse." Id. at 152 (recording of 911
call).2
Officer Kevin Parton of the Oklahoma City Police
Department responded to the 911 call. After
arriving, he found Mr. Galbreath wearing high
1 HN1[] Because this case comes to us from summary
judgment, we recite the facts "in the light most favorable to"
the non-moving party, Mr. Galbreath, "resolving all factual
disputes and reasonable inferences" in his favor. Cillo v. City
of Greenwood Village, 739 F.3d 451, 461 (10th Cir. 2013).
2 Although the recording of the 911 call is garbled, the
transcript states the caller thought Mr. Galbreath was "drunk."
Aplt. Appx., Vol. I at 272.
heels and carrying a cane. When the officer asked
Mr. Galbreath what he was doing at the park, Mr.
Galbreath explained that he was doing his
"morning exercises" and demonstrated a short
choreographed ballet sequence using his walking
[**4] cane. Id. at 140, 288.
According to Mr. Galbreath, Officer Parton
"grabbed" Mr. Galbreath's arm, twisted it up "above
[his] head to where it hurt" and escorted Mr.
Galbreath to the police car. Id. at 134. Officer
Parton searched Mr. Galbreath's red bag and
found an air pistol. After handcuffing Mr. Galbreath
as a "precautionary measure" and running a
warrant check, Officer Parton learned that Mr.
Galbreath had no outstanding arrest warrants or
any criminal background. Id. at 160, 179.
[*536] Officer Parton recounted that, save for two
tennis players, the other people in the park had
gathered by the playground equipment and were
no longer involved in "open play." Id. at 164.3 He
presumed they were afraid of Mr. Galbreath. See
id. Officer Parton's arrest report, however, did not
reflect this observation. Rather, it merely
suggested he observed "several adult women
accompanied by approx[imately] 8 to 10 children,"
who "were playing on the playground equipment,"
roughly "20 yards from" Mr. Galbreath's location.
Id. at 160. Nothing in the arrest report suggests
Officer Parton spoke with any of these individuals
to confirm whether they were in fact alarmed, and
the 911 caller testified in her deposition [**5] that
she had never met Officer Parton before. See id. at
157. And although Officer Parton asserted in his
arrest report that he asked Mr. Galbreath if he had
a "legit[i]mate purpose" for being in the park, id. at
160, Mr. Galbreath disputes this fact.
Officer Parton arrested Mr. Galbreath for
"disorderly conduct" under Oklahoma City
Municipal Code § 30-81(b), which defines the
offense as "caus[ing] public alarm without
justification." Although the City initially charged Mr.
Galbreath under the ordinance, it later dismissed
3 We draw this statement from Officer Parton's response to Mr.
Galbreath's interrogatories during the discovery conducted in
the district court. See Aplt. Appx., Vol. I at 161-68.
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the charge.
B.Procedural History
On October 12, 2011, Mr. Galbreath sued Officer
Parton and Oklahoma City under 42 U.S.C. § 1983
in Oklahoma state court, alleging several violations
of federal law.4 The defendants removed the case
to the United States District Court for the Western
District of Oklahoma. Mr. Galbreath filed an
amended complaint in which he argued (1) Officer
Parton arrested him without probable cause and
(2) the City's disorderly conduct ordinance was
unconstitutionally vague [**6] in violation of the
Due Process Clause of the Fourteenth
Amendment.5 The complaint sought damages,
declaratory relief, and an injunction prohibiting the
City from enforcing § 30-81.
The City unsuccessfully moved to dismiss Mr.
Galbreath's claims for injunctive relief. After
discovery, Officer Parton moved for summary
judgment on qualified immunity grounds and the
City moved for summary judgment on Mr.
Galbreath's municipal liability claims. Mr. Galbreath
moved for declaratory judgment on his claims
against the City.
The [**7] court denied Mr. Galbreath's motion and
granted summary judgment in favor of the
defendants. It first determined that Mr. Galbreath
lacked standing to seek prospective relief—either
declaratory or injunctive—because he did not
allege a credible threat of future prosecution under
the ordinance. The court therefore denied Mr.
Galbreath's motion for declaratory judgment on
these claims and dismissed them with prejudice.
4 Mr. Galbreath also asserted a claim under the Oklahoma
Governmental Tort Claims Act, but it is not relevant to this
appeal. See Aplt. Appx., Vol. I at 76, 241, 369.
5 In his amended complaint, Mr. Galbreath also alleged (1)
Officer Parton violated the First Amendment by arresting Mr.
Galbreath for engaging in protected expression and (2) the
City's ordinance violates the First Amendment because of its
overbreadth. The district court determined Mr. Galbreath
"confessed" the first claim by failing to rebut Officer Parton's
motion on that issue and affirmatively abandoned the second
in his response to the City's motion for summary judgment.
See Aplt. Appx., Vol. I at 365-66.
[*537] The district court next granted Officer
Parton's request for qualified immunity, concluding
he had probable cause to arrest Mr. Galbreath and
any violation of Mr. Galbreath's rights was not
otherwise clearly established.
Finally, the court granted summary judgment in the
City's favor on Mr. Galbreath's remaining void-for-
vagueness claim for damages and retrospective
declaratory relief. The court first concluded he
could not bring a facial vagueness challenge
because he was not seeking pre-enforcement
review and failed to allege the ordinance
threatened constitutionally protected activity. Left
to address an as-applied due process vagueness
claim, the district court determined Mr. Galbreath
had sufficient notice that his behavior could have
fallen within the ordinance's description [**8] of
prohibited conduct.
Accordingly, the district court dismissed Mr.
Galbreath's case. Mr. Galbreath now appeals.
II. DISCUSSION
On appeal, Mr. Galbreath has abandoned most of
his claims from the district court.6 In his opening
brief, Mr. Galbreath contends the district court
erred by (A) granting Officer Parton qualified
immunity on his Fourth Amendment claim and (B)
concluding that Oklahoma City's disorderly conduct
statute was not void-for-vagueness in violation of
the Due Process Clause of the Fourteenth
Amendment. We address these arguments in turn
after discussing our standard of review.
HN2[] We review a district court's grant of
summary judgment de novo, "using the same
standard applied by the district court pursuant to
6 As noted above, see supra note 5, Mr. Galbreath withdrew
his First Amendment overbreadth claim in the summary
judgment briefing before the district court. See Aplt. Appx.,
Vol. I at 312. Additionally, the district court determined that Mr.
Galbreath conceded his First Amendment free expression
claim by failing to respond to Officer Parton's motion on that
issue.See id. at 365 & n.22. Mr. Galbreath does not press
either argument on appeal. Nor does he challenge the district
court's rejection of his plea for prospective relief. See Oral Arg.
Recording (6:14-6:20). We therefore do not consider any
[**9] of these claims.
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Fed. R. Civ. P. 56(a)."Cillo v. City of Greenwood
Village, 739 F.3d 451, 461 (10th Cir. 2013);see
also Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th
Cir. 2013). HN3[] We must "view facts in the light
most favorable to" the non-moving party, Mr.
Galbreath, "resolving all factual disputes and
reasonable inferences" in his favor. Cillo, 739 F.3d
at 461.HN4[] Summary judgment shall be
granted if "there is no genuine dispute as to any
material fact" and the moving party is "entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a);
see also Cillo, 739 F.3d at 461.HN5[] "A fact is
material if, under governing law, it could [affect] the
outcome of the lawsuit." Cillo, 739 F.3d at 461
(quoting EEOC v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1190 (10th Cir. 2000)).HN6[] A
factual dispute is "genuine if a rational jury could
find in favor of the nonmoving party on the
evidence presented." Id. (quotations omitted).
A.Qualified Immunity for Officer Parton on the
Fourth Amendment Claim
HN7[] At summary judgment, courts must grant
qualified immunity unless the plaintiff [**10] meets
a two-part burden to "show (1) a reasonable jury
could find facts supporting a violation of a
constitutional right, which (2) was clearly
established at the time of the defendant's conduct."
Estate of Booker [*538] v. Gomez, 745 F.3d 405,
411 (10th Cir. 2014); see also Saucier v. Katz, 533
U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001) (asking whether "a violation could be made
out on a favorable view of the parties'
submissions"), receded from on other grounds by
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808,
172 L. Ed. 2d 565 (2009). Courts may "exercise
their sound discretion in deciding which of the two"
steps of the "qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand." Pearson, 555 U.S. at 236.
Because Mr. Galbreath fails to meet the second
step, we need not and do not reach the first. His
opening brief makes no mention of clearly
established law, and at oral argument, his counsel
acknowledged that he cannot point to any clearly
established federal law giving Officer Parton notice
that the arrest was unconstitutional. See Oral Arg.
Recording (10:10-11:05). Indeed, when asked
whether he had "just conceded that the law wasn't
clearly established," Mr. Galbreath's counsel
responded, [**11] "Yes Your Honor." Id. (10:10-
10:23). Mr. Galbreath therefore fails to meet his
burden to show that Officer Parton's actions
violated clearly established law.7
We therefore proceed to Mr. Galbreath's void-for-
vagueness claim against the City.
B.Void-for-Vagueness Claim against the City
Mr. Galbreath's remaining claim seeks to hold
Oklahoma City liable because the disorderly
conduct ordinance was void for vagueness as
applied. In his amended complaint, Mr. Galbreath
requested damages as well as a "declaration that
Oklahoma City Ordinance 30-81 is
unconstitutionally void for vagueness on its face
and as applied by [Officer] Parton in violation of the
Due Process Clause." Aplt. Appx., Vol. I at 37. At
oral argument, however, Mr. Galbreath's counsel
abandoned his challenge to the ordinance's facial
validity. See Oral Arg. Recording (4:00-4:07, 6:07-
6:28).
Our consideration of Mr. Galbreath's void-for-
vagueness claim is therefore limited [**12] to (1)
whether the City may be held liable under Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), for
an as-applied violation, and if so, (2) whether the
district court erred in granting summary judgment
to the City on the merits. See Collins v. City of
Harker Heights, 503 U.S. 115, 120, 112 S. Ct.
1061, 117 L. Ed. 2d 261 (1992) (HN8[] resolving
§ 1983 claims against municipalities requires
consideration of whether "the city is responsible"
for harm "caused by a constitutional violation").
Mindful that Mr. Galbreath need only raise a
genuine dispute of material fact to survive
summary judgment, we answer both questions in
7 In reaching this conclusion, we express no opinion on
whether Mr. Galbreath has satisfied the first step of the
qualified immunity inquiry—that a reasonable jury could find
Officer Parton lacked probable cause to arrest Mr. Galbreath
for disorderly conduct.
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the affirmative.8
1.Municipal Liability
The City argues "even if the ordinance was vague
as applied to [Mr.] Galbreath's specific behavior,
the City may not be held liable because [it] does
not maintain a policy of applying the ordinance in
an unconstitutional manner." Okla. City Aplee. Br.
at 27. We disagree.
Our precedent forecloses the City's argument. We
have held that HN9[] an as-applied challenge to
an ordinance can give rise to [*539] municipal
liability. In Christensen v. Park City Mun. Corp.,
554 F.3d 1271 (10th Cir. 2009), [**13] Park City
police officers arrested the plaintiff for selling
artwork on public property without a license in
violation of two city ordinances. See id. at 1274.
The plaintiff sued Park City for damages and
declaratory relief, alleging the ordinances were
unconstitutional as applied to his expressive
activity in violation of the First Amendment.See id.
The district court granted Park City's motion to
dismiss, reasoning the city could not be held liable
for a single unlawful application of an otherwise
constitutional ordinance. See id. at 1274-75;see
also Christensen v. Park City Mun. Corp., No.
2:06-CV-202 TS, 2007 U.S. Dist. LEXIS 74122,
2007 WL 2908288, at *1 (D. Utah Oct. 3, 2007)
(HN10[] "[A] city will not automatically be liable
under § 1983 if one of its employees happened to
apply a constitutional policy in an unconstitutional
manner . . . ." (quotations and alterations omitted)).
We reversed, reasoning "[i]f it turns out that the
relevant ordinances are unconstitutional, whether
on their face or as applied to Mr. Christensen, the
liability falls on the city." Christensen, 554 F.3d at
1279 (emphasis added). We concluded HN11[]
municipal entities "may be subject to liability under
§ 1983" if they "make[] and enforce[] [**14] a law
that is unconstitutional as applied." Id. 1280.
Here, "there is no question" HN12[] Oklahoma
City's disorderly conduct ordinance, like the "city
ordinances" at issue in Christensen, "reflect[s] the
8 In doing so, we express no opinion on the ordinance's facial
validity.
'official policy' of the municipality." Id. at 1279; see
also Monell, 436 U.S. at 690 ("ordinance");
Connick v. Thompson, 131 S. Ct. 1350, 1359, 179
L. Ed. 2d 417 (2011) ("[o]fficial municipal policy"
includes the "decisions of a government's
lawmakers"). Officer Parton arrested Mr. Galbreath
for violating the ordinance. See Aplt. Appx., Vol. I
at 191 (police report asserting that Mr. Galbreath
"was placed under arrest for disorderly conduct"),
197 (citation alleging Mr. Galbreath "commit[ed]"
the "offense" of "Disorderly Conduct").
Consequently, if the ordinance was
unconstitutional as applied to Mr. Galbreath's
conduct, then Oklahoma City "may be subject to
liability under § 1983."Christensen, 554 F.3d at
1280.
2.Vagueness As Applied
We review the district court's summary judgment
ruling on Mr. Galbreath's as-applied vagueness
claim de novo. See United States v. Protex
Industries, Inc., 874 F.2d 740, 743 (10th Cir. 1989)
(HN13[] "The question of whether a statute has
been rendered unconstitutionally vague as applied
is a question [**15] involving issues of law."); see
also Faustin v. City, Cnty. of Denver, Colo., 268
F.3d 942, 947 (10th Cir. 2001) (reviewing grant of
summary judgment on vagueness claim de novo).
HN14[] "To satisfy due process, 'a penal statute
[must] define the criminal offense [1] with sufficient
definiteness that ordinary people can understand
what conduct is prohibited and [2] in a manner that
does not encourage arbitrary and discriminatory
enforcement.'" Skilling v. United States, 561 U.S.
358, 130 S. Ct. 2896, 2927-28, 177 L. Ed. 2d 619
(2010) (quoting Kolender v. Lawson, 461 U.S. 352,
357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)).
HN15[] For an as-applied vagueness challenge,
we must tether our analysis to the factual context
in which the ordinance was applied. See United
States v. Franklin-El, 554 F.3d 903, 910 (10th Cir.
2009) ("Because this is an as-applied challenge,
we consider this statute in light of the charged
conduct."). At summary judgment, we view the
evidence in the light most favorable to the non-
moving party—here, Mr. Galbreath. See, e.g., Cillo
v. City of Greenwood Village, 739 F.3d 451, 461
(10th Cir. 2013).
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[*540] The City's ordinance provides:HN16[] "A
person [**16] is guilty of disorderly conduct, a
Class 'a' offense, when such person: . . . causes
public alarm without justification." City of Oklahoma
City, Ordinance No. 22210, § 30-81(b) (adopted
May 6, 2003). The ordinance does not define
"public alarm" or "without justification," and the
parties have not pointed us to an Oklahoma case
construing these terms. "We are thus relegated, at
best, to the words of the ordinance itself." Coates
v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct.
1686, 29 L. Ed. 2d 214 (1971);see also City of
Chicago v. Morales, 527 U.S. 41, 68, 119 S. Ct.
1849, 144 L. Ed. 2d 67 (1999) (O'Connor, J.,
concurring) ("[W]e cannot impose a limiting
instruction that a state supreme court has declined
to adopt.").
Mr. Galbreath contends this language was
unconstitutionally vague as applied to his activity in
the park because (1) it failed to give adequate
notice to a person of ordinary intelligence that his
conduct was unlawful and (2) ceded too much
enforcement discretion to Officer Parton. Because
we conclude the district court erred in granting
summary judgment to the City on the adequate
notice element, we do not consider whether the
ordinance ceded too much enforcement discretion
to Officer Parton.
HN17[] In evaluating the adequate notice
element, [**17] we must determine whether a
reasonable person in Mr. Galbreath's position
would have "'fair notice from the language' of the
[ordinance] 'that the particular conduct which he
engaged in was punishable.'" United States v.
Baldwin, 745 F.3d 1027, 1031 (10th Cir. 2014)
(quoting Parker v. Levy, 417 U.S. 733, 755, 94 S.
Ct. 2547, 41 L. Ed. 2d 439 (1974));see also United
States v. Harris, 705 F.3d 929, 932 (9th Cir. 2012)
("In an as-applied challenge, a statute is
unconstitutionally vague if it fails to put a defendant
on notice that his conduct was criminal. For
statutes involving criminal sanctions the
requirement for clarity is enhanced." (quotations
and alterations omitted)).
In granting the City's motion for summary judgment
on Mr. Galbreath's as-applied vagueness claim,
the district court reasoned briefly as follows:
For no apparent reason, plaintiff was behaving
in a public place in an alarming or
disconcerting manner. When given the
opportunity to explain, plaintiff replied "my
morning exercises" and proceeded
immediately with conduct which a reasonable
person might have viewed as threatening, or at
least as something other than an ordinary
"morning exercise." While plaintiff's arrest,
under the circumstances as we [**18] now
know them to be, was perhaps unfortunate, it
did not violate his due process rights.
Galbreath v. City of Oklahoma City, No. CIV-11-
1336-HE, 2012 U.S. Dist. LEXIS 152652, 2012 WL
5289456, at *8 (W.D. Okla. Oct. 24, 2012). On its
face, the district court's analysis points to denying
summary judgment, not granting it. If a reasonable
person "might" have viewed Mr. Galbreath's
activity in the park as "threatening" or "something
other than" ordinary morning exercises, then a
reasonable person could also conclude Mr.
Galbreath's conduct was neither threatening nor
out of the ordinary. The district court's analysis
turned well-established principles of summary
judgment on their head.
Mr. Galbreath testified he was singing and doing
ballet exercises in high-heel shoes as a form of
physical therapy to relieve pain from a hip disorder.
He exercised with the assistance of a roughly 3-
foot-long cane. He twirled his cane for a few
seconds in a choreographed dance move when
Officer Parton confronted him. At that time, Mr.
Galbreath had been at the park about five minutes.
Despite [*541] these facts, the district court
concluded Mr. Galbreath "was behaving in a public
place in an alarming or disconcerting manner."
Galbreath, 2012 U.S. Dist. LEXIS 152652, 2012
WL 5289456, at *8. [**19] In doing so, "the court
below credited the evidence of the party seeking
summary judgment and failed properly to
acknowledge key evidence offered by the party
opposing that motion." Tolan v. Cotton, 134 S. Ct.
1861, 1867-68, 188 L. Ed. 2d 895 (2014).
Viewing the facts in the light most favorable to Mr.
Galbreath, a reasonable jury could conclude he
lacked fair notice that his conduct in the park could
568 Fed. Appx. 534, *539; 2014 U.S. App. LEXIS 10824, **15
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lead to criminal sanctions under the City's
disorderly conduct ordinance.
First, nothing in the plain language of the
ordinance suggests that singing and performing
choreographed ballet moves in the park with a 3-
foot cane while wearing high heels would cause
"public alarm." See American Heritage Dictionary
39 (5th ed. 2011) (defining HN18[] "alarm" as
"[s]udden fear or concern caused by the realization
of danger or an impending setback"); see also Bell
v. Keating, 697 F.3d 445, 462 (7th Cir. 2012)
(holding that the term "alarm," as used in a
municipal ordinance, was unconstitutionally vague
in part because it failed to give individuals of
common comprehension notice of the prohibited
conduct).
Second, the ordinance's plain language failed to
give Mr. Galbreath notice that any public alarm
caused by these morning [**20] exercises would
be "without justification." See Black's Law
Dictionary (9th ed. 2009) (defining HN19[]
"justification" as "[a] lawful or sufficient reason for
one's acts or omissions"); cf. Morales, 527 U.S. at
56-57 (plurality op.) (ordinance forbidding
"remain[ing] in any one place with no apparent
purpose" unconstitutionally vague in part because
it failed to give adequate notice); Jim Crockett
Promotion, Inc. v. City of Charlotte, 706 F.2d 486,
489 (4th Cir. 1983) (holding, without any "difficulty,"
"that the term 'unnecessary' in the general
prohibitory language of the Ordinance [was]
unconstitutionally vague").
Third, the ordinance lacks a scienter requirement,
which could have mitigated the indefiniteness of
the other terms when applied to Mr. Galbreath's
conduct. See Hill v. Colorado, 530 U.S. 703, 732,
120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000) (HN20[
] fair notice concerns can be "ameliorated" by the
fact that the challenged statute "contains a scienter
requirement"); United States v. Gaudreau, 860
F.2d 357, 360 (10th Cir. 1988) ("[A] scienter
requirement may mitigate a criminal law's
vagueness by ensuring that it punishes only those
who are aware their conduct is unlawful."); Stahl v.
City of St. Louis, 687 F.3d 1038, 1041 (8th Cir.
2012) [**21] (holding that an ordinance was
unconstitutionally vague in part because it lacked a
scienter requirement in that violation turned on the
reactions of third parties rather than the individual
whose actions were involved).
Given the foregoing, a reasonable jury could find
the ordinance failed to give a reasonable person in
Mr. Galbreath's position "fair notice . . . that the
particular conduct which he engaged in was
punishable." Baldwin, 745 F.3d at 1031 (quotations
omitted). In concluding otherwise, the district court
"failed to view the evidence at summary judgment
in the light most favorable to [Mr. Galbreath] with
respect to the central facts of this case," Tolan, 134
S. Ct. at 1866.Perhaps facts will emerge on
remand establishing Mr. Galbreath had adequate
notice his conduct was unlawful. We express no
opinion on that matter or whether the ordinance
ceded too much enforcement discretion to Officer
Parton in this instance. See Yellowbear v. Lampert,
741 F.3d 48, 64 (10th [*542] Cir. 2014) ("For now,
however, these subtler (and admittedly more
difficult) questions remain for the parties and
district court to consider on remand."). We merely
hold that the district court erred in granting
[**22] summary judgment to the City at this
juncture because a reasonable jury could find Mr.
Galbreath lacked fair notice that his conduct could
be punished.
III. CONCLUSION
For the foregoing reasons, we (1) affirm the district
court's summary judgment grant of qualified
immunity to Officer Parton and (2) reverse its
summary judgment grant to the City on Mr.
Galbreath's as-applied void-for-vagueness claim.
We remand for further proceedings consistent with
this opinion.9
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
9 We agree with the parties that the appendix documents
containing medical information about the appellant and not
pertinent to the merits of this appeal should remain under seal.
See Eugene S. v. Horizon Blue Cross Blue Shield of New
Jersey, 663 F.3d 1124, 1136 (10th Cir. 2011).
568 Fed. Appx. 534, *541; 2014 U.S. App. LEXIS 10824, **19
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End of Document
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Neutral
As of: October 8, 2021 1:57 AM Z
Hill v. Unnamed Arapahoe County Det. Officers
United States District Court for the District of Colorado
March 15, 2012, Decided; March 15, 2012, Filed
Civil Action No. 11-cv-00835-PAB-KMT
Reporter
2012 U.S. Dist. LEXIS 35604 *; 2012 WL 899278
DARIUS HILL, Plaintiff, v. UNNAMED ARAPAHOE
COUNTY DETENTION OFFICERS, Individually
and Severally, ARAPAHOE COUNTY SHERIFF J.
GRAYSON ROBINSON, ARAPAHOE COUNTY
CAPTAIN VINCE SAUTER, and THE BOARD OF
COUNTY COMMISSIONERS OF THE COUNTY
OF ARAPAHOE, Defendants.
Subsequent History: Costs and fees proceeding
at, Request granted Hill v. Unnamed Arapahoe
County Det. Officers, 2012 U.S. Dist. LEXIS 35600
(D. Colo., Mar. 16, 2012)
Core Terms
Sheriff, training, allegations, custom, municipal, jail
officials, constitutional right, fails, qualified
immunity, cell, deliberate indifference, motion to
dismiss, deprivation, rights, municipal liability,
deliberately, conspiracy, Detention, policies,
pretrial, Unnamed, constitutional violation, plaintiff's
claim, jail cell, implemented, indifferent, detainees,
supervise, flooded, notice
Counsel: [*1] For Darius Hill, Plaintiff: Douglas
Leo Romero, Timothy D. Edstrom, Douglas L.
Romero, LLC, Law Office of, Denver, CO.
For J. Grayson Robinson, Arapahoe County
Sheriff; Unnamed Arapahoe County Detention
Officers, Individually and Severally, Vince Sauter,
Arapahoe County Captain, Arapahoe County,
Board of County Commissioners, (actually named
as The Board of County Commissioners of the
County of Arapahoe), Defendants: Edward M.
Caswall, Arapahoe County Attorney's Office,
Littleton, CO.
Judges: PHILIP A. BRIMMER, United States
District Judge.
Opinion by: PHILIP A. BRIMMER
Opinion
ORDER
This matter is before the Court on the Motion to
Dismiss [Docket No. 6] filed by defendants the
Board of County Commissioners for Arapahoe
County ("Arapahoe County"), Arapahoe County
Sheriff J. Grayson Robinson, and Arapahoe
County Sheriff's Office Captain Vince Sauter.
Defendants seek to dismiss plaintiff's Complaint
[Docket No. 1] pursuant to Fed. R. Civ. P. 12(b)(1)
and (6). Docket No. 6 at 1.
I. BACKGROUND
Plaintiff Darius Hill is a state prisoner currently
incarcerated at the Buena Vista Correctional
Complex. Docket No. 1 at 2. This case arises out
of Mr. Hill's pretrial detainment at the Patrick J.
Sullivan Detention Center in Centennial,
[*2] Colorado. Id. at 3, ¶ 9. Mr. Hill alleges that on
April 23, 2010, his jail cell flooded as rainfall
seeped through the cell walls. Id. Mr. Hill claims
that, despite lodging numerous complaints with jail
officials, his cell remained flooded for a period of
three days. Id. at ¶ 10. Mr. Hill states that, because
of water accumulation in his cell, he slipped, fell,
and sustained injuries to his back, neck, and head.
Id. at ¶ 11. Mr. Hill filed the current action as a
result of this incident.
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In his complaint, Mr. Hill brings three claims
against defendants pursuant to 42 U.S.C. § 1983
and one pursuant to 42 U.S.C. § 1986. Mr. Hill's
first claim alleges that Arapahoe County violated
his Fifth and Fourteenth Amendment rights by
implementing policies and customs which created
unreasonable risks to the health and safety of
pretrial detainees. Docket No. 1 at 4, ¶¶ 15-17. Mr.
Hill's second claim asserts that all defendants
violated his Fifth and Fourteenth Amendment rights
because they were deliberately indifferent to
serious risks to his health and safety arising out of
the conditions of his confinement. Id. at 5-6, ¶¶ 21-
22.
Mr. Hill's third claim asserts that Sheriff Robinson,
Captain Sauter, [*3] and Arapahoe County failed
to adequately train and supervise jail officials. Id. at
6-7, ¶¶ 27-29. He alleges that Arapahoe County as
the primary "policy maker" implemented customs,
practices, and policies which led to the violation of
Mr. Hill's constitutional rights. Id. at 8-9, ¶ 34.
Finally, Mr. Hill brings a claim against all
defendants for a failure to prevent a conspiracy to
violate his civil rights pursuant to 42 U.S.C. § 1986.
Id. at 10, ¶¶ 39-40. Mr. Hill asserts that all
defendants had knowledge of the unlawful and
malicious treatment received by pretrial detainees
but failed to instruct, supervise, control, and
discipline their subordinates. Id. at 10, ¶ 41. Mr. Hill
contends that Sheriff Robinson and Captain Sauter
had the power to prevent or aid in preventing the
commission of said wrongs, but their failure to
remedy the situation was tacit approval or
ratification of the jail officials' conduct. Id. at ¶ 42.
In relief, Mr. Hill seeks an award of compensatory
and punitive damages in the amount of no less
than $500,000 and an award for attorney's fees
and costs pursuant to 42 U.S.C. § 1988.Id. at 11.
On May 13, 2011, defendants filed a motion to
dismiss pursuant to Rule 12(b)(1) [*4] and (6) of
the Federal Rules of Civil Procedure [Docket No.
6]. Defendants argue that: (1) Mr. Hill fails to state
a cognizable claim against Arapahoe County
because all of the alleged facts rely on a theory of
respondeat superior, which cannot sustain liability
against government entities, Docket No. 6 at 7; (2)
Mr. Hill fails to identify a specific policy or custom
implemented by Arapahoe County and followed by
jail officials which led to plaintiff's injuries, id.; (3)
Mr. Hill fails to state a claim against Sheriff
Robinson and Captain Sauter in their individual or
official capacities because plaintiff does not allege
that defendants had personal knowledge of the
flooded jail cell, id. at 10; and (4) Mr. Hill cannot
establish that Sheriff Robinson and Captain Sauter
had the requisite state of mind to violate Mr. Hill's
constitutional rights. Id. at 8. Accordingly,
defendants contend that Sheriff Robinson and
Captain Sauter are entitled to qualified immunity on
all of plaintiff's claims. Id. at 12.
II. STANDARD OF REVIEW
Defendants seek to dismiss plaintiff's claims
pursuant to Fed. R. Civ. P. 12(b)(1) for a lack of
subject matter jurisdiction or pursuant to Fed. R.
Civ. P. 12(b)(6) [*5] for failure state a claim upon
which relief can be granted. Where a party moves
to dismiss for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1), the attack can be
either a factual attack or a facial attack on the
allegations of the complaint. Paper, Allied-Indus.,
Chemical & Energy Workers Int'l Union v. Cont'l
Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005).
Where there is a facial attack on the sufficiency of
the complaint, the Court must look to its factual
allegations and accept them as true. See id.;
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971).
Rule 12(b)(6) provides that a defendant may move
to dismiss a claim for "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P.
12(b)(6). The Court's inquiry is "whether the
complaint contains 'enough facts to state a claim to
relief that is plausible on its face.'" Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007)). "To survive a motion to
dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim for relief
that is plausible on its face.'" Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868
(2009). [*6] A pleading that offers "labels and
2012 U.S. Dist. LEXIS 35604, *2
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conclusions" or "a formulaic recitation of the
elements of a cause of action will not do." Id. Nor
does the complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. Furthermore, conclusory
allegations are "not entitled the assumption of
truth."Id. at 1950.
The Tenth Circuit has interpreted "plausibility" to
refer to the scope of the allegations in the
complaint rather than to mean "likely to be true."
Robbins v. Okla. ex rel. Okla. Dep't of Human
Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, "if [allegations] are so general that they
encompass a wide swath of conduct, much of it
innocent, then the plaintiffs have not nudged their
claims across the line from conceivable to
plausible." Id. Additionally, "the degree of
specificity necessary to establish plausibility and
fair notice, and therefore the need to include
sufficient factual allegations, depends on context."
Id. at 1248.
Complaints in § 1983 cases against individual
government actors pose a greater likelihood of
failures in notice and plausibility because they
typically include complex claims against multiple
defendants. Id. at 1248-49. In § 1983 [*7] cases,
defendants often include the government agency
and a number of government actors sued in their
individual capacities. Therefore, it is important in
such circumstances that the complaint make clear
exactly who is alleged to have done what to whom,
to provide each individual with fair notice of the
basis of the claims against him or her, as
distinguished from collective allegations against
the state. Id.
III. ANALYSIS
A. Qualified Immunity
Sheriff Robinson and Captain Sauter assert that
they are entitled to qualified immunity against
plaintiff's claims. Docket No. 6 at 12. Defendants
assert that Mr. Hill fails to allege sufficient facts to
show that defendants either personally violated his
constitutional rights or were deliberately indifferent
to a serious risk to Mr. Hill's health or safety. Id.
Generally, government officials sued under § 1983
in their individual capacities have qualified
immunity when their conduct does not violate
clearly established statutory or constitutional rights
of which a reasonable person would have known.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.
Ct. 2606, 125 L. Ed. 2d 209 (1993).In resolving a
motion to dismiss based on qualified immunity, a
court must consider whether the facts [*8] as
alleged make out a violation of a constitutional right
and whether the right at issue was clearly
established at the time of defendant's misconduct.
Leverington v. City of Colo. Springs, 643 F.3d 719,
732 (10th Cir. 2011).In Pearson v. Callahan, 555
U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565
(2009), the Supreme Court held that "judges of the
district courts and the courts of appeals are in the
best position to determine the order of
decisionmaking that will best facilitate the fair and
efficient disposition of each case." Id. at 242.
Therefore, courts have discretion to "decid[e] which
of the two prongs of the qualified immunity analysis
should be addressed first in light of the
circumstances in the particular case at hand." Id. at
236. Accordingly, the Court will first determine
whether Mr. Hill alleges sufficient facts to show that
Sheriff Robinson and Captain Sauter violated his
constitutional rights.
Mr. Hill brings claims against Sheriff Robinson and
Captain Sauter in their individual capacities for: (1)
failure to maintain humane jail cell conditions; and
(2) conspiracy to engage in unconstitutional
conduct in violation of 42 U.S.C. § 1986.
1. Cell Conditions
As a pretrial detainee, Mr. Hill was protected by
[*9] the Due Process Clause of the Fourteenth
Amendment; however, in determining whether his
rights to be free from cruel and unusual
punishment were violated, the Court applies the
same analysis applied to § 1983 claims alleging
Eighth Amendment violations. Ledbetter v. City of
Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003).
Thus, to assert a cognizable claim under the
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Eighth Amendment, Mr. Hill must allege that Sheriff
Robinson and Captain Sauter were deliberately
indifferent to a substantial risk of serious harm.
See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.
Ct. 1970, 128 L. Ed. 2d 811 (1994).The test for a
"deliberate indifference" claim under the Eighth
Amendment has both "an objective and a
subjective component." Sealock v. Colorado, 218
F.3d 1205, 1209 (10th Cir. 2000).The objective
component of the test is met if the harm suffered is
sufficiently serious to implicate the Cruel and
Unusual Punishment Clause. Farmer, 511 U.S. at
834.The subjective component is met if a prison
official knows of and disregards excessive risks to
an inmate's health and safety. See Tafoya v.
Salazar, 516 F.3d 912, 916 (10th Cir. 2008).
Accordingly, Mr. Hill must demonstrate both that
the injury he suffered was sufficiently serious and
[*10] that Sheriff Robinson and Captain Sauter
acted with deliberate indifference. See id.
Mr. Hill's allegations fail to meet the objective
component of this inquiry. Mr. Hill's asserted injury
is not sufficiently serious given that only "extreme
deprivations are [sufficient to assert] a conditions-
of-confinement claim." Hudson v. McMillian, 503
U.S. 1, 9, 112 S. Ct. 995, 117 L. Ed. 2d 156
(1992). For an alleged injury to be sufficiently
serious a "prison official's act or omission must
result in the denial of the minimal civilized measure
of life's necessities." Farmer, 511 U.S. at 834.The
purpose of the sufficiently serious requirement is
"to limit claims to significant, as opposed to trivial,
suffering."Kikumura v. Osagie, 461 F.3d 1269,
1291 (10th Cir. 2006),overruled on other grounds
by Robbins, 519 F.3d at 1246-47.The fact that Mr.
Hill slipped, fell, and suffered injuries is not an
extreme deprivation and did not deprive Mr. Hill of
the minimal measures of life's necessities. See
Cook v. Corr. Corp. of Am., No. 09-cv-02967-PAB-
BNB, 2010 U.S. Dist. LEXIS 35272, 2010 WL
1027407, at *2 (D. Colo. Mar. 18, 2010)
(dismissing conditions of confinement claim based
on slip-and-fall injury).
Moreover, Mr. Hill fails to allege facts that indicate
Sheriff [*11] Robinson and Captain Sauter acted
with deliberate indifference. To meet the subjective
element of this inquiry, Mr. Hill must allege that
Sheriff Robinson and Captain Sauter knew that Mr.
Hill faced a substantial risk of serious harm and
disregarded that risk by failing to take reasonable
measures to abate the harm. Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir. 1999). That is, "the
official[s] must both be aware of the facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and [they]
must also draw the inference." Craig v. Eberly, 164
F.3d 490, 495 (10th Cir. 1998).
Mr. Hill does not allege that Sheriff Robinson or
Captain Sauter knew that his cell was flooded at
any time during the three days alleged in the
complaint or that Sheriff Robinson and Captain
Sauter had any knowledge of their subordinates'
denial of his request to change cells. On the
contrary, all of Mr. Hill's claims against Sheriff
Robinson and Captain Sauter are based, not on
direct actions, but on their failure to supervise or
train jail officials, Docket No. 1 at 6-7, ¶¶ 27-32, or
on their negligent oversight. Id. at ¶ 23 (defendants
failed to provide "the applicable standard [*12] of
care to the Plaintiff"). The facts, as averred, do not
allege that Sheriff Robinson or Captain Sauter
knew of Mr. Hill's jail cell condition or that they
ordered jail officials to keep Mr. Hill in a flooded jail
cell. As such, Mr. Hill fails to establish the
subjective element of a deliberate indifference
claim.See Hovater v. Robinson, 1 F.3d 1063, 1066
(10th Cir. 1993) (deliberate indifference is a higher
degree of fault than even gross negligence, let
alone ordinary negligence). Accordingly, Sheriff
Robinson and Captain Sauter are entitled to
qualified immunity on this claim, and Mr. Hill's
Fourteenth Amendment Due Process claim based
on pretrial detention conditions will be dismissed.
