HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 060 - MAGISTRATE'S RECOMMENDATION AND ORDERIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
v.
JASON SHUTTERS,
Defendants.
______________________________________________________________________
RECOMMENDATION AND ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion to Amend “Amended Prisoner
Complaint” in Compliance with Federal Rule of Civil Procedure #15 (the “Motion to
Amend”) [#50] and Defendant Jason Shutters’ Motion to Dismiss Plaintiff’s Amended
Complaint (ECF No. 9) Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Motion to Dismiss”)
[#43]. Both Motions have been referred to this Court. [##51, 58] This Court has
carefully considered the Motions, related briefing, the case file, and the applicable case
law, and has determined that oral argument would not materially assist in the disposition
of the instant Motions. For the following reasons, the Court GRANTS the Motion to
Amend and DENIES WITHOUT PREJUDICE the Motion to Dismiss as moot. In
addition, pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court respectfully RECOMMENDS
that certain claims in the Second Amended Complaint be DISMISSED.
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I. BACKGROUND
Plaintiff initiated this action on April 11, 2017, by filing pro se a Prisoner
Complaint pursuant to 42 U.S.C. § 1983.
1
[#1] On April 13, 2017, Magistrate Judge
Gordon P. Gallagher ordered Plaintiff to file an amended complaint that was legible and
clarified the claims that Plaintiff was asserting. [#6] On May 10, 2017, Plaintiff filed an
Amended Prisoner Complaint (“First Amended Complaint”). [#9]
Plaintiff’s First Amended Complaint brought six claims for relief, each with
numerous subparts. [Id. at 23-38] These claims stem primarily from his prosecution
and conviction in Larimer County District Court, Case Number 15CR1466. [Id.; see also
id. at 12] Plaintiff alleges that he was falsely convicted by a jury on one count of sexual
assault on a helpless victim. [Id. at 23-28] The First Amended Complaint brought
claims against three Defendants: (1) Defendant Cara Boxberger, the Larimer County
deputy district attorney who prosecuted Plaintiff, (2) Defendant Jason Shutters, a police
officer who investigated the case and testified against Plaintiff, and (3) Defendant Mark
Delano, a jailhouse informant who testified against Plaintiff. [Id.; see also id. at 8]
On July 6, 2017, Senior United States District Judge Lewis T. Babcock issued an
Order dismissing all but two of the claims as either legally frivolous or barred by Heck v.
Humphrey, 512 U.S. 477 (1994). [#17] In doing so, Judge Babcock dismissed all
claims against Defendants Boxberger and Delano. [Id. at 11] Judge Babcock allowed
two claims to proceed against Defendant Shutters. [Id. at 8] Specifically, Judge
1
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
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Babcock did not address the merits of Plaintiff’s excessive force claim or his claim that
Defendant Shutters violated Plaintiff’s Fourth Amendment rights by allowing a rape kit
examination to be performed on Plaintiff in the presence of an unauthorized nurse. [Id.]
On September 13, 2017, Defendant Shutters filed his Motion to Dismiss. [#43]
Defendant Shutters argues that Plaintiff’s excessive force allegations are conclusory
and should be dismissed for failure to state a claim. [Id. at 2-4] With respect to
Plaintiff’s Fourth Amendment claim, Defendant Shutters argues that he is entitled to
qualified immunity. [Id. at 5-7]
On November 6, 2017, Plaintiff filed his Motion to Amend with a proposed
Second Amended Complaint. [##50, 50-1] The proposed Second Amended Complaint
again asserts six claims for relief. [#50-1 at 21-30]. Claims One and Two contain
additional details with respect to the excessive force and Fourth Amendment rape kit
examination claims—the two claims not previously dismissed by Judge Babcock.