2.42 U.S.C. § 1986
For a plaintiff to assert a claim under 42 U.S.C. §
1986, he must first assert a valid 42 U.S.C. §
1985(3) claim. See King v. Dingle, 702 F. Supp. 2d
1049, 1078 (D. Minn. 2010).Section 1986 allows
an action against a party who: (1) knows that a 42
U.S.C. § 1985(3) violation will occur; (2) has the
power to prevent the violation; and (3) fails to do
so.See 42 U.S.C. § 1986.In order to establish a §
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1985(3) claim, a plaintiff must allege: (1) a
conspiracy; (2) to deprive plaintiff [*13] of equal
protection or equal privileges and immunities; (3)
an act in furtherance of the conspiracy; and (4) an
injury or deprivation resulting therefrom. Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993). A
valid § 1985(3) claim must also allege a conspiracy
that is motivated by "some racial, or perhaps
otherwise class-based, invidiously discriminatory
animus." Id.
In this case, Mr. Hill does not allege a conspiracy
based on racial animus.1 Instead, Mr. Hill asserts
that defendants failed to adequately train jail
officials to refrain from "conspiring to violate the
rights, privileges, and immunities guaranteed to
Plaintiff by the Constitution." Docket No. 1 at 10, ¶
40. As such, Mr. Hill fails to assert a claim under §
1985(3) and therefore cannot establish a claim
under 42 U.S.C. § 1986. Accordingly, Sheriff
Robinson and Captain Sauter are entitled to
qualified immunity on this claim and the Court will
dismiss Mr. Hill's 42 U.S.C. § 1986 claim.
B. Monell Claim
Under § 1983, a municipality may [*14] be held
liable for adopting an official policy or custom
causing a violation of constitutional rights, but local
governments cannot be sued under a respondeat
superior theory of liability. See Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978);Cannon v.
City and Cnty. of Denver, 998 F.2d 867, 877 (10th
Cir. 1993) ("The touchstone of a § 1983 action
against a governmental body is an allegation that
official policy is responsible for deprivation of rights
protected by the Constitution.").
Defendants argue that the Court should dismiss
Mr. Hill's Monell claim against Arapahoe County
because his allegations are based on the theory of
respondeat superior. Docket No. 6 at 7.
Defendants state that plaintiff may only assert
1 The Court notes that, nowhere in the complaint, has Mr. Hill
represented that he belongs to any minority group or that his
treatment was based on his or another detainee's minority
status.
claims against Arapahoe County if such claims are
based on acts or orders officially sanctioned by the
County. Id. at 9. Defendants claim that Mr. Hill fails
to allege a specific custom, policy, or practice
implemented by Arapahoe County that led to the
alleged violation of his constitutional rights. Id. at
12. Defendants contend that, because all of
plaintiff's claims are based on conclusory
allegations related to a single incident, they fail to
[*15] state a claim against Arapahoe County. Id. at
10. The Court agrees.
To establish municipal liability under § 1983, a
plaintiff must show: (1) the existence of a municipal
policy or custom; and (2) a direct causal link
between the policy or custom and the injury
alleged. Graves v. Thomas, 450 F.3d 1215, 1218
(10th Cir. 2006);accord Myers v. Okla. Cnty. Bd. of
Cnty. Comm'rs, 151 F.3d 1313, 1318 (10th Cir.
1998) (a plaintiff must show "(1) a municipal
employee committed a constitutional violation, and
(2) a municipal policy or custom was the moving
force behind the constitutional deprivation."). The
official policy requirement permits courts to
"distinguish acts of the municipality from acts of
employees of the municipality, and thereby make
clear that municipal liability is limited to action for
which the municipality is actually responsible."
Pembaur v. City of Cincinnati, 475 U.S. 469, 479,
106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)
(emphasis in original).
Mr. Hill can establish a municipal custom or policy
through the following means: (1) an officially
promulgated policy; (2) a custom or persistent
practice; (3) deliberately indifferent training that
results in the violation of a plaintiff's federal
protected rights; [*16] (4) a single decision by an
official with final decision-making authority; or (5)
ratification by an official with final decision-making
authority of subordinates' decisions. See Brammer-
Hoelter v. Twin Peaks Charter Acad., 602 F.3d
1175, 1189 (10th Cir. 2010).
In his complaint, Mr. Hill does not identify a specific
policy promulgated, implemented, or ordered by
Arapahoe County. See generally Docket No. 1.
Accordingly, Mr. Hill's Monell claim centers almost
entirely on what he alleges are Arapahoe County's
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customs, usages, or persistent practices governing
the conduct of its jail officers.2 See Docket No. 1 at
4, ¶17 ("The policies, customs and usages of
[Arapahoe County] constituted deliberate
indifference"). Despite Mr. Hill's recitation of
multiple alleged customs, it is clear from the
complaint that Mr. Hill seeks to impose municipal
liability under § 1983 on the basis of a single
incident — his slip and fall accident caused by an
allegedly wet cell floor. However, "[p]roof of a
single incident of unconstitutional activity is not
sufficient to impose [municipal] liability" because a
single event cannot establish a custom or a
persistent practice. Butler v. City of Norman, 992
F.2d 1053, 1055 (10th Cir. 1993). [*17] If Mr. Hill
seeks to impose municipal liability on the basis of
this single incident, he must show the particular
illegal course of action was taken pursuant to a
decision made by a person with authority to make
policy decisions on behalf of Arapahoe County.
Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir.
2009). Mr. Hill fails to assert such an allegation in
his complaint.
Because Mr. Hill has failed to show that any action
taken by Sheriff Robinson or Captain Sauter
violated his constitutional rights, he cannot
establish that these alleged policies or practices
were promulgated by a municipal policy maker.
See Martinez v. Beggs, 563 F.3d 1082, 1091 (10th
Cir. 2009) ("A county or sheriff in his official
capacity cannot be held 'liable for constitutional
violations when there was no underlying
constitutional violation by any of its officers.'")
(citation omitted); Hinton v. City of Elwood, 997
F.2d 774, 782 (10th Cir. 1993) (municipality may
not be held liable where [*18] there was no
underlying constitutional violation by any of its
officers). Even if Mr. Hill was able to establish that
a policy maker promoted these policies, his
allegations would still be insufficient to impose
liability against Arapahoe County because Mr. Hill's
asserted policies are conclusory in nature and do
not meet the Tenth Circuit's plausibility standard.
2 To the extent Mr. Hill brings a claim against Sheriff Robinson
and Captain Sauter in their official capacities, it is the same as
bringing a suit against the county. See Martinez v. Beggs, 563
F.3d 1082, 1091 (10th Cir. 2009).
See, e.g., Docket No. 1 at 8, ¶ 34 ("A policy of
providing inadequate training . . . [a] policy of non-
prosecution and a tacit authorization of failure to
adequately supervise . . . [a] a policy, custom or
usage of failure to discipline"). These allegations
encompass a wide swath of conduct and fail to
provide Arapahoe County with any specific notice
as to how each policy relates to the conduct of the
unnamed jail officials in this case. See Robbins,
519 F.3d at 1247 ("Thus, 'plausible' cannot mean
'likely to be true' . . . [r]ather, 'plausibility' in this
context must refer to the scope of the allegations in
a complaint"). As such, they are not entitled to the
assumption of truth. See Iqbal, 129 S.Ct. at 1950
(conclusory allegations are "not entitled to the
assumption of truth").
Consequently, Mr. Hill's Monell claims rest
[*19] on his assertion that Arapahoe County failed
to supervise or train jail officials. Mr. Hill claims that
"Defendants were aware of the lack of training
given to officers in the [Sheriff's Department]" and
that Arapahoe County knew that any training
"given to police officers and sheriff deputies and jail
guards regarding civil rights of pretrial detainees . .
. was reckless or grossly negligent." Docket No. 1
at 7-8, ¶¶ 31-33. Again, it appears that Mr. Hill's
failure to train claim is based wholly on his slip-
and-fall accident. However, the Supreme Court in
City of Canton v. Harris, 489 U.S. 378, 109 S. Ct.
1197, 103 L. Ed. 2d 412 (1989), precluded a
meager quantum of proof from establishing that a
municipality's inadequate training constitutes
deliberate indifference to the constitutional rights of
its inhabitants. Id. at 390-91.There, the Court
made clear that a particular employee's training
has little bearing on a municipality's entire training
program and, thus, required that a plaintiff produce
evidence of a specific deficiency in a municipality's
"training program" and demonstrate how that
deficiency actually caused the injury at issue. City
of Canton, 489 U.S. at 391. [*20] Mr. Hill fails to
allege these specific facts.
First, Mr. Hill fails to provide any specific
allegations about a deficiency in Arapahoe
County's training procedures and fails to show how
that deficiency led to the alleged constitutional
violation. Mr. Hill has presented no facts to support
2012 U.S. Dist. LEXIS 35604, *16
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a claim that jail officials working at the Patrick J.
Sullivan Detention Center were not adequately
trained, or that Sheriff Robinson and Captain
Sauter were deliberately indifferent to the need for
more or different training. Randall v. Board of Cnty.
Comm'rs, 184 F. App'x 723, 727 (10th Cir. 2006).
Second, Mr. Hill did not name or identify specific
jail officials who committed these alleged acts; that
omission seriously undermines his attempt to hold
Arapahoe County liable for actions deliberately
taken by them. See Lopez v. LeMaster, 172 F.3d
756, 760-61 (10th Cir. 1999).Additionally, Mr. Hill
has alleged no evidence concerning deficiencies in
training of the particular jail officials in this case,
nor has he shown that the county had a uniform
policy of providing its jail officials with insufficient
training in areas closely related to keeping
detainees in unsafe cells. Id. There are no
allegations [*21] that his particular jailers had not
received training or that their failure to receive
training was the cause of his injuries. City of
Canton, 489 U.S. at 391 ("adequately trained
officers occasionally make mistakes; the fact that
they do says little about the training program or the
legal basis for holding the city liable.").
Consequently, Mr. Hill not only fails to establish the
existence of a municipal policy or custom, but he
fails to show a direct causal link between the policy
or custom and his alleged injury. Graves, 450 F.3d
at 1218. Accordingly, Mr. Hill's municipality liability
claim against Arapahoe County is dismissed for
failure to state a claim upon which relief may be
granted.
C. Unnamed Defendants
In light of the foregoing, the only claims left in this
action are brought against "Unnamed Arapahoe
County Detention Officers." Docket No. 1 at 1.
There is no indication in the docket that plaintiff
has served these individuals with any of the
pleadings. "If a defendant is not served within 120
days after the complaint is filed, the court -- on
motion or on it own after notice to the plaintiff --
must dismiss the action without prejudice against
that defendant or order that [*22] service be made
within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend
the time for service for an appropriate period." Fed.
R. Civ. P. 4(m). Given that Mr. Hill has been
granted two extensions to serve the unnamed
defendants, Docket No 17; Docket No. 20, the
Court will dismiss his claims against the unnamed
Arapahoe County Detention Officers without
prejudice pursuant to Rule 4(m).
IV. CONCLUSION
Accordingly, it is
ORDERED that Defendants Robinson, Sauter and
Arapahoe Countys' [sic] Motion to Dismiss [Docket
No. 6] is GRANTED. It is further
ORDERED that all of plaintiff's claims against the
Unnamed Arapahoe County Detention Officers,
Arapahoe County Sheriff J. Grayson Robinson,
Arapahoe County Captain Vince Sauter, and the
Board of County Commissioners for Arapahoe
County are DISMISSED. It is further
ORDERED that Defendants Robinson, Sauter, and
Arapahoe County's Motion for Summary Judgment
[Docket No. 32] is DENIED as moot.
DATED March 15, 2012.
BY THE COURT:
/s/ Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
End of Document
2012 U.S. Dist. LEXIS 35604, *20
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Neutral
As of: October 8, 2021 1:51 AM Z
Mehdipour v. Denwalt-Hammond
United States Court of Appeals for the Tenth Circuit
May 14, 2019, Filed
No. 18-6161
Reporter
773 Fed. Appx. 463 *; 2019 U.S. App. LEXIS 14267 **
FARAMARZ MEHDIPOUR, Plaintiff - Appellant, v.
LISA DENWALT-HAMMOND; C. WESLEY LANE,
II; DAVID PRATER, Defendants - Appellees.
Notice: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
Subsequent History: Motion denied by Mehdipour
v. Denwalt-Hammond, 2020 U.S. LEXIS 3182
(U.S., June 15, 2020)
Prior History: [**1] (D.C. No. 5:18-CV-00268-
SLP) (W.D. Okla.).
Mehdipour v. Denwalt-Hammond, 2018 U.S. Dist.
LEXIS 104128 (W.D. Okla., June 21, 2018)
Core Terms
district court, invalidity, notice of appeal, sentence
Case Summary
Overview
HOLDINGS: [1]-The inmate did not file his Fed. R.
Civ. P. 60(b) motion Until August 7, 2018, which
was 47 days after entry of the June 21 judgment,
and it did not toll the time to appeal the underlying
judgment, and the appellate court lacked
jurisdiction to review that judgment; [2]-The
inmate's notice of appeal was timely and the
appellate court had jurisdiction to review that order;
[3]-Success on the merits of the inmate's 42
U.S.C.S. § 1983 claims that the defendants
maliciously prosecuted him, falsified court
documents, tampered with court records, treated
him differently than other similarly situated
defendants, failed to correct those violations, and
deprived him of a preliminary hearing, which
resulted in the state trial court proceeding without
jurisdiction, would necessarily imply the invalidity of
his conviction.
Outcome
Judgment affirmed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Reviewability of
Lower Court Decisions > Timing of Appeals
HN1[] Reviewability of Lower Court
Decisions, Timing of Appeals
The timely filing of a notice of appeal in a civil case
is a jurisdictional requirement. And a notice of
appeal in a civil case must be filed within thirty
days after the entry of the judgment, order or
decree being appealed, 28 U.S.C.S. § 2107(a).
Although a Fed. R. Civ. P. 60 motion can toll the
running of the 30-day appeal period until the
district court disposes of the motion, it does so only
if filed no later than 28 days after the judgment is
entered, Fed. R. App. P. 4(a)(4)(A)(vi).
Civil Procedure > Appeals > Standards of
Review > Abuse of Discretion
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Civil Procedure > Parties > Pro Se
Litigants > Pleading Standards
HN2[] Standards of Review, Abuse of
Discretion
The appellate court reviews the denial of a Fed. R.
Civ. P. 60(b) motion for abuse of discretion. The
appellate court affords a plaintiff's pro se filings a
liberal construction, but it does not act as his
advocate.
Judges: Before BRISCOE, McKAY, and LUCERO,
Circuit Judges.
Opinion by: Monroe G. McKay
Opinion
[*464] ORDER AND JUDGMENT*
Mr. Faramarz Mehdipour, an Oklahoma state
prisoner proceeding pro se, appeals the district
court's judgment dismissing without prejudice a
civil rights action he filed under 42 U.S.C. § 1983,
and the court's denial of his Fed. R. Civ. P. 60(b)
motion. We lack jurisdiction to review the
underlying judgment because Mr. Mehdipour's
notice of appeal was untimely. We have jurisdiction
under 28 U.S.C. § 1291 to review the denial of his
Rule 60(b) motion, and we affirm that denial.
I. Background
In 1993, Mr. Mehdipour was convicted in
Oklahoma state court of intimidating a witness.
That conviction was overturned on direct appeal. In
*After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed.
R. App. P. 34(a)(2);10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order
and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1996, he was convicted of attempting to intimidate
a witness after conviction of two or more felonies
and sentenced to sixty years' imprisonment. That
conviction and sentenced were affirmed. See
Mehdipour v. State, 1998 OK CR 23, 956 P.2d 911
(Okla. Crim. App. 1998).Mr. Mehdipour has been
unsuccessful in his attempts to overturn his
conviction in state post-conviction and federal
habeas corpus proceedings. See Mehdipour v.
Okla. Ct. of Civil Appeals, 62 F. App'x 203, 209-10
(10th Cir. 2003) (recounting litigation history and
denying certificate of appealability from denial of
second habeas petition).
In 2018, Mr. Mehdipour filed a pro se § 1983
complaint [**2] against the defendants. Two of
them, Ms. Lisa Denwalt-Hammond and Mr. C.
Wesley Lane, II, were Oklahoma County assistant
district attorneys involved in the prosecutions
referred to above, and the third, Mr. David Prater,
was the Oklahoma County district attorney at the
time of those prosecutions. Mr. Mehdipour alleged
that in the criminal proceedings against him,
defendants violated his constitutional rights by
maliciously prosecuting him, falsifying court
documents, tampering with court records, treating
him differently than other similarly situated
defendants, and failing to correct those violations.
He also alleged constitutional violations based on
the lack of preliminary hearings at either trial,
which allegedly deprived the state court of
jurisdiction. He sought damages and declaratory
relief.
A magistrate judge screened Mr. Mehdipour's
complaint pursuant to 28 U.S.C. § 1915A(a)
[*465] and (b) and provided the district court with
a report and recommendation (R&R). The
magistrate judge recommended dismissing the
claims against Mr. Lane with prejudice on the basis
of absolute prosecutorial immunity, and dismissing
the claims against the other two defendants, and
any claims generally challenging the 1996
conviction, [**3] as barred by Heck v. Humphrey,
512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383
(1994). In Heck, the Supreme Court held that a §
1983 suit for damages caused by an allegedly
unconstitutional conviction or imprisonment or by
other unlawful actions is not cognizable if "a
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judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence,"
unless the plaintiff proves the conviction or
sentence has been invalidated. Id. at 486-87.1
Mr. Mehdipour timely objected to the R&R arguing
that Mr. Lane was not entitled to absolute
prosecutorial immunity. He did not address the
application of Heck other than a conclusory
assertion that he was "not attempting to overcome
his conviction in this action" but would instead be
challenging his conviction "in a separate action
soon to be filed in [the federal district court]." R. at
53. The district court declined to dismiss the claims
against Mr. Lane based on prosecutorial immunity
but concluded that Heck barred all claims against
all three defendants. The district court noted that in
Mehdipour v. Chapel, 12 F. App'x 810, 813-14
(10th Cir. 2001), this court had determined that
Heck barred virtually identical § 1983 claims Mr.
Mehdipour raised in that case. The district court
also reasoned that Mr. Mehdipour's assertion that
he intended to challenge his conviction and
sentence [**4] in a separate action underscored
imposing the Heck bar to his § 1983 claims.
Consequently, the district court dismissed the
action without prejudice on June 21, 2018 and
entered a separate judgment the same day.
On August 7, 2018,2 Mr. Mehdipour filed a Rule 60
motion in which he argued that Heck did not apply
to his case because he was only challenging the
process used to convict him, not the result. The
district court construed the motion as seeking relief
under Rule 60(b)(1) and (b)(6) and denied it. The
court first determined that Mr. Mehdipour's attempt
to distinguish Heck came too late given his failure
to object to the magistrate judge's recommendation
1 In Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 161
L. Ed. 2d 253 (2005), the Supreme Court made clear that
Heck applies "no matter the relief sought (damages or
equitable relief)." 3
2 Although Mr. Mehdipour's Rule 60(b) motion was not actually
filed until August 9, 2018, he placed it in the prison's system
for processing legal mail, postage prepaid, on August 7, 2018.
Under the prison mailbox rule, the motion is deemed filed on
August 7. However, the two-day differential is ultimately
immaterial to the disposition of this appeal.
that dismissal under Heck was warranted. In the
alternative, the district court concluded that the
attempt to distinguish Heck lacked merit because,
as noted in its dismissal order, this court had
"found virtually identical § 1983 claims previously
raised by [Mr. Mehdipour] against one or more of
the Defendants to be barred by Heck." R. at 76
(citing Mehdipour, 12 F. App'x at 813). Finally, the
district court denied the Rule 60(b) motion to the
extent Mr. Mehdipour otherwise attempted to
advance new claims or make other arguments not
raised in his objection to the R&R.
II. Appellate Jurisdiction
HN1[] "[T]he timely filing [**5] of a notice of
appeal in a civil case is a jurisdictional [*466]
requirement." Bowles v. Russell, 551 U.S. 205,
214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007). And
a notice of appeal in a civil case must be filed
"within thirty days after the entry of [the] judgment,
order or decree" being appealed. 28 U.S.C. §
2107(a). Mr. Mehdipour filed a notice of appeal on
September 14, 2018, naming both the district
court's underlying judgment and the denial of his
Rule 60(b) motion. That was more than thirty days
after the district court's June 21, 2018 judgment.
Although a Rule 60 motion can toll the running of
the 30-day appeal period until the district court
disposes of the motion, it does so only if "filed no
later than 28 days after the judgment is entered."
Fed. R. App. P. 4(a)(4)(A)(vi). Mr. Mehdipour did
not file his Rule 60(b) motion until August 7, 2018,
which was 47 days after entry of the June 21
judgment. Therefore, it did not toll the time to
appeal the underlying judgment, and we lack
jurisdiction to review that judgment.
Mr. Mehdipour's notice of appeal was filed 29 days
after the entry of the order denying his Rule 60(b)
motion on August 16, 2018, so it was timely under
§ 2107(a). We therefore have jurisdiction to review
that order, but "not the underlying decision itself."
Servants of the Paraclete v. Does, 204 F.3d 1005,
1009 (10th Cir. 2000).
III. Merits
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HN2[] We review the denial of a Rule 60(b)
motion for abuse of discretion. Id. We afford [**6]
Mr. Mehdipour's pro se filings a liberal
construction, but we do not act as his advocate.
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
We need not decide whether the district court
abused its discretion in denying Mr. Mehdipour's
Rule 60(b) motion on the ground that he advanced
arguments he had not raised in his objections to
the magistrate judge's R&R. Instead, we agree with
the district court that Mr. Mehdipour failed to
distinguish Heck. On appeal, Mr. Mehdipour
emphasizes that his claims are about "the process
(due process), not the result." Aplt. Opening Br. at
2. And he insists that he did not seek to invalidate
his conviction but instead sought damages based
on defendants' deprivation of his constitutional
rights to adequate process.3 This line of argument
overlooks that Heck bars even those § 1983 claims
that "necessarily imply the invalidity of [a]
conviction." Heck, 512 U.S. at 487 (emphasis
added). Actual invalidation is not required. Success
on the merits of Mr. Mehdipour's § 1983 claims that
the defendants maliciously prosecuted him,
falsified court documents, tampered with court
records, treated him differently than other similarly
situated defendants, failed to correct those
violations, and deprived him of a preliminary
hearing, which resulted in the state [**7] trial court
proceeding without jurisdiction, would necessarily
imply the invalidity of his conviction. We therefore
conclude that the district court did not abuse its
discretion in denying Mr. Mehdipour's Rule 60(b)
motion.
CONCLUSION
We affirm the district court's denial of Mr.
Mehdipour's Rule 60(b) motion and otherwise
dismiss this appeal for lack of jurisdiction. We deny
Mr. Mehdipour's motion for a default judgment.
3 Mr. Mehdipour also argues that the district court erred in
concluding that all three defendants were entitled to absolute
prosecutorial immunity, but the court did no such thing. We
therefore do not address this argument.
Entered for the Court
Monroe G. McKay
Circuit Judge
End of Document
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Neutral
As of: October 8, 2021 1:50 AM Z
Roberts v. Generation Next, LLC
United States Court of Appeals for the Tenth Circuit
April 22, 2021, Filed
No. 20-2068
Reporter
853 Fed. Appx. 235 *; 2021 U.S. App. LEXIS 11927 **; 2021 WL 1573896
GALE ROBERTS, individually and d/b/a "Gone
Working" (Pro Se), Plaintiff - Appellant, v.
GENERATION NEXT, LLC; ESTATE OF
RICHARD COOK; KATHARINE COOK FISHMAN;
PAUL MATTHEW CASTER; ANTIQUITY
ENCOUNTER; JOHN MELANCON; EXPEDITION
RESOURCES, LLC; EXPLORATION OPES, LLC;
DONALD PATTERSON; GERALD KEMLER;
HOWARD TALKS; WILLIAM FLOTO; JANE AND
JOHN DOES, Defendants - Appellees.
Notice: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
Prior History: [**1] (D.C. No. 1:18-CV-00975-WJ-
LF). (D. N.M.).
Core Terms
Expedition, district court, Venture, gold,
conspiracy, treasure, time-barred, conversion,
parties, limited liability company, test result, quasi-
contract, third-party, artifacts, discovery, targets,
summary judgment, allegations, obligations,
quotation, marks, limitations period, proceeds,
team, preliminary injunction, conspiracy claim,
exploration, limitations, excavation, negotiated
Case Summary
Overview
HOLDINGS: [1]-Because appellant knew the
essential facts underpinning conspiracy,
conversion, and tort claims no later than February
2014 and did not file the lawsuit until October
2018, the district court correctly dismissed the
claims as time-barred; [2]-The district court did not
err by concluding appellant was not a third-party
beneficiary of a Antiquity Recovery Agreement, as
the agreement did not indicate that the parties
intended to benefit him; [3]-The district court did
not err by dismissing contract and quasi-contract
claims based on a joint venture agreement against
four individuals, as they were not parties to and
were therefore not liable under the contract; [4]-
Appeal of an order denying a motion for a
preliminary injunction was moot given that the
district court has entered a final judgment on the
merits and the effective time period of the
requested injunction had passed.
Outcome
Dismissal and summary judgment orders affirmed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Appellate Briefs
Civil Procedure > Parties > Pro Se
Litigants > Pleading Standards
HN1[] Appeals, Appellate Briefs
An appellant's pro se status entitles him to a liberal
reading of his pleadings. Appellate courts thus
make some allowances for deficiencies, such as
unfamiliarity with pleading requirements, failure to
cite appropriate legal authority, and confusion of
legal theories. But they cannot take on the
responsibility of serving as the appellant's attorney
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 37 of
106
Page 2 of 13
in constructing arguments and searching the
record.
Civil Procedure > Appeals > Standards of
Review > De Novo Review
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to
State Claim
Civil Procedure > Appeals > Summary
Judgment Review > Standards of Review
HN2[] Standards of Review, De Novo Review
Appellate courts review de novo both the dismissal
of a complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim and a grant of summary
judgment, applying the same standards that
applied in the district court.
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to
State Claim
Civil
Procedure > ... > Pleadings > Complaints > Re
quirements for Complaint
HN3[] Motions to Dismiss, Failure to State
Claim
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.
In conducting its review, the appellate court
disregards conclusory allegations, but accepts all
well-pleaded facts as true, viewing them in the light
most favorable to the plaintiffs, and drawing all
reasonable inferences in their favor. The appellate
court's duty is to determine whether the complaint
sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to
relief under the legal theory proposed. Under the
plausibility standard, dismissal for failure to state a
claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Appropriateness
Civil Procedure > Judgments > Summary
Judgment > Entitlement as Matter of Law
Civil Procedure > Appeals > Summary
Judgment Review > Standards of Review
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Genuine Disputes
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Legal Entitlement
HN4[] Entitlement as Matter of Law,
Appropriateness
At the summary judgment stage, the appellate
court views facts in the light most favorable to the
non-moving party and draws all reasonable
inferences in their favor. Summary judgment is
only appropriate when there are no genuine issues
of material fact and the moving party is entitled to
judgment as a matter of law.
Contracts Law > Third
Parties > Beneficiaries > Claims & Enforcement
Contracts Law > ... > Beneficiaries > Types of
Third Party Beneficiaries > Intended
Beneficiaries
HN5[] Beneficiaries, Claims & Enforcement
Under New Mexico law, one who is not a party to a
contract cannot maintain suit upon it. But a third
party may be a beneficiary of a contract, and as a
beneficiary may have an enforceable right against
a party to a contract. Whether a party is a third-
party beneficiary depends on if the parties to the
contract intended to benefit the third party. Such
intent must appear either from the contract itself or
from some evidence that the person claiming to be
853 Fed. Appx. 235, *235; 2021 U.S. App. LEXIS 11927, **1
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106
Page 3 of 13
a third party beneficiary is an intended beneficiary.
Business & Corporate Law > Limited Liability
Companies > Management Duties & Liabilities
Business & Corporate Law > Limited Liability
Companies > Member Duties & Liabilities
HN6[] Limited Liability Companies,
Management Duties & Liabilities
Under N.M. Stat. Ann. § 53-19-13, a member of a
limited liability company may be personally liable
for his own tortious acts, whether or not he was
acting for the company, but not for its contractual
obligations.
Governments > Legislation > Statute of
Limitations > Time Limitations
Torts > ... > Statute of Limitations > Begins to
Run > Continuing Violations
HN7[] Statute of Limitations, Time
Limitations
Under the continuing wrong doctrine, where a tort
involves a continuing or repeated injury, the cause
of action accrues at, and limitations begin to run
from, the date of the last injury. But the doctrine
cannot be employed where the plaintiff's injury is
definite and discoverable, and nothing prevented
the plaintiff from coming forward to seek redress.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Appropriateness
Civil Procedure > Judgments > Summary
Judgment > Entitlement as Matter of Law
HN8[] Entitlement as Matter of Law,
Appropriateness
An evidentiary hearing is not required when the
plaintiff's claims can be decided as a matter of law
and the parties' pleadings establish that the
defendants are entitled to summary judgment.
Civil Procedure > Appeals > Appellate
Jurisdiction > Final Judgment Rule
Civil
Procedure > Remedies > Injunctions > Prelimin
ary & Temporary Injunctions
HN9[] Appellate Jurisdiction, Final Judgment
Rule
A preliminary injunction is by its nature a temporary
measure intended to furnish provisional protection
while awaiting a final judgment on the merits and
that entry of final judgment mooted appeal of
preliminary injunction.
Civil Procedure > Judicial
Officers > Judges > Discretionary Powers
Civil Procedure > Appeals > Frivolous Appeals
HN10[] Judges, Discretionary Powers
The decision whether to impose sanctions for a
frivolous appeal is discretionary.
Counsel: GALE ROBERTS, individually and d/b/a
"Gone Working" (Pro se), DBA "Gone Working",
Plaintiff - Appellant, Pro se, Pinedale, WY.
For GENERATION NEXT, LLC, ESTATE OF
RICHARD COOK, KATHARINE COOK FISHMAN,
Defendants - Appellees: Travis G. Jackson,
Meghan D. Stanford, Jackson Loman Stanford &
Downey, Albuquerque, NM.
JOHN MELANCON, Defendant - Appellee, Pro se,
Mt. Enterprise, TX.
For EXPEDITION RESOURCES, LLC, HOWARD
TALKS, Defendants - Appellees: Carter Speer
McDonnell, Lance Elton Shurtleff, Gordon Rees
Scully Mansukhani, Denver, CO; Jared Daniel
Albert Najjar, Hall & Evans, Santa Fe, NM.
DONALD PATTERSON, Defendant - Appellee, Pro
se, Sanford, FL.
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For EXPLORATION OPES LLC, Defendant -
Appellee: Lance Elton Shurtleff, Gordon Rees
Scully Mansukhani, Denver, CO.
Judges: Before MORITZ, BALDOCK, and EID,
Circuit Judges.
Opinion by: Bobby R. Baldock
Opinion
[*235] ORDER AND JUDGMENT*
This appeal involves a dispute about a hunt for
buried treasure. Appellant Gale Roberts,
individually and for his company, Gone Working
("GW"), filed the underlying lawsuit claiming he
agreed with the above-named defendants and
others to fund a treasure exploration mission on
Black Mesa, a hill area in New Mexico. [**2] He
claimed the defendants conspired to find the buried
treasure without his knowledge, relocate the cache
offsite, and launder the proceeds, thus depriving
him of his share. The district court dismissed some
claims against some defendants pursuant to Fed.
R. Civ. P. 12(b)(6) and dismissed the remaining
claims on summary judgment. Roberts appeals
only portions of the dismissal and summary
judgment orders.1 [*236] Exercising jurisdiction
*After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed.
R. App. P. 34(a)(2);10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order
and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Roberts has abandoned any arguments he might have made
regarding aspects of the dismissal and summary judgment
orders he did not expressly challenge on appeal. See Conroy
v. Vilsack, 707 F.3d 1163, 1170 (10th Cir. 2013). Accordingly,
we consider only the issues raised in the opening brief. See
Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th
Cir. 2004) ("Issues not raised in the opening brief are deemed
abandoned or waived." (internal quotation marks omitted)). We
deny Roberts' request for leave to re-file a brief of up to forty-
five pages. See Aplt. Opening Br. at 25, 28.
under 28 U.S.C. § 1291, we affirm.
Factual Background
Richard Cook's company, Generation Next, LLC
("Gen Next"), owned property on Black Mesa.
Cook's daughter, Katherine Fishman, was legal
counsel for Gen Next, and Paul Caster, another
family member, was its general manager. Cook
died in 2016. Fishman is the personal
representative of his estate. When discussing
Cook, Fishman, Caster, and Cook's estate as a
group, we refer to then collectively as "the Cook
Defendants."
Cook hired John Melancon, an archeologist, to
help lay claim to the gold and artifacts expected to
be found on Black Mesa. Melancon was one of
four managing members of Expedition Resources,
LLC. In 2010, Expedition Resources and Gen Next
entered into a one-year exclusive recovery
agreement giving Expedition Resources the
right [**3] to access the property for exploration.
The other managing members of Expedition
Resources were Donald Patterson, Gerald Kemler,
and Howard Talks. Talks was a financier of gold-
finding expeditions, and Patterson and Kemler
were both treasure hunters. When discussing
Expedition Resources, Melancon, Patterson,
Kemler, and Talks as a group, we refer to them
collectively as "the Expedition Resources
Defendants."2 Expedition Resources ultimately
lacked the necessary funding and the agreement
expired without Expedition Resources ever having
entered the property.
According to the First Amended Complaint ("FAC")
Roberts and Expedition Resources entered into a
Joint Venture Agreement in November 2012 under
2 The original complaint named Exploration OPES, LLC,
another entity related to some or all of the Expedition
Resources Defendants, as a defendant, and although the First
Amended Complaint listed Exploration OPES in the caption, it
did not assert any claims against Exploration OPES, and
Roberts does not raise any claims on appeal involving
Exploration OPES. Accordingly, we do not discuss its alleged
involvement in the events giving rise to Roberts' claims either
in this background section or our analysis of the issues on
appeal.
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which Roberts agreed to finance and participate in
an expedition to search for and recover gold and
artifacts from Black Mesa in exchange for half of
the discovered cache. Patterson negotiated the
agreement on behalf of Expedition Resources and
he and Roberts were the two signatories. The
agreement provided that Roberts would be
compensated only if gold and artifacts were found,
and that any capital he contributed was "risk
capital," meaning he would be reimbursed out of
the proceeds, and Expedition [**4] Resources
would have no liability for capital costs if the
venture was unsuccessful. Aplt. App., Vol. II at
185. The FAC alleged that Melancon brokered the
agreement with the approval of Cook, who owned
the treasure maps that were to be used in the
expedition, and that Cook "agreed to honor another
one-year exclusive recovery agreement for a 50/50
split."Id. Vol. I at 25.
In February 2013, several months after Expedition
Resources and Roberts entered into the Joint
Venture Agreement, Gen Next entered into an
exclusive one-year land access and recovery
agreement with Melancon's company, Antiquity
Encounter, to search for and recover gold and
artifacts from Black Mesa ("the Antiquity Recovery
Agreement"). The FAC alleged that Melancon
secured this agreement with Gen Next "on behalf
of and in accordance with the Joint Venture
Agreement . . . Roberts had with Expedition." Id. at
21.
[*237] In March 2013, two gold targets were
located using equipment Roberts had purchased
for the expedition. As the targets were located,
tension grew between Roberts, Patterson, and
Kemler, the three treasure hunters on the
expedition. According to the FAC, unbeknownst to
Roberts, Patterson and Kemler located two
additional gold targets on March 6 with the help
of [**5] William Floto, another treasure hunter.
Roberts alleged that Patterson, Kemler, and Floto
dug up the gold in one of those targets and moved
it offsite, then Kemler hid the March 6 test results
and he and the others manufactured false results
to deceive Roberts about the two targets they had
discovered.
Roberts began his excavation on March 16, 2013.
"[S]everal days into the excavation," he discovered
that Kemler had tried to hide the March 6 test
results.Id. at 30. Later that month, Patterson and
Kemler began transporting the gold and artifacts to
Florida, where Floto lived. Roberts informed the
Cook Defendants by e-m ail about the false test
results Patterson, Kemler, and Floto had given
him. When the Cook Defendants did not respond,
Roberts concluded they were part of the
conspiracy to avoid giving Roberts a share of the
treasure Patterson, Kemler, and Floto had taken
from the property.
In September 2013, Cook and Roberts entered into
a verbal agreement allowing Roberts to finish the
excavation of the gold in the Black Mesa vaults.
But the relationship between Roberts and other
members of the team continued to deteriorate, and
Caster and Fishman refused to allow him on the
Black Mesa property. [**6] The Cook Defendants
ultimately obtained a state court restraining order
limiting Roberts' communication with them based
on their claims that he had been acting irrationally
and ambushed the then 87-year old Cook at his
home in an attempt to gain entry to Black Mesa.
In February 2014, the Cook Defendants sent
Roberts an email indicating that their relationship
with him had ended, that no treasure had been
found on Black Mesa, and that they had "no
intention of any further exploration on Black Mesa."
Id. at 22. Contrary to that representation, however,
Roberts alleged that soon after sending the email,
Gen Next, Fishman, and Caster began removing
gold and artifacts from one of the vaults.
Also in February 2014, Melancon and Patterson
negotiated a "secret" verbal agreement with Cook
and Caster to use satellite technology obtained
from a non-party to further evaluate Black Mesa.
Id. at 21. Fishman "cancelled" the agreement,
however, because the Antiquity Recovery
Agreement had not yet expired. Id. at 39. Angry
that Fishman had cancelled the agreement,
Patterson told Roberts he was no longer wanted
on the expedition and confirmed that Cook,
Fishman, Caster, Melancon, Patterson, Kemler,
and Talks had all "joined in [**7] a global
conspiracy to get rid of . . . Roberts" and deprive
him of his share of the treasure. Id. Patterson also
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"unknowingly confessed" to digging up and
removing gold from Black Mesa in March 2013. Id.
at 40.
Procedural Background
In February 2018, Roberts filed a lawsuit in the
District Court for the District of Wyoming. The court
concluded it lacked personal jurisdiction over the
defendants and subject-matter jurisdiction over the
claims, and it dismissed the complaint.
In October 2018, Roberts filed this nearly identical
lawsuit in the District Court for the District of New
Mexico, asserting claims for breach of contract,
breach of the implied covenant (quasi-contract),
conspiracy, conversion, tort (fraudulent
inducement, [*238] intentional misrepresentation,
and tortious interference with contract), and
equitable relief (promissory estoppel and quantum
meruit/unjust enrichment) against the defendants
individually and in various groupings.3 The contract
and quasi-contract claims were based on both the
Joint Venture Agreement between Roberts and
Expedition Resources, and the Antiquity Recovery
Agreement between Gen Next and Antiquity
Encounter. Those claims were asserted against all
defendants, regardless [**8] of whether they were
parties to the contracts, and alleged that Roberts
was entitled to recover under the Antiquity
Recovery Agreement as a third-party beneficiary.
The defendants moved to dismiss all of the claims
against them under Fed. R. 12(b)(6) as either time-
barred or for failure to state a claim. As pertinent
here, the district court:
• dismissed the conspiracy claim against all
defendants both as time-barred and because
civil conspiracy is not actionable as a separate
claim;
• dismissed all claims based in tort against all
defendants as time-barred;
• dismissed the contract and quasi-contract
3 The district court had diversity jurisdiction under 28 U.S.C. §
1332(a)(1) ("[D]istrict courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and
is between . . . citizens of different States.").
claims based on the Antiquity Recovery
Agreement against all defendants because
Roberts was neither a party nor a third-party
beneficiary to that agreement;
• dismissed the contract and quasi-contract
claims against the Cook Defendants based on
the Joint Venture Agreement because they
were not parties to that agreement;4
• dismissed the contract and quasi-contract
claims based on the Joint Venture Agreement
against Melancon, Talks, Kemler, Floto, and
Antiquity Encounter because they were not
involved in the contract negotiations and were
not parties to the agreement, and Melancon's,
Talks', [**9] and Kemler's roles as managing
members in Expedition Resources did not
subject them to liability for its contractual
obligations; and
• dismissed the equitable claims against all
defendants other than Patterson and
Expedition Resources both as time-barred and
because the dismissed defendants were not
parties to contracts with Roberts and the FAC
did not specify what promises and
expectations those defendants breached.
The only claims that survived the motions to
dismiss were the breach of contract, breach of the
implied covenant, promissory estoppel, and
quantum meruit/unjust enrichment claims against
Expedition Resources and Patterson, who
negotiated and signed the Joint Venture
Agreement as a managing member of Expedition
Resources. The district court later granted
defendants' motions for summary judgment on
those claims, concluding (1) Roberts was not
entitled to relief under the Joint Venture Agreement
because it expressly provided he would be
reimbursed and compensated only if [*239] the
expedition was successful, and he presented no
4 The FAC also asserted claims against the Cook Defendants
for breach of contract based on the September 2013 verbal
agreement between Cook and Roberts, and breach of an
implied-in-fact contract based on Roberts' agreement to sign a
no-contact order in exchange for Fishman's and Caster's
promises to facilitate a face-to-face meeting between Roberts
and Cook. Roberts does not challenge the adverse rulings
involving these claims, so we do not address them.
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evidence supporting his assertion that treasure
was discovered on Black Mesa; (2) the implied
covenant could not be used to override the express
terms of [**10] the Joint Venture Agreement; and
(3) equitable relief was not available for conduct
governed by contract.
Discussion
1. Standard of Review
HN1[] As an initial matter, we recognize that
Roberts' pro se status entitles him to a liberal
reading of his pleadings. Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).We
thus make some allowances for deficiencies, such
as unfamiliarity with pleading requirements, failure
to cite appropriate legal authority, and confusion of
legal theories. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). But we "cannot take on the responsibility of
serving as [his] attorney in constructing arguments
and searching the record." Id.;see also Whitney v.
New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(explaining that we "will not supply additional
factual allegations to round out [a pro se litigant's]
complaint or construct a legal theory on [his]
behalf").
HN2[] We review de novo both the dismissal of a
complaint under Rule 12(b)(6) for failure to state a
claim and the grant of summary judgment, applying
the same standards that applied in the district
court.Brooks v. Mentor Worldwide LLC, 985 F.3d
1272, 1278 (10th Cir. 2021) (Rule 12(b)(6)
dismissal); Rocky Mountain Prestress, LLC v.
Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259
(10th Cir. 2020) (summary judgment).
HN3[] "To survive a motion to dismiss, a
complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (internal quotation marks omitted). In
conducting our review, we disregard
conclusory [**11] allegations, but accept all well-
pleaded facts as true, view them in the light most
favorable to Plaintiffs, and draw all reasonable
inferences in their favor. Brooks, 985 F.3d at 1281.
Our duty is to "determine whether the complaint
sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to
relief under the legal theory proposed." Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th
Cir. 2007). Under the plausibility standard,
dismissal for failure to state a claim is "proper only
where it is obvious that the plaintiff cannot prevail
on the facts he has alleged." Kay v. Bemis, 500
F.3d 1214, 1217 (10th Cir. 2007) (internal
quotation marks omitted).
HN4[] At the summary judgment stage, we "view
facts in the light most favorable to the non-moving
party and draw all reasonable inferences in [their]
favor."Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299,
1306 (10th Cir. 2017) (ellipsis and internal
quotation marks omitted). "Summary judgment is
only appropriate when there are no genuine issues
of material fact and the moving party is entitled to
judgment as a matter of law." Foster v. Mountain
Coal Co., 830 F.3d 1178, 1186 (10th Cir. 2016)
(internal quotation marks omitted).
2. Rejection of Third-Party Beneficiary Theory
Roberts first contends the district court erred by
concluding he was not a third-party beneficiary of
the Antiquity Recovery Agreement.5 We disagree.
[*240] HN5[] Under New Mexico law, "one who
is not a party to a contract [**12] cannot maintain
suit upon it." Fleet Mortg. Corp. v. Schuster, 1991-
NMSC 046, 112 N.M. 48, 811 P.2d 81, 82 (N.M.
1991). But "[a] third party may be a beneficiary of
[a] contract, and as a beneficiary may have an
enforceable right against a party to a contract." Id.
"Whether a party is a third-party beneficiary
depends on if the parties to the contract intended
to benefit the third party." Id. at 82-83. "Such intent
5 Roberts framed this argument as a due process argument,
but he did not provide any legal support for the assertion that
the district court's adverse ruling on the third-party beneficiary
issue violated his constitutional right to due process.
Accordingly, we disregard that aspect of the argument.
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must appear either from the contract itself or from
some evidence that the person claiming to be a
third party beneficiary is an intended beneficiary."
Valdez v. Cillessen & Son, Inc., 1987- NMSC 015,
105 N.M. 575, 734 P.2d 1258, 1264 (N.M. 1987).
The signatories to the Antiquity Recovery
Agreement were Cook and Fishman as managers
of Gen Next, and Melancon for Antiquity
Encounter. The agreement gave Melancon and
Antiquity Encounter "the exclusive right to access
and perform a non-destructive geophysical
survey(s) on Black Mesa" from February 2013
through February 2014, and provided for a fifty-fifty
split between Gen Next and Antiquity Encounter of
any "valuables and artifacts."6 Aplt. App., Vol. I at
70-71. The agreement identified Roberts as one of
Melancon's team members, and required Gen Next
to protect the confidentiality of Roberts' "proprietary
geophysical technology." Id. at 72. But the
agreement did not address how Melancon would
compensate his team, much less suggest Roberts
or any other [**13] team member would share in
the fifty-fifty split between Gen Next and Antiquity
Resources.
We agree with the district court's conclusion that
the contract does not indicate that the parties
intended to benefit Roberts.7 Contrary to his
assertion, neither the fact that Fishman and Caster
knew about the Joint Venture Agreement when
they signed the Antiquity Resources Agreement,
nor Melancon's alleged promise "that [Roberts']
6 In evaluating whether Roberts' factual allegations meet the
plausibility standard, we consider both his complaint and the
documents attached as exhibits to the complaint, including the
Antiquity Recovery Agreement. See Oxendine v. Kaplan, 241
F.3d 1272, 1275 (10th Cir. 2001);see also Fed. R. Civ. P.
10(c) ("A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.").
7 The district court held that "[a]t most" the provision identifying
Roberts as a member of Melancon's team made him "an
incidental beneficiary"—someone who has no contractual
rights under the contract but who "'will derive a benefit from its
performance.'" Aplt. App., Vol. I at 339 (quoting Fleet Mortg,
811 P.2d at 83 (holding incidental beneficiary "had no right to
recover" under contract)). The issue before us is whether
Roberts was a third-party beneficiary, not whether he was an
incidental beneficiary, so we need not address that issue.
interests, as the financier [of the expedition under
the Joint Venture Agreement] would be protected,"
Aplt. Opening Br. at 8, establishes that Roberts
was a third-party beneficiary of the Antiquity
Resources Agreement. Cook's and Fishman's
awareness of the Joint Venture Agreement and of
Roberts' role as financier of the expedition is
simply not a basis for concluding they intended to
make him a beneficiary of the Antiquity Recovery
Agreement. And while the two agreements were
interrelated—the Joint Venture Agreement
governed the conduct of the Black Mesa expedition
and the Antiquity Recovery Agreement gave the
team access to the property and governed what
they could do there—the fact that both agreements
were necessary for the expedition to happen
does [**14] not make the parties to one
agreement third-party beneficiaries of the [*241]
other. Moreover, any promise Melancon made to
protect Roberts' interests could not make Roberts
a third-party beneficiary of the Antiquity Recovery
Agreement without the agreement of the other
parties to that contract. Such a promise might have
affected how the proceeds of any discovered
cache would have been divided between Roberts
and Expedition Resources under the Joint Venture
Agreement, but it would not have affected the
division of proceeds between Gen Next and
Antiquity Resources under the Antiquity Recovery
Agreement.
3. Dismissal of Contract and Quasi-Contract
Claims Against Melancon, Talks, Kemler, and
Floto
Roberts next contends the district court erred by
dismissing the contract and quasi-contract claims
based on the Joint Venture Agreement against
Melancon, Talks, Kemler, and Floto. Again, we
disagree.
Expedition Resources is a limited liability company.
Under New Mexico law:
the debts, obligations and liabilities of a limited
liability company, whether arising in contract,
tort or otherwise, shall be solely the debts,
obligations and liabilities of the . . . company.
No member or manager of a limited
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liability [**15] company . . . shall be obligated
personally for any debt, obligation or liability of
the . . . company solely by reason of being a
member or manager of the . . . company . . . .
A person may be liable for any act or omission
performed in his capacity as a manager of a
limited liability company if there is a basis for
liability. Nothing in this section shall be
construed to immunize any person from liability
for the consequences of his own acts or
omissions for which he otherwise may be
liable.
N.M. Stat. Ann. § 53-19-13.HN6[] Under this
statute, a member of a limited liability company
may be personally liable for his own tortious acts,
whether or not he was acting for the company, but
not for its contractual obligations.
The allegations in the FAC establish that the Joint
Venture Agreement was between Expedition
Resources and Roberts. Melancon, Talks, Kemler,
and Floto were not parties to and were therefore
not liable under the contract, and Melancon, Talks,
and Kemler cannot be held personally liable for
Expedition Resources' obligations under the
contract.See id. Accordingly, the district court
correctly dismissed the contract and quasi-contract
claims against these defendants. See id.§ 53-19-
14 (providing that subject [**16] to an exception
not applicable here, "[a] member of a limited
liability company is not a proper party to a
proceeding against the limited liability company
solely by reason of being a member of the limited
liability company"); see also Kreischer v. Armijo,
1994-NMCA-118, 118 N.M. 671, 884 P.2d 827,
829 (N.M. Ct. App. 1994) (explaining that agents of
a corporate entity cannot be held personally liable
for its contractual obligations and affirming
dismissal of claim against corporate agent based
on the company's contract).
4. Dismissal of Conspiracy, Conversion, and
Tort Claims as Time-Barred
We also reject Roberts' contention that the district
court erred by dismissing the conspiracy,
conversion, and tort claims as time-barred.
The basis for these claims was as follows:
•Conspiracy: The FAC alleged the
conspiracy claim against all defendants
individually and in various groupings, and
although the specific conduct underpinning the
claim varied from defendant to defendant, it
was based on the same basic theory as to all
of [*242] them—that they schemed to prevent
Roberts from discovering hidden reserves of
gold in order to deprive him of his share of the
treasure. Based on the factual allegations in
the FAC, the court determined that the claim
was based on events that occurred
before [**17] September 2013.
•Conversion: The conversion claim was
asserted against all defendants and was based
on the alleged discovery of treasure on Black
Mesa, its removal from the property, and the
laundering and division of the proceeds among
the defendants, all without Roberts'
knowledge.
•Fraudulent Inducement: The claim against
the Expedition Resources Defendants alleged
that they made false representations to
Roberts in November 2012 when they solicited
his participation in an expedition on Black
Mesa. The claim against the Cook Defendants
alleged that they manipulated Roberts into
signing the temporary restraining order in
October 2013 by telling him they would
facilitate a face-to-face meeting between him
and Cook. Floto and Antiquity Resources were
not named in the fraudulent inducement claim.
•Intentional Misrepresentation: The
intentional misrepresentation claim against
Patterson and Kemler alleged that they gave
Roberts misleading test results and other data
to hide their discovery of additional gold targets
in March 2013. The claim against the Cook
Defendants was based on the February 2014
email telling Roberts that the expedition had
found no treasure and that they did not
intend [**18] to conduct further exploration on
Black Mesa. The other defendants were not
named in this claim.
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•Tortious Interference with Contract: This
claim was asserted only against Floto,
Fishman, and Caster. It alleged that Floto
located and removed treasure from Black
Mesa in March 2013 "without giving any of the
existing agreements and contracts any
consideration," Aplt. App., Vol. I at 51, and that
in September 2013, Fishman and Caster
interfered with the verbal agreement between
Roberts and Cook.
The district court concluded, and Roberts does not
dispute, that the applicable limitations periods were
four years for the conversion claim and any fraud-
based claim, three years for the other tort claims,
and three or four years for the conspiracy claim,
depending on whether it was grounded in tort or
fraud.See N.M. Stat. Ann. § 37-1-4 (establishing
four-year limitations period for conversion and
fraud claims); id.§ 37-1-8 (establishing three-year
limitations period for personal injury actions);
Peralta v. Peralta, 2006- NMCA 033, 139 N.M.
231, 131 P.3d 81, 84 (N.M. Ct. App. 2005)
(applying personal injury statute of limitations
period to tortious interference with expected
inheritance claim). Based on the factual allegations
in the FAC, the court concluded that all of these
claims accrued by February 2014, and that
because Roberts [**19] did not file his complaint
until October 2018, the claims were all time-barred
under either a three- or four-year limitations period.
In so concluding, the district court rejected Roberts'
arguments that the limitations periods did not apply
under New Mexico's savings statute and that the
claims were timely under the discovery rule.
Roberts reasserts those arguments on appeal and
we reject them too.
New Mexico's savings statute provides:
If, after the commencement of an action, the
plaintiff fail[s] therein for any cause, except
negligence in its prosecution, and [*243] a
new suit be commenced within six months
thereafter, the second suit shall, for the
purposes herein contemplated, be deemed a
continuation of the first.
N.M. Stat. Ann. § 37-1-14. Relying on this statute,
Roberts maintains that his claims were timely
because he filed the complaint in this case within
six months after the dismissal of the Wyoming suit.
The district court disagreed, concluding that the
savings statute was inapplicable both because
most of Roberts' claims were already time-barred
when he filed the Wyoming suit, and because his
initial filing in the wrong forum constituted
"negligence in prosecution." See Barbeau v.
Hoppenrath, 2001- NMCA 077, 131 N.M. 124, 33
P.3d 675, 679 (N.M. Ct. App. 2001) (holding
plaintiff's unexcused [**20] failure to file suit in the
correct jurisdiction was negligence that precluded
application of the savings statute). Roberts take
issue with the latter conclusion, maintaining that it
was reasonable for him to file suit in Wyoming
because he is a Wyoming resident and was in
Wyoming when he negotiated the Joint Venture
Agreement. But we agree with the district court's
determination that, even as a pro se litigant,
Roberts could not reasonably have believed
Wyoming had personal jurisdiction over the
defendants and subject matter jurisdiction over the
lawsuit given that none of them lived in or had the
requisite contacts with Wyoming and the relevant
events all happened in New Mexico. See id.
(savings statute inapplicable where the complaint
"on its face defeated subject matter jurisdiction,"
there was no basis for personal jurisdiction over
the defendants, and the flawed choice of forum
was not "an innocent mistake or an erroneous
guess at an elusive jurisdictional fact known only to
the defendants or any other circumstance that
might serve to excuse what otherwise appears
clearly to be negligence").
As for the discovery rule, Roberts maintains he did
not discover all of the facts relevant [**21] to the
conspiracy and conversion claims until as late as
2018 and that the district court thus erred by
dismissing the claims as time-barred. The district
court agreed that under the discovery rule, the
claims accrued when Roberts knew or should have
known the essential facts giving rise to the claims.
See State ex rel. Pub. Emps. Ret. Ass'n v.
Longacre, 2002- NMSC 033, 133 N.M. 20, 59 P.3d
500, 507 (N.M. 2002) (holding that the accrual date
for a New Mexico statute of limitations is "usually . .
. the date of discovery"). But the court rejected his
853 Fed. Appx. 235, *242; 2021 U.S. App. LEXIS 11927, **18
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delayed discovery argument, pointing to the
allegations in the FAC that Roberts' excavation
began in mid-March 2013, and that the "team was
several days into the excavation when [he]
discovered that . . . Kemler had tried to hide the
[March 6] test results." Aplt. App., Vol. I at 30; see
also id. (alleging that after discovering the hidden
test results, Roberts found "significant ground
disturbance" at what appeared to be the site of the
new gold targets).
Roberts does not dispute that he discovered the
hidden test results in March 2013, and he
acknowledges that "the majority of the conspiracies
began" in that timeframe. Aplt. Opening Br. at 11.
Instead, relying on criminal statutes and caselaw
inapplicable here, he contends the conspiracy
claim alleged an ongoing [**22] conspiracy that
none of the defendants withdrew from, that the
conversion "is still happening to this day," id. at 13,
and that the statute of limitations did not start
running until sometime in 2018, when Roberts
learned more details about the defendants'
actions.8 Construing [*244] these argument
liberally, we assume Roberts is invoking the
continuing wrong doctrine, which can be used to
toll a statute of limitations. See Tiberi v. Cigna
Corp., 89 F.3d 1423, 1431 (10th Cir. 1996)
(construing New Mexico law and applying the
doctrine to toll the statute of limitations for fraud
and negligent misrepresentation). HN7[] Under
the continuing wrong doctrine, "where a tort
involves a continuing or repeated injury, the cause
of action accrues at, and limitations begin to run
from, the date of the last injury." Id. at 1430. But
"the doctrine cannot be employed where the
plaintiff's injury is definite and discoverable, and
nothing prevented the plaintiff from coming forward
to seek redress." Id. at 1431 (internal quotation
marks omitted).
Roberts does not dispute that he knew in March
2013 that Patterson and Kemler had located the
two additional gold targets and tried to hide the test
8 The district court did not expressly address the ongoing
conspiracy and conversion argument in its dismissal orders,
but implicitly rejected it in concluding that the claims were
time-barred.
results, and the allegations in the FAC establish
that by February 2014, he knew treasure had been
removed from [**23] the property and sold, that
the proceeds had been laundered, that he was
barred from the Black Mesa, and that none of the
defendants intended to include him in any further
exploration efforts. Roberts' injury was thus
"definite and discoverable" by February 2014. See
id. And while he may have learned more details
about defendants' alleged wrongdoing between
2014 and 2018, that information did not give rise to
a "continuing or repeated injury," as required for
tolling under the continuing wrong doctrine. See id.
at 1430. Because Roberts knew the essential facts
underpinning these claims no later than February
2014 and did not file this lawsuit until October
2018, the district court correctly dismissed the
claims as time-barred.
Finally, we acknowledge Roberts' one-sentence
argument that the district court erred by denying
his request under Fed. R. Civ. P. 60(b) to reopen
discovery and to allow him to "submit newly
discovered evidence . . . that was paramount in
helping prove" his conspiracy and conversion
claims. Aplt. Opening Br. at 16. We decline to
address this unsupported and conclusory claim.
See Fed. R. App. P. 28(a)(8)(A) (requiring citations
to authorities supporting each argument); Bronson
v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)
(declining to consider arguments inadequately
presented [**24] in appellant's opening brief). In
any event, new facts about the substance of the
claims would not have affected the district court's
conclusion that the claims were time-barred.
5. Dismissal of Conspiracy Claim as Not
Separately Actionable
The district court also dismissed the conspiracy
claim on the ground that under New Mexico law,
civil conspiracy is not actionable as a separate
claim.See Ettenson v. Burke, 2001- NMCA 003,
130 N.M. 67, 17 P.3d 440, 445, 448 (N.M. 2000)
(explaining that civil conspiracy is a "derivative
claim" that "requires an overt tortious act
independent of the conspiracy," and that "[w]ithout
an actionable civil case against one of the
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conspirators, . . . an agreement, no matter how
conspiratorial in nature, is not a separate,
actionable offense" (internal quotation marks
omitted)). Roberts challenges that ruling, but
because we have concluded the court properly
dismissed the claim as time-barred, we need not
address the parties' arguments about this
alternative basis for dismissal. See Trevizo v.
Adams, 455 F.3d 1155, 1160 n.3 (10th Cir. 2006).
6. Grant of Summary Judgment Without a
Hearing
Roberts does not challenge the substance of the
district court's summary judgment order but argues
that the court erred by denying his request for a
hearing on the motion. HN8[] An evidentiary
hearing is [*245] not required [**25] when the
plaintiff's claims can be decided as a matter of law
and the parties' pleadings establish that the
defendants are entitled to summary judgment. See
Kennedy v. Meacham, 540 F.2d 1057, 1061 n.3
(10th Cir. 1976) (explaining that a hearing "is [not]
required in every instance"). Roberts maintains that
a hearing would have been "beneficial," Aplt.
Opening Br. at 16, but he has not established that
a hearing was necessary and that the district court
abused its discretion by not holding one.
7. Denial of Motion for Preliminary Injunction
After the district court entered its orders dismissing
most of Roberts' claims against most defendants,
he filed a motion seeking an injunction to prevent
the removal of any gold and artifacts from Black
Mesa until the case was fully litigated in both the
district court and on appeal. The district court
denied the motion, concluding Roberts had not
shown a likelihood of success on the merits. See
Colorado v. United States EPA, 989 F.3d 874, 883
(10th Cir. 2021) (setting forth requirements for
obtaining preliminary injunction that changes the
status quo).
HN9[] Roberts takes issue with that ruling, but
his appeal of that order is moot given that the
district court has entered a final judgment on the
merits and the effective time period of the
requested injunction has passed. See [**26]
United States ex rel. Bergen v. Lawrence, 848 F.2d
1502, 1512 (10th Cir. 1988) (explaining that a
preliminary injunction is by its nature a temporary
measure intended to furnish provisional protection
while awaiting a final judgment on the merits and
that entry of final judgment mooted appeal of
preliminary injunction); Baker v. Bray, 701 F.2d
119, 122 (10th Cir. 1983) (dismissing appeal of
preliminary injunction ruling as moot where district
court later dismissed the underlying claim).
8. Additional Issues
Roberts asks this court to "prevent . . . Patterson
from making threats to [Roberts'] witnesses" and
"posting derogatory statements about . . . Roberts"
on social media. Aplt. Opening Br. at 26. This court
does not have jurisdiction to order such relief.
Accordingly, the request is denied.
The Cook Defendants argue that this appeal is
frivolous and seek an award of damages and costs
under Fed. R. App. P. 38, and attorney's fees
under 28 U.S.C. § 1927.Initially, we note that there
is a split "among the circuits on the question
whether § 1927 applies to pro se litigants." See
Alexander v. United States, 121 F.3d 312, 316 (7th
Cir. 1997).HN10[] Although we have not
squarely decided that question, we have
commented that § 1927 "is a natural outgrowth of
the inherent authority of a court to assess costs
and attorney's fees against a party who has acted
in bad faith, vexatiously, wantonly, or for
oppressive reasons" and that [**27] "awards under
§ 1927 are made only against attorneys."
Hutchinson v. Pfeil, 208 F.3d 1180, 1186 n.9 (10th
Cir. 2000) (ellipsis and internal quotation marks
omitted). In any event, the decision whether to
impose sanctions for a frivolous appeal is
discretionary, see Roth v. Green, 466 F.3d 1179,
1188 (10th Cir. 2006), and we decline to do so
here.
Conclusion
The district court's dismissal and summary
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judgment orders are affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
End of Document
853 Fed. Appx. 235, *245; 2021 U.S. App. LEXIS 11927, **27
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Positive
As of: October 8, 2021 1:55 AM Z
Robinette v. Schirard
United States District Court for the District of Colorado
February 11, 2014, Decided; February 11, 2014, Filed
Civil Action No. 10-cv-02172-CMA-KLM
Reporter
2014 U.S. Dist. LEXIS 42747 *
BONNER ROBINETTE, and SHIRLEY
ROBINETTE, Plaintiffs, v. SYDNEY "DUKE"
SCHIRARD, Sheriff, La Plata County Colorado, in
his individual and professional capacities, ROBIN
HARRINGTON, Under Sheriff, in her individual and
professional capacities, BOBBIE FENDER, in his
individual and professional capacities, AMBER
FENDER, in her individual and professional
capacities, STEVE SCHMIDT, in his individual and
professional capacities, SEAN SMITH, in his
individual and professional capacities, MARTIN
PETRIK, in his individual and professional
capacities, ROBERT PHIPPEN, in his individual
and professional capacities, CHARLES HAMBY, in
his individual and professional capacities, SHELLY
WILLIAMS, in her individual and professional
capacities, TODD HUTCHINS, in his individual and
professional capacities, CHRIS BURKE, in his
individual and professional capacities, MATT
WEBB, in his individual and professional
capacities, BRENDA TEBRINK, in her individual
and professional capacities, LUCIA SCHIRARD,
(911 Dispatch), in her individual and professional
capacities, RICHARD GRAEBER, Pine River
E.M.T., in his individual and professional
capacities, PAUL KOSNIK, County Attorney, in his
individual and professional capacities, KELLIE
HOTTER, Past County Commissioner, in her
individual and professional capacities, WALLY
WHITE, Past County Commissioner, in his
individual and professional capacities, BOBBIE
LIEB, Past and Present County Commissioner, in
his individual and professional capacities, BOARD
OF COUNTY COMMISSIONERS, GWEN LIEB,
Member of the Present Board of County
Commissioners, in her individual and professional
capacities, JULIE WESTENDOR, Member of the
Present Board of County Commissioners, in her
individual and professional capacities, and PHIL
CAMPBELL, Head of 911 Dispatch, in his
individual and professional capacities, Defendants.
Subsequent History: Adopted by, Motion granted
by, in part, Motion denied by, in part, Dismissed by,
in part, Motion granted by, Objection overruled by
Robinette v. Schirard, 2014 U.S. Dist. LEXIS
39239 (D. Colo., Mar. 25, 2014)
Prior History:Robinette v. Schirard, 2011 U.S.
Dist. LEXIS 134958 (D. Colo., Nov. 22, 2011)
Core Terms
allegations, recommends, conspiracy, statute of
limitations, cause of action, incident report, due
process claim, law enforcement, dismissal with
prejudice, discriminatory, deprivation, outrageous,
accrued, emotional distress, rights, common law
conspiracy, motion to dismiss, newly-named,
ambulance, two-year, opportunity to amend,
conspiracy claim, attorney's fees, fraud claim, state
law, pro se, non-conclusory, non-defendants, futile,
guns
Counsel: [*1] Bonner Robinette, Plaintiff, Pro se,
Bayfield, CO.
Shirley Robinette, Plaintiff, Pro se, Bayfield, CO.
For Bobbie Fender, in his professional capacity,
Bobbie (I) Fender, in his individual capacity, Amber
Fender, in her professional capacity, Amber (I)
Fender, in her individual capacity, Steve Schmidt,
in his professional capacity, Steve (I) Schmidt, in
his individual capacity, Sean Smith, in his
professional capacity, Sean (I) Smith, in his
individual capacity, Charles Hamby, in his
professional capacity, Charles (I) Hamby, in his
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 50 of
106
Page 2 of 14
individual capacity, Sydney (I) Schirard, in his
individual capacity, also known as, Duke Schirard,
Sydney Schirard, Sheriff of La Plata County
Colorado, in his professional capacity, also known
as, Duke Schirard, Todd Hutchins, in his
professional capacity, Todd (I) Hutchins, in his
individual capacity, Defendants: Jonathan Ariel
Cross, Sean James Lane, Cross Liechty Lane,
P.C., Greenwood Village, CO.
For Robin Harrington, Under Sheriff, in her
professional capacity, Robin (I) Harrington, in her
individual capacity, Robert Phippen, in his
professional capacity, Robert (I) Phippen, in his
individual capacity, Shelly Williams, in her
professional capacity, Shelly [*2] (I) Williams, in
her individual capacity, Chris Burke, in his
professional capacity, Chris (I) Burke, in his
individual capacity, Matt Webb, in his professional
capacity, Matt (I) Webb, in his individual capacity,
Brenda Tebrink, in her professional capacity,
Brenda (I) Tebrink, in her individual capacity, Pauk
Kosnik, County Attorney, in his professional
capacity, Paul (I) Kosnik, in his individual capacity,
Board of County Commissioner's, (Bobbie Lieb)
(Gwen Lachelt) (Julie Westendor) Present Board of
County Commisioner's [sic] in their professional
capacities, Board of County Commissioner's (I), in
their individual capacities, Defendants: Jonathan
Ariel Cross, Cross Liechty Lane, P.C., Greenwood
Village, CO.
For Lucia Schirard, (911 Dispatch) in her
professional capacity, Lucia (I) Schirard, in her
individual capacity, Phil Campbell, (Head of 911
Dispatch) in his professional capacity, Phil (I)
Campbell, in his individual capacity, Defendants:
Joshua William Mack, LEAD ATTORNEY, Michael
Andrew Goldman, Goldman, Robbins & Nicholson,
P.C., Durango, CO.
For Rich Graeber, Pine River E.M.T., in his
professional capacity, Rich (I) Graeber, in his
individual capacity, Defendants: Kathleen [*3] Jo
Johnson, Thomas Neville Alfrey, Treece Alfrey
Musat, P.C., Denver, CO.
Judges: Kristen L. Mix, United States Magistrate
Judge.
Opinion by: Kristen L. Mix
Opinion
RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN
L. MIX
This matter is before the Court on the Motion to
Dismiss Second Amended Complaint [#139],1
filed by Defendants Sydney "Duke" Schirard
("Schirard"), Bobbie Fender, Amber Fender, Steve
Schmidt ("Schmidt"), Charles Hamby ("Hamby"),
and Sean Smith ("Smith");2 on the Motion to
Dismiss Second Amended Complaint for Newly
Added Defendants [#151], filed by Defendants
Robin Harrington ("Harrington"), Matt Webb
("Webb"), Robert Phippen ("Phippen"), Shelly
Williams ("Williams"), Chris Burke ("Burke"),
Bobbie Lieb ("Lieb"), Gwen Lachelt ("Lachelt"),3
Julie Westendor ("Westendor"), Paul Kosnik
("Kosnik"), and Brenda Tebrink ("Tebrink");4 on the
Motion to Dismiss [#176], filed by Defendant
Todd Hutchins ("Hutchins");5 and on the Motion to
Dismiss Plaintiffs' Second Amended Complaint
[#190], filed by Defendant Rich Graeber
("Graeber").6 Pursuant to 28 U.S.C. § 636(b)(1)
and D.C.Colo.LCivR 72.1C.(3), the Motions have
been referred to this Court for recommendation
[#140, #152, #179, [*4] #191]. The Court has
reviewed the Motions, Plaintiffs' Responses,
1 "[#139]" is an example of the convention the Court uses to
identify the docket number assigned to a specific paper by the
Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this
Recommendation.
2 Plaintiffs filed a Response [#156], and these Defendants filed
a Reply [#173].
3 She is identified as "Gwen Lieb" in the Second Amended
Complaint.
4 Plaintiffs filed a Response [#175], and these Defendants filed
a Reply [#184].
5 Plaintiffs filed a Response [#189], and Defendant Hutchins
filed a Reply [#192].
6 Plaintiffs filed a Response [#200], and Defendant Graeber
filed a Reply [#205].
2014 U.S. Dist. LEXIS 42747, *1
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Defendants' Replies, the entire docket, and the
applicable law, and is sufficiently advised in the
premises.7 For the reasons set forth below, the
Court respectfully RECOMMENDS that Motion
[#139] be GRANTED in part and DENIED in part
and that Motions [#151, #176, #190] be
GRANTED.
I. Background
Based on the following alleged events, Plaintiffs8
assert seven causes of action: (1) violation of due
process and equal protection, pursuant to 42
U.S.C. § 1983; (2) violation of 42 U.S.C. § 1985(3)
(conspiracy); (3) fraud by omission and
nondisclosure; (4) attorney's fees under 42 U.S.C.
§ 1988; (5) negligent infliction of emotional distress
("NIED"); (6) intentional infliction of emotional
distress ("IIED"); and (7) common law conspiracy.
Second Am. Compl. [#129] at 2.
On August 24, 2008, Defendants Bobbie Fender,
Amber Fender, and Steven Schmidt (all deputies
with the La Plata County Sheriff's Office
["LPCSO"]) took Plaintiffs' Jeep, scaffolding,
ladders, heavy-duty extension cords, and other
items from Plaintiffs' property and cabin. Id. at 3-4.
That same day, Defendant Smith (a lieutenant with
LPCSO) took possession of the stolen property. Id.
Plaintiffs assert that some of this property
7 Plaintiffs filed Surreplies [#186, #194, #204, #207] in
connection with the Motions. However, surreplies are not
contemplated by the Federal Rules of Civil Procedure or the
Local Rules of Practice, and thus the Court does [*5] not
consider them here. The Court is adequately advised of the
issues on the parties' present briefings.
8 Plaintiffs are husband and wife and proceed in this matter as
pro se litigants. The Court must construe liberally the filings of
pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21,
92 S. Ct. 594, 30 L. Ed. 2d 652 (1972);Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).However, the Court should
not be the pro se litigants' advocate, nor should the Court
"supply additional factual allegations to round out [the pro se
litigants'] complaint or construct a legal theory on [their]
behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997) (citing Hall, 935 F.2d at 1110).In addition, pro
se litigants must follow [*6] the same procedural rules that
govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994).
belonged to them and that some belonged to their
grandson, who had passed away the previous
year.Id. at 4. Plaintiffs assert that this property was
eventually either "given away, bartered, [thrown]
away[, o]r kept." Id.
On August 30, 2008, Plaintiffs called 911 and
reported that Jonathan Lakey ("Lakey"), a family
relation of Defendants Bobbie Fender and Amber
Fender, was threatening Plaintiffs' son Randey
Robinette ("Randey"), their daughter Angela
Robinette Leath ("Angela"), and Angela's two
young children with a pistol. Id. at 6-7. Defendant
Hamby (a sergeant with LPCSO) responded to the
call and told Randey and Angela that he would
arrest Mr. Lakey. Id. at 7. [*7] However, when
Defendant Hamby discovered that Mr. Lakey was
related to the Fenders, Mr. Lakey was merely
given a summons. Id.