[Compare #50-1 at 21-24, with #9 at 26-28] In Claims Three and Four Plaintiff restates
two claims that were previously dismissed by Judge Babock, alleging that: Defendants
Shutters and Boxberger improperly disclosed Plaintiff’s juvenile records to unauthorized
parties [id. at 25-27; see also #9 at 30-31]; and Defendant Boxberger violated Plaintiff’s
due process and privacy rights by slandering and defaming him, this time alleging that
Defendant Boxberger informed Plaintiff’s parents that his child was a byproduct of
stalking and rape [#50-1 at 28; see also #9 at 32]. Finally, in Claims Five and Six—both
new claims—Plaintiff alleges that: Defendants Shutters and Boxberger violated his due
process rights and committed the tort of intentional infliction of emotional distress
because the state charges forced Plaintiff to relive his past when Plaintiff was a victim of
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sexual assault [id. at 29]; and Defendant Boxberger violated Plaintiff’s constitutional
rights with respect to actions she took at a bond reduction hearing in the state case [id.
at 30]. On November 20, 2017, Defendant Shutters filed his Response in Opposition to
Plaintiff’s Motion to Amend Complaint. [#56] Defendant Shutters argues that the
amendments are futile and dilatory. [Id. at 2-3] On November 30, 2017, Plaintiff filed a
Reply in Support of the Motion to Amend addressing Defendant Shutters’ Opposition.
[#57]
II. ANALYSIS
A. Motion to Amend
Through the Motion to Amend, Plaintiff seeks leave to file his proffered Second
Amended Complaint. [##50, 50-1] Pursuant to Federal Rule of Civil Procedure
15(a)(2), the Court is to freely allow amendment of the pleadings “when justice so
requires.” The grant or denial of an opportunity to amend is within the discretion of the
Court, but “outright refusal to grant the leave without any justifying reason appearing for
the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182
(1962). “Refusing leave to amend is generally only justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Defendant Shutters argues that the Motion to Amend would be futile. [#56 at 2-3]
“An amendment is futile only if it would not survive a motion to dismiss.” Bituminous
Cas. Corp. v. Hartford Cas. Ins. Co., Civil Action No. 12-cv-00043-WYD-KLM, 2013 WL
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6676157, at *2 (D. Colo. Dec. 18, 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004)). Here, the Second Amended Complaint contains additional allegations
with respect to the excessive force and Fourth Amendment claims that were not
previously dismissed. [Compare #50-1 at 21-24, with #9 at 26-28] The Court finds such
an amendment particularly appropriate where, as here, the defendant argues that the
plaintiff’s allegations in the complaint were conclusory and should be dismissed.
Through the Second Amended Complaint, Plaintiff, who proceeds pro se, is attempting
to cure the deficiencies raised in the Motion to Dismiss.
To the extent Defendant Shutters believes the allegations against him remain
deficient, the Court finds that such arguments would be better and more efficiently
addressed after Plaintiff's Second Amended Complaint is entered and Defendant has
had an opportunity to revise his Motion to Dismiss to address the revised allegations, if
he chooses to file such a motion. Stender v. Cardwell, Civil Action No. 07-cv-02503-
WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr. 1, 2011); see also Gen. Steel
Domestic Sales, LLC v. Steelwise, LLC, Civil Action No. 07–cv–01145–DME–KMT,
2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (noting that defendant's futility
argument “seems to place the cart before the horse”). “Accordingly, the Court—
preserving its scarce resources—will not at this time consider the question whether the
amendments should be denied on grounds of futility because they fail to state plausible
claims for relief. The Court will consider that question if and when Defendant[] file[s] a
motion to dismiss on those grounds.” Stender, 2011 WL 1235414, at *3.
Defendant Shutters also argues that, to the extent Plaintiff seeks to reassert
claims previously dismissed, Plaintiff should have sought “proper review of the
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dismissal.” [#56 at 3] Initially, it is not entirely clear what review of Judge Babcock’s
Order Plaintiff could have sought—any appeal would have been interlocutory. In any
event, the Court is recommending dismissal of the claims previously dismissed by
Judge Babcock. Additionally, the Court does not believe that the Motion to Amend
should be denied because of any delay in seeking to file the Second Amended
Complaint. Indeed, this case remains at the early stages and the Court has yet to
conduct a scheduling conference or issue a scheduling order.