On some unspecified date, Defendant Hamby sent
an email to Defendant Bobbie Fender, Defendant
Burke (another deputy with LPCSO), and others
stating, "[I]f any of the Robinette family are in the
area that is argued by the [Robinettes] to be an
easement given to the [Robinettes] by E.L.
Hutchison (developer), [t]hey are to summons the
person(s) for third degree criminal trespass[.] [I]f
the [Robinettes] decide to access this area in
question it would be through the creek or by
helicopter." Id. Plaintiffs assert that this command
effectively keeps them from their own property and
has been in effect for more than three-and-a-half
years.Id.
In response to the alleged theft of the Jeep and
other items, Plaintiffs called the Colorado State
Patrol ("CSP"). Id. On August 31, 2008, Defendant
Petrik (a captain with CSP) arrived and proceeded
to write and file an allegedly false incident report to
cover up the actions of other Defendants in this
matter.Id. at 4-5. Plaintiffs assert that a total of six
reports with false information were filed in
connection with the theft [*8] of their property. Id.
at 5-6. These reports were written or falsified by
Defendants Hamby, Williams, Amber Fender,
Bobbie Fender, Phippen, Tebrink, Schmidt, and
Smith, as well as non-defendants G. Little, D.
Martin, and V. Kirkpatrick. Id. at 5-6.
2014 U.S. Dist. LEXIS 42747, *4
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Page 4 of 14
On March 16, 2009, Plaintiffs called 911 to request
an ambulance for Plaintiff Shirley Robinette ("Mrs.
Robinette"), who was allegedly "having a negative
reaction to her reading false reports," specifically
regarding four incident reports that listed Plaintiffs'
deceased grandson as a "victim" even though he
had been dead for more than a year. Id. at 8.
Plaintiffs state that no ambulance ever came in
response to their call, so Plaintiff Bonner Robinette
("Mr. Robinette") told the 911 operator to send an
ambulance to meet his son Randey, who was
bringing Mrs. Robinette to the hospital. Id. Plaintiffs
state that no emergency personnel or anyone from
LPCSO ever met up with Randey and Mrs.
Robinette. Id. Plaintiffs assert that Defendant
Graeber, the former Head of Upper Pine River
EMT, was responsible for failing to send an
ambulance. Id. at 12.
On April 12, 2009, Plaintiffs called LPCSO to report
a trespasser on their property. Id. at 9. Plaintiffs
[*9] state that Defendant Burke did not come in
response to their call.9 Id. The associated sheriff's
incident report stated that there were guns at the
residence and that threats were made against law
enforcement.10 Id.
On April 17, 2009, Plaintiffs met with Deputy Kevin
Brown ("Brown"), a non-defendant, at LPCSO. Id.
at 9. Plaintiffs provided him with more than one
hundred pages demonstrating alleged illegal
actions taken by LPCSO.11 Id. Deputy Brown told
his supervisor, Defendant Hutchins, that he was
going to take the documents to the District
Attorney's Office, but Defendant Hutchins refused
to allow him to do so. Id. Deputy Brown took the
9 Plaintiffs allege at various points in the Second Amended
Complaint that a particular law enforcement officer or officers
did not come to their property in response to their telephone
calls. Plaintiffs do not make clear why they believe these
particular individuals should have responded to their calls.
However, this lack of clarity does not affect the resolution of
the pending Motions.
10 As with subsequent incident reports containing this
language, the reports are unclear as to who allegedly had
guns and who was allegedly threatening police.
11 The Second Amended Complaint does not explain whether
the alleged illegal actions were directed at Plaintiffs, others, or
both.
paperwork [*10] to the District Attorney's Office
anyway, but officials there refused to take
possession of the materials. Id.
On May 20, 2009, Mr. Robinette called 911
multiple times to get an ambulance to take Mrs.
Robinette to the hospital "due to her being in a
semi-coma for 22 hours" from a complication
following a brain operation on May 5, 2009. Id.
Plaintiffs state that they pleaded for help but that
no one responded. Id. They also assert that
Defendant Graeber was again responsible for
failing to send an ambulance. Id. at 12. Mr.
Robinette eventually drove Mrs. Robinette to the
hospital "with his emergency flashing lights on" as
he continued to contact 911 to ask them to tell
LPCSO that he was trying to get his wife to the
hospital. Id. Although Mr. Robinette was seeking a
law enforcement escort, the 911 dispatcher told
him that they could not provide that service. Id. at
8-9.
On November 3, 2009, Plaintiffs called LPCSO on
a "Citizen Assist Request" to report that
unidentified family members of LPCSO officers
"would not allow the Plaintiffs['] renters to remove
their [*11] personal [b]elongings off their property
and[/]or to obtain their dogs out of their RV home."
Id. at 10. Plaintiffs assert that Defendant Burke
never came in response to this call. Id.
In mid-February 2010, Plaintiffs met with
Defendant Hotter (a La Plata County
Commissioner) at her office in the La Plata County
Court House to show her evidence of alleged
wrongdoing by Defendant Schirard (the Sheriff of
La Plata County), Defendant Harrington (the
Undersheriff of La Plata County), and other
deputies. Id. at 13. Defendant Hotter thereafter set
up a meeting with Plaintiffs, two newspapers
reporters, and Defendant Schirard, but Defendant
Schirard did not attend the meeting. Id. Plaintiffs
assert that Defendant Hotter conveyed to
Defendants White and Lieb (two other County
Commissioners) the information regarding the
alleged wrongdoing by Defendant Schirard,
Defendant Harrington, and other deputies. Id.
On March 3, 2010, Plaintiffs called LPCSO "to
report two suspicious males who were
2014 U.S. Dist. LEXIS 42747, *8
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Page 5 of 14
[t]respassing" on their property. Id. at 10.
Defendant Webb (another deputy with LPCSO)
and Defendant Burke did not come in response to
the call. Id. The incident report written in
connection with Plaintiffs' [*12] call stated that
there were guns at the residence and that law
enforcement had been threatened. Id. On August
24, 2010, Plaintiffs filed this lawsuit.
On December 4, 2010, Plaintiffs called LPCSO "to
report a criminal [t]respass/[t]heft/[b]urglary to the
Robinette-Leaths['] [c]abin." Id. at 10-11. Deputy J.
Sutter ("Sutter") and Deputy B. Potthoff (non-
defendants) responded and investigated. Id. at 11.
Mrs. Robinette and her son Randey later picked up
a copy of the incident report from LPCSO, and it
included the language about guns at the residence
and that law enforcement had been threatened. Id.
When Mrs. Robinette noticed these statements,
she and Randey took the report back to LPCSO
and showed it to Defendant Tebrink (an LPCSO
employee who worked at the records counter). Id.
Defendant Tebrink took the report, went to her
office, and returned with a copy of the report that
did not have the alert codes on them regarding
guns and threats. Id. Randey asked Defendant
Tebrink for the first report, but Plaintiffs allege that
she stepped back, laughed, said "You're not
getting this one back," and tore it up and threw it in
the trash. Id.
On January 27, 2012, Plaintiffs called 911 to report
[*13] gunshots at their residence. Id. at 11. Their
son Randey was standing outside in their yard
about thirty feet from the trees "when bullets [went]
whistling above his head hitting the tree limbs." Id.
Deputy Sutter and Deputy R. McLaughlin (non-
defendants) did not come in response to the call,
although Deputy Sutter called Plaintiffs to say he
investigated the incident. Id. The incident report
again stated that there were guns at the residence
and that law enforcement had been threatened. Id.
at 12.
On March 8, 2012, Mr. Robinette called LPCSO to
report that unidentified family members of LPCSO
were trespassing on his property. Deputy Jim
Coleman (a non-defendant) did not come in
response to Plaintiffs' call. Id. at 12. Plaintiffs
assert that the related incident report "shows blobs
of white out covering up the suspect's name," and
that when Mr. Robinette called Defendant Kosnik
(an assistant county attorney) at his office to
inquire about it, Defendant Kosnik's secretary told
him that Defendant Kosnik had covered up the
name.Id. at 12-13.
On April 4, 2013, Plaintiffs visited the La Plata
County Court House. Id. at 6. They state that
Defendant Hamby saw them there, got on the
elevator [*14] with them, sat behind Plaintiffs in
the courtroom, and rode back down in the elevator
with them when they left. Id. "Plaintiffs thought this
was to intimidate" them. Id.
II. Standard of Review
The purpose of a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) is to test
"the sufficiency of the allegations within the four
corners of the complaint after taking those
allegations as true." Mobley v. McCormick, 40 F.3d
337, 340 (10th Cir. 1994);Fed R. Civ. P. 12(b)(6)
(A complaint may be dismissed for "failure to state
a claim upon which relief can be granted."). "The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff's
complaint alone is legally sufficient to state a claim
for which relief may be granted." Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226,
1236 (10th Cir. 1999) (citation omitted). To
withstand a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), "a complaint must
contain enough allegations of fact 'to state a claim
to relief that is plausible on its face.'" Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
[*15] (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); see also Shero v. City of Grove, 510 F.3d
1196, 1200 (10th Cir. 2007) ("The complaint must
plead sufficient facts, taken as true, to provide
'plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations."
(quoting Twombly, 550 U.S. at 570))."A claim has
facial plausibility when the plaintiff pleads factual
content that allows the court to draw the
reasonable inference that the defendant is liable
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for the misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009). "A pleading that offers labels and
conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertions
devoid of further factual enhancement." Id. (internal
quotation marks and citation omitted).
The factual allegations in the complaint "must be
enough to raise a right to relief above the
speculative level." Christy Sports, LLC v. Deer
Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.
2009). "[W]here the well-pleaded facts do not
permit the court to infer more than the mere
possibility of misconduct," a factual allegation has
been stated, "but [*16] it has not shown that the
pleader is entitled to relief," as required by Federal
Rule of Civil Procedure 8(a).Iqbal, 556 U.S. at 679
(quotation marks and citation omitted).
III. Analysis
A. Statute of Limitations
On June 21, 2013, Plaintiffs filed their Second
Amended Complaint, which named as defendants
for the first time Defendants Petrik, Phippen,
Williams, Hutchins, Burke, Webb, Tebrink,
Graeber, Kosnik, Hotter, White, Lieb, Lachelt,
Westendor, and the past and present Board of
County Commissioners of La Plata County. These
Defendants assert that Plaintiffs' claims against
them fail based on the statute of limitations.
Actions brought pursuant to 42 U.S.C. § 1983 are
subject to the general personal injury limitation
period of the state in which the action arose. Hunt
v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994).In
Colorado, the limitation on a personal injury claim
brought pursuant to § 1983 is two years. See Colo.
Rev. Stat. § 13-80-102(1)(g) (creating a two-year
limitation period for "[a]ll actions upon liability
created by a federal statute where no period of
limitation is provided in said federal statute" and for
"[a]ll other actions of every kind for which no other
period [*17] of limitation is provided"); see Blake v.
Dickason, 997 F.2d 749, 750 (10th Cir. 1993)
(applying Colo. Rev. Stat. § 13-80-102 to a § 1983
claim). Thus, as to these newly-named
Defendants, there is a two-year statute of
limitations for Plaintiffs' claims under 42 U.S.C. §§
1983 and 1985 as well as for NIED, IIED, and
common law conspiracy.12 See Alvarez v.
Sandridge, 149 F. App'x 822, 823 (10th Cir. 2005)
(affirming two-year statute of limitations in
Colorado on a § 1985(3) claim); Colo. Rev. Stat. §
13-80-102(1)(a) (specifically stating that
negligence causes of action are subject to a two-
year state of limitations); Patterson v. Dex Media,
Inc., No. 11-cv-02336-LTB-BNB, 2013 U.S. Dist.
LEXIS 8354, 2013 WL 229575, at *3 (D. Colo. Jan.
22, 2013) (applying Colorado two-year statute of
limitations to IIED claim); Gartin v. Spyderco, No.
CIV.NO. 95-B-1747, 1997 U.S. Dist. LEXIS 24518,
1997 WL 1037883, at *13 (D. Colo. Aug. 13, 1997)
(applying Colorado's two-year statute of limitations
to a common law conspiracy claim).
However, federal law rather than state law
determines when a cause of action accrues. Indus.
Constructors Corp. v. U.S. Bureau of Reclamation,
15 F.3d 963, 968 (10th Cir. 1994). [*18] Federal
law provides that "[t]he statute of limitations begins
to run when the plaintiff knows or has reason to
know of the existence and cause of the injury
which is the basis of his action." Id. at 969. That is,
"[a] civil rights action accrues when facts that
would support a cause of action are or should be
apparent." Fratus v. Deland, 49 F.3d 673, 675
(10th Cir. 1995) (citations omitted). This means
that the federal causes of action must have
accrued on or after June 21, 2011. Colorado law is
similar for the state law causes of action. "[A]
cause of action for injury to person, property,
reputation, possession, relationship, or status shall
be considered to accrue on the date both the injury
and its cause are known or should have been
known by the exercise of reasonable diligence."
Colo. Rev. Stat. § 13-80-108(1);see Murry v.
GuideOne Specialty Mut. Ins. Co., 194 P.3d 489,
492 (Colo. App. 2008). Thus, Plaintiffs' claims of
NIED, IIED, and common law conspiracy also must
have accrued on or after June 21, 2011. The only
12 The Court discusses Plaintiffs' fraud claim below, as it has a
different statute of limitations.
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newly-named Defendant against whom any
allegations are made about events allegedly
occurring after June 21, 2011 is Defendant Kosnik.
Turning to Plaintiffs' claim [*19] of fraud against
the newly-named Defendants, under Colorado law,
the statute of limitations for fraud and
misrepresentation claims is three years after the
cause of action accrues. Colo. Rev. Stat. § 13-80-
101(1)(c) & (f) (2008). Fraud and
misrepresentation claims accrue when the plaintiff
begins to suffer some injury as a result of his or her
reliance on the misrepresentation or fraud. Duell v.
United Bank of Pueblo, 892 P.2d 336, 340 (Colo.
App. 1994). This means that this cause of action
must have accrued on or after June 21, 2010 for
the newly-named Defendants. Besides Defendant
Kosnik, the only newly-named Defendant for whom
any allegations are made about events that
occurred after June 21, 2010, is Defendant
Tebrink.
Plaintiffs argue that the statutes of limitations
should be tolled as to their claims because under
42 U.S.C. § 14141, they have alleged a pattern
and practice of misconduct by law enforcement
officers. However, 42 U.S.C. § 14141 "provides for
a civil cause of action only available to the Attorney
General." Adams v. United States, 82 Fed. Cl. 558,
560 (Fed. Cl. 2008). Moreover, section 14141 does
not include any provision for tolling the statute of
limitations in [*20] these circumstances, especially
for the many newly-named Defendants who are not
law enforcement officers. Plaintiffs also argue that
the statutes of limitations should be tolled because
of Plaintiffs' poor health and resultant "legal
disability." Colorado law defines a "person under
disability" as "any person who is a minor under
eighteen years of age, a mental incompetent, or a
person under other legal disability and who does
not have a legal guardian." Colo. Rev. Stat. § 13-
81-101. However, Plaintiffs have made only
conclusory allegations that they fall within the
meaning of this statute and that their age and
health create a "legal disability."13 Thus, the Court
13 Moreover, the Court finds it strange that Plaintiffs would
discharge their former pro bono attorneys if they believe they
suffer from a legal disability. Refusing competent, free legal
rejects Plaintiffs' arguments that the statutes of
limitations should be tolled.
Accordingly, the Court recommends that the
following claims be dismissed with prejudice
against [*21] the following Defendants on the
basis of the relevant statutes of limitations: Claims
I, II, IV, V, VI, and VII against Defendants Petrik,
Phippen, Williams, Hutchins, Burke, Webb,
Tebrink, Graeber, Hotter, White, Lieb, Lachelt,
Westendor, and the past and present Board of
County Commissioners of La Plata County; and
Claim III against Defendants Petrik, Phippen,
Williams, Hutchins, Burke, Webb, Graeber, Hotter,
White, Lieb, Lachelt, Westendor, and the past and
present Board of County Commissioners of La
Plata County.14 Gee v. Pacheco, 627 F.3d 1178,
1181 (10th Cir. 2010) (affirming dismissal with
prejudice of claims as barred by statute of
limitations). Thus, Claims I, II, III, IV, V, VI, and VII
against Defendant Kosnik and Claim III against
Defendant Tebrink are not subject to dismissal on
the basis of statute of limitations.
B. [*22] Section 1983
Plaintiffs assert violations of both due process and
equal protection in connection with their claim
under 42 U.S.C. § 1983.
1. Due Process
Procedural due process protects the individual
against "arbitrary action of government." Wolff v.
McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41
L. Ed. 2d 935 (1974). In general, a plaintiff must
make two showings in order to proceed on a
advice is always worrisome, but it is especially troubling when
Plaintiffs contend that they are disadvantaged in pursuing their
own legal rights. See Order [#120].
14 It is unclear whether Plaintiffs may have been trying to
assert claims against La Plata County or county officials based
on the alleged bad actions of LPCSO and its employees. To
the extent that they were, the Court notes that under Colorado
law, the Sheriff, and not the County is responsible for the
actions of his deputies. See Tunget v. Bd. of Cnty. Comm'rs,
992 P.2d 650, 652 (Colo. App. 1999).
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procedural due process claim. See Bartell v.
Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th Cir.
2001). First, a plaintiff must demonstrate that he
possesses a protected liberty or property interest.
Id. Second, a plaintiff must show that the
procedures which impacted his protected interest
were inadequate under the circumstances. Id. at
1149.
A portion of this original claim remains from
Plaintiffs' Amended Complaint. On July 24, 2012,
the District Judge permitted the portion of this
claim alleging the retention of Plaintiffs' personal
property at the Sheriff's Department to move
forward.15 Order [#66] at 5. Although Plaintiffs'
allegations have changed somewhat in the Second
Amended Complaint, the Court finds that they have
stated a § 1983 due process claim against certain
Defendants: Bobbie Fender, Amber Fender,
Schmidt, and Smith. [*23] The allegations
supporting this claim are that Defendants Bobbie
Fender, Amber Fender, and Schmidt stole the
Jeep and other property from Plaintiffs, that
Defendant Smith received the stolen property from
them that same day, and that all of these
Defendants performed these acts through the use
of their authority and their badge. Second Am.
Compl. [#129] at 3-4. This is sufficient to state a
due process claim at this stage of the litigation.16
See Order [66] at 5.
The allegations against Defendants Schirard,
Tebrink, and Kosnik are insufficient to state a due
process claim against them. Plaintiffs make no
15 The District Judge originally held that any violation (including
the seizure of the property) prior to September 7, 2008 was
barred by the statute of limitations, but on a motion for
reconsideration, this date was revised to August 24, 2008, the
date of the alleged theft. Order [#66] at 2-3.
16 The Court acknowledges that, unlike in the Amended
Complaint, in the Second Amended Complaint Plaintiffs have
alleged facts in support of a due process claim for both the
taking and the retention of the Jeep and other property. See
Order [#66] at 5 (finding that Plaintiffs' did not state a due
process claim regarding the actual taking of the property
because of allegations that Defendants were "in plain clothes"
and "not in uniform"). [*24] Here, Plaintiffs clearly allege that
these Defendants took Plaintiffs' property under color of state
law.
non-conclusory allegations about the actions of
Defendant Schirard except that he did not attend a
meeting set up by Defendant Hotter. See, e.g.,
Second Am. Compl. [#129] at 2 (stating that
Defendant Schirard "harmed each Plaintiff Bonner
and Shirley Robinette from 08-24-08 to the present
by [his] failure to hold each Defendant accountable
for their unlawful[ ] bias, prejudice[ ], and
animosities").
To the extent that Plaintiffs seek to impose direct
individual liability on Defendant Schirard, the Court
notes that individual liability pursuant to § 1983
"must be based on personal involvement in the
alleged constitutional violation." Foote v. Spiegel,
118 F.3d 1416, 1425, (10th Cir. 1997); (citing
Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.
1996)); Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir.1976) ("Personal participation is an
essential allegation in a Section 1983 claim."
(citations omitted)). Plaintiffs have failed to allege
[*25] Defendant Schirard's personal involvement
in any due process violation.
Similarly, to the extent that Plaintiffs seek to
impose supervisory liability on Defendant Schirard,
they must demonstrate an "affirmative link"
between the supervisor and the alleged
constitutional violation. Schneider v. City of Grand
Junction Police Dep't, 717 F.3d 760, 768 (10th Cir.
2013) (citing Dodds v. Richardson, 614 F.3d 1185,
1195 (10th Cir. 2010)).The affirmative link requires
more than "a supervisor's mere knowledge of his
subordinate's" conduct. Schneider, 717 F.3d at 768
(quoting Iqbal, 556 U.S. at 677). Three elements
are required to establish a section 1983 claim
against a defendant based on his supervisory
responsibilities: (1) personal involvement, (2)
sufficient causal connection, and (3) culpable state
of mind. Schneider, 717 F.3d at 768 (citing Dodds,
614 F.3d at 1195). Plaintiffs fail to make allegations
which satisfy these elements in the Second
Amended Complaint.
Turning to Defendants Tebrink and Kosnik, the
non-conclusory allegations against Defendant
Tebrink are that she gave Mrs. Robinette and her
son a copy of an incident report, and that when
they returned the incident report to her, [*26] she
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destroyed it and gave them an amended version
instead. Id. at 11. The non-conclusory allegation
against Defendant Kosnik is that he covered up a
suspect's name on an incident report. Id. at 12-13.
To the extent that Plaintiffs may have been
attempting to assert a due process claim against
these individuals for these actions, Plaintiffs have
failed to specify the protected liberty or property
interest at stake. See Bartell, 263 F.3d at 1149.
The Court concludes that Plaintiffs have not
sufficiently alleged a liberty or property interest in
unadulterated police incident reports. "A liberty
interest may arise from the Constitution itself, by
reason of guarantees implicit in the word 'liberty,' or
it may arise from an expectation or interest created
by state laws or policies." Wilkinson v. Austin, 545
U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed. 2d 174
(2005). Neither the Constitution nor the word
'liberty' create a citizen's right to unadulterated
police reports. Plaintiffs point to no state law or
policy which creates such a right, or which
prevents police and prosecutors from amending or
redacting reports. Indeed, the Tenth Circuit Court
of Appeals has held that "complaints deal[ing]
almost exclusively with procedure [*27] such as
police reports [and] responses to calls . . . do not
state any constitutional entitlement." Phillips v.
Kerns, 483 Fed. App'x 400, 402 (10th Cir. 2012).
Moreover, "[a]n entitlement to nothing but
procedure cannot serve as the basis for a property
right protected by the due process clause."Town
of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,
764, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005).
Because Plaintiffs fail to allege a protected interest,
they fail to properly assert that either of these
Defendants violated their due process rights.
With respect to Defendant Hamby, the non-
conclusory allegations against him are that he
failed to arrest someone who was threatening
Plaintiffs' adult children and their daughter's
grandchildren; that he sent an email to certain law
enforcement personnel telling them that Plaintiffs
and their family would be deemed trespassing if
found on a certain disputed parcel of land; and that
in the La Plata Court House, he twice rode with
Plaintiffs in the elevator and sat behind them in the
courtroom.Second Am. Compl. [#129] at 6-7.
Taking Plaintiffs' allegations as true, Defendant
Hamby's threat to arrest Plaintiffs should they
make use of what they claim is their own land may
constitute [*28] a taking of property without due
process of law. See Soldal v. Cook Cnty, Ill., 506
U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)
(stating that a property owner's constitutional rights
may be violated when law enforcement personnel
interfere with the owner's possessory interests in
his property). Accordingly, at this early stage of the
litigation, the Court finds that Plaintiffs have stated
a due process claim against Defendant Hamby.
Accordingly, the Court recommends that Plaintiffs'
due process claim against Defendants Schirard,
Tebrink, and Kosnik be dismissed.17
2. Equal Protection
It is well established "that the Constitution prohibits
selective enforcement of the law based on
considerations such as race." Whren v. United
States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L.
Ed. 2d 89 (1996). To establish a claim of selective
law enforcement under § 1983, "[t]he plaintiff must
demonstrate that the defendant's actions had a
discriminatory effect and were motivated by a
discriminatory purpose." Marshall, 345 F.3d at
1168. "[T]he discriminatory purpose element
requires a showing that discriminatory intent
[*29] was a 'motivating factor in the decision' to
enforce the criminal law against the [plaintiff]."
United States v. Alcaraz-Arellano, 441 F.3d 1252,
1264 (10th Cir. 2006) (quoting Marshall, 345 F.3d
at 1168).
First, Plaintiffs make no allegations that they
belong to a protected class because of, for
example, their race. Second, the standard for
proving a selective enforcement claim is a
demanding one. Alcaraz-Arellano, 441 F.3d at
1264. "Those seeking to establish an equal
protection claim based on selective law
enforcement face a high burden: they must dispel
the presumption that a law enforcement official has
not violated the Equal Protection Clause with 'clear
17 The Court discusses whether this and the remaining claims
(discussed below) should be dismissed with or without
prejudice in Section III.I. below.
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evidence to the contrary.'" United States v.
Hernandez-Chaparro, 357 F. App'x 165, 166 (10th
Cir. 2009) (citing United States v. Armstrong, 517
U.S. 456, 465, 116 S. Ct. 1480, 134 L. Ed. 2d 687
(1996)). Police possess broad discretion in
determining when to make a traffic stop or arrest.
Alcaraz-Arellano, 441 F.3d at 1264. "Judicial
interference with law-enforcement discretion might
'induce police officers to protect themselves
against false accusations in ways that are
counterproductive to fair and effective enforcement
of the laws,' such as by directing law
[*30] enforcement resources away from minority
neighborhoods." Id. (quoting Marshall, 345 F.3d at
1167).
Defendants contend that Plaintiffs have made no
allegations that they were motivated by a
discriminatory purpose or that their actions had a
discriminatory effect within the meaning of the
equal protection clause.See Marshall, 345 F.3d at
1168. Further, Plaintiffs make no allegations that
any criminal laws were actually enforced against
them.Alcaraz-Arellano, 441 F.3d at 1264.Rather,
Plaintiffs' claims are primarily based on
Defendants' alleged failure to provide them with
certain services and protection. In that regard, "[i]t
is perfectly clear . . . that neither the Federal
Constitution itself, nor any federal statute, granted
[them] any individual entitlement to police
protection." Town of Castle Rock v. Gonzales, 545
U.S. 748, 773, 125 S. Ct. 2796, 162 L. Ed. 2d 658
(2005) (J. Stevens, dissenting, but agreeing with
the majority on this point).
Based on the foregoing, the Court finds that this
claim should be dismissed for failure to state the
essential elements of a selective enforcement
equal protection claim. Plaintiffs have offered
nothing more than conclusions based on
speculation and their own subjective beliefs.
[*31] There are simply no allegations that
Defendants' actions or inactions were motivated by
an impermissible discriminatory purpose.
Considering both the lack of allegations supporting
the significant burden required to show an equal
protection violation based on selective law
enforcement, the Court finds that Plaintiffs have
failed to state an equal protection claim.
Accordingly, the Court recommends that Plaintiffs'
section 1983 equal protection claim be dismissed.
C.42 U.S.C. § 1985(3)
Plaintiffs also allege that Defendants engaged in a
conspiracy to violate their constitutional rights in
violation of 42 U.S.C. § 1985(3). The elements of a
§ 1985(3) conspiracy claim are: (1) a conspiracy;
(2) to deprive plaintiff of equal protection or equal
privileges and immunities; (3) an act in furtherance
of conspiracy; and (4) an injury or deprivation
resulting therefrom. Tilton v. Richardson, 6 F.3d
683, 686 (10th Cir. 1993).
The Court has reviewed the Second Amended
Complaint and finds that even construing Plaintiffs'
allegations liberally and in the light most favorable
to them, Plaintiffs have presented nothing more
than conclusory allegations in support of this claim.
Just as importantly, however, [*32] § 1985(3) only
applies to "conspiracies motivated by 'some racial,
or perhaps otherwise class-based, invidiously
discriminatory animus.'" Tilton, 6 F.3d at 686
(quoting Griffin v. Breckenridge, 403 U.S. 88, 101-
02, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)). "The
other 'class-based animus' language of this
requirement has been narrowly construed . . ." Id.
(citing United Bhd. of Carpenters & Joiners of Am.,
Local 610, AFL—CIO v. Scott, 463 U.S. 825, 837,
103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983). As
noted above, Plaintiffs make no showing that they
are members of a racial or other class that is
protected by § 1985(3). Thus, the Court finds that
Plaintiffs have not sufficiently alleged facts
supporting all of the elements necessary to
demonstrate entitlement to relief under this legal
theory, and therefore that this claim must be
dismissed. See Lane v. Simon, 495 F.3d 1182,
1186 (10th Cir. 2007) (discussing pleading
requirements to support legal theory).
Accordingly, the Court recommends that Plaintiffs'
claim under 42 U.S.C. § 1985(3) be dismissed.
D.42 U.S.C. § 1988
Plaintiffs request attorneys' fees and costs. Second
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Am. Compl. [#129] at 2. Pursuant to 42 U.S.C. §
1988, "[i]n any action or proceeding to enforce a
provision of sections 1981,1981a,1982,
[*33] 1983, 1985, and 1986 of this title . . . the
court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee . . . ." 42
U.S.C. § 1988(b). However, the Tenth Circuit has
found that pro se litigants may not recover an
award of attorneys' fees pursuant to this statute.
Turman v. Tuttle, 711 F.2d 148, 149 (10th Cir.
1983). "This finding seems to comport with the
policy underlying § 1983, which appears to have
been implemented not to compensate pro se
litigants but to enable litigants with valid claims to
present their claims without having to bear the
burden of the costs." Id.
Accordingly, Plaintiffs are not entitled to attorneys'
fees pursuant to 42 U.S.C. § 1988, and the Court
recommends that Plaintiffs' claim under 42 U.S.C.
§ 1988 be dismissed.
E. Fraud By Omission and Nondisclosure
To state a claim of fraud under Colorado law,
Plaintiffs must generally allege: "(1) a false
representation of a material existing fact; (2)
knowledge on the part of the one making the
representation that it is false; (3) ignorance on the
part of the one to whom the representation is made
of falsity; (4) representation made with intention
that it be acted upon; [and] (5) representation
[*34] resulting in damages." Navigators Specialty
Ins. Co. v. Beltman, No. 11-cv-00715-RPM, 2012
U.S. Dist. LEXIS 156666, 2012 WL 5378750, at *6
(D. Colo. Nov. 1, 2012) (quoting Kinsey v.
Preeson, 746 P.2d 542, 550 (Colo. 1987)). Further,
pursuant to Fed. R. Civ. P. 9(b), "the
circumstances constituting fraud or mistake shall
be stated with particularity." Here, the basis for
Plaintiffs' fraud claim is unclear. Based on a close
reading of the Second Amended Complaint, the
Court assumes that Plaintiffs may be basing their
fraud claim on alleged falsehoods contained in law
enforcement incident reports.
To the extent Plaintiffs are attempting to allege
fraud based on these reports, they fail to meet
many of the required elements of the claim. They
certainly do not allege that anyone knowingly made
a false representation on which they relied. In
addition, Plaintiffs fail to "set forth [with sufficient
particularity] the who, what, when, where and how
of the alleged fraud" and do not sufficiently "set
forth the time, place, and contents of the false
representation, the identity of the party making the
false statements and the consequences thereof."
United States ex rel. Sikkenga v. Regence
Bluecross Blueshield of Utah, 472 F.3d 702, 727
(10th Cir. 2006) [*35] (citations omitted). Although
some of these allegations may be gleaned from the
Second Amended Complaint, none are made in
such a way as to provide Defendants with fair
notice of the basis for this claim against each
Defendant. See Robbins v. Oklahoma, 519 F.3d
1242, 1250 (10th Cir. 2008) (stating that when an
action is brought against multiple individual
governmental actors, "it is particularly important . . .
that the complaint make clear exactly who is
alleged to have done what to whom, to provide
each individual with fair notice as to the basis of
the claims against him or her").
Accordingly, the Court recommends that Plaintiff's
fraud claim be dismissed pursuant to both Fed. R.
Civ. P. 12(b)(6) and Fed. R. Civ. P. 9(b).
F. NIED
To allege a NIED claim, "a plaintiff must show that
the defendant's negligence created an
unreasonable risk of physical harm and caused the
plaintiff to be put in fear for his or her own safety,
that this fear had physical consequences or
resulted in long-continued emotional disturbance,
and that the plaintiff's fear was the cause of the
damages sought." Draper v. DeFrenchi-Gordineer,
282 P.3d 489, 496-97 (Colo. App. 2011). Plaintiffs
must also allege that [*36] they either suffered
physical injury or were in the "zone of danger." Id.
at 497. Here, Plaintiffs have failed to provide any
allegations that the actions of Defendants placed
them at an "unreasonable risk of physical harm."
The Second Amended Complaint contains no non-
conclusory allegations that any of Defendants'
actions "had physical consequences or resulted in
2014 U.S. Dist. LEXIS 42747, *32
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long-continued emotional disturbance."
Accordingly, the Court recommends that Plaintiffs'
NIED claim be dismissed.
G. IIED
An IIED claim is made under state law.
Specifically, "Colorado has adopted the
Restatement (Second) of Torts definition of
intentional infliction of emotional distress: 'One who
by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to
another is subject to liability for such emotional
distress, and if bodily harm to the other results
from it, for such bodily harm.'" Han Ye Lee v. Colo.
Times, Inc., 222 P.3d 957, 963 (Colo. Ct. App.
2009) (citing Restatement (Second) of Torts §
46(1) (1965)). Thus "[t]he elements of outrageous
conduct are: (1) the defendant engaged in extreme
and outrageous conduct, (2) recklessly or with the
intent of causing the plaintiff severe
[*37] emotional distress, and (3) causing the
plaintiff severe emotional distress." Pearson v.
Kancilia, 70 P.3d 594, 597 (Colo. Ct. App. 2003).
Plaintiffs fail to provide any specific allegations in
support of their general allegation that Defendants'
actions were extreme and outrageous. Extreme
and outrageous conduct must be "so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a
civilized community." Estate of Trentadue ex rel.
Aguilar v. United States, 397 F.3d 840, 855 (10th
Cir. 2005). Plaintiffs have not sufficiently alleged
that Defendants' behavior was outrageous,
atrocious, and utterly intolerable in a civilized
society. Moreover, "[w]here a complaint pleads
facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility
and plausibility of "entitlement to relief."'" Iqbal, 129
S. Ct. at 1950 (quoting Twombly, 550 U.S. at 557).
Here, the Court finds that the "well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct." Id. Therefore, the Court
agrees that the allegations do not sufficiently
[*38] allege the type of conduct that plausibly
qualifies as extreme and outrageous.
Accordingly, the Court recommends that Plaintiffs'
IIED claim be dismissed.
H. Conspiracy
Plaintiffs also assert a claim of common law
conspiracy. Second Am. Compl. [#129] at 2. "To
establish a civil conspiracy, a plaintiff must show
by a preponderance of the evidence that there
exists: (1) an object to be accomplished; (2) an
agreement by two or more persons on a course of
action to accomplish that object; (3) in furtherance
of that course of action, one or more unlawful acts
which were performed to accomplish a lawful or
unlawful goal, or one or more lawful acts which
were performed to accomplish an unlawful goal;
and (4) damages to the plaintiff as a proximate
result."Magin v. DVCO Fuel Sys., Inc., 981 P.2d
673, 674-75 (Colo. Ct. App. 1999).
In light of the Court's analysis above, the only claim
not subject to dismissal is a § 1983 due process
claim. The Tenth Circuit has stated that "a
conspiracy to deprive a plaintiff of a constitutional
or federally protected right under the color of state
law" is actionable. Snell v. Tunnell, 920 F.2d 673,
701 (10th Cir. 1990).However, in order to succeed
on a conspiracy [*39] claim under § 1983, "a
plaintiff must plead and prove not only a
conspiracy, but also an actual deprivation of rights;
pleading and proof of one without the other will be
insufficient." Id. Further, "[w]hile a deprivation of a
constitutional right is essential to proceed under a
§ 1983 claim, proof of an agreement to deprive will
often require examination of conduct occurring
prior to the deprivation." Id. at 701-02. To establish
the existence of a conspiracy, a plaintiff seeking
redress must show that there was a "single plan,
the essential nature and general scope of which
[was] known to each person who is to be held
responsible for its consequences." Id. (internal
citations omitted).
The Court appropriately disregards the legal labels
applied by pro se plaintiffs when those labels serve
to obfuscate the nature of the legal claims
asserted.See Castro v. United States, 540 U.S.
375, 381, 124 S. Ct. 786, 157 L. Ed. 2d 778 (2003)
(noting that it is appropriate for federal courts to
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ignore the legal labels attached to a pro se party's
claims "to create a better correspondence between
the substance of [the party's claims] and [the]
underlying legal basis"). The thrust of Plaintiff's
conspiracy claim is in fact a § 1983
[*40] conspiracy claim for violation of Plaintiffs'
due process rights.
The Court has already found that Plaintiffs have
adequately pled a § 1983 due process claim as to
Defendants Bobbie Fender, Amber Fender,
Schmidt and Smith. See supra § III.B.1. At this
early stage of the litigation, the Court finds that
Plaintiffs have also adequately pled a § 1983
conspiracy between these Defendants to deprive
Plaintiffs of their property on and after August 24,
2008. When read liberally, the Second Amended
Complaint discusses each of these four
Defendants' conduct so as to sufficiently allege that
such conduct occurred by agreement among them.
See, e.g., Nelson v. Elway, 908 P.2d 102, 106
(Colo. 1995) (noting that "[t]he court will not infer
the agreement necessary to form a conspiracy;
evidence of such a conspiracy must be presented
by the plaintiff") (emphasis added). As alleged,
however, the actions of Defendant Hamby appear
to have been unilateral, and the Court therefore
finds that this claim should not proceed as to him.
Accordingly, the Court recommends that Plaintiff's
common law conspiracy claim should be
dismissed and that Plaintiff's § 1983 conspiracy
claim should be dismissed as to all Defendants
[*41] except for Defendants Bobbie Fender,
Amber Fender, Schmidt, and Smith.
I. No Leave to Amend
The dismissal of an action "pursuant to Rule
12(b)(6) is a resolution on the merits and is
ordinarily prejudicial." Okusami v. Psychiatric Inst.
of Wash., 959 F.2d 1062, 1066, 295 U.S. App.
D.C. 58 (D.C. Cir. 1992);accord Brierley v.
Schoenfeld, 781 F.2d 838 (10th Cir. 1986)
(affirming a district court decision to dismiss with
prejudice an action brought under 42 U.S.C. §
1983); Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2nd Cir. 1991) ("where a plaintiff is
unable to allege any fact sufficient to support [his]
claim, a complaint should be dismissed with
prejudice"); Tepper v. Van Dam, 974 F.2d 1345,
1992 WL 219037, at *3-4 (10th Cir. 1992) (relying
on Okusami, Brierly, and Cortec to affirm dismissal
of an action with prejudice). However, due to
heightened concerns when the plaintiff is
proceeding pro se, dismissal with prejudice is only
appropriate "where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to
amend." Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001);see also Brereton v.. Bountiful
City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)
[*42] ("A dismissal with prejudice is appropriate
where a complaint fails to state a claim under Rule
12(b)(6) and granting leave to amend would be
futile.") (citing Grossman v. Novell, Inc., 120 F.3d
1112, 1126 (10th Cir. 1997))).
Even as courts are careful to protect the rights of
pro se plaintiffs, they often find that granting the
opportunity to amend would be futile. See, e. g.,
Arocho v. Nafziger, 367 F. App'x 942, 955 (10th
Cir. 2010) (describing as "unique" circumstances
under which giving a plaintiff an opportunity to
amend his complaint would not be futile);
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th
Cir. 1990) (holding that prejudice should not attach
to a dismissal when plaintiff has made allegations
"which, upon further investigation and
development, could raise substantial issues"
(emphasis added)); but see Gee v. Pacheco, 627
F.3d 1178, 1186 (10th Cir. 2010) ("[O]rdinarily the
dismissal of a pro se claim under Rule 12(b)(6)
should be without prejudice, and a careful judge
will explain the pleading's deficiencies so that a
prisoner with a meritorious claim can then submit
an adequate complaint." (citations omitted)).
Plaintiffs have had multiple opportunities since
filing [*43] this case in 2010 to present facts to
support their purported causes of action. Plaintiffs
have had reasonable and ample opportunities to
do so, including detailed instructions from both the
District Judge and the undersigned explaining the
deficiencies of earlier complaints. Plaintiffs have
further had the assistance of pro bono legal
counsel, which they rejected. Because Plaintiffs
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have failed to assert additional facts in support of
their claims, and because they have had multiple
opportunities to amend, the Court finds that
granting leave to amend again would be futile.
Accordingly, the Court recommends that the
dismissed causes of action and Defendants, as
outlined below, be dismissed with prejudice.See
Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5
(10th Cir. 2001) (stating that dismissal with
prejudice is appropriate where the plaintiff's
amended pleadings fail to cure the deficiencies in
his claims); Meadow at Buena Vista, Inc. v. Ark.
Valley Pub. Co., No. 10-cv-02871-MSK-KMT, 2012
U.S. Dist. LEXIS 19234, 2012 WL 502688, at *9 (D
.Colo. Feb. 15, 2012) (dismissing causes of action
with prejudice where Third Amended Complaint
failed to assert additional facts sufficient to support
the plaintiff's claims); Stouffer v. Eulberg, No. CIV-
09-320-C, 2009 U.S. Dist. LEXIS 114108, 2009
WL 4724272, at *1 (W.D. Okla. Dec. 7, 2009)
[*44] (dismissing cause of action with prejudice
where the plaintiff was given the opportunity to
amend to correct errors but failed to do so in his
amended pleading); Bridges v. Two Unnamed FBI
Agents, No. CIV-08-0759-HE, 2009 U.S. Dist.
LEXIS 37123, 2009 WL 1227489, at *2 (dismissing
causes of action with prejudice where the plaintiff
was afforded multiple opportunities to address
pleading deficiencies but failed to adequately do
so).
IV. Recommendation
Based on the foregoing, the Court respectfully
RECOMMENDS that Motion [#139] be GRANTED
in part and DENIED in part and that Motions
[#151, #176, #190] be GRANTED. Accordingly, the
Court recommends that all claims against
Defendants Schirard, Bobbie Fender, Amber
Fender, Schmidt, Hamby, Smith, Harrington,
Webb, Phippen, Williams, Burke, Lieb, Lachelt,
Westendor, Kosnik, Tebrink, Hutchins, Graeber,
and the past and present Board of County
Commissioners of La Plata County be dismissed
with prejudice except for the following: Claim 1 (§
1983 due process claim) against Defendants
Bobbie Fender, Amber Fender, Schmidt, Hamby,
and Smith; and Claim 7 (§ 1983 conspiracy)
against Defendants Bobbie Fender, [*45] Amber
Fender, Schmidt, and Smith.
IT IS HEREBY ORDERED that pursuant to Fed. R.
Civ. P. 72, the parties shall have fourteen (14)
days after service of this Recommendation to
serve and file any written objections in order to
obtain reconsideration by the District Judge to
whom this case is assigned. A party's failure to
serve and file specific, written objections waives de
novo review of the Recommendation by the District
Judge, Fed. R. Civ. P. 72(b);Thomas v. Arn, 474
U.S. 140, 147-48, 106 S. Ct. 466, 88 L. Ed. 2d 435
(1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999);Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
A party's objections to this Recommendation must
be both timely and specific to preserve an issue for
de novo review by the District Court or for
appellate review. United States v. One Parcel of
Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 11, 2014
BY THE COURT:
/s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge
End of Document
2014 U.S. Dist. LEXIS 42747, *43
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Positive
As of: October 8, 2021 1:56 AM Z
Scherer v. City of Merriam
United States District Court for the District of Kansas
May 10, 2002, Decided
CIVIL ACTION No. 01-2092-KHV
Reporter
2002 U.S. Dist. LEXIS 9530 *
THOMAS E. SCHERER, Plaintiff, v. CITY OF
MERRIAM, Defendant.
Disposition: Defendant's motion to dismiss
sustained, but plaintiff's granted leave to amend
complaint.
Core Terms
motion to dismiss, allegations, campaign, sign
ordinance, due process, municipal, failure to state
a claim, conscience, pleadings, shock,
constitutional right, motion for judgment, equal
protection, right of way, misinterpreted, construes,
custom, due process claim, ordinance
Case Summary
Procedural Posture
Defendant, a city and other officials, filed a motion
to dismiss plaintiff's, a former political candidate,
complaint in which it was alleged that the city
violated the former candidate's right to equal
protection by removing a political campaign sign
from a municipal right of way and failing to later to
investigate the incident.
Overview
The court construed the city's motion to dismiss as
a motion for judgment on the pleadings. The city
sought to dismiss the complaint for failure to state
a claim on which relief could be granted. The court
held that the city could not be liable for the acts of
its employees and agents under 42 U.S.C.S. §
1983 on a theory of vicarious liability or respondeat
superior. The city could be liable under § 1983 only
if an official custom or policy of the city caused a
violation of the former candidate's constitutional, or
an individual with final policymaking authority made
the decision which violated his constitutional rights.
The court held that the complaint did not identify
any municipal custom or policy or decision by an
individual with final policymaking authority. The
complaint did not link any alleged custom, policy,
or decision to a violation of his constitutional rights.
However, the court granted leave to amend to
allow the former candidate to add factual
allegations to support a claim that the city officials
misinterpreted the sign ordinance pursuant to
municipal custom or policy and/or the sign
ordinance, either on its face or as applied, was
unconstitutional.
Outcome
The court sustained the city's motion for judgment
on the pleadings, but granted the former candidate
leave to amend his complaint.
LexisNexis® Headnotes
Civil Procedure > Dismissal > Involuntary
Dismissals > Failure to State Claims
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to
State Claim
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Dismiss
Civil Procedure > Pleading &
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 64 of
106
Page 2 of 8
Practice > Pleadings > Rule Application &
Interpretation
Civil Procedure > Judgments > Pretrial
Judgments > General Overview
Civil Procedure > Judgments > Pretrial
Judgments > Judgment on Pleadings
HN1[] Involuntary Dismissals, Failure to
State Claims
A motion to dismiss for failure to state a claim filed
after an answer is construed as a Fed. R. Civ. P.
12(c) motion for judgment on the pleadings but the
governing standards are identical. A Rule 12(b)(6)
motion should not be granted unless it appears
beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him
to relief. The court accepts all well-pleaded factual
allegations in the complaint as true and draws all
reasonable inferences from those facts in favor of
plaintiff. The issue in reviewing the sufficiency of
plaintiff's complaint is not whether plaintiff will
prevail, but whether plaintiff is entitled to offer
evidence to support his claims. Although plaintiff
need not precisely state each element of his
claims, he must plead minimal factual allegations
on those material elements that must be proved.
Civil Procedure > Parties > Pro Se
Litigants > Pleading Standards
Civil Procedure > Pleading &
Practice > Pleadings > Rule Application &
Interpretation
Civil Procedure > Parties > Pro Se
Litigants > General Overview
HN2[] Pro Se Litigants, Pleading Standards
The court affords a pro se plaintiff some leniency
and must liberally construe the complaint. While
pro se complaints are held to less stringent
standards than pleadings drafted by lawyers, pro
se litigants must follow the same procedural rules
as other litigants. The court may not assume the
role of advocate for a pro se litigant.
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to
State Claim
Civil Procedure > Pleading &
Practice > Pleadings > Rule Application &
Interpretation
Civil Procedure > Dismissal > Involuntary
Dismissals > Failure to State Claims
Civil Procedure > Judgments > Pretrial
Judgments > General Overview
Civil Procedure > Judgments > Pretrial
Judgments > Judgment on Pleadings
Civil Procedure > Judgments > Preclusion of
Judgments > Res Judicata
HN3[] Motions to Dismiss, Failure to State
Claim
Pursuant to Fed. R. Civ. P. 12(h)(2), a defense of
failure to state a claim may be made in any
pleading permitted or ordered under Fed. R. Civ.
P. 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits. Rule 12
does not prohibit a defendant from filing multiple
motions for judgment on the pleadings based on
different issues.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
Governments > Local Governments > Claims
By & Against
Civil Rights Law > ... > Immunity From
Liability > Local Officials > General Overview
Civil Rights Law > Protection of
Rights > Immunity From Liability > Respondeat
Superior Distinguished
Civil Rights Law > Protection of
Rights > Section 1983 Actions > Scope
2002 U.S. Dist. LEXIS 9530, *9530
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106
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Torts > ... > Employers > Activities &
Conditions > General Overview
HN4[] Scope, Government Actions
A city cannot be liable for the acts of its employees
and agents under 42 U.S.C.S. § 1983 on a theory
of vicarious liability or respondeat superior. The
city can be liable under § 1983 only if an official
custom or policy of the city caused a violation of
plaintiff's constitutional rights, or an individual with
final policymaking authority made the decision
which violated his constitutional rights.
Constitutional Law > Equal Protection > Nature
& Scope of Protection
HN5[] Equal Protection, Nature & Scope of
Protection
Unless a plaintiff alleges a violation of a
fundamental right or discrimination against a
suspect class, a defendant only needs a rational
justification for differential treatment.
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Religion > Free
Exercise of Religion
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Religion > General
Overview
Constitutional Law > Equal
Protection > General Overview
Constitutional Law > Equal Protection > Nature
& Scope of Protection
HN6[] Freedom of Religion, Free Exercise of
Religion
In general, provided that an ordinance is rationally
based, the failure to enforce it with complete
equality does not of itself infringe the constitutional
principle of equal protection. Mere failure to
prosecute other offenders is no basis for a finding
of denial of equal protection.
Constitutional Law > ... > Fundamental
Rights > Procedural Due Process > General
Overview
Constitutional Law > Substantive Due
Process > General Overview
Constitutional Law > Substantive Due
Process > Scope
HN7[] Fundamental Rights, Procedural Due
Process
The touchstone of due process is protection of the
individual against arbitrary action of government,
including the exercise of power without any
reasonable justification in the service of a
legitimate governmental objective. In cases of
abusive executive action, only the most egregious
official conduct can be said to be arbitrary in the
constitutional sense. The standard for judging a
substantive due process claim is whether the
challenged government action would shock the
conscience of federal judges. To satisfy this
standard, a plaintiff must do more than show that
the government actor intentionally or recklessly
caused injury to the plaintiff by abusing or misusing
government power. Instead, a plaintiff must
demonstrate a degree of outrageousness and a
magnitude of potential or actual harm that is truly
conscience shocking. Generally conscience
shocking behavior falls on the far side of the
culpability spectrum, requiring the plaintiff to show
that the government actor performed with an intent
to harm. Where the state actor has the luxury to
truly deliberate about the decisions he or she is
making, something less than unjustifiable intent to
harm, such as calculated indifference, may suffice
to shock the conscience.
Counsel: [*1] THOMAS E SCHERER, plaintiff,
Pro se, Merriam, KS.
For MERRIAM, KANSAS, CITY OF, defendant:
Jeffrey A. Bullins, Holbrook, Heaven & Osborn
P.A., Kansas City, KS.
For MERRIAM, KANSAS, CITY OF, defendant:
Lewis A. Heaven, Jr., Richard J. Plouff, Holbrook,
2002 U.S. Dist. LEXIS 9530, *9530
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Heaven & Osborn, P.A., Merriam, KS.
Judges: KATHRYN H. VRATIL, United States
District Judge.
Opinion by: KATHRYN H. VRATIL
Opinion
MEMORANDUM AND ORDER
Plaintiff, a former candidate for political office, filed
suit against the City of Merriam, Kansas and
various other officials, alleging that they violated
his right to equal protection by removing a political
campaign sign from a municipal right of way and
failing to later investigate the incident. This matter
is before the Court on the City Of Merriam's Motion
To Dismiss (Doc. # 64), which the Court reinstated
on April 10, 2002 and construes as a motion for
judgment on the pleadings pursuant to Rule 12(c),
Fed. R. Civ. P.1 For reasons stated below, the
Court sustains the City's motion but grants plaintiff
leave to amend.
[*2]
Factual Background
Plaintiff's complaint alleges the following facts:
Plaintiff was a candidate for political office. On
February 21, 2001, the City of Merriam removed
one of plaintiff's campaign signs because it was in
the city "right of way," i.e. the area immediately
adjacent to the street. 2 The City removed plaintiff's
1
See Jacobsen v. Deseret Book Co., 287 F.3d 936, 2002 U.S.
App. LEXIS 7351 at * 14 n.2 (10th Cir. April 19, 2002) (if
defendant makes motion to dismiss for failure to state a claim
after filing answer, motion should generally be treated as
motion for judgment on the pleadings under Rule 12(c)).
2 In a separate action filed with the Kansas Board of Tax
Appeals, plaintiff claims that the City does not have a right of
way on the particular parcel of residential property where
plaintiff's sign was located.
sign pursuant to a city sign ordinance, but it did not
remove similarly situated campaign signs.
On February 22, 2001, plaintiff attempted to
complain to the Merriam Police Department, the
Johnson County Kansas Election Board ("JCEB"),
Paul Morrison (District Attorney of Johnson
County) and Carla Stovall (Attorney General for the
State of Kansas). Each of the agencies and
individuals "failed to take a report and protect Mr.
Scherer's property rights. [*3] " Civil Complaint
(Doc. # 1) filed February 23, 2001 at 3.
Procedural Background
On February 23, 2001, plaintiff filed suit against the
City of Merriam, the Johnson County Kansas
Election Board ("JCEB"), Connie Schmidt (Johnson
County Election Commissioner), Paul Morrison
(District Attorney of Johnson County) and Carla
Stovall (Attorney General for the State of Kansas).
Plaintiff alleges that (1) his campaign sign should
not have been removed pursuant to the City's sign
ordinance because the City did not have a "right of
way" on the particular parcel of property and (2)
even if the City had a "right of way" on the
property, his campaign sign did not violate the
ordinance because it was more than six feet from
the curb or one foot from the sidewalk. Liberally
construing the complaint, plaintiff alleges that
defendants violated his constitutional rights to
equal protection, due process and free speech.
On June 29, 2001, the Court sustained the motion
to dismiss of JCEB and Schmidt, on account of
insufficient service of process and failure to state a
claim.See Memorandum And Order (Doc. # 38) at
4-7. In the same order, the Court sustained the
motion to dismiss [*4] of Stovall and Morrison, on
account of sovereign immunity and absolute
prosecutorial immunity. See id. at 8-9. On
September 5, 2001, the Court overruled plaintiff's
motion to reconsider its order of dismissal. See
Memorandum And Order (Doc. # 57). The Court
also sustained the City of Merriam's motion to
dismiss, on account of insufficient service of
process, but allowed plaintiff to re-serve the City by
October 12, 2001. See id. at 5.
2002 U.S. Dist. LEXIS 9530, *1
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On September 13, 2001, plaintiff filed a notice of
appeal of the order of September 5. On September
21, 2001, plaintiff notified the Court that he had
served the City of Merriam as required by the order
from which he had appealed. On October 2, 2001,
the City of Merriam filed a motion to dismiss for
failure to state a claim. See Motion To Dismiss
(Doc. # 64). On January 14, 2002, the Court
directed the Clerk to administratively terminate the
City's motion to dismiss pending a ruling by the
Tenth Circuit Court of Appeals. See Order (Doc. #
79). After the Tenth Circuit dismissed plaintiff's
appeal for lack of jurisdiction, the Court reinstated
the City's motion to dismiss. See Order (Doc. # 83)
filed April 10, 2002.
Standards [*5] For Motion To Dismiss For
Failure To State A Claim
HN1[]A motion to dismiss for failure to state
a claim filed after an answer is construed as a
Rule 12(c) motion for judgment on the
pleadings but the governing standards are
identical. See Jacobsen,287 F.3d 936, 2002 WL
652250,at * 14 n.2. A Rule 12(b)(6) motion should
not be granted unless "it appears beyond doubt
that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." GFF
Corp. v. Assoc. Wholesale Grocers., Inc., 130
F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78
S. Ct. 99 (1957)). The Court accepts all well-
pleaded factual allegations in the complaint as true
and draws all reasonable inferences from those
facts in favor of plaintiff. See Shaw v. Valdez, 819
F.2d 965, 968 (10th Cir. 1987). The issue in
reviewing the sufficiency of plaintiff's complaint is
not whether plaintiff will prevail, but whether
plaintiff is entitled to offer evidence to support his
claims.See Scheuer v. Rhodes, 416 U.S. 232,
236, 40 L. Ed. 2d 90, 94 S. Ct. 1683, 71 Ohio Op.
2d 474 (1974).Although [*6] plaintiff need not
precisely state each element of his claims, he must
plead minimal factual allegations on those material
elements that must be proved. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
HN2[] The Court affords a pro se plaintiff some
leniency and must liberally construe the complaint.
See Oltremari v. Kan. Soc. & Rehab. Servs.,
871 F. Supp. 1331, 1333 (D. Kan. 1994). While
pro se complaints are held to less stringent
standards than pleadings drafted by lawyers, pro
se litigants must follow the same procedural rules
as other litigants. See Hughes v. Rowe, 449 U.S.
5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980);
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992).The Court may not assume the role of
advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
Analysis
The City of Merriam asks the Court to dismiss
plaintiff's claims for failure to state a claim on which
relief may be granted. The substance of the City's
motion is essentially uncontested. Plaintiff argues
only that the City is barred from filing a second
motion to dismiss under "res judicata-issue [*7]
preclusion" principles. See plaintiff's Reply To The
City Of Merriam's Motion To Dismiss (Doc. # 67)
filed October 10, 2001 at 1. The Court disagrees.
The City's first motion to dismiss, 3 which the Court
sustained, was based solely on plaintiff's failure to
properly serve the City. Because the City's first
motion to dismiss did not involve a challenge to the
sufficiency of plaintiff's complaint, res judicata
principles do not bar the instant motion. Moreover,
HN3[] pursuant to Rule 12(h)(2), a defense of
failure to state a claim "may be made in any
pleading permitted or ordered under Rule 7(a), or
by motion for judgment on the pleadings, or at the
trial on the merits." Rule 12 does not prohibit a
defendant from filing multiple motions for judgment
on the pleadings based on different issues. In this
case, because the City has already filed an
answer, the Court construes the City's motion to
dismiss for failure to state a claim as a Rule 12(c)
motion for judgment on the pleadings. See
Jacobsen, 287 F.3d 936, 2002 WL 652250, at * 14
n.2.
3 The Court previously noted that the City's first motion to
dismiss was actually a motion for judgment on the pleadings
pursuant to Rule 12(c), Fed. R. Civ. P.See Memorandum And
Order (Doc. # 38) at 4 n.3.
2002 U.S. Dist. LEXIS 9530, *4
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[*8] HN4[]
I. Municipal Liability
The City argues that plaintiff has failed to state a
claim for several alternative reasons, but the City's
status as a municipality is dispositive. The City
cannot be liable for the acts of its employees and
agents under Section 1983 on a theory of vicarious
liability or respondeat superior. See Monell v.
Dep't Of Social Servs., 436 U.S. 658, 692, 56 L.
Ed. 2d 611, 98 S. Ct. 2018 (1978);Sauers v. Salt
Lake County, 1 F.3d 1122, 1129 (10th Cir. 1993).
The City can be liable under Section 1983 only if
an official custom or policy of the City caused a
violation of plaintiff's constitutional rights, see
Monell, 436 U.S. at 694; Kentucky v. Graham, 473
U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct.
3099 (1985), or an individual with final
policymaking authority made the decision which
violated his constitutional rights, see Pembaur v.
City Of Cincinnati, 475 U.S. 469, 481-84, 89 L. Ed.
2d 452, 106 S. Ct. 1292 (1986) (holding that single
decision by official responsible for establishing final
policy may give rise to municipal liability); Jantz v.
Muci, 976 F.2d 623, 630 (10th Cir. 1992) [*9]
(same),cert. denied,508 U.S. 952, 124 L. Ed. 2d
662, 113 S. Ct. 2445 (1993).4
With respect to all of plaintiff's claims, the
complaint does not identify any municipal custom
or policy or decision by an individual with final
policymaking authority. Indeed, plaintiff's claims
are based primarily on the failure of City officials to
follow the sign ordinance [*10] with respect to one
of plaintiff's signs - the virtual antithesis of a
"custom or practice." In addition, the complaint
does not link any alleged custom, policy or
4 Plaintiff does not allege any failure to train by the City. Even if
he did so, a municipality can be held liable only when its
failure to train reflects a "deliberate or conscious choice" to
ignore serious risks to a person's health and safety. City of
Canton v. Harris, 489 U.S. 378, 388-89, 103 L. Ed. 2d 412,
109 S. Ct. 1197 (1989);see Myers v. Okla. County Bd. of
County Commr's, 151 F.3d 1313, 1318 (10th Cir. 1998).
Plaintiff has not alleged that (1) the City made a deliberate or
conscious choice not to train or supervise its employees or (2)
the City ignored serious risks to health and safety.
decision to a violation of plaintiff's constitutional
rights. The Court therefore sustains the City's
motion to dismiss. Because plaintiff may be able to
correct this pleading deficiency with respect to at
least one of his claims, however, the Court briefly
analyzes the merits of each claim.
II. Equal Protection / Selective Enforcement
Plaintiff alleges that the City of Merriam denied him
equal protection of the law when it (1) took his
campaign sign while leaving similarly situated
signs and (2) failed to take a police report on the
incident. As the Court previously noted, HN5[]
unless plaintiff alleges a violation of a fundamental
right or discrimination against a suspect class,
defendant only needs a rational justification for
differential treatment. See Memorandum And
Order (Doc. # 38) filed June 29, 2001 at 7 (citing
Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.
1996)). Plaintiff does not allege the violation of a
fundamental right nor does he allege status in a
protected class. The [*11] City therefore needs
only a rational basis for its actions. Plaintiff's
complaint does not allege the lack of a rational
basis.5
To the extent plaintiff alleges that City engaged in
selective enforcement of [*12] the sign ordinance,
he has not stated a claim because he has not
alleged that the City singled him out by use of
impermissible considerations "such as race,
religion, or the desire to prevent the exercise of a
constitutional right." Bryan v. City Of Madison,
Miss., 213 F.3d 267, 277 (5th Cir. 2000);see
5 With respect to plaintiff's claim that the City Police
Department did not take a report, plaintiff also does not allege
any differential treatment by the City and he therefore fails to
plead the material elements of an equal protection claim. See
Hall, 935 F.2d at 1110;Tonkovich v. Kansas Bd. of Regents,
159 F.3d 504, 533 (10th Cir. 1998) ("At the heart of any equal
protection claim must be an allegation of being treated
differently than those similarly situated."); see also Village Of
Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060,
120 S. Ct. 1073 (2000) ("class of one" must show that he has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment).
2002 U.S. Dist. LEXIS 9530, *7
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Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d
494, 499 (2d Cir. 2001).HN6[] In general,
provided that an ordinance is rationally based, the
failure to enforce it "with complete equality does
not of itself infringe the constitutional principle of
equal protection." D'Acquisto v. Washington, 640
F. Supp. 594, 625 (N.D. Ill. 1986). "Mere failure to
prosecute other offenders is no basis for a finding
of denial of equal protection." Cook v. City Of
Price, Carbon County, Utah, 566 F.2d 699, 701
(10th Cir. 1977);see Oyler v. Boles, 368 U.S. 448,
456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962) ("The
conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional
violation").
For these reasons, plaintiff has failed to state a
claim for violation of his rights to equal protection.
[*13] III. Due Process
Plaintiff claims that the City's actions violated his
due process rights. He does not specify whether
his claim is based on procedural or substantive
due process, so the Court will analyze his claim
under both potential theories.
A.Procedural Due Process
Plaintiff's complaint is too vague and conclusory to
state a claim for violation of his constitutional right
to procedural due process. Plaintiff has a property
interest in his own campaign sign, but he does not
set forth any specific federal or constitutional
procedural safeguards that the City allegedly
violated. See Tonkovich, 159 F.3d at 519-20
(procedural due process claim must set forth
procedures due under law). Plaintiff may be able to
state a procedural due process claim based on the
manner in which City officials removed his sign, but
at this point, plaintiff's complaint only alleges that
the City removed the sign in violation of his right to
due process. Such conclusory allegations are
insufficient to state a claim on which relief can be
granted. See Hall, 935 F.2d at 1110 (pro se
plaintiff must allege sufficient facts on which a
recognized [*14] legal claim could be based;
conclusory allegations without supporting factual
averments are insufficient). The Court therefore
sustains the City's motion to dismiss as to plaintiff's
procedural due process claim but grants plaintiff
leave to file an amended complaint on or before
May 28, 2002.
B.Substantive Due Process
Plaintiff apparently attempts to assert a claim for
violation of his substantive due process rights
based on the City's removal of his campaign sign.
"HN7[] The touchstone of due process is
protection of the individual against arbitrary action
of government," Wolff v. McDonnell, 418 U.S. 539,
558, 41 L. Ed. 2d 935, 94 S. Ct. 2963, 71 Ohio Op.
2d 336 (1974), including the exercise of power
without any reasonable justification in the service
of a legitimate governmental objective, see, e.g.,
Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed.
2d 662, 106 S. Ct. 662 (1986) (substantive due
process protects against government power
arbitrarily and oppressively exercised); County Of
Sacramento v. Lewis, 523 U.S. 833, 846, 140 L.
Ed. 2d 1043, 118 S. Ct. 1708 (1998). In cases of
"abusive executive action," only the most
egregious [*15] official conduct can be said to be
"arbitrary in the constitutional sense." 523 U.S. at
849 (citing Collins v. City Of Harker Heights, 503
U.S. 115, 129, 117 L. Ed. 2d 261, 112 S. Ct. 1061
(1992)).
"The standard for judging a substantive due
process claim is whether the challenged
government action would 'shock the conscience of
federal judges.'" Tonkovich, 159 F.3d at 528
(quoting Uhlrig v. Harder, 64 F.3d 567, 573 (10th
Cir. 1995),cert. denied,516 U.S. 1118, 133 L. Ed.
2d 853, 116 S. Ct. 924 (1996)). To satisfy this
standard, "a plaintiff must do more than show that
the government actor intentionally or recklessly
caused injury to the plaintiff by abusing or misusing
government power." 64 F.3d at 574. Instead, a
plaintiff "must demonstrate a degree of
outrageousness and a magnitude of potential or
actual harm that is truly conscience shocking." Id.
Generally conscience shocking behavior falls on
the far side of the culpability spectrum, requiring
the plaintiff to show that the government actor
performed with an intent to harm. In Radecki v.
Barela, 146 F.3d 1227 (10th Cir. 1998), [*16] cert.
denied,525 U.S. 1103, 142 L. Ed. 2d 771, 119 S.
2002 U.S. Dist. LEXIS 9530, *12
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Ct. 869 (1999), the Tenth Circuit expanded this
narrow reading. There, the court held that "where
the state actor has the luxury to truly deliberate
about the decisions he or she is making,
something less than unjustifiable intent to harm,
such as calculated indifference, may suffice to
shock the conscience." 146 F.3d at 1232.
The Court finds that removal of a single political
campaign sign, even if the sign is technically on
private property, does not "shock the conscience."
At most, plaintiff has alleged that unidentified City
officials misinterpreted or did not understand the
municipal sign ordinance, certainly not conduct
which can be considered as abusive or
outrageous. Cf.Rochin v. California, 342 U.S.
165, 96 L. Ed. 183, 72 S. Ct. 205 (1952) (an
invasion of one's body, such as pumping a
suspect's stomach, will "shock the conscience").
Because the alleged conduct of the unidentified
City officials is not so egregious as to "shock the
conscience," the City's motion to dismiss plaintiff's
substantive due process claim is sustained.
IV.First Amendment / Free Speech
[*17] Liberally construing plaintiff's complaint,
plaintiff alleges that the City violated his First
Amendment rights by removing his campaign sign.
Plaintiff essentially claims that (1) his campaign
sign should not have been removed pursuant to
the City's sign ordinance because the City did not
have a "right of way" on the particular parcel of
property and (2) even if the City had a "right of
way" on the property, his campaign sign did not
violate the ordinance because it was more than six
feet from the curb or one foot from the sidewalk. At
the heart of both claims is an allegation that a City
official misinterpreted or misunderstood the sign
ordinance. 6 Such an allegation, by itself, is
insufficient to state a claim against a municipality.
Plaintiff has not alleged that City official(s)
misinterpreted the sign ordinance pursuant to a
6 The Court does not construe plaintiff's complaint as a
challenge to the sign ordinance itself. To the extent plaintiff
desires to raise such a challenge, he may file an amended
complaint on or before May 28, 2002.
municipal custom or policy or that an individual
with final policymaking authority misinterpreted the
ordinance. See Hall, 935 F.2d at 1110 (pro se
plaintiff must allege sufficient facts on which a
recognized legal claim could be based; conclusory
allegations without supporting factual averments
are insufficient to state a claim on [*18] which
relief can be based). Accordingly, the Court
sustains the City's motion to dismiss but grants
plaintiff leave to file an amended complaint which
adds factual allegations to support a claim that (1)
City officials misinterpreted the sign ordinance
pursuant to a municipal custom or policy or that an
individual with final policymaking authority
misinterpreted the ordinance and/or (2) the City's
sign ordinance, either on its face or as applied, is
unconstitutional. 7 See id. (plaintiff whose factual
allegations are close to stating a claim but are
missing some important element that may not have
occurred to him, should be allowed to amend
complaint).
[*19] IT IS THEREFORE ORDERED that the City
Of Merriam's Motion To Dismiss (Doc. # 64), which
the Court reinstated on April 10, 2002 and
construes as a motion for judgment on the
pleadings pursuant to Rule 12(c), Fed. R. Civ. P.,
be and hereby is SUSTAINED. On or before May
28, 2002, plaintiff may file an amended complaint.
Dated this 10th day of May, 2002 at Kansas City,
Kansas.
KATHRYN H. VRATIL
United States District Judge
End of Document
7 It is not readily apparent that plaintiff can cure the pleading
deficiencies identified above with respect to his equal
protection and due process claims. To the extent plaintiff
believes that those claims can be saved by amendment, he
may also include them in his amended complaint to be filed on
or before May 28, 2002.
2002 U.S. Dist. LEXIS 9530, *16
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106
Neutral
As of: October 8, 2021 1:57 AM Z
Trujillo v. Campbell
United States District Court for the District of Colorado
August 22, 2012, Decided; August 22, 2012, Filed
Civil Action No. 09-cv-03011-CMA-KLM
Reporter
2012 U.S. Dist. LEXIS 118585 *; 2012 WL 3609747
VICKI LYNN TRUJILLO, individually and on behalf
of the Estate of Jason Gomez, Plaintiff, v.
TIMOTHY CAMPBELL, individually and as a Police
Officer of the City and County of Denver, GERALD
R. WHITMAN, individually and in his official
capacity as Chief of Police of the City and County
of Denver, and THE CITY AND COUNTY OF
DENVER, a municipal corporation, Defendants.
Subsequent History: Motion denied by, Motion
denied by, As moot, Stay denied by, As moot
Trujillo v. Campbell, 2012 U.S. Dist. LEXIS 145761
(D. Colo., Oct. 10, 2012)
Prior History:Trujillo v. Campbell, 2012 U.S. Dist.
LEXIS 70154 (D. Colo., May 21, 2012)
Core Terms
excessive force, complaints, municipal, conspiracy,
municipal liability, training, police officer, discipline,
summary judgment, custom, summary judgment
motion, investigate, shooting, genuine, rights,
qualified immunity, material fact, causal link,
deliberately, flee, deliberate indifference, statistical
evidence, use of force, shot, constitutional right,
light most favorable, police department, failure to
train, use deadly force, triable issue
Case Summary
Overview
HOLDINGS: [1]-In an action pursuant to the Fourth
Amendment, defendants were not entitled to
qualified immunity and judgment was not
appropriate as a matter of law because defendant
police officer violated plaintiff's clearly established
rights as all three of the Graham case law factors
weighed heavily in plaintiff's favor; [2]-In an action
for municipality liability under 42 U.S.C.S. § 1983,
defendants were entitled to summary judgment
because plaintiff could not survive summary
judgment on her failure to train claim as she had
provided no evidence of deliberate indifference on
the part of defendant with respect to the training
materials; [3]-Defendants were entitled to summary
judgment under 42 U.S.C.S. § 1985(3) because
plaintiff's evidence of § 1985(3) conspiracy was
inadequate as she had offered no evidence that a
conspiracy existed.
Outcome
Motion granted in part and denied in part. Claims
dismissed with prejudice.
LexisNexis® Headnotes
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Genuine Disputes
Civil Procedure > ... > Summary
Judgment > Burdens of Proof > Movant
Persuasion & Proof
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Materiality of Facts
HN1[] Entitlement as Matter of Law, Genuine
Disputes
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106
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Summary judgment is appropriate if the moving
party demonstrates that there is no genuine
dispute as to any material fact and that it is entitled
to a judgment as a matter of law. Fed. R. Civ. P.