The Court’s conclusion is bolstered by an analysis of prejudice. Prejudice is the
most important factor in considering whether a plaintiff should be permitted to amend a
complaint. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).
“Courts typically find prejudice only when the amendment unfairly affects the defendants
‘in terms of preparing their defense to the amendment.’” Id. at 1208 (quoting Patton v.
Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). “Most often, this occurs when the amended
claims arise out of a subject matter different from what was set forth in the complaint
and raise significant new factual issues.” Id. Here, Defendant Shutters has not argued
that he would be prejudiced by an amendment, nor is any prejudice apparent, especially
given the early stage of the litigation. See Stender, 2011 WL 1235414, at *3 (noting
defendants’ “glaring omission” of a prejudice argument in their opposition to a motion to
amend, and thus declining to address whether amendment would be futile under Fed.
R. Civ. P. 12(b)(6)).
For these reasons, Plaintiff’s Motion to Amend is GRANTED. The filing of the
Second Amended Complaint moots Defendant Shutter’s Motion to Dismiss the First
Amended Complaint [#43]. Accordingly, the Motion to Dismiss [#43] is DENIED as
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moot, without prejudice, and Defendant Shutters may file a renewed motion to dismiss
the Second Amended Complaint.
B. Review Pursuant to 28 U.S.C. § 1915(e)(2)
Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. [#5] Section 1915(e)(2) requires a court to dismiss sua sponte an
action at any time if the action is frivolous, fails to state a claim for relief, or if the plaintiff
seeks monetary relief from a defendant who is immune from such relief. “A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support an arguable claim.” [#17 at 2
(citing Neitzke v. Williams, 490 U.S. 319, 324 (1989))]
Claim Three of the Second Amended Complaint alleges that Defendants
Shutters and Boxberger improperly disclosed Plaintiff’s juvenile records to unauthorized
parties. [#50-1 at 25-27] Judge Babcock previously dismissed this claim as legally
frivolous because the statute cited by Plaintiff, 18 U.S.C. § 5038, did not provide a
private right of action. [#17 at 9 (citing Andrews v. Heaton, 483 F.3d 1070, 1076 (10th
Cir. 2007))] Plaintiff again references this statute in the Second Amended Complaint.
[#50-1 at 9, 25] To the extent Plaintiff argues that Colorado’s juvenile sealing laws give
Plaintiff a protected liberty interest [#50-1 at 9], courts have rejected that argument.
See United States v. Carney, 106 F.3d 315, 317 (10th Cir. 1997); United States v. Jiles,
658 F.2d 194, 199-200 (3d Cir. 1981); Hester v. West Virginia, Civil Action No. 5:07-cv-
00401, 2008 WL 4298471, at *15-18 (S.D. W. Va. Sept. 18, 2008). Accordingly, the
Court RECOMMENDS that Claim Three be DISMISSED.
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Claim Four of the Second Amended Complaint alleges that Defendant Boxberger
violated Plaintiff’s due process and privacy rights when she slandered and defamed
Plaintiff. [#50-1 at 28] Judge Babcock previously dismissed Plaintiff’s defamation claim
against Defendant Boxberger because she was protected by absolute immunity. [#17
at 9-10] Unlike the allegations in the First Amended Complaint, it is not entirely clear
from the Second Amended Complaint that Defendant Boxberger made her statements
in the role of an advocate for the State. [See #50-1 at 28 (Plaintiff alleging Defendant
Boxberger “knowingly and intentionally slandered” him to his father and stepmother)]
As a result, it is not clear that Defendant Boxberger would be absolutely immune from
Claim Four. See Rex v. Teeples, 753 F.2d 840, 843 (10th Cir. 1985) (“A prosecutor is
absolutely immune only for those activities intimately associated with initiating a
prosecution [and] presenting the State’s case.” (quotations omitted)). Nonetheless,
Claim Four fails for another reason. As Judge Babcock held when he dismissed
Plaintiff’s Section 1983 defamation claim against Officer Shutters, “defamation, by itself,
is not actionable in a § 1983 claim.” [#17 at 10 (citing Siegert v. Gilley, 500 U.S. 226,
233 (1991); Angel v. Torrance Cty. Sheriff’s Dep’t, 183 F. App’x 707, 708 (10th Cir.