56(a). In applying this standard, the district court
views the evidence and all reasonable inferences
therefrom in the light most favorable to the
nonmoving party. A fact is "material" if, under the
applicable substantive law, it is essential to the
proper disposition of the claim. A dispute of fact is
"genuine" if there is sufficient evidence on each
side so that a rational trier of fact could resolve the
issue either way.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Genuine Disputes
Civil Procedure > ... > Summary
Judgment > Burdens of Proof > Movant
Persuasion & Proof
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Materiality of Facts
Civil Procedure > ... > Summary
Judgment > Burdens of Proof > Nonmovant
Persuasion & Proof
HN2[] Entitlement as Matter of Law, Genuine
Disputes
For purposes of a motion for summary judgment,
the moving party bears the initial burden of
demonstrating an absence of a genuine issue of
material fact and entitlement to judgment as a
matter of law. In attempting to meet that standard,
a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the
other party's claim; rather, the movant need simply
point out to the court a lack of evidence for the
other party on an essential element of that party's
claim. Once the movant has met this initial burden,
the burden shifts to the nonmoving party to set
forth specific facts showing that there is a genuine
issue for trial. The nonmoving party may not simply
rest upon its pleadings to satisfy its burden.
Rather, the nonmoving party must set forth specific
facts that would be admissible in evidence in the
event of trial from which a rational trier of fact could
find for the nonmovant. To accomplish this, the
facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits
incorporated therein.
Civil Rights Law > Protection of
Rights > Immunity From Liability
Evidence > Burdens of Proof > Burden Shifting
HN3[] Protection of Rights, Immunity From
Liability
Under the doctrine of qualified immunity,
government officials are protected from liability for
civil damages insofar as their conduct does not
violate clearly established statutory or
constitutional rights of which a reasonable person
would have known. Qualified immunity requires a
two-step sequence. When a defendant asserts
qualified immunity at summary judgment, the
burden shifts to a plaintiff to show that: (1) the
defendant violated a constitutional right and (2) the
constitutional right was clearly established. Only if
a plaintiff can satisfy both steps will the assertion of
qualified immunity be defeated.
Constitutional Law > ... > Fundamental
Rights > Search & Seizure > Scope of
Protection
Criminal Law & Procedure > Commencement
of Criminal
Proceedings > Arrests > Reasonable Force
HN4[] Search & Seizure, Scope of Protection
Claims of excessive force are analyzed under the
objective reasonableness standard of the Fourth
Amendment. In determining whether the use of
force was reasonable, the district court must pay
careful attention to the facts and circumstances in
this particular situation, including the severity of the
crime at issue, whether the suspect poses an
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immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest
or attempting to evade arrest by flight. Under this
objective standard, the question is whether an
officer's actions were objectively reasonable in light
of the facts and circumstances confronting him,
without regard to his underlying intent or
motivation. In determining whether the use of force
was reasonable, the Court must pay careful
attention to the facts and circumstances in a
particular situation, including the severity of the
crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.
Constitutional Law > Bill of
Rights > Fundamental Rights > Search &
Seizure
HN5[] Fundamental Rights, Search & Seizure
For purposes of Fourth Amendment rights, no
reasonable officer would have reason to believe
that a fleeing person not suspected of any specific
crime and who had not made any threatening
gestures posed any danger.
Constitutional Law > ... > Fundamental
Rights > Search & Seizure > Scope of
Protection
Criminal Law & Procedure > Commencement
of Criminal
Proceedings > Arrests > Reasonable Force
Criminal Law & Procedure > Search &
Seizure > Seizure of Persons
HN6[] Search & Seizure, Scope of Protection
In the contexts of Fourth Amendment rights to be
free form unlawful seizure through the use of
deadly force, the reasonableness of an officer's
conduct may depend on whether the officer's own
deliberate or reckless conduct created the need to
use deadly force.
Civil Rights Law > Protection of
Rights > Immunity From Liability > Local
Officials
Criminal Law & Procedure > Commencement
of Criminal
Proceedings > Arrests > Reasonable Force
Criminal Law & Procedure > Search &
Seizure > Seizure of Persons
HN7[] Immunity From Liability, Local
Officials
In the context of doctrine of qualified immunity, the
relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. The
question of whether a right is clearly established
must be addressed in light of the specific context of
the case. Where the suspect poses no immediate
threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does
not justify the use of deadly force to do so. In other
words, a police officer may not seize an unarmed,
nondangerous suspect by shooting him dead. A
police officer may not use deadly force to seize an
unarmed and nondangerous suspect who flees
from a police officer.
Civil Rights Law > Protection of
Rights > Section 1983 Actions > Scope
Governments > Local Governments > Claims
By & Against
Evidence > Burdens of Proof > Allocation
HN8[] Protection of Rights, Section 1983
Actions
A municipality may not be held liable under 42
U.S.C.S. § 1983 merely on the basis of its status
as an employer. Rather, to establish municipal
liability, a plaintiff must demonstrate two elements:
(1) a municipal employee committed a
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Page 4 of 14
constitutional violation; and (2) a direct causal link
between the injury alleged and a municipal policy
or custom.
Civil Rights Law > ... > Immunity From
Liability > Local Officials > Direct Causal Links
Evidence > Burdens of Proof > Allocation
Governments > Local Governments > Claims
By & Against
Civil Rights Law > ... > Section 1983
Actions > Scope > Law Enforcement Officials
HN9[] Local Officials, Direct Causal Links
To establish a claim for a municipality's failure to
train its police officers, a plaintiff must first prove
that the training was, in fact, inadequate. If a
plaintiff can do so, she must then satisfy the
following requirements:(1) the officers exceeded
constitutional limitations on the use of force; (2) the
use of force arose under circumstances that
constitute a usual and recurring situation with
which police officers must deal; (3) the inadequate
training demonstrates a deliberate indifference on
the part of the city toward persons with whom the
police officers come into contact, and (4) there is a
direct causal link between the constitutional
deprivation and the inadequate training.
Evidence > Burdens of Proof > Allocation
Governments > Local Governments > Claims
By & Against
HN10[] Burdens of Proof, Allocation
To show deliberate indifference, a plaintiff must
present facts showing that the municipality has
actual or constructive notice that its action or
failure to act is substantially certain to result in a
constitutional violation, and it consciously or
deliberately chooses to disregard the risk of harm.
In the specific context of inadequate training,
deliberate indifference is shown when the need for
more or different training is so obvious, and the
inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the
city can reasonably be said to have been
deliberately indifferent to the need.
Civil Rights Law > ... > Section 1983
Actions > Scope > Law Enforcement Officials
Evidence > Burdens of Proof > Allocation
Governments > Local Governments > Claims
By & Against
HN11[] Scope, Law Enforcement Officials
In the context of a municipality's failure to train its
police officers claim, a plaintiff must show genuine
disputes of material fact that a defendant has in
place (1) a custom or policy of failure to discipline;
(2) deliberate indifference on the part of a policy
maker, and (3) a causal link to the constitutional
deprivation.
Civil Rights Law > ... > Section 1983
Actions > Elements > Causal Relationship
Governments > Local Governments > Claims
By & Against
Evidence > Burdens of Proof > Allocation
HN12[] Elements, Causal Relationship
To prevail on a 42 U.S.C.S. § 1983 municipal
liability claim, a plaintiff must show a causal link
between the policy and constitutional deprivation.
Civil Rights Law > ... > Section 1983
Actions > Scope > Law Enforcement Officials
Governments > Local Governments > Claims
By & Against
Evidence > Burdens of Proof > Allocation
HN13[] Scope, Law Enforcement Officials
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In the context of a municipality's failure to
supervise its police officers claim, a municipality
may be held liable where a plaintiff produces
evidence of prior complaints sufficient to show that
the municipality and their officials ignored police
misconduct. A failure to investigate or reprimand
might also cause a future violation by sending a
message to officers that such behavior is tolerated.
However, the mere existence of previous citizens'
complaints does not suffice to show a municipal
custom of permitting or encouraging excessive
force. Indeed, the number of complaints bears no
relation to their validity. A plaintiff must also show
that the municipality failed to investigate or take
corrective action on any prior meritorious claim of
excessive force.
Civil Procedure > Pleading &
Practice > Pleadings > Amendment of
Pleadings
Civil Procedure > Judgments > Summary
Judgment > Motions for Summary Judgment
HN14[] Pleadings, Amendment of Pleadings
Issues raised for the first time in a plaintiff's
response to a motion for summary judgment may
be considered a request to amend the complaint,
pursuant to Fed. R. Civ. P. 15.
Civil Rights Law > Protection of
Rights > Conspiracy Against Rights > Elements
HN15[] Conspiracy Against Rights, Elements
The essential elements of a 42 U.S.C.S. § 1985(3)
conspiracy claim are: (1) a conspiracy; (2) to
deprive plaintiff of equal protection or equal
privileges and immunities; (3) an act in furtherance
of the conspiracy; and (4) an injury or deprivation
resulting therefrom.
Civil Rights Law > Protection of
Rights > Conspiracy Against Rights
HN16[] Protection of Rights, Conspiracy
Against Rights
A 42 U.S.C.S. § 1985(3) conspiracy does not apply
to all conspiratorial interferences with the rights of
others, but only to conspiracies motivated by some
racial, or perhaps otherwise class-based,
invidiously discriminatory animus.
Civil Rights Law > Protection of
Rights > Conspiracy Against Rights
HN17[] Protection of Rights, Conspiracy
Against Rights
A federal conspiracy action brought under 42
U.S.C.S. § 1983 requires at least a combination of
two or more persons acting in concert and an
allegation of a meeting of the minds, an agreement
among the defendants, or a general conspiratorial
objective.
Civil Procedure > ... > Attorney Fees &
Expenses > Basis of Recovery > Bad Faith
Awards
Civil Procedure > Judgments > Summary
Judgment > Motions for Summary Judgment
HN18[] Basis of Recovery, Bad Faith Awards
Fed. R. Civ. P. 56(h) provides that the district court
may order a party to pay reasonable expenses,
including attorneys' fees, if the court finds that an
affidavit or declaration under this rule is submitted
in bad faith or solely for delay.
Counsel: [*1] For Vicki (I) Lynn Trujillo,
individually, Vicki Lynn Trujillo, on behalf of the
Estate of Jason Gomez, Plaintiffs: Kenneth Alfredo
Padilla, LEAD ATTORNEY, Padilla & Padilla,
PLLC, Denver, CO.
For Timothy (I) Campbell, Timothy Campbell, as a
Police Officer of the City and County of Denver,
Gerald (I) R. Whitman, individually, Gerald R.
Whitman, in his official capacity as Chief of Police
of the City and County of Denver, City and County
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of Denver, a municipal corporation, Defendants:
David Van Denberg Cooke, Denver City Attorney's
Office, Denver, CO; Matthew Raymond Hader,
Robert A. Wolf, Denver City Attorney's Office-West
Colfax Avenue, Denver, CO.
Judges: CHRISTINE M. ARGUELLO, United
States District Judge.
Opinion by: CHRISTINE M. ARGUELLO
Opinion
ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
This matter is before the Court on Defendants
Timothy Campbell, Gerald R. Whitman, and the
City and County of Denver (collectively,
"Defendants") Motion and Brief for Summary
Judgment, filed on December 19, 2011. (Doc. #
121.) For the reasons discussed below, the Court
grants in part and denies in part Defendants'
motion for summary judgment.
I. BACKGROUND
The following facts are undisputed, [*2] unless
otherwise noted. The Court will elaborate, as
needed, in its analysis section.
In the early morning hours of December 19, 2007,
Officer Campbell, a member of the Denver Police
Department ("DPD"), was patrolling a residential
area in Denver, Colorado. (Doc. # 121 at ¶ 4.) Just
before 2:10 a.m., Officer Campbell observed a
"dark colored four-door Saturn" driving in the
opposite direction of his patrol car on Irving Street.
(Id. at ¶¶ 4-5.) Officer Campbell decided to follow
the Saturn, allegedly because he found it
"suspicious." (Id. at ¶ 6-7.) As Officer Campbell
trailed behind the Saturn, the Saturn turned east
on Ohio Street and out of Officer Campbell's sight.
Following onto Ohio Street, Officer Campbell
spotted the Saturn stopped in the driveway of the
first house on his right. (Id. at ¶ 12.) When Officer
Campbell exited his patrol vehicle, he observed
Jason Gomez "rapidly exit the car" and
"immediately run away from the car through the
residential neighborhood." (Id.) Officer Campbell
gave chase on foot, eventually catching up to Mr.
Gomez. An altercation ensued that culminated with
Officer Campbell fatally shooting Gomez.
Besides agreeing that Officer Campbell shot Mr.
Gomez, [*3] the parties dispute virtually every
other fact concerning the shooting. Officer
Campbell attests that Mr. Gomez shouted that he
was "gonna kill" Officer Campbell and shouted the
initials of a violent street gang. Officer Campbell
also attests that Mr. Gomez, who was "bobbing like
a fighting cock," reached into his pocket and pulled
out an object with a shiny tip, and rapidly moved
his left hand with the object behind his back out of
Officer Campbell's sight. (See Doc. # 121-1 at ¶¶
14-19.) Although Mr. Gomez is unable to tell his
side of the story, an eyewitness to the shooting,
Max Alderton, tells a very different tale. Mr.
Alderton attests that Mr. Gomez was kneeling
down in front of Officer Campbell, that Officer
Campbell shouted that he was going to kill Mr.
Gomez, that Mr. Gomez did not make any
threatening gestures, and that he did not see any
object in Mr. Gomez's hand. Mr. Gomez tried to
flee, and Officer Campbell shot him. After Mr.
Gomez fell to the ground, Officer Campbell fired
five to seven more shots.
Plaintiff initiated this lawsuit on December 29,
2009. (Doc. # 3.) Pursuant to her Complaint,
Plaintiff Vicki Lynn Trjiullo ("Plaintiff"), individually
and on behalf of the [*4] Estate of Jason Gomez
("Gomez"), brings three claims for relief. First, she
brings an excessive force claim under 42 U.S.C. §
1983 against Defendant Campbell ("Officer
Campbell") and Defendant City and County of
Denver ("Denver"). Second, she brings a § 1983
municipal liability claim against Defendant
Whitman ("Chief Whitman") and Denver. Third, she
brings a § 1985 conspiracy claim against all
Defendants.1 (Doc. # 3.)
1 Plaintiff's Complaint also appears to allege a claim of the
deprivation of familial association. (Doc. # 3 at 5.) In her
Response, Plaintiff admits that this claim is not supported by
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Plaintiff responded to Defendants' motion for
summary judgment on February 29, 2012,2 and
Defendants replied on May 14, 2012. (Doc. ## 142,
169.)
II. STANDARD OF REVIEW
A. SUMMARY JUDGMENT
HN1[] Summary judgment is appropriate if the
moving party demonstrates that there is "no
genuine dispute as to any material fact" and that it
is "entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(a).In applying this standard, the
Court views the evidence and all reasonable
inferences therefrom in the light most favorable to
the nonmoving party. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.
Ed. 2d 538 (1986)).A fact is "material" if, under the
applicable substantive law, it is "essential [*6] to
the proper disposition of the claim." Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A
dispute of fact is "genuine" if "there is sufficient
evidence on each side so that a rational trier of fact
could resolve the issue either way." Id. (citing
Anderson, 477 U.S. at 248).
HN2[] The moving party bears the initial burden
the facts, and Plaintiff has therefore withdrawn this claim.
2 On February 29, 2012, the Court granted Plaintiff's Motion for
Leave to File Excess Pages. (Doc. # 143.) When the Court
permits a party to exceed its page limit requirements, the
Court expects that the party will do its utmost to conform as
closely as possible to the page limits. Plaintiff, however, filed
an 83-page response brief, which exceeds the Court's page
limits by a robust 63 pages. [*5] CMA Civ. Practice Standards
III.G.2 ("Motions and response briefs shall not exceed twenty
pages) (emphasis in original). As if this were not long enough,
Plaintiff then filed an 8-page supplement. (Doc. # 157.)
Plaintiff's decision to file a 91-page response to Defendants'
30-page motion for summary judgment is an abuse of the
Court's willingness to permit Plaintiff to exceed the page limits.
The excessive length of Plaintiff's Response is especially
frustrating because, as Defendants observe, the Response is
both "prolix and rambling." (Doc. # 169 at 15 n.3.)
of demonstrating an absence of a genuine issue of
material fact and entitlement to judgment as a
matter of law. Id. at 670-71. In attempting to meet
that standard, a movant who does not bear the
ultimate burden of persuasion at trial does not
need to disprove the other party's claim; rather, the
movant need simply point out to the court a lack of
evidence for the other party on an essential
element of that party's claim. Id. at 671 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986)).
Once the movant has met this initial burden, the
burden shifts to the nonmoving party to "set forth
specific facts showing that there is a genuine issue
for trial." Anderson, 477 U.S. at 256. The
nonmoving party may not simply rest upon its
pleadings to satisfy its burden. Id. Rather, the
nonmoving party must "set forth specific facts that
would be admissible in [*7] evidence in the event
of trial from which a rational trier of fact could find
for the nonmovant." Adler, 144 F.3d at 671. "To
accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or
specific exhibits incorporated therein." Id.
III. ANALYSIS
A. EXCESSIVE FORCE CLAIM AGAINST
DEFENDANT CAMPBELL
Defendants argue that Officer Campbell is entitled
to qualified immunity. HN3[] Under the doctrine
of qualified immunity, government officials are
protected "from liability for civil damages insofar as
their conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known." Pearson v.
Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172
L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
396 (1982) (internal quotation marks omitted)).
"Qualified immunity requires a 'two-step
sequence.'" Morris v. Noe, 672 F.3d 1185, 1191
(10th Cir. 2012) (quoting Pearson, 555 U.S. 223,
129 S. Ct. 808, 172 L. Ed. 2d 565). "When a
defendant asserts qualified immunity at summary
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judgment, the burden shifts to the plaintiff to show
that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly
established." Id. (quoting Martinez v. Beggs, 563
F.3d 1082, 1088 (10th Cir. 2009). [*8] Only if a
plaintiff can satisfy both steps will the assertion of
qualified immunity be defeated. See id.
In this case, Plaintiff asserts that Officer Campbell
violated Mr. Gomez's Fourth Amendment rights to
be free from unlawful seizure through the use of
deadly force. (Doc. # 142 at 24.) HN4[] "Claims
of excessive force are analyzed under the
objective reasonableness standard of the Fourth
Amendment." Medina v. Cram, 252 F.3d 1124,
1131 (10th Cir. 2001);see also Graham v. Connor,
490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d
443 (1989).Under this objective standard, the
question is whether Officer Campbell's actions
were objectively reasonable in light of the facts and
circumstances confronting him, without regard to
his underlying intent or motivation. See Morris, 672
F.3d at 1195 (citing Graham, 490 U.S. at 397).In
determining whether the use of force was
reasonable, the Court must pay careful attention to
the facts and circumstances in this particular
situation, "including the severity of the crime at
issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting
to evade arrest by flight." Graham, 490 U.S. at
396).
In this case, [*9] there are numerous facts in
dispute.3 Viewing the disputed evidence in the light
most favorable to Plaintiff, Officer Campbell was
3 Defendants argue that "the statements of partial witness
Alderton and the testimony of Defendant Campbell are
consistent." (Doc. # 169 at 17.) This is ludicrous. For example,
Officer Campbell attests that Mr. Gomez yelled "I'm gonna kill
you" as he made a threatening gesture. (Doc. # 121-1 at ¶ 17.)
Defendants say in their brief that "Alderton stated he does not
know who was shouting 'I'm gonna fucking kill you.'" (Doc. #
169 at 17.) However, in both his statement to the Denver
Police Department and in his affidavit, Mr. Alderton asserts
that Officer Campbell was the one yelling, "I am gonna fucking
kill you!" (Doc. # 142-5; [*10] 142-1.) Defendants' distortion of
the evidentiary record is, at best, an example of inexcusable
carelessness; at worst, a blatant attempt to deceive this Court.
shouting that he was going to kill Mr. Gomez as
Mr. Gomez knelt before Officer Campbell. When
Mr. Gomez turned to flee, Officer Campbell fired
one shot at Mr. Gomez who fell to the ground. After
a brief pause, Officer Campbell fired five to seven
more shots at Mr. Gomez. Mr. Alderton did not see
Mr. Gomez make any threatening gestures during
the exchange and did not see Mr. Gomez have
anything in his hand. (Doc. # 142-5 at ¶¶ 6-12.)
Based on these facts, the Court finds that all three
of the Graham factors weigh heavily in Plaintiff's
favor. Under the first factor, the Court considers
the severity of the crime at issue. Here, there was
no crime at issue. Officer Campbell attests only
that he was "suspicious that [Mr. Gomez] was
involved in criminal activity." (Doc. # 121-1 at ¶ 10.)
It appears undisputed that Officer Campbell did not
have reason to suspect Mr. Gomez of committing
any specific crime. The second factor — whether
the suspect poses an immediate threat to the
safety of the officer or others — also weighs
strongly in Plaintiff's favor. HN5[] No reasonable
officer would have reason to believe that a fleeing
person not suspected of any specific crime and
who had not made any threatening gestures posed
any danger. At first blush, the third factor —
whether Mr. Gomez was actively resisting arrest or
attempting to flee — appears to tilt in Defendants'
favor as Mr. Gomez was attempting to flee when
he was shot. However, viewing the evidence in the
light [*11] most favorable to Plaintiff, Mr. Gomez's
attempt to flee was the result of Officer Campbell's
own deliberate or reckless conduct when he
threatened to kill Mr. Gomez. See Allen v.
Muskogee, Okla., 119 F.3d 837, 840 (10th Cir.
1997) (noting that HN6[] the reasonableness of
an officer's conduct may depend on whether the
officer's own deliberate or reckless conduct created
the need to use deadly force). Thus, Plaintiff has
presented sufficient evidence to raise triable issues
that Officer Campbell violated Mr. Gomez's Fourth
Amendment rights.
Having determined that Plaintiff may be able to
prove a Fourth Amendment violation, the Court
turns to the second qualified immunity prong. HN7[
] "The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it
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would be clear to a reasonable officer that his
conduct was unlawful in the situation he
confronted." Saucier v. Katz, 533 U.S. 194, 202,
121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).The
question of whether a right is clearly established
must be addressed in light of the specific context of
the case. See id. That is, the question is not
whether there exists a general right to be free from
excessive force, but whether Mr. Gomez had a
clearly established [*12] right under the facts of
this case. See Morris, 672 F.3d at 1196. Viewing
the disputed evidence in the light most favorable to
Plaintiff, there can be no serious doubt that Officer
Campbell's alleged conduct violated clearly
established rights. The Supreme Court has held
that "[w]here the suspect poses no immediate
threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does
not justify the use of deadly force to do so."
Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct.
1694, 85 L. Ed. 2d 1 (1985). In other words, "[a]
police officer may not seize an unarmed,
nondangerous suspect by shooting him dead." Id.;
accord Carr v. Castle, 337 F.3d 1221, 1227 (10th
Cir. 2003). Thus, Supreme Court and Tenth Circuit
precedent clearly establishes that a police officer
may not use deadly force to seize an unarmed and
nondangerous suspect who flees from a police
officer.
Construing the disputed evidence in the light most
favorable to Plaintiff, the Court finds that Officer
Campbell violated Mr. Gomez' clearly established
rights under the Fourth Amendment. Thus, Officer
Campbell is not entitled to qualified immunity and
judgment is not appropriate as a matter of law.
Whether Officer Campbell actually [*13] violated
Mr. Gomez's Fourth Amendment rights is a matter
to be determined at trial.
B. MUNICIPAL LIABILITY CLAIM PURSUANT
TO 42 U.S.C. ' 1983
HN8[] A municipality may not be held liable
under § 1983 merely on the basis of its status as
an employer. Rather, to establish municipal
liability, a plaintiff must demonstrate two elements:
(1) a municipal employee committed a
constitutional violation; and (2) a direct causal link
between the injury alleged and a municipal policy
or custom. Bryson v. City of Okla. City, 627 F.3d
784, 788 (10th Cir. 2010). For purposes of the
instant summary judgment motion, the Court has
already found that Plaintiff has provided sufficient
evidence to create triable issues on the question of
whether Officer Campbell violated Mr. Gomez's
Fourth Amendment rights. Thus, the issue is
whether Plaintiff can show a direct causal link
between Denver's policies or customs and the
constitutional injury.
Plaintiff's response to Defendants' motion for
summary judgment identifies the following theories
for municipality liability under § 1983: (1) failure to
train of supervise police officers properly on the
use of force including deadly force; (2) failure to
discipline officers who [*14] use deadly force; (3)
failure to properly supervise Officer Campbell and
other Denver Police Officers; and (4) failure to
properly investigate police shootings.4 (Doc. # 142
at 44.) The Court examines each in turn.
1. Failure to Train
Plaintiff first theory for municipality under § 1983 is
her allegation that Denver failed to adequately train
its police officers. HN9[] To establish a claim for
failure to train, Plaintiff must first prove that the
training was, in fact, inadequate. If Plaintiff can
[*15] do so, she must then satisfy the following
requirements:
(1) the officers exceeded constitutional
limitations on the use of force; (2) the use of
force arose under circumstances that
constitute a usual and recurring situation with
which police officers must deal; (3) the
4 The Court notes that Plaintiff has not complied with the
Court's practice standards, which instructs parties opposing
summary judgment to include a separate section of her brief in
order to "set forth in simple declarative sentences . . .each
additional material disputed fact which undercuts movant's
claim that movant is entitled to judgment as a matter of law."
CMA Civ. Practice Standards III.G.6. With one exception,
Plaintiff utterly disregards this instruction and provides no facts
relating to her municipal liability claim (the one exception being
that Plaintiff has identified the average percentage of
sustained complaints against Denver police officers from 1994
to 2007). (Doc. # 142 at 23.)
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inadequate training demonstrates a deliberate
indifference on the part of the city toward
persons with whom the police officers come
into contact, and (4) there is a direct causal link
between the constitutional deprivation and the
inadequate training.
Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir.
2000) (quoting Allen v. Muskogee, 119 F.3d 837,
841-42 (10th Cir. 1997)).
Plaintiff's first argument as to Denver's alleged
inadequate training regards her allegation that the
DPD is not accredited by the Commission on
Accreditation for Law Enforcement Agencies
("CALEA").5 (Doc. # 142 at 47.) According to
Plaintiff, CALEA requires police departments to
provide mandatory periodic re-training to its
officers on use of force policy and law. (Id.) Plaintiff
argues that because the DPD is not a CALEA
accredited police department, it therefore fails to
provide its officers such training. This is a logical
fallacy. The fact that the [*16] DPD is not a
CALEA accredited police department is not
evidence that the DPD fails to provide adequate
training to its officers.6
Plaintiff also claims that the DPD's training
materials "distort[ ] the perception of police officers
and creates a mindset that [*17] they believe that
they are going to be killed or ambushed at any
moment." (Doc. # 142 at 53.) Plaintiff also criticizes
the training materials for failing to indicate that "law
enforcement work is not as dangerous as many
5 Although Plaintiff does not cite to any evidence showing that
the DPD is not accredited by the CALEA, Defendants' reply
seems to admit this fact. (Doc. # 169 at 26.) However, as
Defendants note, Plaintiff fails to explain the relevance of this
non-accreditation. Although there are allegedly 389 police
departments that are CALEA accredited, there are nearly
17,000 law enforcement agencies across the United States.
6 Plaintiff cites to Zuchel v. City & County of Denver, in which
the Tenth Circuit concluded that the DPD's failure to provide
periodic live decisional shooting training constituted sufficient
evidence of deliberate indifference. See 997 F.2d 730, 740-41
(10th Cir. 1993). Plaintiff contends that the Zuchel decision put
Denver on notice that it needed to provide periodic training.
Although constructive notice could be imputed from Zuchel,
there is no evidence in the record that the DPD has failed to
provide periodic training.
other occupations." Although common sense
makes it difficult to accept Plaintiff's contentions
about the dangerousness of law enforcement work,
Plaintiff has, perhaps, raised triable issues on the
question of whether the City's training distorts the
dangerousness of the job.7
Nevertheless, Plaintiff cannot survive summary
judgment on her failure to train claim because she
has provided no evidence of deliberate indifference
on the part of Denver with respect to the training
materials. HN10[] To show deliberate
indifference, Plaintiff must present facts showing
that "the municipality has actual or constructive
notice that its action or failure to act is substantially
certain to result in a constitutional violation, and it
consciously or deliberately chooses to disregard
the risk of harm." Bryson, 627 F.3d at 789 (quoting
Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th
Cir. 1998)). In the specific context of inadequate
training, deliberate indifference is shown when "the
need for more or different training is so obvious,
and the inadequacy so likely to result in the
violation of constitutional rights, that the
policymakers of the city can reasonably be said to
have been deliberately indifferent to the need."
Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir.
2003). The Court finds that Plaintiff has not
[*19] presented facts sufficient to meet this
demanding standard. No reasonable juror could
conclude that Denver had notice that either the few
isolated poems and cartoons or the omissions of
statistics regarding the fatality rate for police
officers made it "substantially certain" that its
7 Plaintiff also argues that the Denver Police Department
training materials erroneously instruct police officers that they
may use deadly force upon their own subjective beliefs.
Plaintiff has provided the Court with no evidence to support
this argument. Although Plaintiff quotes from the DPD
Operations Manual, Plaintiff has not attached the relevant
sections to her motion so the Court cannot determine whether
Plaintiff's quotations are accurate or taken in context. This is a
recurring problem in Plaintiff's Response. For future cases, the
Court reminds Plaintiff's counsel that the non-moving party
must "set forth specific facts that would be admissible in
evidence in the event of trial." Adler, 144 F.3d at 671. [*18] To
accomplish this, such facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits
incorporated therein." Id. (emphasis added).
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officers would engage in an unlawful use of deadly
force.8 Lobato v. Ford, Case No. 05-cv-01437.
2007 U.S. Dist. LEXIS 82373, Doc. # 266 at 17, (D.
Colo. Oct. 31, 2007) (unpublished) (rejecting
virtually identical claim on grounds that Plaintiff had
failed to show that Denver was deliberately
indifferent).
2. Failure to Discipline
Plaintiff's second theory of municipal liability is her
allegation that Denver has an unwritten policy or
custom of failing to discipline its police officers for
excessive force violations. HN11[] Plaintiff must
show genuine disputes of material fact that Denver
had in place (1) a custom or policy of failure to
discipline; (2) deliberate indifference on the part of
a policy maker, and (3) a causal link to the
constitutional deprivation. See Gates v. Unified
Sch. Dist. No. 449 of Leavenworth Ctny., Kan., 996
F.2d 1035, 1041 (10th Cir. 1993).
To [*20] support her § 1983 claim based on
Denver's alleged failure to discipline its officers for
the use of excessive force, Plaintiff highlights the
fact that from 1994 to 2007, DPD officials
sustained only 1.16% of excessive use of force
complaints brought against its officers (Doc. # 142-
24.) According to Louis A. Mayo, Ph.D., Plaintiff's
expert on police policies and practices, the national
average for sustained rates for use of force
complaints for large state and local law
enforcement agencies is approximately 8%. (Doc.
# 142-8 at ¶ 25.) Dr. Mayo opines that the
"extremely low sustained rate for excessive force
complaints by the DPD demonstrates that the
Department is deliberately indifferent to complaints
of excessive force and condones the use of
excessive force by its officers." (Id.)
In Lobato, another court in this district concluded
that similar statistical evidence, standing alone,
was sufficient to create a triable issue as to the
existence of such a policy.9 See Case No. 05-cv-
8 Moreover, as Defendants point out, Plaintiff has provided no
evidence indicating how these materials are actually used in
training.
9 Plaintiff cites several pages of a deposition transcript taken in
01437, Doc. # 266 at 20. However, the Court finds
that the statistical evidence presented by Plaintiff is
too generalized for a reasonable jury to infer a
custom of policy from it. First, Plaintiff's statistical
[*21] evidence does not specify what proportion of
the excessive force complaints were deadly force
complaints.10 Second, Dr. Mayo does not explain
how he reached his opinion that the DPD was
"deliberately indifferent" based only on the small
number of sustained complaints. There is no
evidence that the allegations of excessive force in
any other case were similar to the instant case.
See Merman v. City of Camden, 824 F. Supp. 2d
581, 591 (D.N.J. 2010) (stating that a plaintiff must
show why "prior incidents deserved discipline and
how the misconduct in those situations was similar
to the present one").
Moreover, although Lobato found that statistical
evidence alone was sufficient to withstand
summary judgment, several circuit courts have
reached the opposite conclusion. See Thomas v.
City of Chattanooga, 398 F.3d 426, 432 (6th Cir.
2005) (finding that expert's conclusion of municipal
policy of condoning use of excessive force based
on mere number complaints was insufficient to
create genuine issue of material fact regarding the
existence of such policy); Strauss v. City of
Chicago, 760 F.2d 765, 768-69 (7th Cir. 1985)
(finding statistics alone insufficient to prove
municipal liability); see also Merman v. City of
Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010)
("Isolated and without further context . . . statistical
evidence alone may not justify a jury's finding that
the Lobato case of Mr. Alvin LaCabe, the Manager of Safety at
the time. (Doc. # 142-26.) As the Lobato court found, Mr.
LaCabe's deposition testimony does not constitute evidence of
Denver's alleged policy not to discipline its police officers for
excessive force. Case No. 05-cv-01437 (Doc. # 266 at 20.)
Thus, Plaintiff's statistical evidence is the only evidence that
supports her failure to discipline claim.
10 In her Supplement, Plaintiff lists sixteen incidents where a
Denver Police Officer allegedly used deadly force. (Doc.
[*22] # 157 at 2-3.) Plaintiff claims that no complaints were
sustained against any of the officers. However, Plaintiff has
presented no evidence to substantiate either that the incidents
occurred or that any resulting complaints were not sustained.
As such, the shooting incidents are mere allegations and not
evidence that the Court may properly consider on summary
judgment. See supra note 7.
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a municipal policy or custom authorizes [*23] or
condones the unconstitutional acts of police
officers."). Given the generalized nature of
Plaintiff's statistical evidence, and the lack of
evidence that more complaints should have been
sustained, the Court finds that Plaintiff has not
created a triable issue as to the existence of a
municipal custom or policy.
Assuming arguendo that Plaintiff has shown
genuine disputes of material fact as to the
existence of such a municipal policy or custom,
Plaintiff's failure to discipline claim would fail for a
separate reason. HN12[] To prevail on a § 1983
municipal liability claim, Plaintiff must show a
causal link between the policy and constitutional
deprivation. In her Response, Plaintiff asserts that
she has "shown a direct causal link" without
explaining how she has accomplished such a task
or what evidence supports this assertion.11 (Doc. #
142 at 72.) Such a conclusory assertion does not
create a genuine dispute of material fact to defeat
summary judgment on this claim.
3. Failure to Supervise
Plaintiff third theory of municipal liability is labeled
as "failure to properly supervise." However, this
claim appears largely to be an offshoot of her
failure to discipline claim, except that it is focused
on the DPD's failure to discipline Officer Campbell
specifically. For purposes of this motion, the Court
assumes as true that, from 2002 through 2006,
Officer Campbell received six excessive force
complaints, none of which were sustained. (Doc. #
142-19.)
HN13[] In some circumstances, a municipality
may be held liable where the plaintiff produces
evidence of prior complaints sufficient to show that
the municipality and their officials ignored police
11 Based on Plaintiff's argument in a separate section of her
brief, it appears that Plaintiff's theory is that Officer Campbell
committed the alleged constitutional violation because he
thought he could escape culpability. [*24] (Doc. # 142 at 50.)
There is no evidence to support this argument. Compare with
Lobato, Case No. 05-cv-01437, Doc. # 266 at 21-22 (the
plaintiff supplied evidence that the police officer had said that
he knew he would not lose his job even if he shot someone
wrongfully).
misconduct. See Mettler v. Whitledge, 165 F.3d
1197, 1205 (8th Cir. 1999);see also Cordova v.
Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009) ("A
failure to investigate or reprimand might also cause
a future violation by sending a message to officers
that [*25] such behavior is tolerated."). However,
"the mere existence of previous citizens'
complaints does not suffice to show a municipal
custom of permitting or encouraging excessive
force."Mettler, 165 F.3d at 1205;Brooks v. Scheib,
813 F.2d 1191, 1193 (11th Cir. 1987) ("Indeed, the
number of complaints bears no relation to their
validity."). A plaintiff must also show that the
municipality failed to investigate or take corrective
action on any prior meritorious claim of excessive
force.See id.; Lewis v. Bd. of Sedgwick Ctny.
Comm'rs, 140 F. Supp. 2d 1125, 1138 (D. Kan.
2001) (holding that defendant municipality was
entitled to judgment as a matter of law where the
plaintiff failed to present any evidence that the
municipality failed to take corrective action on any
prior meritorious complaint); Gantos v. City of Colo.
Springs Police Dep't, No. 07-cv-00036, 2008 U.S.
Dist. LEXIS 12465, 2008 WL 296291, at *9 (D.
Colo. Feb. 20, 2008) (unpublished) ("Absent some
showing that the previous complaints had merit,
and that the [police department] avoided or ignored
meritorious complaints, such previous complaints
do not support a municipal liability claim."); Long v.
City & Ctny. of Honolulu, 378 F. Supp. 2d 1241,
1247 (D. Haw. 2005) [*26] (finding that "prior
complaints or incidents do not establish 'deliberate
indifference' regarding a failure to train or
discipline.").
Although the existence of several excessive force
complaints against Officer Campbell prior to the
fatal shooting of Mr. Gomez raises some
suspicions, Plaintiff has failed to present any
evidence showing that Denver failed to take
disciplinary or corrective action on any prior
meritorious claim of excessive force against
Officer Campbell. Without such evidence, Plaintiff
has not established a municipal custom or policy of
permitting or encouraging excessive force.12 See
12 In this section of her brief, Plaintiff also makes a difficult to
decipher argument that Denver's alleged policy or custom of
failing to discipline its officers for false statements caused an
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Mettler, 165 F.3d at 1205. Thus, summary
judgment is appropriate on Plaintiff's "failure to
supervise" claim.
4. Failure to Investigate
Plaintiff's final theory of municipal liability concerns
Denver's alleged failure to properly investigate
[*27] police shootings. In their Reply, Defendants
correctly note that this theory of liability was not
pled in Plaintiff's Complaint. As such, the issue is
properly considered as a request to amend the
complaint. See Viernow v. Euripides Dev. Corp.,
157 F.3d 785, 790 n.9 (10th Cir. 1998) (HN14[]
"Issues raised for the first time in a plaintiff's
response to a motion for summary judgment may
be considered a request to amend the complaint,
pursuant to Fed. R. Civ. P. 15."). The Court finds
that such amendment would be futile.
It is unclear whether Plaintiff contends that
Denver's alleged "failure to investigate" is a
freestanding theory of municipal liability, or a
corollary of her "failure to discipline" and "failure to
supervise" claim. What is clear is that Plaintiff has
not directed the Court to any case law showing that
"failure to investigate" is a viable basis for
municipal liability, nor has Plaintiff attempted to
identify the elements of such a claim. Although
Plaintiff raises legitimate questions about the
thoroughness of Denver's investigation of Officer
Campbell's shooting of Mr. Gomez, (Doc. # 142 at
78-79), the Court is unable to perceive how a
lackluster post-shooting investigation [*28] could
have caused Officer Campbell to violate Mr.
Gomez's Fourth Amendment rights. See Cordova,
569 F.3d at 1194 ("basic principals [sic] of linear
time prevent us from seeing how conduct that
occurs after the alleged violation could have
somehow caused that violation."). Thus, Plaintiff
has not demonstrated a causal link between
Denver's alleged failure to investigate and the
constitutional violation.
C. CONSPIRACY CLAIM UNDER 42 U.S.C. §
excessive use of force against Mr. Gomez. As the Lobato
court stated, "[t]he problems with this argument are manifest."
Case No. 05-cv-01437, Doc. # 266 at 22-23.
1985
In this claim, Plaintiff alleges that Chief Whitman
and Officer Campbell conspired to violate Mr.
Gomez's constitutional rights under 42 U.S.C. §
1985(3).HN15[] "The essential elements of a §
1985(3) conspiracy claim are: (1) a conspiracy; (2)
to deprive plaintiff of equal protection or equal
privileges and immunities; (3) an act in furtherance
of the conspiracy; and (4) an injury or deprivation
resulting therefrom." Tilton v. Richardson, 6 F.3d
683, 686 (10th Cir. 1993).
Plaintiff's evidence of a § 1985(3) conspiracy is
woefully inadequate. First, she has offered no
evidence that a conspiracy existed. Plaintiff alleges
that there is circumstantial evidence of a "cover
up," yet Plaintiff does not cite to any evidence in
the record of a "cover up" or [*29] include any
facts in her statement of the facts. Plaintiff's mere
speculation that a conspiracy existed is not
competent evidence to show the existence of a
conspiracy.
Assuming arguendo that Plaintiff could prove an
unlawful conspiracy on the part of the individual
defendants, HN16[] a § 1985(3) conspiracy does
not apply to all conspiratorial interferences with the
rights of others, but "only to conspiracies motivated
by 'some racial, or perhaps otherwise class-based,
invidiously discriminatory animus.'" Tilton, 6 F.3d at
686 (quoting Griffin v. Breckenridge, 403 U.S. 88,
102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)).
Plaintiff does not put forth any evidence in her
statement of facts to support this element of a §
1985(3) claim. In the body of her argument, she
alleges that Officer Campbell radioed in that he
was involved in a foot chase with a "Hispanic
male." (Doc. # 142 at 34.) Plaintiff appears to
argue that the mere fact that Mr. Gomez was
Hispanic and that Officer Campbell knew Mr.
Gomez's race is sufficient evidence to infer a
conspiracy based on racial discrimination. The
Court disagrees. Plaintiff has provided no authority
to support her argument, and the Court strongly
suspects that none exists. Thus, summary
judgment [*30] is appropriate on Plaintiff's §
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1985(3) conspiracy claim.13
D. ATTORNEYS' FEES
In her Response, Plaintiff requests that she be
awarded attorneys' fees pursuant to Fed. R. Civ. P.
56(h) for having to respond to Defendants' Motion
for Summary Judgment. (Doc. # 142 at 82-83.)
HN18[]Rule 56(h) provides that the Court may
order [*31] a party to pay reasonable expenses,
including attorneys' fees, if the Court finds "that an
affidavit or declaration under this rule is submitted
in bad faith or solely for delay." Although Plaintiff
disagrees with the facts recited in Officer
Campbell's affidavit, the Court does not find that
the affidavit was submitted "in bad faith or solely
for delay." The Court agrees with Plaintiff that it
was disingenuous for Defendants to present the
facts stated in Officer Campbell's affidavit as
"undisputed," given the major discrepancies
between Officer Campbell's affidavit and Mr.
Alderton's statement to the police. Indeed, there
are so many hotly disputed material facts that,
arguably, summary judgment should never have
been brought on Plaintiff's excessive force claim.
Nevertheless, Defendants' summary judgment
motion was largely successful, and the Court will
not order Defendants to pay attorneys' fees.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that
Defendants' Motion for Summary Judgment (Doc.
13 Defendants appear to credit Plaintiff with bringing a § 1983
conspiracy claim. (Doc. # 121 at 24-25.) However, it appears
to the Court that Plaintiff's conspiracy claim is brought under §
1985(3) only. (Doc. # 3 at 10) ("Third Claim for Relief Against
all Defendants Under 42 U.S.C. § 1985); (Doc. # 142 at 33)
(arguing that Plaintiff has met the elements of a § 1985
conspiracy claim). To the extent that Plaintiff has alleged a §
1983 conspiracy claim, such a claim fails because, as
discussed, Plaintiff has not provided any evidence that a
conspiracy existed. See Brooks v. Gaenzle, 614 F.3d 1213,
1227-28 (10th Cir. 2010) (holding that HN17[] a federal
conspiracy action brought under § 1983 "requires at least a
combination of two or more persons acting in concert and an
allegation of a meeting of the minds, an agreement among the
defendants, or a general conspiratorial objective.").
# 121) is GRANTED IN PART AND DENIED IN
PART.
Specifically, the Court GRANTS Defendants'
Motion with respect to Plaintiff's § 1983 municipal
liability claim against Denver and Plaintiff's [*32] §
1985 claim against all Defendants. Those claims
are DISMISSED WITH PREJUDICE. The Court
DENIES Defendants' Motion with respect to
Plaintiff's § 1983 excessive force claim against
Officer Campbell.
It is FURTHER ORDERED that Defendants' Motion
to Strike Plaintiff's Untimely Expert Opinions (Doc.
# 172) is DENIED AS MOOT.
DATED: August 22, 2012
BY THE COURT:
/s/ Christine M. Arguello
CHRISTINE M. ARGUELLO
United States District Judge
End of Document
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Positive
As of: October 8, 2021 1:54 AM Z
Velasquez v. Faulk
United States District Court for the District of Colorado
February 5, 2014, Decided; February 5, 2014, Filed
Civil Action No. 12-cv-02057-WYD
Reporter
2014 U.S. Dist. LEXIS 14845 *; 2014 WL 464000
JUAN VELASQUEZ, Applicant, v. WARDEN
FAULK, L.C.F., and THE ATTORNEY GENERAL
OF THE STATE OF COLORADO, Respondents.
Subsequent History: Appeal dismissed by,
Certificate of appealability denied, Motion granted
by Velasquez v. Faulk, 2015 U.S. App. LEXIS
2817 (10th Cir., Feb. 25, 2015)
Prior History:Velasquez v. Faulk, 2012 U.S. Dist.
LEXIS 125906 (D. Colo., Sept. 5, 2012)
Core Terms
sentence, state court, trial counsel, deliberation,
ineffective, clearly established federal law,
convictions, trial court, proportionality, interview,
first degree murder, voluntary intoxication, asserts,
cases, grave, sufficient evidence, habitual criminal,
disproportionality, witnesses, parole, conflicting
interest, present evidence, intoxication, contends,
remarks, counsel's performance, determining facts,
plain error, fingerprint, quotation
Counsel: [*1] Juan Velasquez, Petitioner, Pro se,
Limon, CO.
For Faulk, actually named as Warden Faulk,
L.C.F., Attorney General of the State of Colorado,
Respondents: Paul Edward Koehler, Colorado
Attorney General's Office, Ralph L. Carr Colorado
Judicial Center, Denver, CO.
Judges: WILEY Y. DANIEL, SENIOR UNITED
STATES DISTRICT JUDGE.
Opinion by: WILEY Y. DANIEL
Opinion
ORDER ON APPLICATION FOR WRIT OF
HABEAS CORPUS
This matter is before me on the pro se Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 6) ("Application") filed by
Applicant Juan Velasquez.
I. Background
A jury convicted Velasquez of attempted first
degree murder and first degree assault. His
convictions arose from an incident in which he
stabbed the victim with a knife while sitting
behind him on a motorcycle. The trial court
also found Velasquez to be a habitual criminal
and imposed two concurrent ninety-six-year
sentences. Velasquez moved pro se for a new
trial pursuant to Crim. P. 33(c), arguing
ineffective assistance of counsel and other
matters. The trial court denied the motion. On
direct appeal, a division of this court affirmed
his convictions in People v. Velasquez, 2006
Colo. App. LEXIS 1889 (Colo. App. No.
03CA2449, Nov. 9, 2006) (not published
pursuant [*2] to C.A.R. 35(f)).
Velasquez subsequently sought relief pursuant
to Crim P. 35(c), arguing he was denied a jury
trial on the habitual criminal counts and he
received ineffective assistance of counsel, but
based on different allegations than contained
Case 1:21-cv-02306-RM-KLM Document 30-1 Filed 10/08/21 USDC Colorado Page 86 of
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in his motion under Crim. P. 33(c). The trial
court denied his motion.
People v. Velasquez, No. 07CA1796, 1-2, 2009
Colo. App. LEXIS 61 (Colo. App. Jan. 15, 2009).
In Case No. 07CA1796, the Colorado Court of
Appeals (CCA) affirmed the denial in part, reversed
in part, and remanded for an evidentiary hearing
on Applicant's ineffective assistance of counsel
claim regarding a failure to investigate and raise
the voluntary intoxication defense. 2009 Colo. App.
LEXIS 61 [WL] at 11. After the remand hearing, the
trial court again denied the Rule 35(c)
postconviction motion and the CCA affirmed.
Applicant petitioned for certiorari review and,
according to Respondents, which Applicant does
not deny, the Colorado Supreme Court (CSC) has
yet to rule on the petition. Applicant then
commenced this action on August 6, 2012, and
filed an Amended Application on September 4,
2012. In the Amended Application, Applicant
asserts:
(1) Denial of a right to conflict free counsel;
(2) Lack of sufficient evidence to [*3] support
a charge of attempted first degree murder;
(3) Lack of a sufficient indictment resulting in
the inability to prepare a defense;
(4) Lack of sufficient evidence to prove habitual
criminal counts;
(5) Disproportionate sentence;
(6) Prosecutorial misconduct;
(7) Ineffective assistance of trial counsel
because
(a) Counsel coerced Applicant not to
testify;
(b) Counsel failed to raise an affirmative
defense of voluntary intoxication;
(c) Counsel failed to conduct a reasonable
investigation and interview witnesses in
support of a voluntary intoxication defense;
(d) Counsel failed to object to the
prosecution's misstatements of law and
misconduct in closing and rebuttal
arguments; and
(e) Cumulative error; and
(8) Denial of a right to jury trial on habitual
criminal findings.
On February 1, 2013, I dismissed Claim Three as
procedurally barred from federal habeas review
and ordered Respondents to file an Answer.
Respondents filed an Answer, ECF No. 21, on
March 21, 2013. Applicant did reply to the Answer.
After reviewing the file, including the Application,
the Answer, and the state court record, I conclude
that the Application should be denied and the case
dismissed with prejudice for the following
[*4] reasons.
II. Legal Standard
A.Pro Se Standard of Review
Applicant is proceeding pro se. I, therefore, "review
his pleadings and other papers liberally and hold
them to a less stringent standard than those
drafted by attorneys." Trackwell v. United States,
472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted);see also Haines v. Kerner, 404 U.S. 519,
520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).
However, a pro se litigant's "conclusory allegations
without supporting factual averments are
insufficient to state a claim on which relief can be
based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). A court may not assume that an
applicant can prove facts that have not been
alleged, or that a respondent has violated laws in
ways that an applicant has not alleged. Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897,
74 L. Ed. 2d 723 (1983).An applicant's pro se
status does not entitle him to an application of
different rules. See Montoya v. Chao, 296 F.3d
952, 958 (10th Cir. 2002).
B.28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of
habeas corpus may not be issued with respect to
any claim that was adjudicated on the merits in
state court, unless the state court adjudication:
(1) [*5] resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal law,
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as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Claims of legal error and mixed questions of law
and fact are reviewed pursuant to 28 U.S.C. §
2254(d)(1).See Cook v. McKune, 323 F.3d 825,
830 (10th Cir. 2003).The threshold question
pursuant to § 2254(d)(1) is whether Applicant
seeks to apply a rule of law that was clearly
established by the Supreme Court at the time his
conviction became final. See Williams v. Taylor,
529 U.S. 362, 390, 120 S. Ct. 1495, 146 L. Ed. 2d
389 (2000). Clearly established federal law "refers
to the holdings, as opposed to the dicta, of [the
Supreme] Court's decisions as of the time of the
relevant state-court decision." Id. at 412.
Furthermore,
clearly established law consists of Supreme
Court holdings in cases where the facts are at
least closely-related or similar to the case sub
judice. Although the legal rule at issue need
not have had its genesis in the closely-related
or similar factual [*6] context, the Supreme
Court must have expressly extended the legal
rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.
2008).
If there is no clearly established federal law, that is
the end of my inquiry pursuant to § 2254(d)(1).See
id. at 1018.If a clearly established rule of federal
law is implicated, I must determine whether the
state court's decision was contrary to or an
unreasonable application of that clearly established
rule of federal law. See Williams, 529 U.S. at 404-
05.
A state-court decision is contrary to clearly
established federal law if: (a) "the state court
applies a rule that contradicts the governing
law set forth in Supreme Court cases"; or (b)
"the state court confronts a set of facts that are
materially indistinguishable from a decision of
the Supreme Court and nevertheless arrives at
a result different from [that] precedent."
Maynard [v. Boone], 468 F.3d [665,] 669 [
(10th Cir. 2006) ] (internal quotation marks and
brackets omitted) (quoting Williams, 529 U.S.
at 405)."The word 'contrary' is commonly
understood to mean 'diametrically different,'
'opposite in character or nature,' or 'mutually
opposed.'" Williams, 529 U.S. at 405
[*7] (citation omitted).
A state court decision involves an
unreasonable application of clearly established
federal law when it identifies the correct
governing legal rule from Supreme Court
cases, but unreasonably applies it to the facts.
Id. at 407-08.Additionally, we have recognized
that an unreasonable application may occur if
the state court either unreasonably extends, or
unreasonably refuses to extend, a legal
principle from Supreme Court precedent to a
new context where it should apply.
House, 527 F.3d at 1018.
My inquiry pursuant to the "unreasonable
application" clause is an objective one. See
Williams, 529 U.S. at 409-10."[A] federal habeas
court may not issue the writ simply because that
court concludes in its independent judgment that
the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather that application must also be
unreasonable." Id. at 411."[A] decision is
'objectively unreasonable' when most reasonable
jurists exercising their independent judgment would
conclude the state court misapplied Supreme
Court law." Maynard, 468 F.3d at 671.
In addition,
evaluating whether a rule application was
unreasonable requires considering [*8] the
rule's specificity. The more general the rule,
the more leeway courts have in reaching
outcomes in case-by-case determinations. It is
not an unreasonable application of clearly
established Federal law for a state court to
decline to apply a specific legal rule that has
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not been squarely established by [the
Supreme] Court.
Harrington v. Richter, 131 S. Ct. 770, 786, U.S.
, 178 L. Ed. 2d 624 (Jan. 19, 2011) (internal
quotation marks and citation omitted). I "must
determine what arguments or theories supported
or . . . could have supported[ ] the state court's
decision" and then "ask whether it is possible
fairminded jurists could disagree that those
arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court."
Id. "Even a strong case for relief does not mean
the state court's contrary conclusion was
unreasonable." Id. (citation omitted). "Section
2254(d) reflects the view that habeas corpus is a
guard against extreme malfunctions in the state
criminal justice systems, not a substitute for
ordinary error correction through appeal." Id.
(citation omitted).
Under this standard, "only the most serious
misapplications of Supreme Court precedent will
be a basis [*9] for relief under § 2254."Maynard,
468 F.3d at 671.Furthermore,
[a]s a condition for obtaining habeas corpus
relief from a federal court, a state prisoner
must show that the state court's ruling on the
claim being presented in federal court was so
lacking in justification that there was an error
well understood and comprehended in existing
law beyond any possibility for fairminded
disagreement.
Richter, 131 S. Ct. at 786-87.Applicant bears the
burden of proof under § 2254(d).See Woodford v.
Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357, 154 L.
Ed. 2d 279 (2002) (per curiam).
Claims of factual error are reviewed pursuant to 28
U.S.C. § 2254(d)(2).See Romano v. Gibson, 278
F.3d 1145, 1154 n.4 (10th Cir. 2002).Section
2254(d)(2) allows a court to grant a writ of habeas
corpus only if the state court decision was based
on an unreasonable determination of the facts in
light of the evidence presented. Pursuant to §
2254(e)(1), I must presume that the state court's
factual determinations are correct and Applicant
bears the burden of rebutting the presumption by
clear and convincing evidence. "The standard is
demanding but not insatiable . . ." [because]
'[d]eference does not by definition preclude relief.'"
Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct.
2317, 162 L. Ed. 2d 196 (2005) [*10] (quoting
Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003)).
A claim, however, may be adjudicated on the
merits in state court even in the absence of a
statement of reasons by the state court for
rejecting the claim. Richter, 131 S. Ct. at 784.
("[D]etermining whether a state court's decision
resulted from an unreasonable legal or factual
conclusion does not require that there be an
opinion from the state court explaining the state
court's reasoning"). Furthermore, "[w]hen a federal
claim has been presented to a state court and the
state court has denied relief, it may be presumed
that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary." Id. at 784-85.
Even "[w]here a state court's decision is
unaccompanied by an explanation, the habeas
petitioner's burden still must be met by showing
there was no reasonable basis for the state court
to deny relief." Id. at 784.Although Richter
concerned a state-court order that did not address
any of the defendant's claims, its presumption is
applicable when a state-court opinion addresses
some but not all of those claims. Johnson v.
Williams, U.S. , 133 S. Ct. 1088, 1094-98, 185
L. Ed. 2d 105 (2013).
In [*11] other words, I "owe deference to the state
court's result, even if its reasoning is not expressly
stated."Aycox v. Lytle, 196 F.3d 1174, 1177 (10th
Cir. 1999).Therefore, I "must uphold the state
court's summary decision unless [the court's]
independent review of the record and pertinent
federal law persuades [it] that [the] result
contravenes or unreasonably applies clearly
established federal law, or is based on an
unreasonable determination of the facts in light of
the evidence presented." Id. at 1178. "[T]his
'independent review' should be distinguished from
a full de novo review of the petitioner's claims." Id.
Likewise, I apply the AEDPA deferential standard
of review when a state court adjudicates a federal
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issue relying solely on a state standard that is at
least as favorable to the petitioner as the federal
standard. See Harris v. Poppell, 411 F.3d 1189,
1196 (10th Cir. 2005).If a claim was not
adjudicated on the merits in state court, and if the
claim also is not procedurally barred, I must review
the claim de novo and the deferential standards of
§ 2254(d) do not apply. See Gipson v. Jordan, 376
F.3d 1193, 1196 (10th Cir. 2004).
III. Analysis
A. Claim One
In his first claim, [*12] Applicant asserts that he
was denied his right to conflict free counsel.
Applicant specifically asserts that trial counsel
refused to invoke his speedy trial rights under the
Uniform Mandatory Disposition of Detainers Act
(UMDDA) in violation of his right to conflict free
counsel under the Sixth Amendment. Application at
5. Applicant contends that after he was arrested,
charged, and appointed counsel he was
transferred to the Colorado Department of
Corrections because of a parole violation. Id.
Applicant further contends when he informed
counsel that he wished to exercise his ninety-day
speedy trial right under the UMDDA counsel told
him that he was unprepared for trial, because he
had not interviewed witnesses or taken any other
action in the case. Id. Counsel further told
Applicant that he would have to waive his speedy
trial rights, but if Applicant wished to proceed he
would have to do so on his own. Id. Finally,
Applicant asserts that the trial court found counsel
was not ineffective and new counsel was not
required because the situation was no more than a
disagreement between Applicant and counsel. Id.
Applicant does not argue how established federal
law might support a possible [*13] conflict of
interest claim or how the state court decision
rejecting his conflict of interest claim is contrary to,
or an unreasonable application of, any clearly
established federal law. See 28 U.S.C. §
2254(d)(1).
It was clearly established when Applicant was
convicted that a defendant has a Sixth Amendment
right to the effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).Ordinarily, a litigant
asserting a claim that counsel was ineffective must
demonstrate both that counsel's performance fell
below an objective standard of reasonableness
and that counsel's deficient performance resulted
in prejudice to his defense. See id. at 687. "An
'actual conflict,' for Sixth Amendment purposes, is
a conflict of interest that adversely affects
counsel's performance." Mickens v. Taylor, 535
U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d
291 (2002).
In addressing this claim, the CCA found as follows.
I. Requests for Substitute Counsel
Defendant first contends that, in violation of his
constitutional rights, the trial court abused its
discretion by denying his requests for
substitute appointed counsel. He states that he
explicitly requested new counsel, and argues
that the court did not make sufficient
[*14] inquiry into his reasons for
dissatisfaction. We discern no abuse of
discretion.
An indigent defendant is entitled to effective
representation, though not to counsel of his or
her choice. People v. Jenkins, 83 P.3d 1122,
1125 (Colo. App. 2003). However, once a
defendant voices his or her objections to court
appointed counsel, the trial court must inquire
into the defendant's reasons for dissatisfaction.
People v. Fisher, 9 P.3d 1189, 1193 (Colo.
App. 2000).If the defendant meets his or her
burden of showing good cause, for example by
showing a conflict of interest or a complete
breakdown of communication, then the trial
court must appoint substitute counsel. People
v. Jenkins, supra, 83 P.3d at 1126.
But if the court determines that the attorney-
client relationship has not deteriorated beyond
the point where counsel could provide effective
assistance, then the court may refuse to
appoint new counsel. The court's ruling will not
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be disturbed absent an abuse of discretion.
People v. Jenkins supra, 83 P.3d at 1126.
Here, defendant requested new counsel twice
before trial, complaining of a breakdown in
communication. Contrary to defendant's
assertions, our review of the record shows that
[*15] upon both of defendant's requests, the
court's inquiry was adequate.
Specifically, the record reveals that upon
defendant's first request, the court scheduled
and then held a hearing to inquire into
defendant's reasons for dissatisfaction. The
court asked defense counsel, the People, and
defendant for their perspectives on defendant's
request. Defense counsel told the court that
defendant had indicated he did not trust
counsel or believe in his legal advice. He
stated that he was in an awkward position
because defendant's lack of trust had resulted
in the breakdown of communication.
When the court asked defendant for his
perspective, he stated: "Well, I just don't feel
that [defense counsel] is working in my best
interests and we don't really have -- we don't
see eye to eye and I would like different
counsel."
After further discussion, the court addressed
the issues raised by defendant. Although
defendant did not refer to his previous waiver
of speedy trial or his pro se petition under the
Uniform Mandatory Disposition of Detainers
Act (UMDDA) at the hearing on his motion, the
court nevertheless addressed those issues
because defendant had previously mentioned
them to the court. The court [*16] found that
defendant's speedy trial and UMDDA
arguments did not demonstrate a complete
breakdown of communication because defense
counsel did not know of defendant's intention
to invoke the UMDDA and because
defendant's speedy trial waiver was voluntary.
Moreover, the court concluded:
The court finds the state of the record at
this time establishes that this is simply --
strike that that this is a disagreement
between the defendant and [defense
counsel] concerning matters and there has
been no specific showing in this court's
view of good cause shown to substitute
counsel. Therefore the motion is denied.
Defendant renewed his request for a new
attorney on the date trial was scheduled to
begin. The court again directly asked
defendant why he was dissatisfied with his
court-appointed counsel. Defendant explained
that he believed his attorney was ineffective
because he had not interviewed a potential
witness. He also stated that he thought his
attorney was not acting in his best interests
when the attorney advised him to waive his
speedy trial rights. He said he felt misled.
Then, in "making an inquiry of [defense
counsel]," the court questioned defense
counsel on the issues raised by defendant.
[*17] The court then again denied defendant's
motion for appointment of substitute counsel.
In light of the court's questions, its interview
with counsel, defendant's responses, and the
information already before the court each time
defendant requested substitute counsel, we
are satisfied that the court adequately inquired
into the reasons for defendant's dissatisfaction,
including the issues of his speedy trial waiver,
his UMDDA petition, and his lack of trust in
defense counsel. Furthermore, notwithstanding
defense counsel's statement that there was a
breakdown in communication, the court's
determination that the relationship had not
deteriorated to the point of a complete
breakdown has record support. See People v.
Arguello, 772 P.2d 87, 94 (Colo. 1989) (right to
counsel does not necessarily include
meaningful attorney-client relationship); People
v. Hodges, 134 P.3d 419, 425-26 (Colo. App.
2005) (cert. granted Apr. 24, 2006) (animosity
between defendant and counsel does not
require appointment of new counsel); People v.
Garcia, 64 P.3d 857 (Colo. App. 2002) (conflict
between defendant and counsel amounted to
disagreement over strategy, which does not
require new counsel).
People v. Velasquez, No. 03CA2449, 1-5, 2006
Colo. App. LEXIS 1889 (Colo. App. Nov. 9,
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2006). [*18]
As stated above, Applicant bears the burden of
proof under § 2254(d).Woodford, 537 U.S. at 25.
Applicant fails to demonstrate he is entitled to relief
because he fails to identify any clearly established
federal law providing that an unconstitutional
conflict of interest exists under the circumstances
he alleges. In the conflict of interest context, the
Supreme Court has noted that it is an open
question whether the exception to Strickland for
cases of actual conflicts of interest extends to
conflicts of interest that do not involve multiple or
concurrent representation by counsel. See
Mickens, 535 U.S. at 176.
Applicant does not allege any conflict of interest
premised on either multiple or concurrent
representation by counsel and he fails to identify
any other clearly established federal law to support
his conflict of interest claim. The Court reiterates
that clearly established federal law "refers to the
holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant
state-court decision." Williams, 529 U.S. at 412.
Furthermore, clearly established law consists of
Supreme Court holdings in cases where [*19] the
facts are at least closely-related or similar to the
case sub judice. House, 527 F.3d at 1016.
Although the legal rule at issue need not have had
its genesis in the closely-related or similar factual
context, the Supreme Court must have expressly
extended the legal rule to that context. Id.
The absence of any clearly established federal law
ends the Court's inquiry under § 2254(d)(1).See
House, 527 F.3d at 1018. Therefore, the Court
finds that Applicant is not entitled to relief on the
conflict of interest claim and Claim One will be
dismissed for lack of merit.
B. Claim Two
In this claim, Applicant asserts that the prosecution
provided insufficient evidence to support a charge
of attempted first degree murder and failed to meet
the required burden of proof of intent and after
deliberation under Colo. Rev. Stat. § 18-3-
102(1)(a). Application at 6.
A habeas applicant's constitutional challenge to the
sufficiency of the evidence is governed by Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.
2d 560 (1979).Evidence is sufficient to support a
conviction as a matter of due process if, "after
viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have
found the [*20] essential elements of the crime
beyond a reasonable doubt." Id. at 319 (emphasis
in the original). A court considers both direct and
circumstantial evidence in determining the
sufficiency of the evidence. See Lucero v. Kerby,
133 F.3d 1299, 1312 (10th Cir. 1998). The court
"may not weigh conflicting evidence nor consider
the credibility of witnesses," but must "'accept the
jury's resolution of the evidence as long as it is
within the bounds of reason.'" Messer v. Roberts,
74 F.3d 1009, 1013 (10th Cir. 1996) (quoting
Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th
Cir. 1993)).
In applying Jackson, a court looks to state law to
determine the substantive elements of the offense.
See Jackson, 443 U.S. at 324 n.16; Valdez v.
Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004).
Under Colorado law, a person is guilty of first
degree murder under § 18-3-102(1)(a) when "after
deliberation and with the intent to cause the death
of a person other than himself, he causes the
death of that person or of another person."
In addressing this claim, the CCA found as follows.
II. Sufficient Evidence of Deliberation
Defendant next contends that the evidence
was insufficient to support his conviction for
attempted first [*21] degree murder.
Specifically, he contends that there was
insufficient evidence of deliberation. We
disagree.
A review of a claim of insufficient evidence
requires an appellate court to consider whether
the evidence adduced at trial could support
any rational determination of guilt beyond a
reasonable doubt. People v. Frye, 898 P.2d
559, 569 (Colo. 1995).The court is to view the
evidence in the light most favorable to the
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prosecution, People v. Bennett, 183 Colo. 125,
132, 515 P.2d 466, 469 (1973), and may not sit
as a thirteenth juror and set aside a verdict
because it might have drawn a different
conclusion from the same evidence. People v.
Sprouse, 983 P.2d 771, 778 (Colo. 1999).
A person commits first degree murder if "[a]fter
deliberation and with the intent to cause the
death of a person other than himself [or
herself], he [or she] causes the death of that
person or of another person." Section 18-3-
102(1)(a), C.R.S. 2006. Thus, to convict a
person of attempt to commit first degree
murder, the People must prove beyond a
reasonable doubt that the defendant acted
"after deliberation and with the intent to cause
death."See § 18-2-101, C.R.S. 2006 (attempt
requires same mental state [*22] as
underlying offense).
For purposes of first degree murder, "after
deliberation" means "not only intentionally but
also that the decision to commit the act has
been made after the exercise of reflection and
judgment concerning the act. An act committed
after deliberation is never one which has been
committed in a hasty or impulsive manner."
Section 18-3-101(3), C.R.S. 2006. Although
deliberation requires that a design to kill
precede the killing, the time required for
deliberation need not be long. People v.
Bartowsheski, 661 P.2d 235, 242 (Colo. 1983).
Moreover, deliberation must often be proved
through circumstantial or indirect evidence.
People v. Parsons, 15 P.3d 799, 806 (Colo.
App. 2000).Such evidence may include the
use of a deadly weapon, see, e.g., People v.
Parsons, supra, 15 P.3d at 806; the manner
and method of the attempted killing, People v.
Webster, 987 P.2d 836, 843 (Colo. App. 1998);
and any enmity, hostility, jealousy, or other
manifestation of ill will between the accused
and the victim, People v. Madson, 638 P.2d
18, 26 (Colo. 1981).Thus, the circumstances
surrounding a victim's death may permit a
reasonable inference that the defendant was
able to deliberate committing [*23] the act
before its commission. People v. Parsons,
supra, 15 P.3d at 806.
Here, the jury could rationally infer that
defendant had a premeditated plan to kill the
victim using another person's assistance.
Specifically, the evidence was that defendant
brought a knife with him and began stabbing
the victim while sitting behind him on a
motorcycle they were riding. The victim
testified that defendant began the attack only
after a car occupied by someone who was
familiar to defendant approached the
motorcycle, at which point defendant had
asked the victim to slow down. He further
testified that this other person assisted
defendant in the attack by dragging the victim's
body into a ditch after the stabbing.
Additionally, the victim testified that during the
attack he pleaded with defendant to stop,
saying, "Not worth it, you take the bike. You
can have the bike. You don't have to do this."
He said defendant replied, "Die," or "I'm going
to kill you," which he repeated several times.
See People v. Madson, supra, 638 P.2d at 26
(deliberation may be inferred from the
defendant's hostility towards the victim).
Velasquez, No. 03CA2449 at 5-8, 2006 Colo. App.
LEXIS 1889.
The state court's factual findings, which are
presumed [*24] correct in a federal habeas
proceeding, are supported by the state court
record,Velasquez, No. 02CR2048, Tr. Trans. 7-8-
03 and 7-9-03, and are uncontested by Applicant.
The CCA's reliance on People v. Frye, 898 P.2d
559, 569 (Colo. 1995), and People v. Bennett, 183
Colo. 125, 515 P.2d. 466, 469 (1973), is in keeping
with the Jackson standard because the CCA,
viewing the evidence in a light most favorable to
the prosecution, determined that a rational jury
could have concluded Applicant had a
premeditated plan to kill the victim and acted with
deliberation and an intent to cause the victim's
death. I, therefore, find the CCA's determination
was consistent with federal law because there was
sufficient evidence presented at Applicant's trial to
support his conviction for attempted murder in the
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first degree.
Based on the above findings, the CCA decision
regarding Applicant's sufficiency of the evidence
claim did not result in a decision that was contrary
to, or involve an unreasonable application of,
clearly established federal law, as determined by
the Supreme Court of the United States and did
not result in a decision that was based on an
unreasonable determination of the facts in light of
the evidence [*25] presented in the state court
proceeding. This claim, therefore, lacks merit and
will be dismissed.
C. Claim Four
In this claim, Applicant asserts the prosecution
failed to establish beyond a reasonable doubt he
was the person who committed any of the
identified prior offenses that were used to
determine he was a habitual criminal. Application
at 7.
As in Claim Three, Jackson provides the relevant
federal law. The CCA addressed this claim as
follows:
IV. Sufficient Evidence that Defendant was an
Habitual Criminal
Defendant contends that his adjudication as an
habitual offender must be vacated because the
prosecution failed to provide sufficient
evidence that he is the same Juan Velasquez
who received the attempted vehicular eluding
conviction. He also argues that the prosecution
failed to provide sufficient evidence that the
second degree burglary and criminal trespass
convictions were separate and distinct criminal
episodes. Thus, he claims, the prosecution
only proved he was the person convicted of
second degree assault, and therefore he did
not have the requisite number of prior
convictions to establish habitual offender
status. We disagree with each of defendant's
arguments.
As discussed, [*26] a challenge to the
sufficiency of the evidence requires a
reviewing court to determine whether the
relevant evidence, both direct and
circumstantial, when viewed as a whole and in
the light most favorable to the People, is
sufficient to support a conclusion that the
defendant is guilty of the crime charged
beyond a reasonable doubt. The People must
be given the benefit of every reasonable
inference that might fairly be drawn from the
evidence. People v. Barker, 713 P.2d 406,
407-08 (Colo. App. 1985).
To adjudicate a defendant as an habitual
criminal, the prosecution must prove beyond a
reasonable doubt that the accused is the
person named in the prior convictions. People
v. Kyle, 111 P.3d 491, 504 (Colo. App. 2004).
In habitual criminal proceedings, a duly
authenticated copy of the record of former
convictions is prima facie evidence of such
convictions. Section 18-1.3-802, C.R.S. 2006.
Also, "[i]dentification photographs and
fingerprints that . . . are part of the records kept
. . . by any custodian authorized by the
executive director of the department of
corrections after sentencing for any such
former convictions and judgments, shall be
prima facie evidence of identity." Section 18-
1.3-802. [*27] However, to prove exact
identity, references to the accused's name and
date of birth in the judgment of conviction
alone are insufficient. People v. Cooper, 104
P.3d 307, 312 (Colo. App. 2004).
Here, the prosecution presented sufficient
evidence for a reasonable fact finder to
determine beyond a reasonable doubt that
defendant is the same Juan Velasquez who
was convicted of vehicular eluding. The
prosecutor presented defendant's properly
authenticated Department of Corrections
(DOC) records packet, which contained a copy
of the vehicular eluding judgment. It listed
defendant's name, birth date, and unique
inmate identification number. These are the
same name, birth date, and inmate
identification number that the DOC case
manager who supervised defendant for his
second degree assault conviction identified at
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trial as belonging to defendant. The DOC case
manager also made an in court identification of
defendant as the same Juan Velasquez whose
identifying information is contained in the
judgment for vehicular eluding. Moreover, the
name, birth date, and inmate identification
number listed in the vehicular eluding judgment
are also listed on three properly authenticated
photographs of [*28] defendant contained in
his DOC records packet and on the three
properly authenticated fingerprint cards
belonging to defendant that are contained in
his DOC records packet. Additionally, we note
that the case number for the vehicular eluding
conviction (1999CR1735) was imbedded in a
number listed on the most recent fingerprint
card (D0011999CR001735).