2006))] For this same reason, Plaintiff’s Section 1983 claim for slander and defamation
fails. Id. Accordingly, the Court RECOMMENDS that Claim Four be DISMISSED.
Claim Five alleges that Defendants Shutters and Boxberger violated Plaintiff’s
due process rights and committed the tort of intentional infliction of emotional distress
because the state charges forced Plaintiff to relive his past when Plaintiff was a victim of
sexual assault. [#50-1 at 29] The Second Amended Complaint makes clear that
Plaintiff is challenging the initiation and litigation of the state charges. [Id.] Because the
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initiation and litigation of the state charges are intimately associated with Defendant
Boxberger’s prosecutorial function, Claim Five as asserted against Defendant
Boxberger is barred by absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 431
(1976) (“[I]n initiating a prosecution and in presenting the State’s case, the prosecutor is
immune from a civil suit for damages under § 1983.”); Rex, 753 F.2d at 843.
Accordingly, the Court RECOMMENDS that Claim Five be DISMISSED against
Defendant Boxberger. The Court does not address and makes no recommendation as
to the merits of Claim Five against Defendant Shutters.
Claim Six alleges that Defendant Boxberger violated Plaintiff’s constitutional
rights with respect to actions she took at a bond reduction hearing in the state case.
[#50-1 at 30] Once again, this Claim relates directly to Defendant Boxberger’s
prosecutorial function and is barred by absolute immunity. See Burns v. Reed, 500 U.S.
478, 487-92 (1991) (prosecutor’s actions at a probable cause hearing before a judge
protected by absolute immunity). Accordingly, the Court RECOMMENDS that Claim Six
be DISMISSED.
III. CONCLUSION
For the foregoing reasons:
(1) Plaintiff’s Motion to Amend [#50] is GRANTED. The Clerk of Court is
directed to enter Docket No. 50-1 as Plaintiff’s Second Amended
Complaint.
(2) The filing of the Second Amended Complaint moots Defendant Shutters’
Motion to Dismiss. The Court therefore DENIES the Motion to Dismiss
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[#43] as moot. Defendant Shutters may file a renewed Motion to Dismiss
in response to the Second Amended Complaint.
(3) This Court respectfully RECOMMENDS that: (a) Claims Three, Four, and
Six in the Second Amended Complaint be DISMISSED; (b) Claim Five, as
asserted against Defendant Boxberger be DISMISSED; and (c) that
Defendant Boxberger be dismissed as a party to this lawsuit.
2
DATED: December 13, 2017 BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
2
Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of
Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego),
64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district
court on notice of the basis for the objection will not preserve the objection for de novo
review. “[A] party’s objections to the magistrate judge’s report and 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. 2121 East 30th Street, 73 F.3d 1057,
1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the
district judge of the magistrate judge’s proposed findings and recommendations and will
result in a waiver of the right to appeal from a judgment of the district court based on the
proposed findings and recommendations of the magistrate judge. See Vega v. Suthers,
195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court’s decision to review
magistrate judge’s recommendation de novo despite lack of an objection does not
preclude application of “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal
Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant
waived right to appeal certain portions of magistrate judge’s order by failing to object to
those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding
that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file
objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005)
(holding that firm waiver rule does not apply when the interests of justice require
review).
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