Thus, contrary to defendant's argument, it is of
no consequence that the three authenticated
DOC photographs and three fingerprint cards
did not list the vehicular eluding charge or
conviction by name. See People v. Kyle, supra,
111 P.3d at 505 (holding evidence sufficient
where non-DOC arrest fingerprints, identified
as defendant's, listed defendant's date of
birth);People v. Cooper, supra, 104 P.3d at
310-12 (evidence sufficient where supervising
probation office made an in court identification
of defendant as same individual listed on
documents containing case numbers of
previous convictions); People v. Carrasco, 85
P.3d 580, 583 (Colo. App. 2003) (evidence
sufficient where defendant's arrest record
identified him by unique Denver Police
Department (DPD) number and referenced
prior convictions by case number, and DPD
officer testified [*29] defendant's fingerprints
matched those on file for same DPD number);
People v. Benton, 829 P.2d 451, 454 (Colo.
App. 1991) (holding evidence of 1982
conviction sufficient without conviction specific
fingerprints because defendant's unique
inmate identification number was listed on
photographs and fingerprint cards made during
prior incarcerations).
We also disagree with defendant's contention
that the prosecution failed to prove beyond a
reasonable doubt that his convictions for first
degree criminal trespass and second degree
burglary were separate and distinct criminal
episodes. Defendant argues that the fact that
the convictions were entered on the same date
does not indicate that the two convictions were
separate and distinct episodes, and that the
only pieces of evidence offered to show that
the offenses occurred on separate dates were
the judgments of conviction, which, according
to defendant, were insufficiently linked to him.
However, contrary to defendant's assertion,
these properly authenticated documents were
adequately linked to him because they include
his name, date of birth, and (despite
defendant's incorrect assertion to the contrary)
his unique inmate identification [*30] number.
Furthermore, both judgments of conviction
directly reference an identification photograph
and fingerprint card in defendant's
authenticated DOC records packet. See
People v. Bernabei, 979 P.2d 26, 31 (Colo.
App. 1998) (inferring two felonies were
separately brought and tried when document
stated that the felonies were committed on
separate dates).
Velasquez, No. 03CA2449 at 11-16, 2006 Colo.
App. LEXIS 1889.
The state court's factual findings, which are
presumed correct in a federal habeas proceeding,
are supported by the state court record,
Velasquez, No. 02CR2048, Nov. 4, 2003
Sentencing Hr'g, and are uncontested by
Applicant. The CCA's reliance on People v. Barker,
713 P.2d 406, 407-08 (Colo. App. 1985), and
People v. Kyle, 111 P.3d 491, 504 (Colo App.
2004), is in keeping with the Jackson standard
because the CCA, viewing the evidence in a light
most favorable to the prosecution, determined a
conclusion that Applicant beyond a reasonable
doubt was the same individual who had committed
the crimes in the prior convictions. The Court
therefore finds the CCA's determination that there
was sufficient evidence presented at Applicant's
sentencing hearing to support an habitual criminal
adjudication was consistent [*31] with federal law.
Based on the above findings, the CCA decision
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regarding Applicant's sufficiency of the evidence
claim did not result in a decision that was contrary
to, or involve an unreasonable application of,
clearly established federal law, as determined by
the Supreme Court of the United States and did
not result in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the state court
proceeding. This claim, therefore, lacks merit and
will be dismissed.
D. Claim Five
In this claim, Applicant asserts that his ninety-six
year sentence is disproportionate to the offense he
committed. Application at 7.
"The Eighth Amendment, which forbids cruel and
unusual punishments, contains a 'narrow
proportionality principle' that 'applies to noncapital
sentences.'" Ewing v. California, 538 U.S. 11, 20,
123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 996-97, 111
S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy,
J., concurring in part and concurring in judgment)).
A sentence violates the Eighth Amendment if it is
"grossly disproportionate to the severity of the
crime."
Although the Supreme Court has admitted there is
a lack of clarity regarding what factors may indicate
gross [*32] disproportionality, the Court has
acknowledged that a "gross disproportionality
principle is applicable to sentences for terms of
years," and "the gross disproportionality principle
reserves a constitutional violation for only the
extraordinary case." See Lockyer v. Andrade, 538
U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144
and 77 (2003). The Supreme Court has only twice
invalidated a sentence under the Eighth
Amendment. See Weems v. United States, 217
U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910)
(defendant sentenced to fifteen years in chains and
hard labor for falsifying a public document); Solem
v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed.
2d 637 (1983) (defendant sentenced to life without
parole after committing six nonviolent felonies
including writing a bad $100-dollar check).
Gross proportionality cases also are inherently
fact-specific.See e.g. Rummel v. Estelle, 445 U.S.
263, 265-66, 275-76, 100 S. Ct. 1133, 63 L. Ed. 2d
382 (1980) (concluding that sentence of life
imprisonment with possibility of parole imposed
under state recidivist statute did not violate Eighth
Amendment, where defendant had two previous
felony convictions—one for "fraudulent use of a
credit card to obtain $80 in goods or services" and
another for "passing a forged check in the amount
of $28.36"—and was then convicted of felony
[*33] theft for "obtaining $120.75 by false
pretenses"); Hutto v. Davis, 454 U.S. 370, 102 S.
Ct. 703, 70 L. Ed. 2d 556 (1982) (upholding
against a proportionality attack a sentence of 40
years' imprisonment for possession with intent to
distribute nine ounces of marijuana); Harmelin, 501
U.S. 957, 994, 111 S. Ct. 2680, 115 L. Ed. 2d 836
(1991) (plurality opinion holding that sentence of
life imprisonment without parole for first-time
offender's possession of 672 grams of cocaine did
not violate the Eighth Amendment);Ewing, 538
U.S. at 30-31 (upholding against a proportionality
attack a twenty-five year to life sentence imposed
under a California recidivist statute for the offense
of felony grand theft (i.e., stealing three golf clubs
worth approximately $1,200); Lockyer, 538 U.S. at
77 (upholding on federal habeas review the state
appellate court's determination that two
consecutive twenty-five-year to life sentences
imposed under a state recidivist statute for two
counts of petty theft did not violate clearly
established Supreme Court Eighth Amendment
jurisprudence).
In Solem, the Supreme Court instructed the lower
courts to consider the following three criteria in
analyzing proportionality claims under the Eighth
Amendment: "(I) the gravity of the offense
[*34] and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other
jurisdictions." Solem, 463 U.S. at 292.
The Supreme Court revisited the proportionality
issue in Harmelin. In a fractured opinion, Justice
Kennedy, joined by Justices O'Connor and Souter,
wrote separately to argue for the existence of a
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narrow proportionality guarantee. Harmelin, 501
U.S. at 996 (Kennedy, J., concurring in part and
concurring in the judgment). In reviewing the three-
part test articulated by the Court in Solemn, Justice
Kennedy stated:
Solem is best understood as holding that
comparative analysis within and between
jurisdictions is not always relevant to
proportionality review . . . . A better reading of
our cases leads to the conclusion that
intrajurisdictional and interjurisdictional
analyses are appropriate only in the rare case
in which a threshold comparison of the crime
committed and the sentence imposed leads to
an inference of gross disproportionality . . . .
The proper role for comparative analysis of
sentences, then, is to validate an initial
judgment that a sentence is grossly
disproportionate [*35] to a crime.
Id. at 1004-05. The United States Court of Appeals
for the Tenth Circuit has determined that "Justice
Kennedy's opinion in Harmelin narrows Solem and
sets forth the applicable Eighth Amendment
proportionality test." Hawkins v. Hargett, 200 F.3d
1279, 1282 (10th 1999).
The CCA conducted an abbreviated proportionality
review of Applicant's sentence and evaluated (1)
the gravity of the crime and (2) the harshness of
the penalty, relying on People v. Gaskins, 825 P.2d
30, 38 (Colo. 1992) (case relies on Harmelin and
Solem). The CCA rejected Applicant's claim that
his sentence was grossly disproportionate to his
crime based on the following reasoning:
VI. Sentence Proportionality
Defendant next contends that the trial court
violated his Eighth Amendment rights by failing
to conduct an extended proportionality review.
We disagree.
Based on defendant's status as an habitual
offender, the trial court imposed the statutorily
required sentence of ninety-six years. The
court then conducted a proportionality review.
Finding no inference of gross
disproportionality, the court concluded that,
although defendant's lengthy criminal history
consisted of nonviolent offenses, his conviction
in [*36] this case was for an extremely violent
crime.
Defendant contends that he was entitled to an
extended proportionality review because his
prior offenses were not grave and serious. He
further argues that, had such an extended
review been conducted, his sentence would
prove grossly disproportionate in violation of
the constitutional guarantee against cruel and
unusual punishment. We disagree.
Sentence proportionality is a question of law
subject to de novo review. People v. McNally,
143 P.3d 1062 (Colo. App. 2005).
An extended proportionality review is only
necessary when the crimes supporting the
habitual sentence are not grave or serious or
when the defendant is sentenced to life with no
possibility for parole. See People v. Gaskins,
825 P.2d 30, 37 (Colo. 1992).The gravity or
seriousness of a crime is determined by
considering the harm caused or threatened to
the victim or to society and the culpability of
the offender. People v. Deroulet, 48 P.3d 520,
524 (Colo. 2002).However, some crimes are
so inherently grave and serious that they are
per se considered facially grave and serious;
crimes involving violence or the potential for
violence are included in this category.
[*37] See People v. Gaskins, supra, 825 P.2d
at 37.
When only an abbreviated proportionality
review is needed, an appellate court is well
positioned to conduct the review because there
is no need to inquire into the details of the
specific offenses or conduct a detailed
comparison of sentences. See People v.
Gaskins, supra, 825 P.2d at 38.An
abbreviated review consists simply of a
scrutiny of the crimes supporting the habitual
criminal sentence to determine whether in
combination they are so lacking in gravity or
seriousness as to suggest that the sentence is
constitutionally disproportionate. People v.
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Gaskins, supra, 825 P.2d at 37.
Here, the triggering offenses of attempted first
degree murder, first degree assault, and a
crime of violence deadly weapon and serious
bodily injury were all inherently violent in
nature and, thus, grave and serious. See
People v. Deroulet, supra, 48 P.3d at 524
(accessory to first degree murder is inherently
grave and serious); People v. Smith, 848 P.2d
365, 374 (Colo. 1993) (defining first degree
murder as a "crime of the utmost gravity");
People v. Penrod, 892 P.2d 383, 387 (Colo.
App. 1994) (concluding first degree assault
and attempted second degree murder
[*38] unquestionably grave and serious).
Furthermore, all but one of defendant's prior
offenses were grave and serious. See Alvarez
v. People, 797 P.2d 37, 41-42 (Colo. 1990)
(first degree criminal trespass is grave and
serious); People v. McNally, supra, 143 P.3d at
1064 (second degree burglary is grave and
serious); People v. Allen, 111 P.3d 518, 520
(Colo. App. 2004) (vehicular eluding is grave
and serious).
Moreover, defendant's sentences were
concurrent and subject to parole, as well as
earned time reduction. Thus, although one of
defendant's prior offenses was not grave and
serious, in combination the gravity and
seriousness of his crimes do not suggest that
his statutorily mandated ninety-six-year
sentence was grossly disproportionate. No
further proportionality review is required. See,
e.g.,Alvarez v. People, supra, 797 P.2d at 41
(no further review necessary when there is no
inference of disproportionality).
Velasquez, No. 03CA2449 at 17-20, 2006 Colo.
App. LEXIS 1889.
As stated above, the law is clearly established that
a gross disproportionality principle is applicable to
sentences for terms of years. Lockyer, 538 U.S. at
72.For purposes of federal habeas review of a
proportionality decision, however, there [*39] is a
lack of "clear objective standards to distinguish
between sentences for different terms of years."
Harmelin, 501 U.S. at 1001.The more general the
rule the more leeway courts have in case-by-case
determinations. Richter, 131 S. Ct. at 786.
The CCA addressed the gravity of Applicant's
offense and the harshness of the penalty imposed
that are factors relevant to the gross proportionality
determination under Supreme Court case law. See
Ewing, 538 U.S. 22 (directing the courts to review
the gravity of the offense to determine if it matches
the severity of the punishment); Solem, 463 U.S. at
291-92;Harmelin, 501 U.S. at 1002-1004 (Kenney,
J., concurring in part and concurring in the
judgment) (comparing the gravity of the petitioner's
offense to the sentence of life imprisonment
without parole). The CCA's determination that the
offense of attempted first degree murder, first
degree assault, and a crime of violence with the
use of a deadly weapon and serious bodily injury is
a grave and serious crime under Colorado law is
not subject to challenge in this federal habeas
proceeding. See Estelle v. McGuire, 502 U.S. 62,
67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)
("[I]t is not the province of a federal habeas court
[*40] to reexamine state-court determinations on
state-law questions."). Moreover, the CCA made a
reasonable determination that Applicant's sentence
was not so harsh as to give rise to an inference of
gross disproportionality based on factual findings
which are presumed correct in this federal habeas
proceeding and are supported by the state court
record. Applicant does not point to any clear and
convincing evidence to the contrary.
In addition, Applicant's sentence was statutorily
mandated. This Court is reluctant to interfere with
the legislative determination of an appropriate
sentence range. See Rummel, 445 U.S. at 275-76
(concluding that length of prison sentences for
serious felonies is "properly within the province of
legislatures, not courts"); Harmelin, 501 U.S. at
998 (same) (citing Rummel). Applicant's sentence
also provides opportunity for parole and earned
time reduction. See Rummel, 445 U.S. at 280-81
(finding it significant that the defendant had the
possibility of parole, and concluded that the
possibility of parole, however unlikely,
distinguished the defendant from someone serving
a life sentence without parole). And, finally,
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Applicant's circumstances do not differ significantly
[*41] from those in cases where the Supreme
Court has rejected Eighth Amendment
proportionality challenges. See, e.g., Harmelin, 501
U.S. at 994;Hutto, 454 U.S. at 375.
A constitutional violation based on the gross
proportionality principle is reserved for "only the
extraordinary case." Lockyer, 538 U.S. at 77.
Furthermore, the CCA's decision was not "so
lacking in justification that there was an error well
understood and comprehended in existing law
beyond any possibility for fairminded
disagreement." Richter, 131 S. Ct. at 786-87.
Based on the above findings, the CCA decision
regarding Applicant's proportionality claim did not
result in a decision that was contrary to, or involve
an unreasonable application of, clearly established
federal law, as determined by the Supreme Court
of the United States and did not result in a decision
that was based on an unreasonable determination
of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks
merit and will be dismissed.
E. Claim Six
In this claim, Applicant asserts prosecutorial
misconduct took place during closing and rebuttal
argument because the prosecution (1) misstated
the law concerning the [*42] requisite mens rea
necessary for a conviction of an attempted first
degree murder charge; and (2) stated that he
believed Applicant was guilty and the jury need to
convict Applicant to protect society. Application at
7.
Habeas relief is available for prosecutorial
misconduct only when the misconduct is so
egregious that it renders the entire trial
fundamentally unfair. See Donnelly v.
DeChristoforo, 416 U.S. 637, 645-48, 94 S. Ct.
1868, 40 L. Ed. 2d 431 (1974).In order to
determine whether prosecutorial misconduct
rendered the trial fundamentally unfair, the Court
must consider "the totality of the circumstances,
evaluating the prosecutor's conduct in the context
of the whole trial." See Jackson v. Shanks, 143
F.3d 1313, 1322 (10th Cir. 1998).The prosecution
is forbidden from deliberately deceiving the court
and jury. See Gray v. Netherland, 518 U.S. 152,
165, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996).
Applicant bears the burden of establishing a claim
of deception, which the Court reviews de novo.
See Foster v. Ward, 182 F.3d 1177, 1191-92 (10th
Cir. 1999).
"Inappropriate prosecutorial comments, standing
alone, would not justify a reviewing court to reverse
a criminal conviction obtained in an otherwise fair
proceeding." United States v. Young, 470 U.S. 1,
11, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
[*43] The courts must "consider the probable
effect the prosecutor's [statements] would have on
the jury's ability to judge the evidence fairly."
Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.
2000) (quoting Moore v. Reynolds, 153 F.3d 1086,
1113 (10th Cir. 1998),cert. denied,526 U.S. 1025,
119 S. Ct. 1266, 143 L. Ed. 2d 362 (1999)). The
federal habeas court does not consider a
prosecutor's statement or argument "word by word
in a vacuum." Paxton v. Ward, 199 F.3d 1197,
1217 (10th Cir. 1999).
In making this assessment, a court should examine
whether "the prosecutor's argument . . .
manipulate[d] or misstate[d]" the evidence, whether
"it implicate[d] other specific rights of the accused
such as the right to counsel or the right to remain
silent," whether "the objectionable content was
invited by or responsive to the opening summation
of the defense," and whether "[t]he weight of the
evidence against applicant was heavy." Darden v.
Wainwright, 477 U.S. 168, 181-82, 106 S. Ct.
2464, 91 L. Ed. 2d 144 (1986)."Any cautionary
steps-such as instructions to the jury-offered by the
court to counteract improper remarks," are also
relevant. Bland v. Sirmons, 459 F.3d 999, 1024
(10th Cir. 2006) (alteration in original) (internal
quotation marks and citation omitted).
[*44] "Inquiry into fundamental fairness requires
examination of the entire proceedings," and
"[c]ounsel's failure to object to the comments, while
not dispositive, is also relevant to a fundamental
fairness assessment." Le v. Mullin, 311 F.3d 1002,
1013 (10th Cir. 2002) (citations omitted and
emphasis added).
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"[I]t is not enough that the prosecutors' remarks
were undesirable or even universally condemned."
Darden, 477 U.S. at 181 (internal quotation marks
omitted). Rather, "[t]he ultimate question is whether
the jury was able to fairly judge the evidence in
light of the prosecutors' conduct." Bland, 459 F.3d
at 1024.
In addressing this claim, the CCA found as follows:
V. Prosecutor's Closing Arguments
Although defendant did not object at trial, he
now contends that two instances of
prosecutorial misconduct during closing and
rebuttal closing argument require reversal. We
disagree that either comment, or the
cumulative effect of both, constitutes plain
error.
Allegations of prosecutorial misconduct not
objected to at trial are reviewed for plain error,
which occurs only when the prosecutor's
actions are flagrant or glaringly or egregiously
improper, and undermine the fundamental
fairness of the [*45] trial so as to cast serious
doubt on the reliability of the conviction. People
v. Wallace, 97 P.3d 262, 268-69 (Colo. App.
2004).
Defendant argues that when the prosecutor
told the jury that defendant's statement, "I'm
going to kill you," constituted deliberation, he
misstated the law regarding the requisite
mental state for the attempt element of the
crime of attempted first degree murder.
However, the jury was properly instructed on
the element of deliberation, and, properly
considered in context, this comment was
merely argument by the People that
defendant's statements and inferences
legitimately drawn therefrom were sufficient to
prove the element of deliberation.
Nor did the People's request to the jury to hold
defendant "accountable" constitute plain error.
Even if improper, the prejudicial effect of the
comment was negligible and did not cast doubt
upon the reliability of his conviction.
Velasquez, No. 03CA2449 at 16-17, 2006 Colo.
App. LEXIS 1889.
A review of the trial court's alleged error is subject
to the plain error test. Colorado's plain error test is
rooted in due process. See People v. Kruse, 839
P.2d 1, 3 (Colo. 1992) ("Plain error occurs when . .
. the error so undermined the fundamental fairness
[*46] of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.")
(internal quotation marks omitted). Because there
is no practical distinction between Colorado's plain
error test and the federal due process test that
requires reversal when error "so infused the trial
with unfairness as to deny due process of law,"
Estelle, 502 U.S. at 75 (internal quotation marks
and citation omitted), the deferential standard of
review applies unless the CCA unreasonably
applied federal due process law, see Thornburg v.
Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005)
(citing 28 U.S.C. § 2254(d)).
The trial court instructed each of the jurors that the
closing arguments are not evidence and they are
to determine the facts of the case based solely on
the evidence. July 7, 2003 Trial Tr. at 151-52.
Jurors are presumed to follow the instructions
given and give less weight to counsel's arguments.
See Weeks v. Angelone, 528 U.S. 225, 234, 120
S. Ct. 727, 145 L. Ed. 2d 727 (2000);Boyde v.
California, 494 U.S. 370, 384, 110 S. Ct. 1190, 108
L. Ed. 2d 316 (1990) (explaining that "arguments of
counsel generally carry less weight with a jury than
do instructions from the court"). The Court also has
reviewed the trial court's instruction on deliberation
[*47] and finds the instruction was proper. July 9,
2003 Trial Tr. at 56-57.
Even if the prosecutors' comments were improper,
they did not infuse the trial with unfairness and
result in a denial of due process of law. The
comments were fleeting, based on argument not
evidence, and do not provide a basis for finding the
jury was unable to fairly judge the evidence in light
of the prosecutors' conduct. The CCA decision
regarding this claim, therefore, did not result in a
decision that was contrary to, or involve an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court
of the United States and did not result in a decision
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that was based on an unreasonable determination
of the facts in light of the evidence presented in the
state court proceeding. Claim Six, therefore, fails to
assert a claim for federal habeas relief and is
dismissed for lack of merit.
F. Claim Seven
In this Claim, Applicant sets forth five claims of
ineffective assistance of trial counsel. Application
at 7-8.
It was clearly established when Applicant was
convicted that a defendant has a right to effective
assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).To establish [*48] that counsel
was ineffective, Applicant must demonstrate both
that counsel's performance fell below an objective
standard of reasonableness and that counsel's
deficient performance resulted in prejudice to his
defense. See id. at 687. "Judicial scrutiny of
counsel's performance must be highly deferential."
Id. at 689. There is a "strong presumption" that
counsel's performance falls within the range of
"reasonable professional assistance." Id. It is an
applicant's burden to overcome this presumption
by showing that the alleged errors were not sound
strategy under the circumstances. See id.
Under the prejudice prong, an applicant must
establish "a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland,
466 U.S. at 694."A reasonable probability is a
probability sufficient to undermine confidence in
the outcome." Id. In assessing prejudice under
Strickland the question is whether it is reasonably
likely the result would have been different.
Harrington v. Richter, 131 S. Ct. at 791. "The
likelihood of a different result must be substantial,
not just conceivable." Id. at 792 (citing Strickland,
466 U.S. at 693.)
Furthermore, [*49] under AEDPA, "[t]he pivotal
question is whether the state court's application of
the Strickland standard was unreasonable. This is
different from asking whether defense counsel's
performance fell below Strickland's standard,"
which is the question asked if the claim came to
the court "on direct review of a criminal conviction
in a United States district court." Richter, 131 S. Ct.
at 785. "When § 2254(d) applies, the question is
not whether counsel's actions were reasonable.
The question is "whether there is any reasonable
argument that counsel satisfied Strickland's
deferential standard." Id. at 788.
If Applicant fails to satisfy either prong of the
Strickland test, the ineffective assistance of
counsel claim must be dismissed. See id. at 697.
Also, ineffective assistance of counsel claims are
mixed questions of law and fact. Id. at 698.
The Court will address each of the five ineffective
assistance claims as follows.
1. Coercion to not testify
In the Court's February 1, 2013 Order,
Respondents were directed to brief the
substantialness of this claim under Martinez v.
Ryan, 132 S. Ct. 1309, 1312, 182 L. Ed. 2d 272
(2012). Although Applicant raised a Martinez issue
in his Reply to the Pre-Answer Response
[*50] regarding this claim, asserting a basis for
procedural default of the claim, he has not replied
to Respondents' briefing on the substantialness of
the claim.
In Martinez, the U.S. Supreme Court held that a
"procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective
assistance at trial if, in the [State's] initial-review
collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective."
Martinez, 132 S. Ct. at 1320.The narrow exception
in Martinez to find cause for excusing such a
default is based on if
(1) the ineffective-assistance-of-trial-counsel
claim was a "substantial" claim; (2) the "cause"
consisted of there being "no counsel" or only
"ineffective" counsel during the state collateral
review proceeding; (3) the state collateral
review proceeding was the "initial" review
proceeding in respect to the "ineffective-
assistance-of-trial-counsel claim"; and (4) state
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law requires that the claim "be raised in an
initial-review collateral proceeding."
Trevino v. Thaler, 133 S. Ct. 1911, 1913, 185 L.
Ed. 2d 1044 (2013) (quoting Martinez, 132 S. Ct. at
1320.) (internal quotation marks omitted).
Respondents assert the trial court gave Applicant
[*51] a People v. Curtis, 681 P.2d 504 (Colo.
1984), advisement instructing Applicant that he
had the right to testify or not to testify, that if he
chose to remain silent the jury could not use that
decision against him, and that he should discuss
the decision with trial counsel, but the decision was
his personal decision to make. Respondents
further assert Applicant told the trial court that he
had chosen not to testify and had made the
decision freely and voluntarily. A review of the trial
court transcript indeed shows that Applicant was
given a Curtis instruction and he freely and
voluntarily chose not to testify. July 9, 2003 Trial
Tr. at 25-28. Based on these findings,
Respondents conclude that Applicant's claim is
without factual support in the record and is
insubstantial. Therefore, Applicant has failed to
show cause for the default of this claim based on
Martinez. This claim will be dismissed as
procedurally barred from federal habeas review.
2. Failure to raise affirmative defense of
voluntary intoxication/Failure to conduct
reasonable investigation and interview
witnesses to support voluntary intoxication
defense
The CCA addressed these issues as follows:
An attorney has a duty to [*52] investigate
possible defenses or make reasonable
determinations not to pursue them. See People
v. Bergerud, 223 P.3d 686, 705 (Colo. 2010). A
decision not to investigate certain witnesses
does not amount to ineffective assistance of
counsel if it is made in the exercise of
reasonable professional judgment. See People
v. Apodaca, 998 P.2d 25, 29 (Colo. App.
1999).
A defendant may present a voluntary
intoxication defense to negate the existence of
the specific intent element of the crime
charged. See § 18-1-804(1), C.R.S. 2011.
However, pursuing such a defense may be
inconsistent with or may potentially undermine
a defendant's theory of defense. See People v.
Villarreal, 131 P.3d 1119, 1125 (Colo. App.
2005) (where the defendant's defense was that
she was not the person who attacked the
victim, "[p]roviding the jury with an intoxication
instruction would have been inconsistent with,
and potentially undermining of, her theory of
defense").
Here, the postconviction court found that:
• Trial counsel knew about the intoxication
defense and understood the nature of that
defense;
• Trial counsel explored with defendant
"the collateral consequences of pursuing
that defense in terms of diminishing
[*53] other potential defenses," including
self-defense;
• Trial counsel made an informed decision
"after investigation had been completed,
an investigator had been utilized,
numerous witnesses had been
interviewed, and discovery had been
reviewed"; and
• Trial counsel's decision "was a thoughtful
decision made by [him] at the time, after
reviewing the evidence, and the legal
options available to him, and
understanding that the. . . voluntary
intoxication defense had limited utility"
based on "his experience in hundreds of
cases" and could have adversely impacted
defendant's pursuit of other defenses.
The court's findings are supported by the
record. At the Crim. P. 35(c) hearing, trial
counsel testified that:
• He had tried more than 300 cases and
had dealt with the potential defense of
voluntary intoxication many times and the
ramifications and subtleties involved with
presenting the defense;
• In his experience, a defendant did not
"fare[] well" with intoxication as a defense,
even in cases where he put on an expert
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witness who could testify about the
defendant's blood alcohol level;
• In this case, there was no blood alcohol
test to rely upon;
• Putting on evidence of defendant's
intoxication [*54] would have opened the
door to other bad character evidence;
• Although trial counsel could not recall
exactly why he recommended not to
pursue an intoxication defense, he testified
that he made the decision and
recommended it to defendant, and
defendant agreed with the decision;
• The decision was made after he obtained
discovery, interviewed witnesses, and was
advised by defendant of "what he would
have been consuming that day"; and
• At trial, he attempted to implicate
codefendant in the crime.
It further appears that trial counsel made a
reasonable determination not to interview the
witness who supposedly could testify to the
quantity of alcohol defendant consumed, once
the decision had been made not to pursue the
defense of voluntary intoxication.
We defer to the postconviction court's findings
because they are supported by the record. See
Kyler, 991 P.2d at 818. The court's findings
support a conclusion that trial counsel made a
reasonable and informed strategic decision to
forgo the voluntary intoxication defense, he
explained the decision to defendant, and
defendant agreed with the decision at the time
it was made. Trial counsel reviewed discovery,
interviewed witnesses, and knew [*55] that
defendant had consumed a substantial amount
of alcohol that day. He then relied on his
experience of pursuing the intoxication defense
in other cases in making a reasonable strategic
decision not to pursue it in defendant's case.
While counsel did not interview the potential
witness who may have been able to confirm
the amount of alcohol defendant had
consumed, defendant had told trial counsel
what he had drunk and what that witness
would likely say. Although trial counsel testified
that "[they] did not think [they] would have
sufficient evidence to convince a jury regarding
intoxication," that statement, alone, does not
support a conclusion that trial counsel's
decision not to interview the witness
constituted deficient performance. Rather, the
record as a whole shows that trial counsel
relied on (1) his experience that intoxication
defenses did not do well even when an expert
witness testified about the defendant's blood
alcohol level, and (2) the fact that there was no
blood alcohol test to rely on in this case.
Therefore, we agree with the postconviction
court that trial counsel's decision was made
with the reasonable understanding that the
"voluntary intoxication defense had
[*56] limited utility."
Further, while counsel did not pursue a self-
defense theory at trial, the failure to do so was
due to defendant's own conduct. Trial counsel
also attempted to implicate codefendant in the
crime, which would have been inconsistent
with an intoxication defense. See Villarreal,
131 P.3d at 1125.Under these circumstances,
we conclude that the postconviction court
properly determined that trial counsel's
performance was not deficient.
Based on our conclusion that trial counsel was
not deficient, we need not review defendant's
argument that trial counsel's performance
prejudiced his defense. See Karpierz, 165 P.3d
at 759.
People v. Velasquez, No. 11CA0450, 5-10, 2012
Colo. App. LEXIS 960 (Colo. App. June 14, 2012).
"The duty to investigate derives from counsel's
basic function . . . to make the adversarial testing
process work in the particular case." Williamson v.
Ward, 110 F.3d 1508, 1514 (10th Cir. 1997)
(internal quotation marks omitted). "[C]ounsel has
a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary." Id. (internal quotation
marks omitted). "[S]trategic choices made after
less than complete investigation are reasonable
precisely [*57] to the extent that reasonable
professional judgments support the limitations on
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investigation. In other words, counsel has a duty to
make reasonable investigations or to make a
reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.S.
at 690-91.
Even if trial counsel was ineffective in not
conducting a reasonable investigation and
interviewing witnesses that would support a
voluntary intoxication defense, Applicant fails to
assert how he was prejudiced by trial counsel's
conduct. Applicant does not assert what trial
counsel would have discovered if he had
investigated and interviewed witnesses that would
support a voluntary intoxication defense. Moreover,
in light of the evidence presented in the state court
proceedings, the CCA's determination was
reasonable. As a result of the evidentiary hearing
held by the Rule 35(c) court, the trial court found
that trial counsel reviewed discovery, interviewed
witnesses, knew that Applicant had consumed a
substantial amount of alcohol, and relied on his
experience in pursuing the intoxication defense in
other cases in making his strategic decision not to
pursue this defense in Applicant's case. The
factual findings [*58] relied on by the trial court are
presumed correct in this federal habeas
proceeding and are supported by the state court
record. Feb. 11, 2011 Hr'g Tr. At 1-64. Because
Applicant does not point to any clear and
convincing evidence to the contrary, I find that
Applicant has not demonstrated a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694.
Based on the above findings, the CCA decision
regarding Applicant's investigation and interview
claim did not result in a decision that was contrary
to, or involve an unreasonable application of,
clearly established federal law, as determined by
the Supreme Court of the United States and did
not result in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the state court
proceeding. This claim, therefore, lacks merit and
will be dismissed.
3. Failure to object to prosecution's
misstatements of law and misconduct in
closing and rebuttal arguments
Applicant asserts that trial counsel was ineffective
for not objecting to the prosecution's closing
remarks, which prevented review under the lesser
[*59] standard of harmless error rather than plain
error on direct appeal.
The CCA addressed this issue as follows:
3. Failure to Object to Prosecutor's Closing
Velasquez also contends that counsel's
performance at trial was deficient because he
failed to object to certain statements by the
prosecution during closing argument.
Specifically, Velasquez argues that the
prosecution misstated the law by telling the
jury Velasquez's alleged statement to the
victim, "I'm going to kill you," was sufficient to
show he acted after deliberation and that the
prosecutor improperly interjected his personal
opinion when he urged the jury to hold
Velasquez accountable for the victim's injuries.
We note that on direct appeal Velasquez
argued that these same remarks were
improper and required reversal of his
convictions. Since his trial counsel did not
object, the panel reviewed these remarks
under the plain error standard. The panel
found the jury was properly instructed on the
element of deliberation and it was not improper
for the prosecution to argue that the jury could
infer from such a statement that Velasquez
acted with the requisite deliberation. In
addition, the panel found that even if it were
improper [*60] for the prosecution to tell the
jury Velasquez should be held accountable for
his actions, any prejudicial effect from the
comment was minimal.
Velasquez now renews these arguments in the
context of a claim of ineffective assistance of
counsel. Even if we assume that counsel
should have objected to these remarks, to
satisfy the second prong of Strickland
Velasquez must show that such objection
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would have created a reasonable probability
that the outcome of the trial would have been
different. We conclude on the trial record this
prong is not met. We agree with the panel's
statement in Velasquez's direct appeal: the
jury was properly instructed on deliberation
and could properly infer deliberation from his
remark, and the reference to holding him
accountable had a minimal prejudicial effect, if
any.
Velasquez, No. 07CA1796 at 8-9, 2009 Colo. App.
LEXIS 61.
Applicant does not specify in the Application what
remarks trial counsel should have challenged. In
his postconviction motion he asserted ineffective
assistance of counsel because trial counsel failed
to object to the same remarks he challenged in his
direct appeal as improper. As I stated above, the
comments were fleeting, based on argument not
evidence, and [*61] do not provide a basis for
finding the jury was unable to fairly judge the
evidence in light of the prosecutors' conduct.
Therefore, I find that Applicant was not prejudiced
by these remarks.
Based on the above findings, the CCA decision
regarding Applicant's closing remarks claim did not
result in a decision that was contrary to, or involve
an unreasonable application of, clearly established
federal law, as determined by the Supreme Court
of the United States and did not result in a decision
that was based on an unreasonable determination
of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks
merit and will be dismissed.
4. Cumulative error
The cumulative error doctrine applies only when
there are two or more actual errors, and it does not
apply to the accumulation of non-errors. Castro v.
Ward, 138 F.3d 810, 832 (10th Cir. 1998). On
federal habeas review, a cumulative error analysis
applies only to cumulative constitutional errors.
Young v. Sirmons, 551 F.3d 942, 972 (10th Cir.
2008). Since none of the ineffective assistance
claims have been found to state a constitutional
error, the cumulative error claim will be dismissed
for lack [*62] of merit.
G. Claim Eight
In this claim, Applicant asserts that he was denied
his right to a jury trial on the habitual criminal
counts in violation of Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). Application at 8. The Court will dismiss this
claim for lack of merit. Apprendi clearly exempts
judicial factfinding regarding prior convictions from
the rule that only a jury may constitutionally find
facts which increase a defendant's maximum
sentence. United States v. Moore, 401 F.3d 1220,
1223-24 (10th Cir. 2005);see also United States v.
Delacruz-Soto, 414 F.3d 1158, 1164 n. 2 (10th Cir.
2005) (noting that Almendarez-Torres, 523 U.S.
224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998),
forecloses argument that a jury, not the sentencing
court, must find that defendant had prior
convictions). Even though the recidivism exception
announced in Almendarez-Torres, has been
eroded, the Supreme Court has not overruled the
exception. See Moore, 401 F.3d at 1224.
IV. Conclusion
For the foregoing reasons, it is
ORDERED that the Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254,
ECF No. 6, is DENIED. It is
FURTHER ORDERED that I sua sponte deny the
issuance of a Certificate of Appealability pursuant
to 28 U.S.C. § 2253(a). [*63] Having considered
the standards of Slack v. McDaniel, 529 U.S. 473,
484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), I
find that Applicant has not made a substantial
showing of the denial of a constitutional right such
that reasonable jurists could disagree as to the
disposition of his petition. 28 U.S.C. § 2253(c)(2). It
is
FURTHER ORDERED that I also sua sponte
certify pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this Order is not taken in good faith,
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and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v.
United States, 369 U.S. 438, 82 S. Ct. 917, 8 L.
Ed. 2d 21 (1962). If Applicant files a notice of
appeal he must also pay the full $505.00 appellate
filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
Dated: February 5, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
End of Document
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